Publisher’s Note

Among the distinguished scholars who have contributed over the centuries to the study, research, and development of Islamic jurisprudence (Fiqh) and Islamic legal theory (Usul al-Fiqh) is Dr. Taha Jabir al-Alwani, one of the world’s leading Islamic scholars today. We are pleased to publish the Bengali edition of his book Usul Al Fiqh Al Islami from BIIT under the title Islamic Usul al-Fiqh.

Indeed, Usul al-Fiqh, or Islamic legal theory, is an extremely difficult subject. It is difficult to find suitable equivalents in Bengali for the technical terms used in this field. Nevertheless, alongside the original terminology, we have tried to provide its meanings so that an appropriate terminology may develop in Bengali. To date, no reliable translation of Usul al-Fiqh has been published in Bengali. Only Bengali translations of some portions included in the curricula of educational institutions can be found.

The present book deals with the introductory aspects of Usul al-Fiqh. The original author wrote a work on Usul al-Fiqh completed in six volumes. The present book is a portion of that work. Its Bengali translation was prepared by Mr. Muhammad Nurul Amin Jawhar, Director of the Islamic Foundation. Translating from a translation carries a considerable risk of deviating from the subject. Therefore, the renowned researcher, scholar, and author Mawlana Muhammad Musa compared the Bengali translation with the original Arabic and made the necessary corrections and editorial revisions. On behalf of BIIT, we extend our sincere congratulations to both of them.

It should be noted that the first edition of the book was published in 1996, the second edition in 2003, and this is its third edition. This readily indicates the popularity among readers of a book written on such a difficult subject.

We dedicate this book to those Muslim youths who are seeking light amid the deepest darkness surrounding us and striving to find ways out of our contemporary problems. We hope that this book will be useful to them, God willing.

M. Abdul Aziz

Deputy Executive Director

Introduction

This research work formed part of my PhD program on Islamic jurisprudence at Al-Azhar University in 1973. Subsequently, in 1982, this portion of my thesis was presented in revised form at the Second International Conference on Islamic Thought/Philosophy, held in Islamabad, the capital of Pakistan, on the subject of the Islamization of knowledge.

When the Muslim Youth League expressed interest in organizing a training course on Usul al-Fiqh, that is, the methodology of the sources of Islamic jurisprudence, this previously presented portion was considered one of the six subjects of the training course. Thereafter, most of the course participants expressed a desire to receive this lecture in printed form.

Since it had been printed as a paper for the Islamabad Conference on the Islamization of Knowledge, and the International Institute of Islamic Thought had undertaken to publish it, we decided that this portion presented at the conference should also be made available to those who had participated in the course and to those who wished to acquire the necessary knowledge of the Shariah sciences.

Among the research methodologies developed thus far by Muslim thinkers, Usul al-Fiqh is rightly regarded as the most important science. As the pure foundation of all branches of Islamic knowledge, Usul al-Fiqh has not only benefited Islamic civilization but has also contributed to the intellectual advancement of world civilization as a whole.

It is not irrelevant to state here that the analogical method developed within the framework of Islamic jurisprudence provided the initial methodological framework for establishing and formulating experimental theories, which were later regarded as the foundation of contemporary civilization. We present this brief research work for those interested in acquiring knowledge of this subject.

We seek the help of Almighty Allah so that we may benefit from what we are learning and learn that by which we benefit. May we protect ourselves from knowledge that does not benefit us and seek to avoid actions that are unacceptable to Allah. Indeed, all praise and gratitude belong to Allah, the Lord and Sustainer of the worlds.

Dr. Taha Jabir al-Alwani

Translator’s Note

Just as money is an important medium of exchange in the world of economics, translation is likewise an important medium of exchange in the world of knowledge. Nevertheless, the pleasure of knowledge acquired from the original source is undoubtedly much greater and more reliable than translated knowledge. Even so, the need for translation in human civilization does not appear likely ever to end. Riding upon translation, knowledge continues its journey from the individual mind to the social mind, from one culture to another, and from one age to the next. The research work Usul al-Fiqh al-Islami, written by Dr. Taha Jabir al-Alwani, is likewise a journey across the ages. The author wrote this book in Arabic with the noble aim of introducing modern researchers to this important research methodology followed during the period of the highest development of Islamic thought. The English translation of this valuable book by Yusuf Talal DeLorenzo and A. S. Al-Shaikh Ali likewise inspires us. I say “us” because, fundamentally, without the encouragement and inspiration of the authorities of the Bangladesh Institute of Islamic Thought, especially Professor Zainul Abedin Majumder, I might not have undertaken the translation of this book. I am particularly indebted to them for this. I have no different experience from that of the English translator regarding the difficulties of translation that he has mentioned. Rather, in certain respects, the difficulties of translating into Bengali may be said to be greater. At present, although only to a limited extent, books on Islamic law are available in English. In Bengali, however, there are hardly any books on this subject, especially on jurisprudence. Thus, the first major problem confronting a translator is the translation of technical terms. I hope that the thoughtful advice of discerning readers will further enrich the next edition of the book. My wife, Begum Alima, assisted in copying the manuscript. All gratitude belongs solely to Almighty Allah.

Muhammad Nurul Amin Jawhar

Chapter One

Usul al-Fiqh: The Methodology of Research and Knowledge in Islamic Jurisprudence

Definition of Usul al-Fiqh

The word usul is the plural of asl. Literally, it means a root or foundation; that is, anything upon which another thing is founded is called an asl. The word fiqh means knowledge or understanding; technically, it means knowledge relating to the Islamic Shariah, the science of deriving the rulings of the Islamic Shariah from its sources through research—in short, the totality of Islamic law. Thus, Usul al-Fiqh means the foundations of jurisprudence, the principles of law, or legal theory.

Muhibullah ibn Abd al-Shakur al-Bihari (d. 1119 AH/1707 CE) provided the following definition of Usul al-Fiqh: “Usul al-Fiqh is the knowledge of the principles that assists in deriving the laws of jurisprudence through proofs and evidence.”

Badran Abu al-Aynayn provided the following definition in his work Usul al-Fiqh: “Usul al-Fiqh is the collection of principles and propositions by means of which the practical rulings of the Shariah are derived (istinbat) on the basis of detailed proofs and evidence.”

Imam Fakhr al-Din al-Razi states in his work al-Mahsul fi Ilm Usul al-Fiqh that Usul al-Fiqh is the science through which, by studying it, one becomes acquainted with all the branches of jurisprudence as a whole, the proofs presented in support of them, their status, and the method of presenting them. (See al-Mahsul fi Ilm Usul al-Fiqh by Fakhr al-Din al-Razi, edited by Dr. Taha Jabir al-Alwani, Riyadh, Imam Ibn Saud Islamic University, first edition, 1399 AH, vol. 1, p. 94.)

Subject Matter

The subject matter of Usul al-Fiqh is the study of the proofs obtained from the primary sources of the Shariah; how legal decisions have been reached through ijtihad on the basis of those proofs; and how preference has been assigned despite mutually contradictory statements in the presentation of the proofs. (See the notes on Usul al-Fiqh prepared by the professors of the Faculty of Shariah at Al-Azhar University, academic year 1382/1963, p. 22.)

Benefits of Usul al-Fiqh

Those who are qualified to perform ijtihad and who fulfill the conditions necessary to exercise ijtihad on the basis of the proofs revealed by the Lawgiver, Allah Almighty, will be able, through studying Usul al-Fiqh, to issue rulings or decisions relating to the Shariah. Those unable to perform ijtihad can also benefit from studying Usul al-Fiqh. They can become acquainted with the various schools of law, that is, the fundamental legal approaches established by the mujtahids (those who performed ijtihad). By analyzing them, they can, when necessary, select or give preference to any one of the explanations offered by the mujtahids. Moreover, on the basis of the principles established by universally respected mujtahids, they can formulate their own legal opinions.

The Sciences from Which Usul al-Fiqh Acquired Its Theoretical Foundation

Basically, Usul al-Fiqh is an independent and distinct branch of knowledge. However, this science is founded upon certain fundamental premises (muqaddimah) regarded as self-evident, without knowledge of which Islamic jurists cannot advance even a single step. These premises came from various sources of knowledge. For example: (a) Some premises came from Aristotelian logic, which authors of theology (mutakallimun) were generally accustomed to presenting in the introductions to their works. They would explain rules for analyzing meanings from the wording of their theoretical discussions, arranging subjects on the basis of the past and future, formulating conceptual principles based on the definition and explanation of a subject, determining the requirements and classifications of the relevant subject accordingly, presenting proofs through inductive reasoning to establish the validity of conclusions, and explaining how these were used to support the claimant’s argument or to refute opposing arguments.

(b) Some premises came from the subtle discussions of Ilm al-Kalam, or theology. In their discussions, they raised questions concerning the attributes of the All-Powerful Lawgiver (Allah Almighty). Thus, how are truth and falsehood to be determined? Is the Shariah based on reason? Can anyone acquire correct knowledge of truth or falsehood without knowledge of revelation? Is it obligatory to express gratitude to the Creator, the Giver of all blessings? Did we learn this from the Shariah or from human reason?

(c) Through linguistic research, the scholars of Usul developed and refined a number of general linguistic rules. They studied different languages and the origins of language; the classification of figurative and literal expressions used in language; word derivation, synonyms, and alliteration; words used in general and specific senses; and the grammatical significance of various particles.

(d) Some premises were taken from foundational works relating to the Qur’an and Sunnah. These works discuss reports narrated by a single narrator (ahad) or by numerous reliable narrators (tawatur); the correct recitation of the Qur’an and its rules; the acceptability (ta‘dil) or unacceptability (jarh) of hadith transmitters; the principles concerning the abrogation of a Qur’anic verse or hadith (al-nasikh wa al-mansukh); (al-nasikh al-mansukh: when the ruling of a Qur’anic verse or a hadith is abrogated by another verse, or one hadith by another hadith, the abrogating verse or hadith is called nasikh, and the abrogated verse or hadith is called mansukh. This branch of Usul studies whether a ruling of the Qur’an or hadith has been abrogated by another hadith or Qur’anic verse); and the content of hadith and the continuity of the chain of transmitters, among other matters.

(e) Finally, explanations offered by the scholars of Usul in support of arguments concerning particular issues of jurisprudence, together with detailed proofs derived from the Qur’an and Sunnah on the same subject, were used as examples.

The scholars of Usul initially adopted the following subjects for consideration:

* Reasoning and self-evident principles.

* Linguistics.

* Commands and prohibitions.

* The general (al-‘amm) and the specific (al-khass).

* Ambiguous (al-mujmal) and clear (mubayyin) expressions.

* Abrogation (al-naskh).

* Actions or practice, especially the practices of the Messenger of Allah (peace be upon him), and their significance.

* Ijma (consensus).

* Sunnah (al-akhbar).

* Qiyas (analogical reasoning).

* Contradiction and preference (ta‘arud wa tarjih).

* Ijtihad.

* Taqlid (following a particular school of thought concerning the Shariah).

* Disputed proofs (outside the four recognized sources).

The Origins and Development of Usul al-Fiqh

It is difficult to study the origins and development of Usul al-Fiqh without acquiring knowledge of the history of jurisprudence—the vast repository of evidence that was meticulously analyzed to formulate the practical rulings of the Islamic Shariah.

Literally, usul means a foundation or root (asl), with usul being its plural, upon which something is constructed. In the Islamic legal system, Usul al-Fiqh consists of the foundations (usul) upon which jurisprudence is established; in Bengali, it may be called Islamic legal theory. Therefore, to understand the origins of Usul al-Fiqh, we must acquire knowledge of the history of the Islamic Shariah (tashri‘).

Formulating the laws of the Shariah, recommending those laws, proclaiming rulings, and so forth are all exclusively the work of Allah Almighty. If anyone attributes the authority to perform any of these acts to someone other than Allah, it is considered shirk and in practice amounts to opposing the concept of Allah’s oneness (tawhid).

Allah Almighty has presented believers with many clear proofs and practical examples so that there would be no difficulty in obtaining the means for knowing Allah’s commands (ahkam). The Islamic ummah has reached consensus regarding the validity of some such proofs and their connection with Allah’s commands, and has unanimously accepted them. Regarding some other proofs and sources of information, however, there is disagreement within the ummah.

The entire ummah agrees concerning two proofs, and their validity is universally accepted. During the lifetime of the Messenger of Allah (peace be upon him), laws were formulated from these two sources. These two sources of law are:

(1) The Qur’an: All words or utterances revealed to the Messenger (peace be upon him) as revelation, whose recitation is considered an act of worship, regarding which humankind was challenged to compose a surah comparable to its shortest surah, every letter of which has reached us through an unquestionable and flawless chain of transmission (tawatur), which has reached us as a sacred scripture (mushaf), which begins with Surah al-Fatihah (the Introduction), and which ends with Surah al-Nas.

(2) The Sunnah: Everything the Messenger (peace be upon him) said, did, or approved, apart from the Qur’an, is included in the Sunnah.

Thus, all the actions of the Messenger (peace be upon him), from the beginning of his prophethood until the final moment of his life, constitute the Sunnah. In the general sense, everything applicable to all members of the ummah, or applicable specifically to the Messenger (peace be upon him), and so forth, is included within it.

Any action performed by the Messenger (peace be upon him) by his natural disposition or of any other kind, all his words, approvals, and so forth have been accepted as evidence in reaching legal decisions. One of his words, actions, or practices may at the same time be regarded as a command, recommendation, prohibition, disapproval, or approval. It may also be that one of his words or actions was based on a ruling that preceded the revelation of the Qur’an, or that it itself was used as the basis of a separate law. During the lifetime of the Messenger (peace be upon him), all types of Shariah rulings (ahkam)—such as fundamental decisions, decisions reached on the basis of review, fundamental beliefs, and all rules and regulations to be followed in personal life—were derived from the two sources, namely the Qur’an and the Sunnah.

(3) Ijtihad:The Messenger himself and the Companions who were knowledgeable about the Shariah (ahl al-nazar) engaged in ijtihad. The Messenger’s ijtihad was sometimes supported by a Qur’anic verse, while at other times Allah Almighty abrogated the measure adopted by the Messenger through a better decision. The Companions generally engaged in ijtihad when an event occurred in their own lives. They then met the Messenger and related the entire incident to him. At times, the Messenger approved the Companions’ ijtihad, and such decisions later came to be regarded as part of the Sunnah. At other times, without approving a particular ijtihad of the Companions, the Messenger explained the correct course of action; this too later came to be regarded as Sunnah. Thus, it is evident that, at that stage, the Shariah was generally formulated on the basis of two kinds of revelation (wahy):

(1) Recited or revealed revelation (wahy matlu), namely, the Holy Qur’an, possessing inimitable excellence (ijaz), and

(2) Non-recited revelation (wahy ghayr matlu), namely, the Sunnah of the Messenger.

Indeed, the ijtihad undertaken by the Messenger established a precedent to be followed by the Companions and Muslims of later generations and validated ijtihad, so that when no clear legal ruling could be found in the Qur’an and Sunnah on a matter, they could reach a decision themselves through ijtihad.

Moreover, perhaps with the aim of further strengthening and establishing this practice, the Messenger instructed several Companions to exercise ijtihad on certain matters in his presence. He then stated who had erred and who had reached the correct decision.

The Method of Formulating Law on the Basis of These Sources

In the light of the Qur’an, the Companions learned and understood it directly, without the aid of grammar. Similarly, with their clear vision, keen intelligence, and common sense, they very easily understood the purpose of Allah Almighty, the Lawgiver, and its underlying wisdom.

Indeed, unless the Messenger himself first indicated an issue, the Companions rarely raised questions about anything. It is narrated that Ibn Abbas said, “I have never seen people better than the Companions of the Messenger. May Allah grant them goodness and peace. Throughout the Messenger’s entire life, until he departed this world, the Companions asked him questions on only thirteen matters, all of which are mentioned in the Holy Qur’an. For example: ‘They ask you about fighting in the sacred month’ (2:217).” Ibn Abbas said that they asked only about matters that were actually relevant to them. 4 (See Abdullah ibn Abd al-Rahman al-Darimi, Sunan, vol. 1, p. 51.)

In this connection, Ibn Umar said, “Do not ask about an event that has not occurred. For I heard my father, Umar ibn al-Khattab, say: Curses be upon those who ask about matters that have not occurred.” (Al-Darimi, cited above, vol. 1, p. 50.)

Al-Qasim said, “You ask about matters that we never asked about, and debate matters that we never debated. You even ask about matters with which I am entirely unfamiliar. However, once a problem arose concerning a matter, we were not permitted to remain silent.” (Al-Darimi, vol. 1, p. 49.)

Ibn Ishaq said, “I met more of the Messenger’s Companions than anyone else. Yet I have never seen anyone like them in living a simple life and in claiming the fewest wants and demands for themselves.” (Cited above, vol. 1, p. 51.)

Ubada ibn Nusay al-Kindi said, “The people I know were not as severe in their asceticism as you are, and their questions were clearer than yours.” (Cited above.)

Abu Ubaydah said in his work Majaz al-Qur’an, “I have never heard that, when a matter was clearly stated in the Holy Qur’an, the Companions nevertheless asked the Messenger about it.” (Quoted from Tamheed li-Tarikh al-Falasifah by Shaykh Ali Abd al-Razzaq, p. 152.)

The sayings of the Messenger that came to be regarded as Sunnah were narrated in the Companions’ mother tongue. Consequently, they understood their meanings and could easily comprehend the statements and subject matter.

All the actions of the Messenger that came to be regarded as Sunnah took place in the presence of the Companions. They then narrated them exactly to others. For example, the Messenger performed ablution in the presence of hundreds of Companions, and they followed him without asking any questions. Likewise, in addition to ablution, there were many other actions of the Messenger, some of which were obligatory, some recommended, some merely permitted, and some for which no permission had been granted. Similarly, they observed how the Messenger performed salah, Hajj, and other acts of worship.

The Companions saw people asking the Messenger for a fatwa on various matters, and he would give it; they saw people seeking judgment from him, and he would issue a ruling. Problems arose among the Companions themselves, and he gave clear answers concerning them. Some of these problems may have concerned their mutual relations, personal conduct, or various political matters. In all these situations, they were witnesses. They understood the context of the matter or event. Thus, nothing about the wisdom of the Messenger’s ruling or its underlying significance was unknown to them.

People observed how the Messenger watched the conduct of his Companions and others. Thus, when he praised someone, the Companions understood that the person’s relevant action was good. If he criticized someone, they understood that there was an error in what the person had done.

Furthermore, the reports concerning the approval or disapproval of all the fatwas, judgments, or decisions given by the Messenger on various matters indicate that most of these events took place before large numbers of people.

Just as a doctor’s colleague, by remaining with the doctor for a long time, may understand through experience why a particular medicine was given to a patient. (Shah Waliullah Dehlawi, Hujjatullah al-Balighah, Egypt, vol. 1, p. 289.)

Likewise, the Companions correctly understood the reasoning behind the decisions made by the Messenger.

Several contemporary incidents provide indications of the validity and rational basis of ijtihad. For example, when the Messenger sent Muadh ibn Jabal to Yemen, he said to him:

“What will you do when you are asked to decide a matter?” Muadh replied, “I will decide according to the Book of Allah.” The Messenger asked, “What if you do not find a solution to it in the Book of Allah?” Muadh replied, “Then I will decide according to the Sunnah of the Messenger.” The Messenger asked, “What will you do if you do not find it in the Sunnah?” Muadh replied, “Then I will reach a decision myself through ijtihad.” The Messenger struck Muadh on the chest and said, “Praise be to Allah, who has guided the representative of His Messenger to a path that pleases Allah and His Messenger.” (Regarding the validity of presenting this hadith as an example, see the author’s Al-Ijtihad wa al-Taqlid (Cairo, Dar al-Ansar), pp. 23–24, and the chapters on ijtihad in Al-Mahsul.)

The idea is further elaborated by the process of ijtihad and independent decision-making attributed to Muadh, and similarly by the advice Umar gave when appointing Abu Musa as a judge:

“Issue a ruling on the basis of a Qur’anic directive or an established practice of the Sunnah.” He further said, “Regarding every case brought before you, if you are certain that no directive of the Qur’an or Sunnah applies to it, then your task is to seek an analogy (qiyas) with the directives of the Qur’an or Sunnah. Seeking such an analogy in order to issue a ruling is closest to justice and, it may be hoped, best in the sight of Allah.” (See Ibn al-Qayyim, I‘lam al-Muwaqqi‘in, at various places.)

In this context, according to Imam al-Shafi‘i, ijtihad in one sense means opinion, and in another sense it means qiyas. He held that these are two names for the same thing. (See Imam al-Shafi‘i, Al-Risalah, Cairo, p. 476.)

The Messenger’s Caliph, Abu Bakr, said, “Every opinion of the Messenger is correct, because Allah always guided him. But in our case, we offer opinions and make conjectures.” (Ibn al-Qayyim, cited work, vol. 1, p. 54; and Ibn Abd al-Barr, Jami Bayan al-Ilm, vol. 2, p. 134.)

Thus, we may say that, at that stage, the concept of ijtihad or opinion was limited to the following matters:

(a) Applying one or more possible meanings where a command admits of two or more interpretations. For example, the Messenger ordered a group of Muslims to perform the Asr prayer upon reaching the territory of Banu Qurayzah. (The Messenger once sent a group of Muslims with the following instruction: “Perform the prayer upon reaching Banu Qurayzah.” Taking this command literally, some members of the group continued traveling until almost sunset without stopping to perform the Asr prayer at its appointed time, and performed it upon reaching Banu Qurayzah. Others, instead of taking the Messenger’s command literally, followed its underlying significance and stopped briefly to perform the Asr prayer before reaching Banu Qurayzah. When the incidents of both groups were related to the Messenger, he said, “Both were correct.”)

(b) Analogical reasoning (qiyas): comparing an event or matter with the Qur’an and Sunnah. An example is the incident involving Amr’s qiyas: because of ritual impurity caused by intercourse, he compared tayammum with ghusl and wiped dust over his entire body. (This is a well-known and reliable hadith, recorded by Imam al-Bukhari, Abu Dawud, al-Nasa’i, Ibn Majah, and Ahmad in their hadith collections. [Editor])

(c) Through ijtihad, identifying the potentially beneficial aspects of something, prohibiting something to avoid possible error, deriving a conclusion from a general statement, or providing a specific interpretation, and so forth.

Evidence that the Messenger encouraged the Companions to engage in ijtihad and trained them in applying its knowledge is found in the following hadith:

“When a judge reaches a correct decision through ijtihad, he receives two rewards; if his decision is wrong, he receives at least one reward.” 17 (This is a sahih hadith, classified as authentic by many scholars, including al-Bukhari and Muslim. [Editor])

The ijtihad of many Companions was so accurate that, in most cases, it was confirmed by the Qur’an through revelation and supported by the Messenger. Undoubtedly, this was possible because of their exceptionally close association with the Messenger. They understood the purpose for which the All-Knowing Lawgiver, Allah Almighty, had enacted the relevant Qur’anic law, and were able to comprehend its wording and significance. Whenever an opportunity or benefit presented itself, they did not enjoy it without examination and analysis.

Chapter Two

The Companions Who Issued Fatwas During the Time of the Messenger of Allah

The Companions who issued fatwas during the time of the Messenger of Allah were: Abu Bakr, Uthman, Ali, Abd al-Rahman ibn Awf, Abdullah ibn Masud, Ubayy ibn Kab, Muadh ibn Jabal, Ammar ibn Yasir, Hudhayfah ibn al-Yaman, Zayd ibn Thabit, Abu al-Darda, Abu Musa al-Ashari, and Salman al-Farisi.

Some Companions issued comparatively more fatwas. Those who issued the greatest number were the Mother of the Believers, Aishah; Umar ibn al-Khattab and his son Abdullah; Ali ibn Abu Talib; Abdullah ibn Abbas; and Zayd ibn Thabit. Each of these six possessed a vast collection of fatwas. Abu Bakr Muhammad ibn Musa ibn Yaqub ibn al-Khalifah al-Mamun collected and compiled the fatwas of Ibn Abbas in twenty volumes.

Those from whom comparatively fewer fatwas were transmitted were the Mother of the Believers Umm Salamah; Anas ibn Malik; Abu Said al-Khudri; Abu Hurayrah; Uthman ibn Affan; Abdullah ibn Amr ibn al-As; Abdullah ibn al-Zubayr; Abu Musa al-Ashari; Abdullah ibn al-Zubayr; Abu Musa al-Ashari; Sad ibn Abu Waqqas; Salman al-Farisi; Jabir ibn Abdullah; Muadh ibn Jabal; and Abu Bakr al-Siddiq. The fatwas given by each of these thirteen Companions might individually constitute only a small portion of a book.

Several other Companions who may be included in this list are Talhah, al-Zubayr, Abd al-Rahman ibn Awf, Imran ibn Husayn, Abu Bakrah, Ubadah ibn al-Samit, and Muawiyah ibn Abu Sufyan. Some other Companions issued very few fatwas—one or two, and in the case of some, perhaps only slightly more. The number of fatwas they gave was so small that, after extensive research, it might be possible to prepare a modest compilation. (See Ibn Hazm, Al-Ihkam, vol. 5, pp. 92–93.)

The Companions compared new events occurring in their time with events that exactly corresponded to them in the Qur’an or Sunnah and issued fatwas accordingly. In comparing a matter with an event or subject in the Qur’an or Sunnah, the method they followed was to examine the wording used in the original text, its manner of application, and the significance and legal importance of the matter in light of other relevant considerations.

After reaching a decision, they explained it to others, stating how the arguments had been presented and on what basis the decision had been reached—whether these had been derived from the literal or apparent meaning of the Qur’an or Sunnah, or from its clear indication (dalalat al-nass). Thereafter, people accepted their opinion. Indeed, when a problem arose, these early jurists continued their research to the best of their ability until they reached a definite and satisfactory solution.

The Era of the Great Companions

After the Messenger of Allah came the era of the great Companions and the Rightly Guided Caliphs. This period lasted from 11 AH to 40 AH. During that era, the jurist and mufti Companions were called qurra’ (specialists in Qur’anic knowledge).

The Era of Abu Bakr

Maymun ibn Mihran described the method Abu Bakr followed in determining the rulings of the Shariah as follows:

When a dispute arose during Abu Bakr’s rule, he would consult the Qur’an. If he found something in it by which the dispute could be resolved, he would settle the dispute on that basis. If he found no solution in the Qur’an, he would resolve the matter according to the Sunnah of the Messenger. If he found nothing concerning the matter in the Sunnah either, he would go to the Muslims and say, “Such-and-such a matter has been brought before me. Does any of you know of a judgment by the Messenger concerning it?” If someone could answer his question and provide relevant information, Abu Bakr would say, “Praise belongs entirely to Allah, who enabled some among us to remember what they heard from the Messenger.”

If he found no solution in the Sunnah, he would consult the leading and virtuous people. If they reached a consensus, he would issue a ruling on that basis. (See I‘lam al-Muwaqqi‘in, vol. 1, p. 51.)

If, after making such efforts, he found no solution, he would formulate his own opinion by explaining the nass through his personal discernment, deriving its implied meaning, or relying solely on ijtihad. (In the language of law, the textual evidence of the Qur’an and Hadith is called nass.) For example, after Abu Bakr was asked about kalalah, he said, “What I have said about kalalah is based on my own understanding. If my opinion is correct, it is from Allah; and if it is wrong, it is from me and Satan.” That is, kalalah is a person who has neither parents nor children. (There is disagreement over the meaning of kalalah. According to some, a person is called kalalah when he dies without a direct heir—that is, without children and with neither a father nor grandfather alive. According to another group, a deceased person is called kalalah if he has no children, whether or not his father or grandfather is alive. Verse 176 of Surah al-Nisa is relevant to this matter. It was on the basis of this verse that Abu Bakr gave his decision. In his view, according to the meaning of the above Qur’anic verse, the sister of a person who is kalalah would inherit half of the estate, but if the father were alive, she would receive nothing. Thus, although it is not stated explicitly in the Qur’an, it can clearly be understood that kalalah is a person who has no direct heir in either direction—neither an ancestor nor a descendant. [Editor]) Another example is found in the following incident. Umar said, “I heard the Messenger say, ‘I have been commanded by Allah to fight the people until they say, “There is no deity except Allah.”’” (This is a sahih hadith, recorded in the works of al-Bukhari, Muslim, al-Tirmidhi, Ibn Majah, Ahmad, al-Tayalisi, and others.) Abu Bakr then said, “Zakat is also part of it.” (Abu Bakr meant that it was incorrect to take the cited hadith only in its literal sense. He understood that the fundamental confession, “There is no deity except Allah,” must be taken as indicative of Islamic creed. Following this way of life entails many aspects and branches of creed, including zakat. [Editor])

When Abu Bakr declared jihad against those who refused to pay zakat, Umar cited the above hadith and said that it was not permissible to fight them, because the Messenger had said, “Until they say, ‘There is no deity except Allah.’” If they said this, their lives and property were protected from me. However, the right of truth—that is, Islam—was an exception (meaning that if someone committed an offense punishable under the rulings of the Islamic Shariah, he had to undergo its prescribed punishment). According to Umar, the right of Islam meant that a person who committed murder, adultery, or apostasy would be subject to the death penalty. The Messenger had not explicitly said anything concerning those who refused to pay zakat. But Abu Bakr said, “Zakat is a component of Islam. By Allah, I will certainly fight anyone who performs salah but does not pay zakat. If anyone refuses to pay even the smallest amount that they used to give the Messenger, I will fight them for it.” His second example of ijtihad was his decision that the mother’s mother would inherit, but the father’s mother would not. Some Ansar then said to him, “You allowed a woman to inherit from a deceased person even though, if that woman died, the person mentioned first would not inherit her property. Conversely, you deprived a woman of inheritance from the deceased even though, if she had taken the place of the deceased, the person mentioned first would have inherited from her.” Abu Bakr then issued a new decision: both the paternal grandmother and maternal grandmother would jointly receive one-sixth of the deceased’s estate.

As another example, Hazrat Abu Bakr (RA) declared that everyone would have an equal share from the Bayt al-Mal. Hazrat Umar (RA) asked, “How can you regard equally the person who entered Islam under compulsion and unwillingly and the person who migrated with the Messenger of Allah (SAW), leaving his home and property behind?” But Hazrat Abu Bakr (RA), remaining firm in his decision, said that they had all accepted Islam for Allah’s sake; therefore Allah would reward them, and this worldly life was nothing. After Hazrat Umar (RA) became caliph, he divided the people into different classes when granting stipends from the Bayt al-Mal—that is, according to how long ago they had accepted Islam, whether they had migrated, and how much sacrifice they had made for Islam, among other considerations.

An example of Hazrat Abu Bakr’s (RA) ijtihad is that, regarding who would become caliph after him, he considered appointing his successor himself to be better than taking a general bay‘ah. Thus, he appointed Hazrat Umar (RA) as the next caliph, and the Companions agreed with him.

Once, Hazrat Khalid ibn al-Walid (RA) wrote to Hazrat Abu Bakr (RA), saying that in some regions of the Arabian Gulf he had found people practicing homosexuality. Hazrat Abu Bakr (RA) wished to consult the Companions of the Messenger of Allah (SAW) about the matter. Hazrat Ali (RA) was among the Companions, and he expressed the stricter opinion. He said, “As far as we know, only one nation was involved in this sin, and you know what Allah did to them. My advice is that these people be burned to death.” Hazrat Abu Bakr (RA) wrote to Hazrat Khalid ibn al-Walid instructing that they be burned to death, and this was done. (Ibn Qayyim, cited above).

Special Characteristics of the Fiqh of That Era

(a) The method of qiyas was used extensively when no direct instruction concerning the relevant matter could be found in the Qur’an and Sunnah. None of the Companions objected to this.

(b) Extensive use of ijma in formulating legal rulings. In fact, this was made easier because the number of Companions was small, making it easy for them to reach consensus on a matter. They applied the method of ijma to various issues, such as deciding on the appointment of a caliph or imam, fighting and killing apostates, taking an apostate as a prisoner of war, and collecting and recording the verses of the Qur’an in book form, among other matters.

The Era of Hazrat Umar ibn al-Khattab (RA)

The rulings of the chief judge Shurayh that Umar (RA) approved, which we mentioned earlier, show that he made decisions on the basis of the evidence available to him. A notable aspect of Hazrat Umar’s (RA) method was that he consulted the Companions and held deliberative discussions on relevant matters in order to devise the best means of reaching a judgment. In various legal questions, his role was like that of a wise and cautious chemist who seeks to prepare a medicine that will cure the patient without any harmful side effects. Thus, Hazrat Umar (RA) was able to leave us a vast treasure of Islamic law. Ibrahim al-Nakha‘i (d. 97 AH) said that when Umar (RA) was martyred, nine-tenths of knowledge disappeared from the world. (Shah Waliullah Dehlawi, cited work, vol. 1, p. 278).

Ibn Mas‘ud (RA) said concerning Hazrat Umar (RA), “We observed that Umar (RA) always chose the easier course.” (The aforementioned work).

Hazrat Umar (RA) possessed exceptionally keen understanding and profound scholarship. Therefore, he could very quickly compare a subsidiary matter with the principal matter. In light of the fundamental principles, he could investigate the implications of any matter. He issued fatwas in this manner during the eras of the Messenger (SAW) and Hazrat Abu Bakr (RA), and he did not change this principle after becoming caliph.

Umar (RA) had the opportunity to learn much from the Messenger (SAW). He observed that the Messenger (SAW) would sometimes refrain from instructing people to do something, even though he wanted them to do it, because it might be difficult for them. He would often say, “Were I not afraid that it would be difficult for my ummah, I would instruct them to do the relevant act,” and so on. (It is likely that the widely circulated hadith concerning cleaning the teeth before salah was narrated in this context.) (Editor).

At times he prohibited people from doing something, but when he saw that the reason for which it had been prohibited no longer existed, he withdrew the prohibition. At other times, he might be about to impose a prohibition, but if he was told that such a prohibition would cause inconvenience to people, he refrained from issuing it in order to protect them from that inconvenience.

Umar (RA) had observed that whenever the Messenger (SAW) was faced with a choice between two matters, he always chose the easier of the two. These matters had a profound influence on Hazrat Umar (RA). He clearly understood that the aims and objectives of the Shariah must be understood and taken into consideration. He believed that it was the duty of scholars to determine which instructions in the Qur’an and Sunnah were explicit and which merely indicated a rationale. Then legal rulings could be applied to new matters and in new forms, bringing everything within the scope of Allah’s judgment. Consequently, people would not become accustomed to seeking solutions or legal decisions from anything outside Allah’s law.

Thus, when we examine Hazrat Umar’s (RA) practice of ijtihad, we find that he followed a clear method for reaching decisions. An examination of his fatwas shows first that he issued them while considering the public interest—as a precaution against error, to prevent corruption, and as the easier and most beneficial course within the framework of the law. For example, Hazrat Umar (RA) declared some fatwas invalid because the reason for issuing some of them no longer existed, and the circumstances in which they had been issued no longer continued. Some such decisions are as follows:

(a) His request to the Messenger of Allah (SAW) that the prisoners of the Battle of Badr be killed,

(b) His advice concerning the hijab,

(c) His request that the Messenger (SAW) not tell people that whoever says “La ilaha illallah” will enter Paradise, because people would rely on this and cease performing deeds.

(d) His advice to Hazrat Abu Bakr (RA) not to grant those who had recently accepted Islam any additional privilege from the Bayt al-Mal.

(e) His decision not to distribute conquered lands among the soldiers, and so forth.

The Era of Hazrat Uthman ibn Affan (RA)

Hazrat Uthman (RA) was elected caliph on the condition that he would act according to the Book of Allah, the Sunnah of the Messenger (SAW), and the policy followed by the preceding two caliphs. He pledged to abide by all these conditions. Hazrat Ali (RA), however, said that if he were elected caliph, he would act according to the Book of Allah, the Sunnah of the Messenger of Allah, and, to the best of his ability, his own knowledge and capacity. Because Hazrat Uthman (RA) expressed his intention to follow the policy of the preceding two caliphs, Hazrat Abd al-Rahman (RA) cast his additional vote in his favor, and Hazrat Uthman (RA) was elected caliph. Thus, the policy followed by the preceding two caliphs was introduced and approved as the third source of law during the era of the third caliph.

Since Hazrat Ali (RA) held a different opinion on this matter, after becoming caliph he undertook fresh ijtihad even where an ijtihad-based ruling of a previous caliph already existed. For example, Hazrat Ali (RA) reconsidered whether a slave woman could be sold if she gave birth to a child fathered by her master.

Hazrat Uthman (RA) was one of those Companions who did not issue a very large number of fatwas. This was probably because the problems he encountered had already been faced by Hazrat Abu Bakr (RA) and Hazrat Umar (RA), and Uthman (RA) preferred to act according to their opinions. Nevertheless, like his predecessors, he also had to exercise ijtihad in certain cases. Once, before Uthman (RA) became caliph, Hazrat Umar (RA) asked him about a legal matter. He replied, “If you wish to act according to your own opinion, that is fine. But if you follow your preceding caliph”—meaning Abu Bakr—“that would be better, for he was truly excellent at making decisions.”

He also exercised ijtihad during Hajj. Despite the clear permission to shorten salah at Mina, he did not do so. There are two possible reasons for this. The first may be that he had married in Makkah and believed that the people of Makkah were not permitted to shorten salah at Mina. The second was that he feared some Bedouins might misunderstand if they saw him doing so; therefore, he did not do it. Hazrat Uthman (RA) issued the fatwa that everyone should follow the method of Qur’an recitation used by Zayd ibn Thabit (RA), because he considered that method the best and believed that hardly anyone would object to it.

The Era of Hazrat Ali ibn Abi Talib (RA)

Like Hazrat Umar ibn al-Khattab (RA), Hazrat Ali (RA) also understood and applied the Qur’anic message by the same method. Through deep reflection, he analyzed particular events in the light of general principles. Until he assumed the caliphate, he was known in Madinah as one of its greatest judges.

When the Messenger of Allah (SAW) appointed Hazrat Ali (RA) as judge of Yemen, he prayed to Allah, saying, “O Allah, keep his tongue established upon the truth and guide his heart.” In practice, Ali (RA) proved himself an excellent judge and resolved many difficult problems.

Regarding his knowledge, Hazrat Ali (RA) said, “By Allah, there is no verse of the Qur’an concerning which I did not know what it was about, where it was revealed, and why it was revealed. My Lord has given me an understanding heart and a clear tongue.” When a matter was brought before Hazrat Ali (RA) for judgment, he decided it without hesitation; and when asked to issue a fatwa on a matter, he did so with citations from the Book of Allah and the Sunnah of the Messenger of Allah (SAW). His knowledge of the Qur’an and Sunnah was universally known. Hazrat Aishah (RA) said that Ali (RA) had greater knowledge of the Sunnah of the Messenger of Allah (SAW) than anyone else.

When giving his own opinions, Hazrat Ali (RA) generally exercised ijtihad on the basis of al-qiyas, al-istishab (considering the relevant circumstances when presenting a legal argument), al-istihsan (giving qiyas greater weight in adjudication than outwardly similar evidence; it should be noted that istihsan is sometimes translated as “justice preference”), and al-istislah (considering the welfare of both the individual and society as a whole in legal deliberation). He gave his opinions with the broader objectives of the Shariah in view. After a wine-drinker was found guilty, it was proposed that his punishment be increased as much as possible. By analogy with false accusation (qadhf), he determined the punishment of the wine-drinker.

During Hazrat Umar’s (RA) caliphate, he asked Hazrat Ali (RA) for his opinion on how to punish a group of people involved in a joint plan to commit murder. Hazrat Ali (RA) said, “O Commander of the Believers, if a group of people joined together to commit theft, would you not cut off one hand from each of them?” When Hazrat Umar answered in the affirmative, Ali (RA) said, “Then the same ruling applies in this case.” In this context, Hazrat Umar (RA) made his famous statement: “If all the citizens of Sana’a joined together to kill one person, I would kill them all for this crime.”

Here, an analogy was made between murder and robbery, because in both cases the motive of all the participants in committing the crime was the same. Therefore, reprimand and exemplary punishment became necessary.

Furthermore, Ali (RA) favored burning alive the extremely zealous apostates and heretics who wished to attribute divinity to him. Although he knew very well that, according to the Sunnah, unbelievers and apostates were only to be killed, he regarded this as a grave crime. Therefore, he imposed the severest punishment for this act so that people would refrain from such behavior. To emphasize the matter, he immediately recited the following two lines of poetry:

When I saw that the matter was extremely frightening,

I lit a fire and called my servant Qanbar.

Once Hazrat Umar (RA) learned that strangers had been visiting the home of a woman whose husband had gone on a military expedition. He decided to send a messenger to prohibit the woman from allowing any stranger to enter her house in her husband’s absence. When the woman heard that the caliph wished to speak with her, she became very frightened. She was pregnant, and on her way to meet Umar (RA), she miscarried.

Umar (RA) was deeply distressed by the incident and sought the Companions’ advice about it. Several Companions, including Uthman ibn Affan (RA) and Abd al-Rahman ibn Awf (RA), reassured him, saying that he had made no mistake.

Umar (RA) then asked Hazrat Ali (RA) for his opinion. Ali (RA) said, “If what these people have said is the best opinion they could offer, then it is sufficiently impartial. But if they said it merely to please you, they have deceived you. I hope Allah will forgive this sin of yours, since He knows that your intention was good. But, by Allah, you must pay compensation for the miscarriage.”

Umar (RA) said, “By Allah, you have spoken frankly with me. I swear that you will not sit down until you distribute this money among your people.”

Those Among the Companions and Tabi‘un Who Were Jurists

The beginning of the era of the Tabi‘un is considered to coincide with the end of the era of the Rightly Guided Caliphs in 40 AH. Several jurists emerged from among the Companions and senior Tabi‘un, and a new era began. The legal administration of this period was almost similar to that of the preceding period. Although the Qur’an, Sunnah, ijma, and qiyas continued to be regarded as sources of law, as before, several differences can nevertheless be observed in the legal administration of this period compared with the earlier period. The most notable of these differences were as follows:

1. The scholars became more interested in investigating the underlying significance of the Qur’an and Sunnah than their outward meanings.

2. They also made extensive changes in the methodology of hadith study. In fact, these changes arose because of political disagreements. At the same time, various philosophical and sectarian divisions, including the Shi‘ah and Khawarij, began to emerge; these groups held different views concerning the Sunnah. The Shi‘ah did not consider acceptable those hadiths that had not been narrated by their followers. The Khawarij, on the other hand, refused to accept a hadith if its chain of narrators did not contain multiple narrators. (Such hadiths are called khabar al-wahid, or hadiths narrated by only one person. The status of this type of hadith is discussed in later chapters of the book.) The Khawarij also declared invalid those hadiths that were not supported by the Qur’an.

3. Because of this division into various groups, there was no longer any opportunity for ijma. The scholars of each group distrusted the scholars of all other groups, and regardless of whether they agreed or disagreed with one another on an issue, they would not accept one another’s opinions. Moreover, the Companions who were jurists had spread throughout different parts of the world, making it impossible for them to gather and discuss matters.

4. Furthermore, during this era anyone could narrate hadith and Sunnah, whereas this had not been the case in the earlier era.

5. For many well-known reasons, the narration of fabricated hadiths became quite widespread during this period. We will not discuss those reasons here for the time being. Imam Muslim narrates that Ibn Abbas (RA) said, “We would generally narrate various hadiths in the name of the Messenger of Allah (SAW) without any apprehension concerning hadith. But when people began irresponsibly narrating various hadiths in the name of the Messenger (SAW), we stopped narrating hadith.”

Chapter Three

Law-Making in the Era Following the Companions

By approximately 90–100 AH, the era of the Companions came to an end and the era of the Tabi‘un who studied fiqh and issued fatwas began. The last Companion in Kufah died in 86 or 87 AH. The last Companion in Madinah, Hazrat Sahl ibn Sa‘d al-Sa‘idi (RA), died in 91 AH. The last Companion in Basrah, Hazrat Anas ibn Malik (RA), died in 91 AH, or, according to another opinion, in 93 AH. The last Companion in Damascus, Hazrat Abdullah ibn Umar (RA), died in 88 AH. The last Companion, Amir ibn Wasilah ibn Abdullah (RA), known as Abu Tufayl, died in 100 AH.

Those who subsequently assumed responsibility for issuing fatwas were mawali, or freed slaves, most of whom had lived with the Companions. They included Hazrat Nafi (RA), the freed slave of Ibn Umar (RA); Hazrat Ikrimah (RA), the freed slave of Ibn Abbas (RA); the Meccan jurist Hazrat Ata ibn Rabah (RA); the jurist of the people of Yemen, Hazrat Tawus (RA); the Yamamah jurist Yahya ibn Kathir (RA); the Kufan jurist Hazrat Ibrahim al-Nakha‘i (RA); the Basran jurist Hazrat Hasan al-Basri (RA); another Basran jurist, Hazrat Ibn Sirin (RA); the Khurasani Hazrat Ata al-Khurasani (RA); and many others. In Madinah, however, the Qurayshi jurist Hazrat Sa‘id ibn al-Musayyab was unique in this field.

These Tabi‘un, who had been educated by the Companions, rarely differed from the fatwas given by the Companions. Therefore, it is difficult to determine the difference between the method they followed in formulating the rulings of the Shariah and that followed by their predecessors. Nevertheless, during this period the established methods of formulating the rulings of the Shariah began to assume a clearer form than before.

Hazrat Hasan ibn Ubaydullah al-Nakha‘i (RA) said, “I said to Ibrahim al-Nakha‘i (RA), ‘Have you heard anyone else issue the fatwas I hear you issue?’ He replied, ‘No.’ I said, ‘Are you issuing fatwas on matters that you have not heard about?’ He said, ‘I have heard what I have heard, but when I encounter a matter that I have not heard about before, I compare the new matter with one about which I have previously heard and apply qiyas (I use reason).’” (Ibn Hajar, al-Isabah, vol. 4, p. 112, and Ibn Abd al-Barr, al-Isti‘ab [a marginal note to al-Isabah], p. 415).

The notable characteristics of this era were as follows: During this period, extensive disagreement arose among jurists on various issues. During his caliphate, Hazrat Umar ibn Abd al-Aziz (RA) sought to control this situation by issuing the following two decisions:

1. He ordered the collection and recording of all hadiths circulating in the name of the Messenger of Allah (SAW). Accordingly, the people of every region recorded whatever they knew about the Sunnah. (Ibn Abd al-Barr, Jami Bayan al-Ilm, vol. 1, p. 33).

2. He restricted the authority to issue fatwas in most districts to a small number of selected people. For example, in Egypt he appointed only three people for this task. Interestingly, two of these three were freed slaves, namely Yazid ibn Abu Habib and Abdullah ibn Abu Ja‘far. The third, Ja‘far ibn Rabiah, was an Arab. In response to a question about why two freed slaves and only one Arab had been appointed for this task, the caliph said, “If freed slaves can improve themselves while you cannot, where is my fault?” (Al-Maqrizi, Khitat, vol. 4, p. 143). In a letter written to Muhammad ibn ‘Amr ibn Hazm al-Ansari, Abu Bakr (RA) explained the rationale behind his order to record reports concerning the practice of the Messenger of Allah (PBUH). He wrote: “Search for whatever you can find of the hadith, Sunnah, or practice of the Messenger of Allah (PBUH). Then write them down for me, for I fear that when the scholars depart from this world, this knowledge too will depart from the world.” (Imam Bukhari (RH) mentioned the letter in his Sahih without, as usual, citing a chain of transmitters for it. That is, it is a mu‘allaq hadith. It is also narrated in the Muwatta compiled by Imam Malik (RH). See Al-Zurqani’s commentary, vol. 1, p. 10.)

The Era After the Followers: The Era of the Mujtahid Imams

Shah Waliullah Dehlawi (RH) described this era in the following words: The jurists of this era took into consideration the hadith of the Messenger of Allah (PBUH), the opinions of the judges of the early Islamic period, the Companions, the Followers, and the legal scholarship of the third generation, along with everything else. They then exercised their own ijtihad. This was how the jurists of that time conducted their research. Essentially, they all dealt with musnad reports (a musnad hadith is one whose chain of transmission remains continuous up to the Messenger of Allah (PBUH)) and mursal reports (a mursal hadith is one whose chain of transmission is interrupted at one end; for example, when a Follower narrates a hadith from the Messenger of Allah (PBUH) without mentioning the intermediary. A Follower may attribute a hadith directly to the Messenger of Allah (PBUH) because he may have heard it from another Follower or from a Companion. Since the learned Follower had no doubt about the reliability of the person from whom he heard the hadith, he did not deem it necessary to mention his name. In any event, the question of the acceptability of mursal hadith became an important issue for the jurists and hadith scholars of later periods. They considered that the chain of transmission of such hadiths had been interrupted, and that if the Follower narrator had heard the hadith from another person of his generation, there was no certainty about the reliability of that Follower narrator. This was not a major problem for the early jurists and hadith scholars, since they knew well all the Follower narrators and shuyukh, that is, those from whom they had heard and narrated hadiths. Consequently, Imam Abu Hanifa and Malik (RH) accepted mursal hadiths, whereas the two later Imams, Imam al-Shafi‘i and Ahmad (RH), rejected them.) Moreover, they became accustomed to citing the opinions of the Companions and Followers as evidence. There were essentially two reasons for this:

(1) These opinions were in fact hadiths of the Messenger of Allah (PBUH), transmitted by a Companion or a Follower. However, out of caution, fearing that they might make an error or add to or omit something while transmitting the original statement, they did not append the name of the Messenger of Allah to it.

(2) Another reason may have been that these opinions had been given by the Companions in accordance with the original hadith and presented on the basis of their own judgment concerning the Sunnah—that is, they were not hadiths, but opinions given on the basis of hadith.

In this connection, it should be noted that the Companions were certainly superior to those who came in later eras. They knew the Messenger of Allah (PBUH) and were more proficient in interpreting and explaining his statements. Therefore, their opinions or judgments were accepted as evidence except where they themselves differed or expressed a view clearly contradictory to an authentic hadith of the Messenger of Allah (PBUH).

On the other hand, when the statements of two or more hadiths appeared to conflict, the researchers sought the opinions of the Companions in order to determine which of the two hadiths was correct. If the Companions said that one hadith had been abrogated or could not be accepted in its literal meaning, or if they remained silent about a hadith without stating anything openly and did not act according to it, it was assumed that the hadith was defective in some way, that the effect of the defect had been abrogated, or that it could not be interpreted literally. Thus the mujtahid Imams adopted that opinion of the Companions.

When the explicit statements of a Companion and a Follower differed on a matter, the jurist followed the decision of the Companion or Follower of the area in which he himself lived, as well as that of his own teacher. This was because, through his personal closeness to the narrator, he would be better able to assess the reliability of the opinions and statements of that Companion or Follower that had reached him. Similarly, the jurist himself would be better informed about the principles they followed in matters of usul al-fiqh.

Among the foundational schools of Islamic law, the school based on the opinions of Umar (RA), Uthman (RA), Ibn Umar (RA), Aishah (RA), Ibn Abbas (RA), and Zayd ibn Thabit (RA), and among their Follower adherents, Sa‘id ibn al-Musayyab (d. 93 AH), Urwah ibn al-Zubayr (d. 94 AH), Salim (d. 106 AH), Ata ibn Yasar (d. 103 AH), Qasim ibn Muhammad (d. 103 AH), Ubaydullah ibn Abdullah (d. 99 AH), al-Zuhri (d. 124 AH), Yahya ibn Sa‘id (d. 143 AH), Zayd ibn Aslam (d. 136 AH), and Rabiah al-Ra’y (d. 136 AH), was more acceptable to the people of Madinah. This was because Imam Malik (RA) presented his legal arguments on the basis of the teachings of the Companions and Followers mentioned above.

Similarly, the legal opinions of Abdullah ibn Masud (RA) and his followers, the judgments given by Caliph Ali (RA), Shurayh (d. 77 AH), and al-Sha‘bi (RH) (d. 104 AH), and the fatwas of Ibrahim al-Nakha‘i (d. 96 AH) were more acceptable to the people of Kufa.

Regarding such a situation, Shah Waliullah Dehlawi (RH) wrote: When Masruq (RA) (d. 36 AH) followed the opinion of Zayd ibn Thabit concerning the distribution of inheritance between the deceased’s brothers and grandfather, Alqamah (d. 62 AH) asked him, “Is there anyone among you who is more knowledgeable than Abdullah (ibn Masud)?” Masruq replied, “No, but Zayd ibn Thabit (RA) and the people of Madinah distribute the inheritance between the deceased’s brothers and grandfather…”

Thus, whenever the people of Madinah reached a consensus on a matter, the scholars of that era, who followed the Followers, adhered firmly to it. This is what Imam Malik (RH) meant when he said, “The matters of the Sunnah on which we, the people of Madinah, have not differed are…” He accepted whatever had gained greater support and reliability because it had been followed by the majority of the early jurists in Madinah, because they had reached a decision through a valid and clear analogy, or because the decision was based on information derived from certain fundamental sources of the Qur’an and Sunnah. Regarding this process, Imam Malik (RH) said, “Among what I have heard, this is the best.” When jurists of later periods found no solution to a problem in the writings of earlier scholars, they returned to the relevant primary sources of the Qur’an and Sunnah in order to formulate their own legal opinions. The researchers of this era became eager to record the subjects of their research. Thus Imam Malik (RH) in Madinah; Ibn Abi Dhi’b (d. 158 AH), Ibn Jurayj (d. 150 AH), and Ibn Uyaynah (d. 196 AH) in Makkah; al-Thawri (d. 161 AH) in Kufa; and Rabi ibn Subayh (d. 160 AH) in Basra began recording the subjects of their research, and all of them followed this method in the matter.

During the Abbasid caliph Mansur’s performance of Hajj, he met Imam Malik (RH) and said, “I have decided to order copies to be made of the books you have written. Then I will send one copy to every region of the Muslim world and instruct the scholars to act according to them and not follow any other book.” Imam Malik (RH) said, “O Commander of the Believers, do not do this. The people have already heard various legal opinions, hadiths, and different reports. They accepted whatever reached them first. Consequently, these have contributed to differences in the practices prevailing among the people. Leave the people of each city with what they have already chosen to follow.”

The same incident is also reported concerning Caliph Harun al-Rashid: he wanted to make following the Muwatta obligatory for the people. But Imam Malik (RH) said, “Do not do this, for the Companions of the Messenger of Allah (PBUH) differed concerning the Sunnah. Thus their various paths have now become firmly established.”

Imam Malik (RH) was the most knowledgeable concerning the hadiths of the Messenger of Allah (PBUH) transmitted by the people of Madinah, and the chain of transmitters of Imam Malik (RA) was the most reliable. He was the most knowledgeable concerning the legal statements of Umar (RA), Aishah (RA), and seven jurists among their followers. The sciences of hadith transmission and fatwa are essentially founded upon the knowledge of Imam Malik (RH) and other researchers like him.

Imam Abu Hanifa (RH) was particularly devoted to the legal interpretations given by Ibrahim al-Nakha‘i (RH) and his associates, and only rarely offered reasoning beyond theirs. He was unparalleled in formulating decisions by following Ibrahim’s method. He applied the same method exactly in its detailed application to analogous law.

If you wish to verify the truth of what we have said, prepare a summary of the teachings of Ibrahim (RH) and his followers. You can find such a summary in the following books:

Kitab al-Athar by Muhammad al-Shaybani, Jami‘ by Abd al-Razzaq, and Musannaf by Ibn Abi Shaybah (a compilation). Then compare these with the practical opinions of Imam Abu Hanifa (RH). You will certainly find that Abu Hanifa (RH) rarely departed from the method they followed; indeed, it will even appear that there was no difference between his opinions and those of the judges of Kufa. (A selective abridgment has been made from Dehlawi, cited above, vol. 1, pp. 205–308.)

In fact, Dehlawi’s (RH) comments here must be taken into consideration. He was eager to emphasize that Imam Malik (RH), Abu Hanifa (RH), and their followers followed, to a greater or lesser extent, the opinions of their predecessors among the Companions and Followers—that is, they did not give priority to their own ijtihad—and did not reject the legal decisions given by their predecessors. Of course, it is difficult to agree with this conclusion of his.

Everyone knows that the science of fiqh is studied according to various approaches. Each Imam applied a different approach in studying this discipline. Therefore, it is not easy to claim that all these different approaches were taken from the Companions and Followers. For example, Malik (RH) accepted the customs and practices followed by the people of Madinah as an indirect source of law, while Abu Hanifa (RH) used the methods of al-istihsan and al-‘urf. (Here the author means that these methodological tools were unknown to the Companions, yet the two Imams applied and used them.)

Moreover, neither of them based his arguments on the fatwas given by the Followers. Rather, they commented concerning them that they were human beings, and so were we. In addition, they differed from their predecessors in that each of them established certain conditions of his own for determining the authenticity of hadith. Furthermore, they differed with the Companions regarding the status of hadiths that had never previously been circulated and of well-known hadiths, and regarding the formulation of legal decisions on their basis.

The Rationalists and Traditionalists: Ahl al-Hadith and Ahl al-Ra’y

In discussing the two distinctive legal schools of thought, the rationalists or Ahl al-Ra’y and the traditionalists or Ahl al-Hadith, it may be more meaningful to examine the differences that began to emerge between them in applying certain principles of law and analogous law. Although it is true that the differences in their approaches had begun two generations earlier, their disagreement concerning fiqh became clearer during the period under discussion. From this time onward, people began grouping themselves into different madhhabs as they sought solutions from the sources of law on the basis of their disagreements.

Historians of Islamic law emphasize that the rationalist thought of Ahl al-Ra’y was essentially an extension of the thought of Umar (RA) and Abdullah ibn Masud (RA). Among the Companions, they made particularly extensive use of the ra’y method. Later, Alqamah al-Nakha‘i (d. 60 or 70 AH), the teacher and uncle of Ibrahim al-Nakha‘i (RH), was influenced by them. Ibrahim (RH) taught Hammad ibn Abi Sulayman (d. 120 AH), who later became the teacher of Abu Hanifa (RH).

Those historians stress that the traditionalist thought of Ahl al-Hadith was the uninterrupted continuation of the thought of those Companions who, out of fear of contradicting the essential texts of hadith, cautiously never departed from the original texts in the slightest. In a broad sense, Abdullah ibn Umar ibn al-Khattab, Abdullah ibn Amr ibn al-As, al-Zubayr, and Abdullah ibn Abbas followed this view.

For various reasons, the thought of Ahl al-Hadith spread widely in the Hijaz. The most important reason was probably that the people of this region knew a great number of hadiths and other reports, and, in fact, the region became more stable after the capital of the caliphate was transferred. Most political activity was first transferred to Damascus and later to Baghdad. The Medinan Imam Sa‘id ibn al-Musayyab (d. 94 AH) once remarked that the people of Makkah and Madinah had not forgotten much of hadith and fiqh, because they were closely familiar with the fatwas and reports of Abu Bakr (RA), Ibn Abbas (RA), Ibn Umar (RA), Zayd ibn Thabit (RA), Abu Hurayrah (RA), and others. Therefore, they did not have to follow ra’y in formulating law.

On the other hand, the thought of Ahl al-Ra’y became particularly popular in Iraq. The scholars of this group believed that the legal interpretation of the Shariah had to be founded on reason, take the best interests of the people into consideration, and be guided by significant wisdom. In fact, these thinkers considered it their duty to bring out the implications mentioned above, the inner wisdom of the law, and their continuity. If, because of the passage of time and changing circumstances, the benefit of a law enacted for a particular need ceased to exist, then it could no longer remain valid in any way. Even when they believed there was an argument supporting the continued validity of a law, they sometimes presented arguments in its support through analytical methods. Thus, when reason conflicted with a particular kind of hadith, they often gave reason legal priority.

Influenced by the method followed by Umar (RA), this approach spread in Iraq with the assistance of a considerable number of Companions. Among them were Ibn Masud (RA), Abu Musa al-Ashari (RA), Imran ibn Husayn (RA), Anas ibn Malik (RA), Ibn Abbas (RH), and many others. The transfer of the caliphate’s capital to Iraq and the permanent residence there of Ali (RA) and his supporters led to the further spread of this approach. The emergence in Iraq of groups such as the Shi‘a and Kharijites led to intense opposition, and the fabrication of false hadiths also became widespread at this time. (These sects strongly obstructed one another in their activities. They sought support from the main current of Islam, distorted the meanings of words used in the hadiths of the Messenger (PBUH), and passed off fabricated words and explanations as hadiths of the Messenger (PBUH) to serve their own purposes. (Editor)) As a result, the jurists of Iraq were compelled to impose various conditions for determining the acceptability of hadith. According to these conditions, only a small number of reports given by the Companions residing in Iraq were accepted as hadith. But the large number of legal problems, particularly the continual and unprecedented growth of different legal problems in that region, could not be resolved solely through these reliable hadiths.

As a result, the conflict intensified between those within the ummah who, without belonging to the Shi‘a or Kharijite groups, were divided between Ahl al-Hadith and Ahl al-Ra’y.

The supporters of Ahl al-Ra’y criticized the supporters of Ahl al-Hadith, saying that they were unintelligent and had very little ability to understand fiqh. Conversely, the Ahl al-Hadith claimed that the opinions of Ahl al-Ra’y were essentially nothing more than conjecture and speculation, and that they had kept themselves from exercising the necessary caution in making decisions on matters of religious importance—something that could be established only by relying on the primary sources of religion.

In fact, Ahl al-Ra’y agreed with all Muslims on this point: when a person is able to understand the Sunnah clearly, he cannot reject it in support of the opinion of any particular individual. However, concerning the matters for which they were criticized as opposing the Sunnah, they stated that they did not know of any hadith on the relevant matter, or that they knew of a hadith in which they detected some weakness in a narrator or another defect—a defect that others did not consider harmful. Therefore, they did not regard that hadith as sound; or they knew another sound hadith on the same subject whose legal implication conflicted with that of others.

The Ahl al-Hadith, for their part, agreed with Ahl al-Ra’y that it is necessary to resort to reason when no direct instruction can be found in the primary sources, namely the Qur’an and hadith. Despite this agreement, conflict and tension between the two groups remained pronounced.

Chapter Four

Imam al-Shafi‘i (RH)

Imam al-Shafi‘i (RH) was born in 150 AH. In the same year, Imam Abu Hanifa (RH) died. He first studied fiqh in Makkah with several scholars of Ahl al-Hadith, such as Muslim ibn Khalid al-Zanji (d. 179 AH) and Sufyan ibn Uyaynah (d. 198 AH). He then studied under Malik ibn Anas (RA), the Imam of Madinah and leader of Ahl al-Hadith, and memorized the Muwatta, a book based on his collection of hadiths and legal opinions. In fact, Imam al-Shafi‘i (RH) always considered himself indebted to Imam Malik (RH). It is reported that Yunus ibn Abd al-A‘la (RH) said: “No one’s words shine more brightly than his. I have never benefited from anyone as much as I benefited from Malik ibn Anas (RA).” (Ibn Abd al-Barr al-Intiqa, p. 23.) Imam al-Shafi‘i (RH) made the foregoing remark after studying language, poetry, literature, history, and some natural sciences and mathematics.

Imam al-Shafi‘i (RH) was not influenced by all the books related to Ahl al-Hadith that he studied. For example, he criticized Ahl al-Hadith for accepting munkati‘ hadiths—a hadith whose chain of transmitters has become disconnected at some point, so it may not be possible to establish with certainty that it is a report from the early period, namely a hadith of the Messenger (PBUH). Such hadiths were rejected by all later jurists (Editor)—saying that a munkati‘ was essentially nothing, and he criticized them for accepting their mursal category of hadiths (the definition of mursal hadith and the controversy surrounding it were discussed in Chapter Three), and for imposing excessive strictness concerning the conditions for accepting narrators (that is, the hadiths they accepted as reliable). Although he himself made an exception by accepting mursal hadiths narrated by Sa‘id ibn al-Musayyab.

When Imam al-Shafi‘i (RH) went to Iraq, the stronghold of Ahl al-Ra’y, he observed that they were excessively eager to find faults in the legal opinions and methods of the people of Madinah, particularly those of his teacher, Imam Malik (RH). Therefore, Imam al-Shafi‘i spoke in support of his teacher’s thought and method. It is reported that he once said: “Muhammad ibn al-Hasan told me, ‘Our teacher’—that is, Imam Abu Hanifa—‘was more knowledgeable than your teacher. Your teacher should not have spoken. Our teacher, by remaining silent, made a mistake.’”

I became very angry at this and said to him, “By Allah, tell me, which of the two—Malik (RH) or Abu Hanifa (RH)—had greater knowledge of the Sunnah of the Messenger (PBUH)?” He replied, “Malik (RH), but our teacher was more skilled in qiyas (intellectual reasoning).”

I replied, “Yes, but Malik (RH) had greater knowledge than Abu Hanifa (RH) of the Qur’an, the abrogating and abrogated verses of the Qur’an, and the Sunnah of the Messenger of Allah (PBUH). The person with greater knowledge of the Qur’an and Sunnah has the right to speak.” (Ibn Abd al-Barr, cited above, p. 24.)

Imam al-Shafi‘i studied the writings of Muhammad ibn al-Hasan and other thinkers of Iraq (it should be noted here that Muhammad ibn al-Hasan studied under Imam Malik (may Allah have mercy on him), and according to many, the Muwatta compiled by him is more reliable. In the book Kitab al-Radd ‘ala Ahl al-Madinah, written by Imam Muhammad (may Allah have mercy on him), the methodological differences between the Maliki and Hanafi schools of thought—particularly the distinction between Ahl al-Ra’y and Ahl al-Hadith in general—are expressed with remarkable eloquence (Editor). Thereafter, he became a disciple of Muhammad ibn al-Hasan (may Allah have mercy on him) and discussed his views, although he always supported the position of the Sunnah and Ahl al-Hadith.

Imam al-Shafi‘i (may Allah have mercy on him) left Baghdad for some time. Later, when he returned to Baghdad in 195 AH, approximately forty or fifty study circles regularly met in Baghdad’s Great Mosque. Imam al-Shafi‘i (may Allah have mercy on him) visited each of these circles one after another and narrated the words of Allah and His Messenger (peace be upon him), whereas the other teachers at that time spoke only of the words of their own teachers. Consequently, in time, no study circle remained in the mosque except that of Imam al-Shafi‘i (may Allah have mercy on him).

Other eminent thinkers of Ahl al-Ra’y, including Abu Thawr, al-Ja‘farani, and al-Karabisi, attended Imam al-Shafi‘i’s (may Allah have mercy on him) study circle. At that time, many abandoned the position of Ahl al-Ra’y and began following Imam al-Shafi‘i (may Allah have mercy on him). Imam Ahmad ibn Hanbal attended this study circle, and it is reported that he said: Every transmitter of hadith who carries an inkpot has benefited from Imam al-Shafi‘i (may Allah have mercy on him) in one way or another.

When Imam Ahmad (may Allah have mercy on him) was asked about this, he said: The people of Ahl al-Ra’y used to mock the people of Ahl al-Hadith; Imam al-Shafi‘i’s (may Allah have mercy on him) teaching and reasoning put an end to this tendency. (Ibn ‘Abd al-Barr, cited above, p. 86)

Moreover, at the request of the supporters of Ahl al-Hadith, Imam al-Shafi‘i (may Allah have mercy on him) composed his book al-Hujjah in Baghdad, refuting the arguments raised against him by Ahl al-Ra’y. (Ibn ‘Abd al-Barr, cited above).

Thereafter, Imam al-Shafi‘i (may Allah have mercy on him) went to Egypt. There he found that the people followed the views of Malik (may Allah have mercy on him) with extreme rigidity and without any verification or scrutiny. In this context, Imam al-Shafi‘i (may Allah have mercy on him) began a critical analysis of Malik’s (may Allah have mercy on him) legal opinions. He observed that Malik had formulated some opinions on the basis of general principles without giving importance to particular cases, while at other times he issued decisions on the basis of particular cases without giving importance to general principles.

Imam al-Shafi‘i (may Allah have mercy on him) further observed that Malik (may Allah have mercy on him), relying on a report from a Companion or a Tabi‘i, or while giving precedence to his own reasoning, had disregarded another sound hadith. Imam al-Shafi‘i discovered that Malik had rejected a report from a Companion on the basis of a report from a Tabi‘i or his personal opinion, treating each matter as a separate case. He did not analyze the breadth of the law or deal with it within the framework of any general principles. Moreover, although Malik (may Allah have mercy on him) claimed consensus concerning certain matters, it was found in practice that there was disagreement regarding them.

Imam al-Shafi‘i (may Allah have mercy on him) further observed that Malik’s (may Allah have mercy on him) position—that is, the consensus of the people of Medina—was not particularly strong; rather, it could be regarded as evidence. He discussed all the aforementioned matters in one of his books, entitled al-Ikhtilaf ma‘a Malik (Disagreement with Malik). (See Fakhr al-Din al-Razi, Manaqib al-Shafi‘i, p. 26)

According to Imam al-Shafi‘i (may Allah have mercy on him), despite the availability of sufficient evidence, Imam Malik (may Allah have mercy on him) exceeded the proper limits in applying his own principle of masalih mursalah (the interest of the greater good). Regarding Abu Hanifa (may Allah have mercy on him), his view was that in many cases he concentrated on minor and particular matters and analyzed them in detail, but did not give importance to fundamental principles. (Imam al-Haramayn, ‘Abd al-Malik al-Juwayni, Mughith al-Khalq.)

Keeping these matters in mind, Imam al-Shafi‘i concluded that the greatest attention should be devoted to collecting the principles of law, systematizing the basic rules for their application, and developing usul al-fiqh, so that decisions could be reached on various questions of fiqh on the basis of sound evidence. Fiqh should be the practical manifestation of usul al-fiqh, bringing forth a new discipline of jurisprudence as an alternative to the two schools of thought, Ahl al-Ra’y and Ahl al-Hadith.

For this very purpose, Imam al-Shafi‘i (may Allah have mercy on him) composed al-Risalah, and in this book he established his jurisprudence and his madhhab on the basis of several principles.

Imam Ahmad ibn Hanbal said: Until the emergence of Imam al-Shafi‘i (may Allah have mercy on him), we were unable to conceive of the two forms of the general and the particular (al-‘umum wa al-khusus). (Al-Zarkashi, al-Bahr al-Muhit, MS)

Imam al-Shafi‘i (may Allah have mercy on him) would often say to Imam Ahmad (may Allah have mercy on him): You possess greater knowledge than I do regarding hadith and its transmitters. Therefore, if you find an authentic hadith, tell me about it. If it is authentic, I will accept it, even if it comes through transmitters from Kufa, Basra, or Damascus. (Ibn ‘Abd al-Barr, cited above, p. 25). This report clearly shows that Imam al-Shafi‘i (may Allah have mercy on him) was more interested in establishing principles than in minor matters and detailed analysis. The historians of usul al-fiqh unanimously acknowledge that the first author in this field was Imam al-Shafi‘i (may Allah have mercy on him), and that the first written book on the subject was his al-Risalah. (There is some disagreement on this matter. Some followers of the legal thought of the early period, presenting weak evidence in support of their claim, say that before Imam al-Shafi‘i (may Allah have mercy on him), Hanafi thinkers such as Imam Abu Yusuf had written books on important branches of the science of Shari‘ah. (Editor))

Al-Zarkashi (d. 794 AH) devoted a chapter to this subject in his book al-Bahr al-Muhit, where he said: Imam al-Shafi‘i (may Allah have mercy on him) was the first person to write about usul al-fiqh. He authored the following books: (1) al-Risalah, (2) Ahkam al-Qur’an (the legal interpretation of the Qur’an), (3) Ikhtilaf al-Hadith (Contradictory Hadiths), (4) Ibtal al-Istihsan (the Invalidity of Legal Preference), (5) Jima‘ al-‘Ilm (Comprehensive Knowledge), and (6) al-Qiyas (Analogical Reasoning). In the last-mentioned book, he discussed the errors of the Mu‘tazilites and withdrew his position regarding the acceptance of their testimony. Thereafter, other thinkers followed him in writing books on usul.

Al-Juwayni wrote in his commentary on al-Risalah:

Before Imam al-Shafi‘i (may Allah have mercy on him), no one had written a book on usul, nor had anyone possessed knowledge of it comparable to his. It is relevant that Ibn ‘Abbas (may Allah have mercy on him) shed some light on specifying the general (‘amm). It may be inferred from various fatwas issued by other early scholars that they understood the principles related to this subject. However, those who came after them said nothing about usul and made no contribution in this field. We read the books of the Tabi‘un and later authors, but none of them wrote a book on usul. (See ‘Abd al-Razzaq, cited above, p. 234)

The Method Followed by Imam al-Shafi‘i in al-Risalah

Imam al-Shafi‘i begins his book by describing the condition of humankind at the time when the Messenger (peace be upon him) received his prophethood. He divides humankind into two groups:

1. Ahl al-Kitab: The People of the Book, or the followers of the earlier heavenly scriptures, who altered their books and distorted their injunctions. They engaged in disbelief and mixed falsehood with the truth revealed by Allah.

2. The polytheists and disbelievers, who worshipped idols instead of Allah. Imam al-Shafi‘i (may Allah have mercy on him) then describes how Allah Most High sent the final Messenger and revealed the Book to him, thereby saving humankind so that, through it, they could find the path from the darkness of unbelief to the light.

Beware: those who reject the Qur’an after it has come to them will be subjected to severe punishment. Indeed, it is a mighty Book. Falsehood cannot approach it, either before it or after it. It is sent down from the All-Wise, Praiseworthy Allah. (41:41–42)

Imam al-Shafi‘i (may Allah have mercy on him) then discusses in detail the status of the Qur’an in Islam, what Allah has permitted and prohibited, how Allah must be worshipped, what reward has been prepared for those who obey Allah and what punishment for those who disobey Him, and how He warned them by recounting the events of their predecessors, along with other matters.

Imam al-Shafi‘i (may Allah have mercy on him) then states that those seeking knowledge of Islam must acquire as much knowledge of the Qur’an and related matters as possible and purify their intention, so that they may be able to cite Qur’anic verses and derive their correct meanings.

At the end of the introduction to al-Risalah, Imam al-Shafi‘i (may Allah have mercy on him) says that no problem can arise for the followers of Allah’s religion concerning which Allah has not indicated the true path in His Book. For the Most Holy and Exalted Allah has said: Alif Lam Ra. This is a Book We have revealed to you so that you may bring humankind out of darkness into light, by the permission of their Lord, to the path of the Almighty, the Praiseworthy. (14:1) We sent [the messengers] with clear proofs and scriptures, and We have revealed the Qur’an to you so that you may clearly explain to people what has been revealed to them, so that they may reflect. (16:44)

We have revealed the Book to you as a guidance, mercy, and glad tidings, providing a clear explanation of everything for those who submit. (16:89)

Thus We have revealed to you the Spirit, by Our command. You did not know what the Book or faith was, but We made it a light by which We guide whoever We will among Our servants. Indeed, you guide only to the straight path. (42:52)

In that book there is a chapter entitled al-Bayan. Professor Majid Khadduri discussed the meaning of the term al-Bayan in his introduction to his translation of al-Risalah and cited definitions given by early jurists. Professor Khadduri wrote: Some say that it denotes merely a declaration of a specific body of law. Others argue that it denotes not only declaration but also clarification. In any event, al-Shafi‘i (may Allah have mercy on him) apparently emphasized the content of the body of law. His argument is that every statement of the Qur’an is clear, although some statements have been explained more forcefully than others, and some statements are less clear than others to those unfamiliar with the Arabic language. Accordingly, Professor Khadduri translated al-Bayan as “Perspicuous Declaration”; see Khadduri, Islamic Jurisprudence, The Johns Hopkins, pp. 32–33. In this chapter, the term al-Bayan is defined as a legal term. The Qur’anic declarations containing indications of legal significance are then divided into various categories according to their interpretation. Five such categories are mentioned below:

1. The verses through which Allah has set forth a specific legal system may not be interpreted in any way other than according to their literal meaning. In this type of al-Bayan, no interpretation is acceptable except the Qur’an’s own explanation.

2. Matters mentioned in the Qur’an that allow for various interpretations and whose true significance is explained through the Sunnah.

3. Matters explicitly declared obligatory, with the Messenger (peace be upon him) explaining how, why, for whom, and when those laws apply or do not apply.

4. Matters explained by the Messenger (peace be upon him) although they are not mentioned in the Qur’an. Allah, Glorified and Exalted is He, has commanded in the Qur’an that the Messenger (peace be upon him) must be obeyed and his decisions accepted. Therefore, what the Messenger said on his own authority was said with authority granted by Allah.

5. Matters regarding which Allah wants His servants to investigate through ijtihad; this may be called qiyas. According to Imam al-Shafi‘i (may Allah have mercy on him), qiyas is the method of reaching a legal decision on the basis of reasoning and evidence consistent with the statements of the Qur’an and the Sunnah.

Imam al-Shafi‘i (may Allah have mercy on him) described these five types of al-Bayan in five separate chapters and presented examples and evidence for each type. The subsequent chapters added to al-Risalah are as follows:

1. The general declarations revealed in the Qur’an must be understood in their general and comprehensive sense (‘amm). However, they also include particular matters (khass).

2. The general declarations that appear in the Qur’an include both general and particular matters.

3. Declarations that appear outwardly general in the Qur’an are intended to convey particular declarations.

4. The category of Qur’anic statements whose meaning is explained with the help of other Qur’anic verses.

5. The category of Qur’anic statements in which the words used convey a deeper meaning than their outward meaning.

6. The part of the Qur’an revealed in a general sense, while the Sunnah provides a specific indication that it is to be understood in a particular sense.

In the chapters described above, Imam al-Shafi‘i (may Allah have mercy on him) discussed the validity of the Sunnah as evidence and its status in the religion of Islam. For this reason, he added the following chapters to the book.

Allah’s command to His servants to obey the Messenger (peace be upon him), and the close connection between this obedience and obedience to Allah.

The matters concerning which Allah Most High commanded His servants to obey the Messenger (peace be upon him).

Allah Most High clearly explained that the Messenger (peace be upon him) was obliged to follow and obey whatever Allah revealed to him and commanded him, and that Allah would guide whoever followed him.

In this chapter, Imam al-Shafi‘i (may Allah have mercy on him) discussed all the Sunnahs of the Messenger (peace be upon him) that were supported by Qur’anic verses, as well as those Sunnahs for which there is no directly supporting relevant verse in the Qur’an.

Imam al-Shafi‘i (may Allah have mercy on him) also showed that there are Sunnahs concerning matters about which the Qur’an is silent. Refuting the arguments of those who disagreed with him on this matter, he cited evidence and said: I shall explain what I have previously said about the Sunnah—that is, whether each Sunnah is supported by the Qur’an or is to be regarded as an additional ruling concerning the matter in question—and, God willing, I shall analyze all the matters I discussed above. I shall first speak about the Sunnah based on the Book of Allah. Through deductive reasoning, I shall discuss the Sunnahs related to abrogation (al-nasikh) and the abrogated portions of the Qur’an (al-mansukh). Thereafter, I shall present the specific obligatory duties mentioned in the Qur’an and the Sunnahs related to them; those obligatory duties revealed in general terms that the Messenger (peace be upon him) specified by explaining in detail when and how they were to be applied; those verses that appear general but must be understood in a particular sense; and finally, those Sunnahs of the Messenger (peace be upon him) that are not based on any verse revealed in the Book of Allah.

There is a chapter entitled “Abrogating Verses and Abrogated Verses.” It explains that Allah, Glorified and Exalted is He, abrogated certain Qur’anic verses in order to make the Shari‘ah easier and more flexible. This chapter also makes clear that one Qur’anic verse may be abrogated only by another Qur’anic verse, and one Sunnah only by another Sunnah.

He then discusses separately the processes of nasikh and mansukh in the Qur’an and the Sunnah.

There follows a discussion of the obligatory prayer, those exempted from performing it according to the Qur’an and the Sunnah, and the kinds of disobedient acts that invalidate the prayer. In the next stage, Imam al-Shafi‘i (may Allah have mercy on him) describes, according to the Sunnah and consensus, the Qur’anic verses and Sunnahs that indicate abrogation or the act of abrogating, as follows: Among the obligatory duties are those that Allah Most High has mentioned in the Qur’an.

Those obligatory duties concerning which the Qur’an and the Sunnah of the Messenger (peace be upon him) give separate instructions, linking obedience to Allah with obedience to the Messenger (peace be upon him).

Those obligatory duties described in the Qur’an for whose application in particular circumstances an indication is found in the Sunnah of the Messenger (peace be upon him).

In general, these are the obligatory duties that have been explicitly made mandatory and whose implementation the Messenger (peace be upon him) explained, such as prayer, pilgrimage, zakat, the number of wives, women whom one is not permitted to marry, and dietary prohibitions.

In the next chapter, he discusses various defects in hadith and explains that many causes of contradiction can be identified among certain hadiths. He discusses some of these causes. For example, disagreement may arise because one hadith has been abrogated by another or because of an error in transmitting the hadith in question. He explains what kinds of errors may cause disagreement and many other causes of contradiction. He then discusses various types of prohibition and shows that some hadiths explain other hadiths.

Imam al-Shafi‘i (may Allah have mercy on him) added a chapter on knowledge to this book. He says that there are two types of knowledge. The first type is general knowledge. Every sane, mature, and adult person possesses this knowledge. All such knowledge is mentioned in the Qur’an. All Muslims are familiar with this type of knowledge, since it has reached all later people through the Messenger (peace be upon him). No one disputes that this is authoritative knowledge, and everyone agrees that it is obligatory. Indeed, the nature of this knowledge is such that no error can occur in its transmission from one person to another or in its explanation.

The second type consists of various duties derived from specific laws related to them. They are not mentioned in the Qur’an itself. Apart from the Sunnah narrated by one transmitter (ahad), most of these matters are not mentioned in the original reports of the Sunnah either.

Thus Imam al-Shafi‘i (may Allah have mercy on him) introduced a new discussion of hadith transmitted by a single narrator (khabar al-wahid). In explaining this technical term, he discussed the conditions under which khabar al-wahid would or would not be acceptable. In this context, the difference between testimony and reporting—that is, shahadah and riwayah—was analyzed. In other words, the discussion concerns whether a hadith transmitted by a single narrator is acceptable in these matters and whether khabar al-wahid alone is sufficient in them.

Imam al-Shafi‘i (may Allah have mercy on him) also discussed the validity of khabar al-wahid and whether hadiths of this kind could be presented as evidence. In conclusion, he stated with exceptionally sound reasoning that these hadiths could in fact be used as proof and evidence. In this way, Imam al-Shafi‘i (may Allah have mercy on him) successfully refuted all the doubts raised by his opponents.

The following chapters were also added to the book:

Al-Ijma‘: Its definition and legal validity.

Al-Qiyas: Its significance, nature, necessity, various types of qiyas, and who is qualified or unqualified to apply it.

Ijtihad: How ijtihad is based first on the Qur’an and then on the Sunnah, and how correct and erroneous ijtihad are carried out.

Istihsan, legal preference: Imam al-Shafi’i was careful to make clear that no Muslim may be permitted to resort to istihsan in opposition to a hadith. Nor does istihsan permit the issuance of any legal decision not founded upon the Qur’an, the Sunnah, ijma, or qiyas. In his analysis of the difference between qiyas and istihsan, and in his explanation of the disagreement among scholars, Imam al-Shafi’i states that these disagreements are of two kinds. Disagreement is not permitted in prohibited matters—namely, matters concerning which clear evidence exists in the Qur’an and Sunnah. Disagreement is permitted in matters that can be interpreted in various ways and concerning which each scholar exercises his own reasoning. Imam al-Shafi’i gives examples of both kinds of disagreement and mentions their causes. He cites examples of matters over which the Companions disagreed, such as the waiting period, oaths, and inheritance. In this chapter, Imam al-Shafi’i sheds some light on the method of determining preference among the matters over which the Companions differed.

The Risalah concludes with a chapter entitled “Various Classes of Evidence in Support of the Above Opinions of Imam al-Shafi’i”:

We issue judgments primarily on the basis of the Qur’an and the unanimously accepted Sunnah—concerning which there is no disagreement—and say that we have reached this judgment by examining the apparent and inner meanings of the primary sources, the Qur’an and the Sunnah. If we reach a judgment on the basis of a hadith narrated by only a few persons, concerning which consensus has not been established, we say: We accepted the hadith as it stands, while remaining aware that there may be an unknown defect concerning its narrators. Then we will speak of ijma and thereafter of qiyas. Qiyas is weaker than ijma. Qiyas is used only when necessary, because when a direct report (hadith) exists on the matter concerned, it is not lawful to use qiyas.

From the works of Imam al-Shafi’i, we learn which sources of Islamic law had attained consensus and what causes gave rise to disagreement at that time. The sources on which there was agreement were the Sunnah in general and, in particular, the khabar al-wahid narrations (which Imam al-Shafi’i called khassah; when a hadith has only one narrator at a certain level, it is called khabar al-wahid). Imam al-Shafi’i’s contribution in this regard is that he discussed two matters comprehensively in his works, the Risalah and Jima al-Ilm.

The other matters over which there was disagreement were as follows:

1. Ijma: There was disagreement concerning the validity of ijma as evidence, its classifications, whose ijma would be accepted as evidence, on what matters ijma could be accepted as proof, how the public could be informed that ijma existed on a particular matter, and related issues.

2. Qiyas and istihsan: There was disagreement concerning their terminological meanings, their nature, their validity as evidence, their possibility and method of application, and whether the actions of the Companions could be regarded as qiyas or istihsan.

3. The significance of the Qur’an’s commands and prohibitions: There was open disagreement concerning the meaning of these commands and prohibitions and their effect on other legal and fiqh judgments. It is noteworthy that, during this period, the four Sunni Imams did not use precise definitions of such terms as al-tahrim (prohibition) and al-ijab (obligation), nor were these terms generally used in their wording. Rather, according to Ibn Qayyim (Ibn Qayyim, op. cit., vol. 1, p. 32), such legal terminology arose later.

4. The other sources of Islamic law over which there was disagreement were generally not discussed by the judges of the early period. Terms such as urf (custom), adah (habit), and istishab, for example, are not found among the terminology used at that time.

Chapter 5

Usul al-Fiqh after the Era of Imam al-Shafi’i

From the moment the Risalah, written by Imam al-Shafi’i, was published, it became dominant in research concerning Islamic law. As a result, scholars were divided into two groups. One group among the majority of the Ahl al-Hadith accepted the book and used it in support of Imam al-Shafi’i’s legal thought. The other group rejected almost everything stated in the book. Before it could have a possible influence on the public, they attempted to refute every controversial point in Imam al-Shafi’i’s book on the basis of their own methods and practices. The members of this group were clearly supporters of the Ahl al-Ra’y, the Hanafis. They stated that they differed completely with Imam al-Shafi’i on almost everything he had written.

Ibn al-Nadim mentioned the titles of works on usul al-fiqh written after the Risalah. Among them are the two works by Imam Ahmad ibn Hanbal (d. 233 AH), al-Nasikh wa al-Mansukh and al-Sunnah. In al-Sunnah, discussion of tawhid and the fundamental beliefs of Islam, namely the aqidah, takes precedence over legal matters. Two printed editions of this work are available. The larger edition was printed in Mecca in 1349 AH. Manuscript copies are found respectively in Egypt, Damascus’s Dar al-Kutub, and the Zahiriyah Library. Another, smaller edition was published in Cairo without a date. The work discusses the fundamental beliefs of the orthodox Sunnis, or Ahl al-Sunnah.

Imam Ahmad also wrote another work entitled Ta’at al-Rasul (Obedience to the Messenger). Ibn Qayyim quoted extensively from it in his work I’lam al-Muwaqqi’in. This suggests that he possessed a copy of the work. I searched for a copy in many places but was unsuccessful everywhere. Ibn Qayyim’s quotations make it clear that this was in fact an important work on the principles of law and the Sunnah. It may have been lost after Ibn Qayyim’s time, bound together with another work, or lost its title page, which may be found after extensive searching.

Various sources indicate that Dawud al-Zahiri (d. 270 AH) wrote works entitled Ijma (Consensus), Ibtal al-Taqlid (On Abolishing Imitation), Khabar al-Wahid (Concerning a Single Narrator), Khabar al-Mujib (Concerning an Obligatory Report), al-Khusus wa al-Umum (Concerning the Particular and the General), al-Mufassar wa al-Mujmal (The Detailed and the Concise), al-Kafi fi Muqabalat al-Muttalibi (that is, in opposition to Imam al-Shafi’i), and Mas’alatan Khalafa Fihima al-Shafi’i (The Two Issues on Which He Differed with Imam al-Shafi’i), among others.

At this time, scholars who followed the thought of Imam Abu Hanifah devoted themselves to a thorough study of the Risalah written by al-Shafi’i for two reasons. First, to refute the points in the book with which they disagreed; and second, following the book’s example, to formulate their own principles of jurisprudence on the basis of Imam Abu Hanifah’s legal opinions.

Hanafi scholars wrote many works on this subject. For example, Isa ibn Aban wrote Khabar al-Wahid, Ithbat al-Qiyas (Validation of Analogical Deduction), and Ijtihad al-Ra’y (The Practice of Legal Reasoning), among others.

Al-Barzai (d. 317 AH) wrote a work entitled Masa’il al-Khilaf (Issues of Disagreement), or Nak, in the Zaytunah Library in Tunis, catalogue no. 1619. Abu Ja’far al-Tahawi (d. 321 AH) wrote a work entitled Ikhtilaf al-Fuqaha (The Differences among Jurists). Abu Bakr al-Jassas (d. 370 AH) abridged it. A copy of this work is in Cairo. For details, see the index of Ma’had al-Makhtutat (1/329). (Pakistan’s Islamic Research Institute published portions of al-Jassas’s abridgement. However, the editor of that volume mistakenly identified it as a work by Abu Ja’far al-Tahawi. [Editor])

Al-Karabisi al-Najafi (d. 322 AH) wrote al-Furuq (The Distinctions), whose manuscripts are found in Istanbul’s Ahmed III and Faizullah Libraries.

Several untitled ancient manuscripts on law are believed to have been written by Ibn Samahah (d. 233). (See Ibn al-Nadim, al-Fihrist, p. 284.)

Al-Kinani (d. 289 AH) wrote al-Hujjah fi al-Radd ala al-Shafi’i (Proofs in Reply to Imam al-Shafi’i).

Ali ibn Musa al-Qummi al-Hanafi (d. 305) wrote Ma Khalafa Fihi al-Shafi’i al-Iraqiyyin fi Ahkam al-Qur’an (Examples of the Matters in the Legal Interpretation of the Qur’an on Which al-Shafi’i Opposed the Iraqis), Ithbat al-Qiyas, al-Ijtihad, Khabar al-Wahid, and others.

Abu al-Hasan al-Karkhi (d. 340 AH) wrote his famous work al-Usul (The Sources), which was printed in Cairo together with several other works, without a date.

The Imamiyya Shi’i Abu Sahl al-Nawbakhti (d. 93 AH) wrote Naqd Risalat al-Shafi’i (A Critique of al-Shafi’i’s Risalah), Ibtal al-Qiyas (Refutation of Qiyas), and al-Radd ala Ibn al-Rawandi fi Ba’d Ara’ihi al-Usuliyyah (Refutation of Some of Ibn al-Rawandi’s Legal Opinions), among other works. Ibn Junayd, a follower of the Zaydi school (d. 347), wrote al-Faskh ala man Ajaza al-Naskh lima Tamma Sharhuhu wa Jalla Naf’uhu (Refutation of the Opinions of Those Who Permitted the Abrogation of Laws Already Established and Proven Beneficial) and Ifham li Usul al-Ahkam (Understanding the Principles of Judgments), among other works.

The following works were produced by followers of the thought of Imam al-Shafi’i:

Abu Thawr (d. 240 AH) wrote Ikhtilaf al-Fuqaha (The Differences among Jurists). Abu Abdullah Muhammad ibn Nasr al-Marwazi (d. 294 AH) also wrote a work on the same subject.

In his work, Abu Abbas ibn Surayj (d. 305 AH) attempted to refute the matters on which Isa ibn Aban and Muhammad ibn Dawud al-Zahiri had disagreed with Imam al-Shafi’i.

Ibrahim ibn Ahmad al-Marwazi (d. 340) wrote al-Umum wa al-Khusus (The General and the Particular) and al-Fusul fi Ma’rifat al-Usul (Ibn al-Nadim, cited above, p. 299) (Several Chapters on Knowledge of Legal Theory), among other works.

Some scholars of this period devoted themselves to preparing annotations and commentaries on Imam al-Shafi’i’s Risalah. Among them were Abu Bakr al-Sayrafi (d. 330), Abu al-Walid al-Nisaburi (d. 365 or 363), Abu Bakr al-Jawzaqi (d. 388), and the famous father of Imam al-Haramayn and teacher of Imam al-Ghazali, Abu Muhammad al-Juwayni.

Five other scholars became known as commentators on the Risalah: Abu Zayd al-Jazuli, Yusuf ibn Umar, Jalal al-Din al-Afqaḥsi, Ibn al-Faqihani, and Abu al-Qasim Isa ibn Naji. After the seventh century, scholars began citing these commentators according to the perspective of the modern era.

Shaykh Mustafa Abd al-Razzaq (see Abd al-Razzaq, cited above) mentions that a copy of a work containing al-Juwayni’s annotations on the Risalah is held in the Public Library of Paris. He quoted some passages from it. I personally tried to see this manuscript in Paris but could not find it. Perhaps it has been kept with other books bearing different titles; the only way to find it may be to search through all the manuscripts one by one. In any event, undertaking such a daunting task would require a researcher to proceed with considerable time at his disposal.

The Development of Usul al-Fiqh after the Era of Imam al-Shafi’i

It is difficult to call the period mentioned above a period of development, since it was spent essentially in criticizing, defending, or annotating the Risalah—nothing more. Once this trend had become established, it continued until the beginning of the fifth Islamic century. That period may also be regarded as the stage at which the important development of usul al-fiqh began.

During this period, Qadi al-Baqillani (d. 402 AH) and Qadi Abd al-Jabbar al-Hamadani (d. 415 AH) undertook the task of rewriting the principles and methods of the usul of the Shariah (legal theory) in their entirety.

Al-Zarkashi wrote in his work al-Bahr: “Two judges appeared—Qadi Abu Bakr al-Tayyib al-Baqillani of Ahl al-Sunnah and Qadi Abd al-Jabbar of the Mu’tazilites. They expanded the earlier writings, explained matters that had previously amounted to no more than general indications, elaborated on matters stated generally, and removed all obscurities.”

After composing his work al-Taqrib wa al-Irshad (Explanation and Guidance), Qadi al-Baqillani was given the title Shaykh al-Usuliyyin (Leader of the scholars of usul) (see Arabic*****, 1, 1–19). The work has been unavailable for several centuries, although it may be found through repeated efforts to collect manuscripts. Nevertheless, scholars of usul continued to quote from it until the ninth Islamic century.

According to his own account, Qadi Abd al-Jabbar wrote a work entitled al-Ahd (The Covenant) or al-Amad (The Pillars), and also wrote his own commentary on it.

Imam al-Haramayn wrote an abridgment of al-Baqillani’s al-Taqrib wa al-Irshad. The abridged work was called al-Talkhis (The Abridgment), or al-Mulakhkhas (The Summary), some pages of which are found in certain ancient manuscript collections. Scholars of law in later periods incorporated a number of al-Baqillani’s ideas into their own works.

Imam al-Haramayn’s work on usul, al-Burhan (The Proof), was based on al-Baqillani’s al-Taqrib. It includes all branches of legal theory, although it follows an independent method. (A fine edition of al-Burhan was recently published in Qatar.) He disagreed on several matters with his teacher, Imam al-Ash’ari, and with Imam al-Shafi’i. For this reason, contemporary scholars who followed Imam al-Shafi’i’s thought rejected the annotations given in al-Burhan and did not give it the importance it deserved, although they adopted various portions of the work in their own books.

Two Maliki scholars, Imam Abu Abdullah al-Maaziri (d. 536 AH) and Abu al-Hasan al-Ab’ari (d. 615 AH), wrote commentaries on al-Burhan. A third Maliki scholar, Abu Yahya, combined and published the two commentaries mentioned above. All three scholars criticized Imam al-Haramayn in extremely harsh and somewhat unreasonable language. They regarded Imam al-Haramayn’s attempt to refute Imam al-Ash’ari’s opinions as arrogance and attempted to refute Imam Malik’s opinion concerning al-masalih al-mursalah. Imam al-Haramayn added an introduction to Imam al-Shafi’i’s book and included statements not found in the Risalah. He began his discussion as follows: Anyone who wishes to engage in theoretical discussion of a subject must possess deep knowledge of that subject. He explains that the sources of knowledge related to usul al-fiqh are ilm al-kalam (subtle theology), the Arabic language, and jurisprudence. He then discusses the process of deriving legal judgments, the duties to be observed in it, and the qualifications required of the person deriving legal judgments. Alongside detailed discussion of various sciences, he explains which matters are understood through reason and which through religious interpretation. He presents this discussion of all the matters mentioned above as an introduction to the subsequent detailed explanation of the term al-bayan (clear exposition). Imam al-Shafi’i began his Risalah with a discussion of al-bayan. It is very clear from the way Imam al-Haramayn discusses al-bayan and the other terms found in the Risalah that he defined these terms, including al-bayan, more clearly than Imam al-Shafi’i. He defined the terminology, explained its essence, mentioned disagreements concerning it, and identified its various categories. He also discussed a matter that Imam al-Shafi’i did not: ta’khir al-bayan ila waqt al-hajah (deferring al-bayan until the time of need) and the disagreements related to it. In discussing the various types of al-bayan, he repeated the five categories mentioned by Imam al-Shafi’i. On this subject, Abu Bakr Dawud mentioned al-bayan.

Imam al-Haramayn held that al-bayan means evidence. Evidence is of two kinds: aqli (rational) and sam’i (transmitted, that is, received through revelation). The basis of sam’i evidence is the miraculous Qur’an. Therefore, the closer evidence is to the Qur’an, the greater its priority. Accordingly, the order of priority among the sam’i proofs is as follows: the Qur’an, the Sunnah, ijma, khabar al-wahid, and qiyas.

He then discusses language. He says that although scholars of law discuss various aspects of linguistics, Arabic-language scholars did not discuss matters such as al-awamir (commands), al-nawahi (prohibitions), and al-umum wa al-khusus (the general and the particular). Imam al-Shafi’i, however, discussed these matters.

In discussing these aspects of linguistics, he sheds light on some of al-Baqillani’s ideas. He clearly states that al-Baqillani had already added these matters to Imam al-Shafi’i’s method.

Since Imam al-Ghazali was a student of Imam al-Haramayn, it is quite natural that he was influenced by him. In fact, Imam al-Ghazali wrote a total of four works on usul. The first was entitled al-Manхul (The Selected and Verified). This medium-sized work was written for students at the elementary or intermediate level of usul. Nothing is known about the second work except its mention in the work called al-Mustasfa. It is also reported that the work was entitled Tahdhib al-Usul (The Refinement of Usul). The third work he wrote was Shifa al-Ghalil fi Bayan al-Shibh wa al-Mukhayyal wa Masalik al-Ta’lil. It was edited and published in Baghdad in 1390/1971. The final and fourth work of al-Ghazali on usul is al-Mustasfa, which is essentially an encyclopedia of usul al-fiqh. It has been published many times in Egypt and elsewhere. (See al-Ghazali’s al-Mustasfa, vol. 1, p. 187. An attractive English translation of the work was prepared by Dr Ahmad Zaki Hammad. It will soon be published, God willing.) In the introduction to his work, Imam al-Ghazali discusses nearly every aspect of Aristotelian logic. He had a deep interest in this subject. He then discusses hadd (the prescribed punishment), the conditions that must necessarily be fulfilled for it to be implemented, and various other types of hadd. The next stage discusses dalil (evidence) and its classifications.

In this connection, he sets out the structure of his argument in the work under discussion and includes all subjects related to usul under various headings. In this, he followed his teacher Imam al-Haramayn and his predecessor al-Baqillani particularly closely. Just as his teacher differed with Imam al-Shafi’i and al-Ash’ari, Imam al-Ghazali likewise differed with his predecessors. Similarly, many contemporary scholars of Imam al-Ghazali accepted his opinions, while others did not.

These were the most important contributions of the followers of Imam al-Shafi’i to research in usul.

The Mu’tazilites also played a special role in the development of usul. After Qadi Abd al-Jabbar composed al-Amad/al-Ahd and wrote a complete commentary on it, he recorded a number of opinions in his encyclopedia on usul. Portions of it can be found printed and discussed under the title al-Mughni. The seventeenth volume of that encyclopedia is devoted entirely to research on usul. Since Imam al-Haramayn had associated himself with the work composed by al-Baqillani, Abu al-Hasan al-Basri al-Mu’tazili (d. 435 AH) likewise associated himself with Qadi Abd al-Jabbar and wrote a commentary on al-Amad/al-Ahd. Realizing that his commentary had become excessively long, he composed another abridgment entitled al-Mu’tamad (The Reliable). The work has been printed and is readily available.

During this period, Shaykh Abu Ishaq al-Shirazi (d. 467 AH) composed two works, al-Luma (The Luminous Light) and al-Tabصirah (Illumination), and both works are available in print. Qadi Abu Yahya al-Farra al-Hanbali wrote a work on usul entitled al-Uddah fi Usul al-Fiqh (The Equipment of Usul al-Fiqh). It was edited and published in Saudi Arabia in 1400/1980. Another Hanbali scholar, Ibn Aqil al-Baghdadi, wrote al-Wadih fi al-Usul (Clear Matters Concerning Usul). Abu al-Khattab wrote his famous work al-Tamhid (The Introduction), which was recently edited and published in Mecca.

Among the works produced at that time by researchers of the Maliki legal school, the notable one is Ibn al-Qassar al-Baghdadi’s (d. 398 AH) Uyūn al-Adillah fī Masā’il al-Khilāf bayna Fuqahā’ al-Amsār (Sources of proof concerning disputed matters among the jurists of different regions). A copy of this work is preserved at the Qarawiyyin University in Fez. (See Brockelmann, Appendix II, p. 963, no. 49.) According to al-Shirazi, it is the finest of the works written by Maliki scholars on disputed questions. Ibn al-Qaysar also wrote another work entitled Muqaddimah fī Usūl al-Fiqh (An introduction to the principles of jurisprudence). A copy of it is preserved at al-Azhar University.

The chapters of all the Shafi‘i, Hanbali, Maliki, and Mu‘tazili works were arranged according to the same pattern, and the sequence in which the subject matter was presented was likewise maintained. Consequently, this method came to be known as the method of the mutakallimūn.

The Role of the Followers of Abu Hanifa in the Formulation of the Principles

Some historians of the discipline of usul al-fiqh have stated that Qadi Abu Yusuf and Muhammad ibn al-Hasan wrote works on usul, or legal theory, but this claim has not been substantiated. (See al-Makki’s Manaqib al-Imam Abu Hanifa, vol. 2, p. 245; the introduction to Usul al-Sarakhsi, vol. 1, p. 3; Qutb al-Din al-Shirazi’s Miftah al-Sa‘adah, vol. 2, p. 37; and Ibn al-Nadim’s al-Fihrist.) Those who made this claim all relied on the following statement in Ibn al-Nadim’s biographical account of Muhammad ibn al-Hasan: “He had written a work on usul, containing chapters on prayer, zakat, and pilgrimage.”

This indicates that the work concerned the principles of religion. It is possible that the quotation actually referred to Kitab al-Asl, the work on jurisprudence written by Imam Muhammad ibn al-Hasan. The work was recently published in Pakistan. It should also be noted that the statement that Abu Yusuf wrote a work on usul is first found in the account of the History of Baghdad written by al-Khatib al-Baghdadi. The editor has quoted the relevant passage from the work Mizan al-Usul (The Scale of the Principles), written by ‘Ala al-Din, the author of Kashf al-Zunun. (See vol. 1, pp. 110–111.)

It is essential to know that usul al-fiqh is a branch of the principles of religion, and that whenever a work is written, its subject matter is necessarily influenced by the author’s own ideas and beliefs. Thus, most authors of works on usul al-fiqh were Mu‘tazilis, with whom we differ in fundamental principles, or adherents of Ahl al-Hadith, with whom we do not differ in principle but with whom we disagree on various branches of the essential issues. We differ from Ahl al-Hadith in matters of detailed exposition; therefore, we cannot rely on the work of any of them.

The works produced by our Hanafi scholars fall into two stages. The works of the first stage were written in an extremely concise form, because their authors possessed a sound knowledge of the principles and applications of the subject. Examples of such works are Makhādh al-Shar‘ (The Sources of the Sharia), and al-Jadal (Dialectics), written by Abu Mansur al-Maturidi (d. 333 AH).

The works of the second stage were composed with great care on the basis of lexical meanings and were arranged in an exceptionally fine manner. Their authors attempted, according to their respective viewpoints, to explain matters on the basis of the apparent meaning of the relevant details and to reach solutions. However, they did not demonstrate much competence in presenting conclusive arguments or discussing the most subtle aspects of usul. Consequently, the authors of the second stage sometimes expressed opinions with which we cannot agree. The works of the first stage, meanwhile, lost their importance either because they were difficult to understand or because scholars lacked the resolve to undertake such work.

It should also be noted how precise the foregoing account of research on usul is, despite having been given by a Hanafi specialist. This account provides a fairly realistic explanation of the Hanafi contribution to the development of usul al-fiqh. In the early period, even before Imam al-Maturidi, these scholars devoted all their research to reconsidering the subjects raised by Imam al-Shafi‘i in his al-Risalah. ‘Isa ibn Aban and many others followed the same path.

In the later period, the most notable author on usul was Abu al-Hasan al-Karkhi (d. 340 AH). His work, which consists of only a small number of pages, was printed together with Abu Zayd al-Dabusi’s Taqwim al-Nazar (Establishing Opinions). Several editions of the work have been published in Cairo.

Abu Bakr al-Jassas (d. 370 AH) wrote a work entitled al-Fusul fi al-Usul. It was originally composed as an introduction to his Ahkam al-Qur’an (The Qur’anic Rulings). Al-Jassas’s principal research work, Ahkam al-Qur’an, was included as the subject of the editor’s thesis and was translated by him into English with extensive notes. (Editor’s note.) After being researched and edited as the subject of a PhD dissertation, al-Fusul was recently published in Kuwait.

The genuine development of Hanafi literature on usul began with the writings of Imam Abu Zayd al-Dabusi (d. 430 AH). He wrote two important works, one of which is Taqwim al-Adillah. Although all or part of it has been researched and edited, it has not yet been published. The other work is entitled Ta’sis al-Nazar. (The editing of Taqwim al-Adillah in ten volumes has been completed and, God willing, it will be published soon. Editor’s note.) In his works on usul, Abu Zayd drew upon the writings of his predecessors, particularly al-Karkhi and al-Jassas. The difference, however, is that he broadened the scope of the subject and explained it in greater detail. He also briefly discussed the matters on which the Hanafis agreed or disagreed regarding usul.

Following Abu Zayd, Fakhr al-Islam al-Bazdawi (d. 482 AH) wrote his famous work Kanz al-Usul ila Ma‘rifat al-Usul (The Treasury of Knowledge of the Principles). In it he discussed the subjects of usul in a general manner. Subsequently, Hanafi scholars took a particular interest in this work and wrote numerous commentaries on it. Among them, ‘Abd al-‘Aziz al-Bukhari’s (d. 830 AH) Kashf al-Asrar (Unveiling the Hidden Secrets) is one of the finest works on the subject. Several editions of this commentary have been published in Istanbul and Egypt. Similarly, Shams al-A’immah al-Sarakhsi’s (d. 423 AH) Usul al-Sarakhsi was published in Egypt in two volumes. In various respects, this work is regarded as an alternative version of al-Dabusi’s Taqwim al-Adillah. Hanafi scholars of usul took a special interest in the works of al-Bazdawi and al-Sarakhsi, and the teaching and study of these works continued for a long period.

The foregoing discussion has surely made it clear that the development of usul al-fiqh as a distinct branch of knowledge reached completion in the fifth Islamic century, when its scope was determined and the theoretical terms were defined. Indeed, during that century, scholars of nearly all legal schools succeeded in recording their respective explanations and understandings of usul al-fiqh.

The Method Followed by the Shafi‘is, or Mutakallimūn, and by the Hanafis

Works on usul generally follow one of two methods. The first is the Shafi‘i method, or the method of the mutakallimūn. This method was followed by the Shafi‘is, Malikis, Hanbalis, and Mu‘tazilis. Scholars belonging to these different groups added various things to their works, although they wrote according to this same pattern and presented proofs and arguments in the same manner. This method became known as the method of the mutakallimūn because its authors were recognized in their works as scholars of various subjects in theology and philosophy. Their subjects included hasan and qabih (the good and the reprehensible), hukm al-ashya’ qabl al-shar‘ (the legal status of things before the revelation of the Sharia), shukr al-mun‘im (gratitude to the Bestower of blessings), and al-Hakim (the Sovereign), among others. Another reason this method became known as that of the mutakallimūn is that, when defining the principles of legal theory, its adherents proceeded deductively, established the validity of those principles, and refuted opposing views. In applying these principles, they paid little attention to the relevant practical matters and other related issues.

The Hanafi Method Concerning Usul

Works following the Hanafi method proceed from detailed accounts of legal questions to defining the fundamental principles of usul. Their predecessors followed the same method. Their research was essentially based on the detailed legal rulings already established, and did not go beyond them. Thus, anyone wishing to research usul al-fiqh by this method collects detailed information on matters about which the Hanafi imams have already issued fatwas. He then analyzes the collected material to determine the basis on which those fatwas were issued. Shah Wali Allah al-Dihlawi said: “I have seen some of them claim that, in al-Bazdawi’s work and elsewhere, they observed differences in usul between Abu Hanifa and al-Shafi‘i. The actual fact, however, is that in most cases these principles arose from the imams’ differences on legal questions. My view on this matter is that principles of usul which clearly state specific matters (khass), and require no explanation, are abrogated (naskh) if anything additional is introduced; general matters expressed in a broad sense (‘amm) are as definitive (qat‘i) as specific matters (khass); the mere abundance of transmissions cannot determine the preference (tarjih) of one opinion over another; when there is no opportunity to resort to reasoning, it is not necessary to accept a hadith narrated by a non-jurist; the idea of deriving a legal ruling from a precondition or attribute (wasf) has no validity; every command (amr) in the foundational text is legally obligatory (wujub); and so forth. The examples of such principles were formulated from the rulings given by the imams.”

In fact, no clear account has been found on the basis of which it can be said that Abu Hanifa (may Allah have mercy on him), or his two principal followers, Imam Muhammad and Imam Abu Yusuf (may Allah have mercy on him), followed any of the principles of usul mentioned above. Does this mean that there is no further need to preserve or defend these principles, as al-Bazdawi and others did? In that case, the opposite principles would become operative. (See Dihlawi, cited above, vol. 1, pp. 336–341; see also Dihlawi’s al-Insaf fi Bayan Asbab al-Ikhtilaf [Clarifying the Causes of Disagreement], Salafiyyah, Cairo, pp. 38–40.)

Usul al-Fiqh in the Sixth Islamic Century and Later

According to the method of the mutakallimūn, the subjects of this special branch of knowledge acquired a definite form in four major works. These four works are al-‘Ahd, al-Mu‘tamad, al-Burhan, and al-Mustasfa. Two great mutakallim scholars wrote abridgements of these four works. The first was Imam Fakhr al-Din al-Razi (d. 606 AH). He wrote al-Mahsul (The Compendium), an abridgement of the four works mentioned above. I had the good fortune to edit and research this work; it was printed in six volumes by Imam Muhammad ibn Saud University and is currently being reprinted.

The second was Imam Sayf al-Din al-Amidi (d. 631 AH), whose work is easier to understand than the four original works. Of the two abridgements, al-Mahsul was written in simpler language and explained in considerable detail. Numerous notes and commentaries were written on both works. Taj al-Din al-Armawi (d. 656 AH) abridged al-Mahsul in his work al-Has il (The Result). It was researched and edited as a PhD thesis at al-Azhar University, but has not yet been published in book form.

Imam al-Razi himself also abridged al-Mahsul in a work entitled al-Muntakhab (The Selected Work), which has been researched and edited by a scholar.

Qadi al-Bazdawi (d. 685 AH) abridged al-Has il in a work entitled Minhaj al-Wusul ila ‘Ilm al-Usul (The Method of Attaining Mastery of the Science of Usul). His abridgement, however, was so concise that it seems almost enigmatic and is extremely difficult to understand. Consequently, many scholars undertook to write commentaries on it. Among these commentaries, al-Isnawi’s (d. 772 AH) work may be considered the finest. His work is entitled Nihayat al-Sul (The End of the Question). This work held the attention of scholars of usul for a long time, and scholars of Sharia at al-Azhar University still attach great importance to it.

Based on an abridgement of al-Amidi’s al-Ihkam (The Verification), Ibn al-Hajib (d. 646 AH), a follower of the Maliki school, wrote a work entitled Muntaha al-Su’al wa al-Amal fi ‘Ilm al-Usul wa al-Jadal (The Ultimate Word in Legal Theory and Dialectics). This work is highly renowned among the followers of Imam Malik.

Among the commentaries based on this work, the one written by ‘Adud al-Din (d. 756 AH) is regarded as the finest; numerous notes and comments were written on it.

All the works mentioned above were written according to the method of the mutakallimūn. Principles were defined, arguments and proofs were established, and attempts were made to refute the arguments of those who held differing views on the basis of those principles. This process continued until one of the two groups was defeated. Hanafi scholars of usul likewise devoted themselves to researching the works written by al-Bazdawi and al-Sarakhsi.

This situation remained unchanged until scholars of usul introduced a new method at the end of the sixth Islamic century and the beginning of the seventh. The principal aim of the mutakallim and Hanafi scholars in this new method was to write works combining the usul of both groups. Following this method, Muzaffar al-Din al-Sa‘ati (d. 694 AH) wrote Badi‘ al-Nizam al-Jami‘ bayna Kitabay al-Bazdawi wa al-Ihkam. It is a printed and readily available work. Sadr al-Shari‘ah (d. 747 AH) presented abridgements of al-Bazdawi’s al-Mahsul and Ibn al-Hajib’s Mukhtasar in his Tanqih al-Usul (Refinement of Legal Theory). He then wrote a commentary on his work entitled al-Tawdih (The Explanation). Al-Taftazani (d. 792 AH) wrote a marginal commentary on that work entitled al-Talwih. All three works mentioned above are readily available.

Among scholars of the Shafi‘i school, Taj al-Din al-Subki’s work Jam‘ al-Jawami‘ (The Compendium of Compendia) is famous. In its introduction, he stated that he compiled it from approximately one hundred works on usul. Among these, the most important and widely used commentary is probably Sharh al-Jalal.

Chapter Six

A Discussion of Ijtihad

Traditionally, every work on usul contains a full chapter devoted to ijtihad. In that chapter, the author first discusses the definition of ijtihad, the conditions for its validity, and the distinctions among its various types. The author then discusses whether the Messenger (peace and blessings be upon him) regarded ijtihad as a form of worship, or whether during the Messenger’s lifetime ijtihad was considered an act of worship for the Companions; whether, as the result of ijtihad on any matter, only one answer can be correct or several answers can be correct; and whether ijtihad was permitted, among other questions. Scholars then discuss taqlid in a similar manner.

In the eighth Islamic century, Ibrahim ibn Musa al-Shatibi (d. 790 AH) wrote a work entitled al-Muwafaqat (The Harmonies). In it he described ijtihad as an intellectual exercise founded on two pillars. The first is complete knowledge of Arabic grammar and morphology. He left this subject to Arab linguists and other authors on usul. According to al-Shatibi, the second pillar of ijtihad is knowledge of the underlying purposes of the legal rules given by the All-Knowing Lawgiver, Allah Most High.

Al-Shatibi’s predecessors did not give this aspect of usul very much attention. Rather, many of them were engaged in investigating the essential nature of the ‘illah (effective cause) from the perspective mentioned above. Al-Shatibi, on the other hand, wrote a work on this important subject. Indeed, the rulings given by the Great Lawgiver are discussed in al-Muhalla. Even today, this work is respected, particularly among Shafi‘i scholars, as a foundation for research on usul.

Badr al-Din al-Zarkashi (d. 798 AH) wrote a commentary entitled Tashnif al-Masami‘ (Pleasing the Ears). Part of this work was printed in Cairo with footnotes by Shaykh al-Muti‘i (d. 1354 AH). A student of Imam Muhammad ibn Saud University researched the work and edited part of it as part of his PhD thesis.

Al-Zarkashi also wrote another work entitled al-Bahr al-Muhit (The Vast Ocean). In it he collected the contributions of scholars of usul from more than one hundred works. Under our supervision, a student has begun researching and editing this work as part of his PhD thesis. The work on one volume has already been completed, and it is awaiting publication.

Among the scholars of the Hanbali school, Ibn Qudamah’s (d. 620 AH) Rawdat al-Nazir wa Jannat al-Manazir is notable. In addition to abridging al-Ghazali’s al-Mustasfa, he added some necessary material, including matters on which the Hanbalis disagreed with others. This work has been printed many times, and the Hanbalis attach such importance to it that they often disregard nearly all other works on the subject. Sulayman al-Tufi (d. 716 AH) abridged the work and wrote a commentary on it in two volumes.

Among the Malikis, al-Qarafi’s (d. 684 AH) Tanqih al-Fusul fi Ikhtisar al-Mahsul (Refined Chapters in the Abridgement of al-Mahsul) is notable. Al-Qarafi also wrote an extensive commentary on al-Mahsul entitled Nafa’is al-Usul (The Treasures of Usul), part of which is being researched and edited in Riyadh under our supervision. Knowledge of the purposes of the Sharia is essential for understanding its rulings, yet scholars of usul have not paid attention to this work. This may perhaps be explained by the deeply rooted belief held by many scholars that it is impermissible to seek the causes of the rules given by Almighty Allah, and that conjectures concerning this matter cannot be systematized or given a precise form. (Another reason may be the supposition of an alternative practical meaning of the word “Almighty.” Editor’s note.) When matters are viewed in this way, or when many scholars continue to present their arguments in this manner, undertaking research on such a subject becomes nothing more than an intellectual luxury. In any event, al-Shatibi’s work is readily available. We hope that teachers of usul and those responsible for preparing curricula will draw their students’ attention to this important work, especially students studying qiyas, ta‘lil, and ijtihad. Two great contemporary scholars of our time, Ibn ‘Ashur and ‘Allal al-Fasi, have written two works on the purposes of the Sharia.

Ibn al-Humam (d. 861 AH) wrote a work entitled al-Tahrir (The Composition). One of his students, Ibn Amir al-Hajj (d. 879 AH), wrote a commentary on it entitled al-Taqrir wa al-Tahrir. Both works are available in print. Al-Tahrir is a work combining the Hanafi and mutakallim approaches. In addition, a commentary entitled Taysir al-Tahrir (Facilitating the Composition), written by Amir Badshah, is available.

Qadi ‘Ala al-Din al-Mardawi (d. 855 AH) wrote a commentary on Ibn Muflih’s (d. 763 AH) renowned work on usul. A student edited part of that work as his master’s thesis and edited the remainder as part of his PhD thesis. The commentary is entitled Tahrir al-Manqul wa Tahdhib ‘Ilm al-Usul. It was recently researched and edited and is expected to be published soon. The same researcher is also working on Usul Ibn Muflih. Later, the Hanbali scholar Ibn al-Najjar al-Futuhi abridged Tahrir al-Mardawi and wrote a high-quality commentary on it. His commentary is regarded as one of the finest and most scholarly works written subsequently on usul. Before the renowned professors Dr. Nayih Hammad and Dr. Muhammad al-Zuhayli researched and edited the work, an incomplete edition had been published in Cairo. Their research was published by the Academic Research Center of the College of Sharia in Mecca.

In the twelfth Hijri century, Muhibbullah ibn Abdush Shakur al-Bihari (d. 1119 AH), a follower of the Hanafi school, authored his famous work on usul, Musallam al-Thubut. Among the works written by Hanafi researchers in later periods, it is regarded as the most objective and scholarly. The book was printed in India along with the original text and annotations. It was also printed several times, including alongside Imam al-Ghazali’s al-Mustasfa, in the margins of the famous commentary Fawatih al-Rahmut.

All these works were composed following the method described above. The authors centered their discussions on supporting their respective schools and refuting the arguments of their opponents.

A relevant comment by Shaykh Mustafa Abd al-Razzaq appears in his work Tamhid li-Tarikh al-Falsafah al-Islamiyyah (An Introduction to the History of Islamic Philosophy). From the sixth century to the present, no such research work on usul al-fiqh can be found that could serve as a means of protecting Muslim jurists from errors concerning ijtihad. An attempt was made to explain Shaykh Mustafa Abd al-Razzaq’s comment in his student Dr. al-Nashshar’s work Manahij al-Bahth (Research Methodology). In the thirteenth Hijri century, Qadi al-Shawkani (d. 1255 AH) composed his famous work on usul, Irshad al-Fuhul (Guidance for the Eminent). In several small volumes of this work, he presented the various opinions on usul and the proofs offered by the advocates of each opinion, concisely yet very elegantly. He also stated which opinion the author preferred. The book has been printed many times and is highly useful for students undertaking comparative study of usul al-fiqh and jurisprudence. Nevertheless, to our knowledge, despite its importance, it has not been included in the curriculum of any institution.

Muhammad Siddiq Khan wrote a book entitled Husul al-Ma’mun min Ilm al-Usul (A Promising Initiative in the Science of Usul), based on a summary of that work. The book is currently being printed.

In fact, Irshad al-Fuhul is regarded as an accurate abridgment of al-Bahr al-Muhit by al-Zarkashi. In addition, the work Tashil al-Usul by al-Mahallabi is also regarded as an abridgment of Irshad al-Fuhul.

In the later research on usul, we find that one of the following two approaches has been followed:

1. Writing guides, abridgments, and annotations related to research. When professors at various colleges of Shariah and law realized that their students were unable to understand the subject properly or were showing no interest in studying it, they undertook these tasks to facilitate the study of usul al-fiqh for their students. It can certainly be said that these annotations made no progress in the relevant field of knowledge. In most cases, they merely rearranged various topics of usul al-fiqh in a simple manner, using modern linguistic style. The works written by the following researchers were essentially lectures delivered to their students at law and Shariah colleges: al-Muhallabi, al-Khudari, Abd al-Wahhab Khallaf, al-Shinqiti, al-Saيس, Mustafa Abd al-Khaliq, Abd al-Ghani Abd al-Khaliq, Abu Zahrah, Abu al-Nur Zuhayr, Ma’ruf al-Dawalibi, Abd al-Karim Zaydan, Zaki al-Din, Sha’ban, Muhammad Sallam Madkur, and many others.

2. In the second approach, theses are written, research is conducted, and unpublished manuscripts are edited at universities on various subjects within this science. Undoubtedly, both approaches have been sufficiently productive, and I do not intend to belittle either of them. However, neither can be regarded as having achieved any advancement in this field of knowledge. Consequently, usul al-fiqh has remained exactly as our predecessors left it in the sixth Hijri century. From the discussion above, we may draw the following conclusion:

a. The branch of knowledge now known as usul al-fiqh did not emerge during the time of the Messenger or his Companions with a set of defined terms. Most of the various ijtihad activities undertaken in these two periods cannot be identified within the specific principles of contemporary usul. This is because, regarding particular matters, they reached decisions through their natural intellect and judgment on the basis of the primary sources of law, just as they spoke Arabic instinctively and did not consciously follow grammatical rules. Those rules were unknown at that time.

b. The first scholar to author a work on usul al-fiqh (jurisprudence) was Imam Muhammad ibn Idris al-Shafi’i (150–204 AH).

The Risalah is the first extensively composed work on usul incorporating comparative analysis. He composed it at the request of Imam Abd al-Rahman ibn al-Mahdi (135–198 AH). He wrote this work after the Ahl al-Ra’y approach, under the leadership of Imam Malik ibn Anas (93–179 AH), had been established and expanded as one of the two famous approaches in fiqh.

As the two aforementioned legal approaches spread widely, extensive disagreements arose among their followers on contemporary political, theological, philosophical, and other matters; these may be called disagreements concerning fiqh. (See Ibn Khaldun, al-Muqaddimah, vol. 3, pp. 1163–64.)

c. According to the jurists (al-Nashshar, Manahij al-Bahth, p. 55), usul al-fiqh is a research methodology, and its position in fiqh is comparable to that of logic in philosophy. (See Musallam al-Thubut and the annotations to al-Ghazali’s al-Mustasfa, vol. 1, pp. 9–10.) This author rejects this view of logic. It has been claimed that logic occupies the same position in both philosophy and usul al-fiqh. Perhaps he was influenced by the idea that logic is the standard of all sciences.

Accordingly, it has been defined as follows: Usul al-fiqh is the discipline through whose study one becomes acquainted, in a comprehensive manner, with all branches of fiqh, the proofs advanced in their support, the status of those proofs, and the method of presenting them. (See the first chapter of this book.)

Thus, usul al-fiqh provides mujtahids with comprehensive guidance that protects them from various possible errors when using the materials available for reaching legal decisions. (See al-Razi, Manaqib al-Shafi’i, p. 98, and al-Nashshar, cited above, p. 55.) However, it was not used in this manner until Imam al-Shafi’i employed it in the new fiqh. (After Imam al-Shafi’i resided in Egypt, his legal writings came to be called the new fiqh. This certainly reflects his mature thinking, resulting from his long study of the Maliki and Hanafi legal approaches.)

d. It is important to remember that scholars studied fiqh and issued decisions before anyone said anything about usul. (Imam al-Shafi’i’s new fiqh is an exception.) Thus, the role others played with regard to usul al-fiqh was merely to demonstrate the rationale for issuing a legal decision (fatwa) on a particular matter, present the substance of the argument advanced, and debate among themselves. They did not regard usul al-fiqh as a comprehensive guide to law. When confronted with a situation or question concerning the legal system as a whole, they would turn directly to another relevant proof, but they did not feel the need to resort to the specific principles of usul al-fiqh.

Imam Abu Hanifah issued fatwas on nearly five hundred thousand matters. (See Mustafa Abd al-Razzaq, al-Imam al-Shafi’i, p. 45.) His students learned them and acted upon them themselves. However, the legal principles on which Imam Abu Hanifah based his fatwas were in no way transmitted from him as a continuous body of evidence. (See al-Dihlawi, al-Insaf, and Abu Zahrah, Abu Hanifah, p. 223.) In a small number of reports, exceptionally, he mentioned the source or basis of his ijtihad. In such reports he said: I follow the Book of Allah. If I find no solution in it, I then follow the Sunnah of the Messenger. If I find no solution in the Qur’an or Sunnah, I follow the fatwa of whichever Companion I wish and leave whichever I wish. If a Companion has given a fatwa on a particular matter, I do not accept the opinion of another scholar concerning it. But when I found that a solution had been reached solely on the basis of the opinions of Ibrahim, al-Sha’bi, Ibn Sirin, al-Hasan al-Basri, Ata, or Sa’id ibn al-Musayyab, I exercised ijtihad as they did. (See Tarikh Baghdad, vol. 31, p. 364; al-Intiqa, p. 142; and Mashayikh Balkh al-Hanafiyyah, p. 190.)

When some people tried to turn Caliph al-Mansur against him, Abu Hanifah wrote to the Caliph:

“The situation is not as you have heard, O Commander of the Believers! I act according to the Book of Allah, then according to the Sunnah of the Messenger, then according to the opinions of Abu Bakr, Umar, Uthman, and Ali, and then according to the opinions of the other Companions. If I find a difference among their fatwas, I resort to analogy. No creature of Allah can be inherently more beloved to Allah than another.” (See al-Samarqandi, Mizan al-Usul, vol. 1, p. 52; Taqi al-Din al-Ghazni, al-Tabaqat al-Sunniyyah, vol. 1, p. 43; and Mashayikh Balkh, p. 193.)

Once, when he was accused of giving precedence to analogy over an explicit Qur’anic verse, he said:

“By Allah, those who say that we give precedence to analogy over the revealed text are liars and slanderers against us. When there is a revealed text (an explicit verse), is there any need for analogy? (Cited above.)

It is very clear that, after the destruction of the Islamic caliphate, from the beginning of the Umayyad period, the leadership and authority of the ummah fell into the hands of people who were not qualified to perform ijtihad. Yet the responsibility for ijtihad during this period was assigned to scholars who possessed no state authority. Apart from the caliphate of Umar ibn Abd al-Aziz, it is extremely difficult to find an exception to this situation. Nevertheless, these scholars issued opinions on various legal questions. This situation had far-reaching effects in separating fiqh and usul from the practical life of Muslims. As a result, the subject became a matter of theoretical speculation. (See Muhammad Yusuf Musa, Tarikh al-Fiqh, p. 110.)

Both subjects inevitably became descriptions of how Muslim life ought to be, rather than descriptions of how it actually was or should be.

e. Authors and historians have classified usul al-fiqh among the principles of Shariah established on the basis of transmitted proofs. (See al-Khwarizmi, Mafatih al-Ulum, vol. 6, and Ibn Khaldun, al-Muqaddimah, vol. 3, pp. 1125–1128, 1161–1166.) Some authors, however, have said that the principles of usul were taken from the Arabic language, various rational sciences, and certain other Islamic disciplines. (See Miftah al-Sa’adah.) A renowned author, Imam al-Ghazali, wrote on this subject: “The greatest knowledge is that in which reason and transmitted knowledge are integrated, and in which revealed knowledge is combined with rational knowledge. It follows both pure revealed knowledge and the best reasoning. This knowledge does not depend on any rigid reasoning unacceptable to revealed law, nor is it based on blindly accepting anything unsupported by reason.” (See al-Ghazali, al-Mustasfa, vol. 1, p. 3; al-Manخول; Shifa al-Ghalil fi Bayan al-Shibh wa al-Makhil; Masalih al-Ta’lil; and Tahdhib al-Usul—all important works on usul.)

On the basis of the statements about usul made by Imam al-Ghazali and other authors, we can say that fiqh has three sources:

(a) Revelation: This includes both types of revelation, wahy matlu (the inimitable Qur’an) and wahy ghayr matlu (the Sunnah).

(b) Reason: Investigating how the injunctions in Qur’anic verses can be applied and how the relevant part can be reconciled with the whole; searching for the underlying cause of a law even when its outward cause can be identified; formulating law on matters regarding which the Lawgiver (Allah) has given no explicit ruling in the Qur’an; and defining and explaining similar matters. In all these cases, the role of intellect and reason is undeniable.

(c) Experience, custom, and public interest: All types of principles on which scholars agree and those on which they disagree can be arranged under the following headings:

The Qur’an, the Sunnah, consensus, analogy, the principle of approving matters that are inherently beneficial and prohibiting those that are inherently harmful (al-istishab and al-istihsan). Also included are the fatwas of the Companions that were well known among them and to which none of them objected; the principle of always choosing the less difficult alternative; research based on a small number of available examples for purposes of comparison; the public interest; customs concerning which Islam has issued no command or prohibition; concluding that no legal indication exists regarding a matter and that no law applies to it; and blocking the means of demonstrating the laws of other pre-Islamic nations and their rationale, among other matters.

f. Certain specific causes existed in our history, some of which have already been mentioned, that discouraged us in various ways and imposed many obstacles upon us. Consequently, our Islamic mentality and intellectual attention became focused on minor matters, and we became confused within narrow limits instead of considering matters as a whole. This state of Islamic thought must be regarded as a distinctive feature. It had far-reaching effects on our study of fiqh and on the solutions we discovered.

g. It is universally known that in every science and in various areas of human life there are matters that naturally develop. In some cases, such development is necessary in order to realize all the possibilities of the relevant subject. Nevertheless, some matters are permanent and unchangeable. According to Islamic logic, these two aspects must be reconciled. Likewise, usul al-fiqh contains some permanent rules that cannot be changed, while some matters must depend on continuous development and renewal. This has become clearer from the discussion of ijtihad.

Therefore, we urge all Muslim thinkers not to begin from a vacuum. They should draw assistance from the arguments and ijtihad of earlier scholars. We acknowledge that, in matters where a fatwa has been issued solely on the basis of personal reasoning, it is not obligatory to imitate any mujtahid. We may instead say that his fatwa is simply a personal opinion and that one may share his view. (A widely circulated opinion attributed to Caliph Umar ibn al-Khattab.)

h. A review of the method followed by the early luminaries (the salaf) clearly shows that their aim was not merely to make laws and issue fatwas; rather, their constant objective was to establish Allah’s rule by implementing His law. This clearly means that, in applying the law, surrounding circumstances cannot be separated from the conditions connected with the law. If, having understood the matters described above, we wish to place usul al-fiqh in its proper position among the Islamic sciences and transform this science into a research methodology for deriving the proofs of Shariah, so that we may obtain solutions and decisions for contemporary problems from it while preserving the sovereignty of Shariah, then we must undertake the following:

(1) Review the subjects discussed in usul al-fiqh and remove those with which modern scholars of usul have no connection. The subjects to be removed must include hukm al-ashya qabl al-shar (pre-Shariah laws), shukr al-mun’im (gratitude to the Almighty Benefactor), mabahith hakimiyyat al-shar (studies on the sovereignty of Shariah), and excessive emphasis on various definitions. We must clarify the debates concerning the authorized Qur’anic readings (qira’at shadhdhah) and the Arabic linguistic features of the Qur’an as a whole. Similarly, the long-standing disagreement concerning a hadith narrated by only one narrator must be resolved as follows: if such a report fulfills the conditions necessary for authenticity, it will be accepted and law may be formulated from it.

In addition, the conditions determined by the early imams in the context of their contemporary circumstances must be reexamined. Examples include the conditions that a hadith must not contradict the general principles they established, must not be narrated by anyone other than a jurist, must not conflict with analogy or the tradition of the people of Medina, and must not contradict the apparent (zahir) meaning of the Qur’an. Another condition was that a hadith concerning a generally applicable matter or a difficult or burdensome matter must be widely known. These conditions must be abolished. Similarly, conditions that remain disputed, that have become sources of disagreement among Muslims, and that still consume the time of thinkers must be abandoned.

(2) A linguistic study related to the language of fiqh must be undertaken. Through research, the modes of expression of the Arabs during the time of the Messenger must be examined; the stages of development of those modes of expression and the process of their subsequent disappearance must be presented. The various meanings of words and their customary usages must be identified.

(3) Special attention must be paid to analogy, istihsan, maslahah, and the other methods and principles of ijtihad. They must be examined from a historical perspective, taking into account the circumstances in which the mujtahids issued their fatwas. We must strive to cultivate a juristic sensibility among those researching fiqh and usul.

(4) It must be recognized that in the present age it is nearly impossible for an individual to become an absolute mujtahid or, solely by virtue of personal qualifications, to issue a universally acceptable legal ruling concerning law—that is, concerning the interpretation of the sources of law. As long as this situation continues, an academic council may be regarded as the best alternative to an absolute mujtahid.

To enable this council to meet the legal needs of the ummah, it should consist of specialists in every area of human life, so that they can understand any problem that arises. They must also possess comprehensive knowledge of the general rules and principles of Islamic Shariah. Such a council must include highly qualified jurists experienced in the principles of Shariah and the principles of other disciplines. One of our renowned jurists related an experience of his. When a man sought permission to break his fast during Ramadan, he told him to consult a trustworthy Muslim doctor. He could refrain from fasting only if the doctor judged fasting harmful to his health.

(5) The subject must be made easier for specialists in other fields who feel the need to acquire knowledge of the principles of Shariah.

(6) One must become well acquainted with the fiqh of the Companions and the Successors, especially the principles on which they based their decisions. In particular, the fiqh of the Rightly Guided Caliphs and their contemporary Companions should be studied deeply. Thereafter, this knowledge must be placed in the hands of legislators and jurists so that the contemporary needs of present-day Muslim society may be met.

(7) We must be eager to learn about the objectives and purposes of Shariah and formulate the necessary rules and guidelines to develop knowledge in this area.

May Allah grant us success.

— The End —