Usul al-Fiqh

Bi ismillahir rahmanir raheem

assalamu alaikum

Principles of Islamic Jurisprudence
Mohammad Hashim Kamali

right click and save as. PDF file.

Allahu alam why this work is vailable on the internet it could be becouse it seems to be an earlier edition not the latest, i would recomend anyone interested in Traditional Islamic law to read this book, it is considered the standard on this topic in the english language.

Principles of Islamic Jurisprudence

This third edition [insert, i dont know what edition this is but i dont think it is the third as this is only 360 pages while the 3rd if 550] of the best-selling title Principles of Islamic Jurisprudence has been completely revised and substantially enlarged. In this work, Prof Kamali offers us the first detailed presentation available in English of the theory of Muslim law (usul al-fiqh). Often regarded as the most sophisticated of the traditional Islamic disciplines, Islamic Jurisprudence is concerned with the way in which the rituals and laws of religion are derived from the Qur�an and the Sunnah�the precedent of the Prophet. Written as a university textbook, Principles of Islamic Jurisprudence is distinguished by its clarity and readability; it is an essential reference work not only for students of Islamic law, but also for anyone with an interest in Muslim society or in issues of comparative Jurisprudence.

Dr Mohammad Hashim Kamali is Professor of Law at the International Islamic University Malaysia where he has been teaching Islamic law and jurisprudence since 1985. Among his other works published by The Islamic Texts Society are: Islamic Commercial Law, Freedom of Expression in Islam, The Dignity of Man: An Islamic Perspective, and Freedom, Equality and Justice in Islam.

�The best thing of its kind I have ever seen. Exactly the kind of thing I have wanted for years to put into the hands of students.� Professor Charles Adams (McGill University)�

'This book is a valuable addition to existing Islamic jurisprudential literature in English ... remarkably successful.� The Muslim World Book Review

one review from amazon which i thought was helpfull,

this textbook is for student of Islamic law written by an Islamic lawyer, this book assumes that the reader has a basic knowledge of both Qur'an and Shariah. The author is professor of law at the International Islamic University of Malaysia, founded in the 80s to be a center of excellence in several fields and sponsored by the Organization of Islamic Conference and other governments. The main language at the University is English and this text is mainly catered for those students. In the preface, the author says he had initiated the book while he was teaching Islamic Law to postgraduate students at McGill University in Montreal. However, it does not offer international comparisons with other Western legal systems. The book devotes a lot of space to the rules of interpretations of the law within a historical context. So you get Islamic law and history to explain its developments within the several traditions in the Islamic world. It is divided in 19 chapters that span from the Source of the law (Quar'an and Sunnah); Rules of interpretations; Abrogation; Analogical deduction; Revealed laws preceding the Shariah; Equity in Islamic law; Public interest; Custom; Conflict of evidences etc. The author shows a scholarly detachment from the subject and therefore don't expect moral judgments of value on a specific norm, whether it is right or wrong, but only a legal analysis. It is a worthy reading for those who have an interest, other than in Islamic law, in Political Science, International relations and Islamic civilization.

Bi ismillahir rahmanir raheem

Istihsan and Maslaha

Istihsan (Juristic Preference) Istihsan literally means to deem something preferable. In its juristic sense, Istihsan is a method of exercising personal opinion (ray) in order to avoid any rigidity and unfairness that might result from literal application of law. Istihsan as a concept is close to equity in western law. However equity in western law is based on natural law, whereas Istihsan is essentially based on divine law.

Istihsan is not independent of Shariah, it is integral part of Shariah. Istihsan is an important branch of Ijtihad, and has played a prominent role in adaptation of Islamic law to the changing needs of society. Istihsan has been validated by Hanafi, Maliki and Hanbali jurists. Imam Shafi, Shii and Zahiri Ulama have rejected it as a method of deduction. However, in effect Majority have accepted Istihsan.

It has been mentioned that decision of Umar Bin Khattab to suspend "hadd" penalty (penalty prescribed by the Quran and Sunnah) of amputation of hand during famine is an example of Istihsan. Here positive law of Islam was suspended as an exceptional measure in an exceptional situation (for other examples see text book). A major jurist Al-Sarakhsi considers Istihsan as a method of seeking facility and ease in legal injunctions and is in accord with the Quran (2:183). Kamali says that companions (Sahabi) and successors (Tabiun) were not merely literalist. On the contrary, their rulings were often based on their understanding of the spirit and purpose of Shariah. Kamali gives a new example. Oral testimony was the standard form of evidence in Islamic law. However, now in some cases photography, sound recording and laboratory analysis have become more reliable means of proof. Here is a case of Istihsan by which method we can prefer these means of proofs over oral testimony in many cases. 

Hanafi jurist Abul Hasan al Karkhi defines Istihsan as a principle which authorizes departure from an established precedent in favor of a different ruling for a stronger reason. The Maliki jurists are more concerned with Istislah (consideration of public interest) than Istihsan. They validate Istihsan as more or less similar to Istislah or as a part of Istislah. (See Maliki and Hanbali definitions in the Text book). 

There is no Qati (definitive) authority for Istihsan in the Quran and the Sunnah. However, verses 34:18 and 39:55 of the Quran have been quoted in support. Similarly a very famous Hadith : "La darara wa la dirara fil Islam" [no harm shall be inflicted or tolerated in Islam] has been quoted in support. Istihsan is closely related to 'ray' (opinion) and Qiyas (analogical deduction). Both in Qiyas and Istihsan, 'ray' is an important component, more heavily in case of Istihsan.

Sahabis were careful not to apply 'ray' at the expense of Sunnah. Ahlal Hadith mostly avoided using 'ray'. Most Fuqaha on the other hand liberally used 'ray' in deducing law and they came to be known as "Ahlur Ray".

Many hold that one kind of Istihsan is essentially Qiyas Khafi (Hidden analogy). They think that Istihsan is a departure from Qiyas Jali (obvious analogy) to Qiyas Khafi. There is another form of Istihsan in which exception is made to the general rule for the sake of equity and justice on the basis of some 'nass' (textual evidence), approved custom, darurah (necessity) or Maslaha (public interest). Examples of Istihsan of the above two types may be seen in the text book (Kamali - pages 254-257).

Al-Shafii has criticized Istihsan on the basis of Quranic verses 4:59 and 75:36. However, these verses are not categorical on Istihsan. Al-Ghazali has criticised Istihsan but stated that Shafii's recognize Istihsan based on detail from the Quran and the Sunnah. Al-Amidi ( a Shafii jurist) has stated that Al-Shafii also resorted to Istihsan. Modern jurists have stated that the essential validity of Istihsan is undeniable. 

Maslahah Mursalah Maslahah literally means benefit or interest. When qualified as Maslahah Mursalah it refers to unrestricted public interest. Maslahah Mursalah is synonymous with Istislah which is also called Maslahah Mutlaqah. Al Ghazali thinks Maslahah consists of considerations which secure a benefit or prevent a harm. Protection of life, religion, intellect, lineage and property is Maslahah. 

On the basis of Maslahah, the companions decided to issue currency, to establish prisons and impose Kharaj (agricultural land tax). The Ulama of Usul are in agreement that Istislah is not a proof in respect of devotional matters (Ibadah) and in respect of specific Shariah injunctions like shares of inheritance. The majority of Ulama maintain that Istislah is a proper ground for legislation. Al-Shatibi points out that this is the purpose of Quranic Ayat No. 107 of sura Al Anbiya that "We have not sent you but as a mercy for all creatures". There is support for Maslahah in the Quran in Sura Younus (10:7), in Sura Hajj (22:78) and in Sura Al-Maidah (5:6). 

The Ulama have quoted a number of Hadith in support, such as the following : 

1. "No harm shall be inflicted or tolerated in Islam". 
2. "The Prophet (SM) only chose the easier of two alternatives so long as it did not amount to a sin". 
3. "Allah loves to see that His concessions (rukksah) are observed, just as He loves to see that His strict laws (azaim) are observed". 

The above would confirm that no unnecessary rigour is recommended in the enforcement of Ahkam and that the Muslims should avail of the flexibility and concessions of Shariah. 

All the Khulafa-I-Rashidun acted in pursuance of Maslahah. Abu Bakr (RA) compiled the Quran. Umar (RA) held his officials responsible for abuse of public office. Usman (RA) distributed the authenticated copy of the Quran and destroyed the copies of variant texts. Ali (RA) held the craftsmen and traders responsible for the loss of goods that were placed in their custody. 

Maslahah has been upheld by the majority of Ulama. However, strong support for it comes from Imam Malik (See Kamali). Maslahah has been divided into three types by Shatibi and some other scholars - 

1. essentials [daruriyyat], 
2. the complementary [hajjiyat] and 
3. beautifications [tahsiniyaat]. 

From the point of view of availability or otherwise of textual authority, Maslahah has been further sub-divided into the following :  

1. al-Maslahah al-Mutabarah [accredited Maslahah] which has been upheld in the Shariah such as defending the right ownership by penalizing the thief.  
2. Maslahah Mursalah is that which has neither been upheld nor nullified by the Shariah such as provision in law in many Muslim countries for documentary evidence to prove marriage or ownership of property.  
3. Maslahah Mulgha which has been nullified either explicitly or by indications in Shariah (for examples of all these, see Kamali).

To validate Maslahah the following conditions have to be met : 

1. Maslahah must be genuine, 
2. Maslahah must be general (Kulliyah) - that is it secures Maslahah for all. 
3. it must not be in conflict with clear Nass. 

In his book "Masalih al Mursalah", Al Tufi maintains that except for Ibadah (devotional matters) or specific Shariah injunctions, Masalih (plural of Maslahah) should take precedence over other proofs. [See Kamali for full explanation]. However, this view is not held by majority.

As regards relation among Qiyas,- Istihsan and Istislah, - it may be stated that Qiyas and Istihsan are essentially based on Illah in the Nasus (hidden or obvious). Law is expanded by Qiyas or Istihsan on the basis of Illah of Nasus. But when law can not be made on the basis of Nasus or through Qiyas and Istihsan, law is made on the basis of Maslahah or public interest. A group of scholars have seriously disagreed with Maslahah. But they are a minority and their arguments are not very solid (see Kamali). To meet the new situations in the changing world, Maslalah is a major instrument in the hands of jurists of Islam.

Urf and Istishab 

URF (Custom) Urf (custom) is defined in Usul as "recurring practices which are acceptable to people of sound nature. Urf and its derivative 'Maruf' both occur in the Quran, mostly in the sense of "good" (as opposed to "bad or evil") adehrence to Allah's injunctions, (The Quran - 3:110; 7:199). However, "Urf" has been used in the sense of custom also in some places in the Quran (Ref. 2:233 with regard to maintenance of children). The Shariah, therefore, has in principle approved custom in determination of rules regarding 'halal' and 'haram'. Fuqaha also adopted Urf in the determination of the Ahkam of Shariah. The rules of Fiqh which are based on juristic opinion (ray) or Ijtihad have often been formulated in the light of prevailing custom. It is therefore permissible to depart from them if the custom on which they were founded changes in the course of time. 

A rule propounded by some Fuqaha (Suyuti and Sarakhsi) is that "what is proven by Urf is alike that proven by Shariah". This was adopted by Turkish Khilafat in Al-Majallah. However, this rule is applicable in the case of Urf of the Muslim nations and when the Urf is not in conflict with the rules, essence and spirit of Shariah. Urf of non-Muslim societies must be very carefully examined. 

Customs which were prevalent in Arabia in the lifetime of the Prophet (SM) and which were not over-ruled by the Prophet (SM) are treated to have received his tacit approval and considered as a part of Sunnah taqririyyah. An example of this is payment of Diat (compensation for murder) to the family of murdered by "Aqilah" (male kinsmen of the murderer - female relations have no obligatory liability in this regard, they can, however pay, if they want), where payment of Diat has been agreed upon. For seeing the rules of Qiyas and Diat, refer to some Islamic law books. 

The following are the conditions of Urf :  

1. It must be common and recurrent. 
2. Urf must be in practice at the time of transaction, i.e. past Urf is no basis.  
3. Custom or Urf must not violate the nass or clear stipulation of the Quran and the Sunnah.  
4. Custom must not contravene the terms of a valid agreement (valid according to Shariah)

There is difference between Urf and Ijma. Urf is essentially a local or national practice whereas Ijma is on agreement of Ulama across places and countries. There are other differences which are not substantial in character. [See Kamali]. Urf has been sub-divided into Qawli (verbal) and Fili (actual). Verbal Urf consists of agreement of people on the meaning of words. As a result the customary meaning becomes dominant meaning and literal meaning is reduced to the status of an exception. Actual Urf is the practiced the people. 

Urf Qawli and Urf Fi'li are both sub-divided into two further types :  

1. Al-Urf-al amm or practice of all people everywhere (such Urf is almost non-existent). 
2. Al-Urf-al Khass is the practice of a particular country or locality or some places. This is the Urf with which Usul is mostly concerned. 

Urf has also been classified as Urf al Sahih (valid Urf - valid according to the Quran and the Sunnah) and Urf-al-Fasid (disapproved Urf, not valid according to the Quran and the Sunnah). 

Dr. Jamal Badwai has divided Urf into 3(three) types - positive, neutral and negative. An example of positive Urf is generosity or hospitality. A neutral Urf is preference for particular diet of a particular place. A negative Urf is a tradition which goes against Islamic law and teaching. Dr. Jamal mentions that if a local custom is negative, then it must be rejected. (Ref. : Dr. Jamal Badawi, Islamic teaching Course, Lecture No. G-23).

Urf as a source of Islamic law is quite sensitive. In this area, we should depend on the views of the majority of senior scholars. Urf has been justified on the basis of Quranic Ayats 22:78, and 7:199, but these verses are not Qati in this respect. Some traditions have also been quoted in support (see Kamali) but these are also not clear evidence in support. Urf is not an independent proof on its right. However, it can play useful part in interpreting and implementing Islamic law. It is also noted that the rise of codified statutory legislation in modern states, has to some extent reduced the need for Urf. 

As we have noted earlier, rules based on Urf are liable to be changed. Some examples can be seen in the text book. In future also rules based on Urf or Ijtihad will continue to change, where needed.

In conclusion, I will say that Urf is no longer an important proof or source of Islamic law. However, it may help sometimes in understanding, interpretating, and implementing Islamic law. A very cautions approach should be taken in this regard. 

Istishab: Istishab literary means courtship or companionship. In Usul-al-Fiqh, Istishab means presumption of existence or non-existence of facts. It can be used in the absence of other proofs (dalil). 

It has been validated by a large member of scholars, though not all. In its positive sense, Istishab presumes continuation of a fact (marriage or a transfer of ownership) till the contrary is proved. However, the continuation of a fact would not be proved, if the contract is of temporary nature (for instance, Ijara or lease). Istishab also presumes continuation of negative. 

Because of its basis in probability, Istishab is not a strong ground for deduction of the rules of Shariah. Hence when it comes in conflict with another proof (dalil) the latter takes priority. Istishab is of four types : 

1. Presumption of original absence (Istishab al-adam al-asli) which means that a fact or rule which had not existed in the past is presumed to be non-existent.  
2. Presumption of original presence (Istishab al-wujud al-asli). This means that the presence of that which is indicated by law or reason is taken for granted. For instance, a husband is liable to pay "Mohr" by virtue of existence of a valid marriage.  
3. Istishab al-hukm which presumes the continuity of general rules and principles of law. For instance when there is a ruling in the law (whether prohibitory or permissive), it willl be presumed to continue.  
4. Istishab al-wasf (continuity of attribute) means to presume continuity of an attribute until the contrary is established (for instance, clean water will be continued, to be treated as clean water). Please see other examples in the text book.

The Ulama of Usul are in general agreement on the first three types of Istishab. There is more disagreement on the fourth. 

Some important legal maxims have been founded on Istishab, such as :  

1. Certainty can not be disproved by doubt (Al-Yaqin la Yazul bil Shakk)/ 
2. Presumption of original freedom from liability (bara'ah al-dhimmah al-asliyyah).

Hasan Turabi, the famous jurist in his book "Tajdid Al Fiqh Al-Islami" highlighted the significance of Istishab. He thinks that it has the potential of incorporating within its scope the concept of natural Justice and approved customs and mores of society.

Sadd al Dharai and Hukm Sharii

Sadd al Dharai (Blocking the means) Dharai (means) is the plural of Dhariah which signify means. Sadd means to block. In Usul, it means blocking the means to evil. Sadd al Dharai is often used when a lawful means is expected to produce an unlawful result. 

The concept of Sadd al-Dharai is founded on the idea of prevention of evil before it materializes. There are examples of Sadd al-Dharai in the Quran (for instance, 6:108; 2:104). The means must conform to the ends (objectives of Shariah) and ends must prevail over the means. If the means violate the purpose of Shariah, these must be blocked. The purpose (Maqasid) of Shariah are identifiable from the texts. 

A general principle has been adopted by jurists that 'preventing harm takes priority over securing a benefit'. As such means, if they lead to evil, these must be rejected. Authority for Sadd al-Darai is also found in Sunnah. Prophet (SM) forbade a creditor to take a gift from debtor (as it could lead to taking of interest). He(SM) also forbade killing of hypocrites (as it could lead to dissention within community, also lead to wrongful killing on suspicion).

Despite the aforesiad, the Ulama of Usul are not in agreement over Sadd al-Dharai. Some accept it - some do not accept it. However, Shatibi is of the opinion that most Ulama have accepted it in principle, they differ only in application. Abu Zahra is also of the same opinion. (see textbook). 

Dharai have been divided into the following four types from the point of view of their probability of leading to evil ends : 

1. Means which definitely lead to evil. Such means are totally forbidden. 
2. Means which most likely to lead to evil and rarely leads to benefit. Examples of this are selling weapons during war time and selling grapes to a wine-maker. Most Ulama have invalidated such means.  
3. Means which frequently lead to evil, but there is no certainty or even dominant probability. Ulama differ widely on the illegality of such means (see text book).  
4. Means which rarely lead to evil. Examples are digging well in a place which is not likely to cause harm or speaking a word of truth to a tyrannical ruler. Ulama have ruled in favour of permissibility of these means. 

Sadd al-Dharai should not be used too much, particularly in the 3rd category stated above. Such use would render the "mubah" (lawful) and the Mandub (recommended) unlawful which can not be accepted. 

Ibnul Arabi and Abu Zahra are in favour of moderation in its use. People of extremist tendencies can use sadd al-Dharai to restrict human freedom granted by Allah and the Prophet(SM) which must not be allowed to happen. 

Hukm Sharii (Value of Shariah Rules)  Hukm Sharii is the communication from the lawgiver (Allah and the Prophet[SM] on the authority of Allah) concerning the conduct of Mukallaf (on whom law is applicable, that is, a sane and adult person) which may be in the form of a demand or an option or only as an enactment. 

When the communication is made in the form of a demand or option, the Hukm is called "Al-Hukm al-taklifi (defining law). If the communication is made in the form of an enactment only, it is called al-Hukm al Wadi (declaratory law) [see explanation below ].

Al-Hukm al- taklifi (defining law) may be in the form of Fard, Wajib, Mandub, Mubah, Makruh and Haram. According to majority, Fard and wazib are synonymous. If there is binding demand from the lawgiver to do something, it is wazib. However, the Hanafi's consider the demand Fard when both text and the meaning are definitive (qati) and wazib when either the text or meaning is speculative (Zanni - because liable to interpretation of meaning or investigation of authenticity).  Difference between Fard and Wazib has important consequence. Denial of binding nature of a command established by definitive proof (Fard by Qati evidence) leads to unbelief. However, denial of Wazib (according to Hanafi's) or 2nd category of Fard (according to the majority) lead to transgression (Fisq). Wazib has (and Fard) been variously classified into the following : 

1. Wazib ayni (personal obligation of all Mukallaf) and Wazib Kafai (collective obligation, performance of some of the community would suffice).
2. Wazib Muwaqqat (Wazib contingent on time-limit such as Salah and Siam) and Wazib Mutlaq (absolute wazib which is free from time limit - such as Hajj). 
3. Wazib Muhaddad (quantified Wazib, such as Zakah and Salah) and Wazib Ghair Muhaddad (unquantified Wazib such as charity to poor, paying Mohr to wife).  

A consequence of distinction between quantified wazib and unquantified wazib is that quantified wazib becomes a liability on the person who has not paid it in proper time. 

Mandub (recommended) denotes a demand not binding on the Mukallaf. Compliance earns spiritual reward but no punishment is inflicted for failure. This is the difference between Wazib and Mandub. Examples of Mandub are creation of charitable endowment (Waqf) giving alms to the poor and attending to sick. Mandub is also called Sunnah, Nafl and Mustahab.

Sunnah (Mandub) has been clasified into (a) emphatic sunnah (Sunnah-al Muakkadah (examples are adhan, attending congregational prayer) and (b) Supererogatory Sunnah (Sunnah Ghair al-Muakkadah). Examples are Nafl prayers and non-obligatory charity. Neglect of sunnah al-Muakkadah is blameworthy but not punishable. Neglect of Sunnah Gair al-Muakkadah is neither blameworthy nor punishable. Examples of Mandub in the Quran can be seen in verses 2:282, 24:3.

Haram (also known Mahzur) is a binding demand of lawgiver to abandon something. The level of proof required to establish prohibition is the same as Fard (as explained by early Hanafi Ulama) and of Wazib (as explained by the majority Ulama of Usul).

The texual evidence for Haram may occur in various forms such as :  

1. It may start with "Hurrimat alaykum" (forbidden to you). [Quran - 5:3].  
2. It may be conveyed in negative terms such as "la taqtulu" (do not kill), "la takulu (do not eat or take). [Quran - 5:90; 2:188]. 
3. It may be in the form of a command to avoid (Quran - 5:90, to avoid wine-drinking and gambling). 
4. It may be stated that it is not permissible (La yahilla lakum, Quran - 4:19) 
5. Prohibition may be proved by punishment provided for a conduct (Quran - verses on hadd penalties and also verses mentioning punishment of fire in the hereafter. 

Prohibition has also been classified into : a) haram li-dhatih (which is forbidden for its own sake such as wine, gambling) and  b) haram li Ghayrih (which is forbidden for an external reason such as, marrying a woman only to make her legal for another man. (tahlil).

Makruh is opposite of Mandub. It is preferable to omit it than to commit it. Committing Makruh is not liable to punishment or moral blame. This is the majority view. Hanafi's divide Makruh into : 

1. Tanzihi and 
2. Tahrimi. 

According to Hanafis the commitment of Makruh Tahrimi entails moral blame but not punishment. There are traditions (Hadith) in which the word Kariha or its derivative has occurred. These are the textual basis for Makruh. 

Mubah (also termed halal and Jaiz) is a communication of the lawgiver which gives option to the Mukallaf (The Quran - 5:6; 2:235, 2:173). The Ulama of Usul include "Mubah" under Hukm Shari although including it under al-Hukm al-Taklifi is on the basis of probability as there is basically no liability. 

Al-Hukm al-wadi (declaratory law) enacts something as a cause (sabab), a condition (shart) or a hindrance (Mani) to the defining law. An explicit example is the hadith which says "there is no "nikah" without two witnesses. Thus the presence of witnesses has been made a condition of a valid marriage. Another example is the hadith, "there shall be no bequest to an heir" which enacts a hindrance (ma'ni) to bequest (wasiah).

Declaratory law is divided into 

1. cause, 
2. condition, 
3. hindrance, 
4. Azimah, and 
5. Rukhsha. 

Azimah is the law as the lawgiver had intended in the first place without any softening for any reason (example : all Ibadah in normal circumstances). A law is a Rukhsah when the law embodies the exception to take care of difficulties (example is granting concession to traveller to break fast). 

Rukhsah may occur 

1. in the form of permitting a prohibited thing on the ground of necessity, 
2. omitting a Wazib when conformity to wazib causes hardship (example is the provision for traveller to shorten salah or not to observe fast during Ramadan and 
3. in the form of validating contracts which would normally be disallowed (for example, advance sale [salam] and order for the manufacture of goods [Istisnah], though the goods are non-existent). 

There is another kind of Shariah values called Sahih (valid), Fasid (irregular) and Batil (void). The classification is made on the basis of compliance with essential requirements (arkam) and conditions (shurut) of Ahkam. When all these are fulfilled, the act is valid or sahih. If these are not fulfilled, the act is void or Batil. 

The Ulama are in agreement that Ibadah can only be sahih or batil. In the matter of transactions also, the majority hold the same view. However, the Hanafis have validated an intermediate category in transactions called Fasid (irregular, not Batil) when there is some deficiency in the Shart (condition). If the deficiency is made up, it becomes Sahih. 

The pillars of Hukm Shari are 

1. Hakim or lawgiver, 
2. Mahkum Fih or subject matter, 
3. Mahkum Alayh, i.e. on whom law is applied. 

The source of all law in Islam is ultimately Allah (6:57; 5:45). Mahkum Fih denotes the acts, obligations of the Mukallaf which may be in the form of Wazib, Mandub or Mubah. Mahkum Alaih deals with the legal capacity of the individuals or bear the rights and obligations imposed by Shariah. 

A person acquires active legal capacity when he attains a certain level of intellectual maturity and competence. Active legal capacity is only partial in case of a child (because of age) and in case of a person in death bed. 

Hukm Shari has also been classified into 

1. haqq-al-Allah and 
2. Haqq-al-Ibad. 

Haqq-al-Allah or the rights of Allah is so called not because Allah benefits from them buyt because these are beneficial for the community at large. In other words these are public rights. Worship, Hadud, Uqubah (minor punishments), Kaffarah, Jihad,etc. are within rights of Allah.

Edited by rami

Bi ismillahir rahmanir raheem

Interpretation-I

An important issue in Usul-al-Fiqh is how to interpret the basic sources of Islam, the Quran and the Sunnah. This would require understanding the Quran and the Sunnah i.e. their text and meaning of their texts. As such a person who wants to interpret the Quran and the Sunnah at any level (in depth or otherwise) would require the knowledge of Arabic language . For this reason Ulama of Usul include the classification of words and understanding their meaning in the study of Usul-al-Fiqh.

Interpretation is not normally attempted if the text itself is self-evident. However, the greater part of Fiqh or law is derived through interpretation because most of the legal texts are not self-evident.  It should be noted that Tawil (interpretation) and Tafsir (explanation) is not the same thing. Tafsir aims at explaining the meaning of the given text and deducing a Hukum (rule) from it within the confines of its sentences. Tawil (interpretation) goes beyond the literal meaning of the text and bring out hidden meaning, which is often based on speculative reasoning and Ijtihad.

All words are presumed to convey their absolute (Mutlaq), general (Amm) and literal (Hakiki) meaning unless departure to alternative is justified. (Discussion of these terms will come later in this discussion). If the explanation or Tawil of one part of the Quran and the Sunnah is provided in another part of the Quran and Sunnah, it is called Tafsir Tashrii that is considered integral part of the law. However, if Tafsir or Tawil take the nature of opinion or Ijtihad, this is not considered integral part of the law (the status of this part of law is less than the first one, there is more difference among jurists on this part of law). Interpretation (tawil) can be relevant. This type of Tawil is accepted by all. However, interpretation can be very far-fetched which is not accepted by a majority of scholar (for example, see Hashim Kamali's book or any other text book on Usul). Zahiri scholars do not normally accept interpretation. However, this position is weak and impractical.

Clear words are of four types, according to a major classification. They are Zahir, Nass, Mufassar and Muhkam. Zahir (manifest) is a word which has a clear meaning and yet open to Tawil, primarily because the meaning is not in harmony with the context. Nass is a clear word that is in harmony with the context, but still open to Tawil. The distinction between Zahir and Nass is whether the meaning is in harmony with the context or whether the meaning is primary or secondary in the text concerned (see example in usul text books). The obvious meaning of Zahir and Nass should be followed unless there is reason to warrant recourse to Tawil. By Tawil (interpretation), Amm may be specified, Mutlaq may be made Muqayyad, Hakiki meaning may be abandoned in favor Mazazi. (See examples in usul text books). Nass, apart from the above meaning has another important meaning used by Fuqaha which means definitive text or ruling of the Quran and Sunnah (we are not using this meaning here). 

Mufassar (unequivocal) and Muhkam (perspicuous) are words whose meaning is absolutely clear and there is no need to take recourse to Tawil. (Here is the difference between these words and Zahir and Nass). There is no real distinction between Mufassar and Muhkam in terms of clarity. However, the jurists have made a distinction between Muhkam and Mufassar, which one is liable to abrogation and which one is not. They hold Muhkam is not liable to abrogation and Mufassar is liable to abrogation. However, there is not much purpose in the distinction because nothing can be abrogated now. (For examples, see Kamali's book). 

Unclear words (Al Alfaz Ghairal Wadiha) are of four types - Khafi (obscure), Mushkil (difficult), Mujmal (ambivalent) and Mutashabih (the Intricate). [see details and examples in the text books on Usul].

Khafi is a word whose meaning is partly unclear. For instance the word Sariq (thief) is unclear as to whether it includes a pickpocket. This has important implication because if pickpocket is not included (as the majority holds) then, he would not be liable to Hadd (that is, punishment prescribed in the Quran or Sunnah) but will be liable to Tazir (punishment prescribed by the legislative authority in the present day world, punishment given by judges in the past). Mushkil (difficult) is a word which has several meanings. So Ijtihad and Tawil would be required in determing the correct position in the context (there may be difference of opinion in this area). Mushkil is inherently an ambiguous word, whereas Khafi has a clear basic meaning. A text may become Mushkil in the existence of conflicting text (see the conflict in verse 4:79 and 3:154 cited by Kamali in his Islamic Jurisprudence).

Mujmal denotes a word or text which is inherently unclear and gives no indication as to its precise meaning. It may have several meanings or it may be unfamiliar word or the lawgiver may not have explained the word to clarify it. . For instance the words such as Salat Hajj, Riba and Siam. They have lost their literal meaning and taken a technical meaning given by the lawgiver. However, these words have become totally clear or Mufassar due to explanations provided in the Sunnah. The word Al-qariah in the verses 101:1-5 is a mujmal word. However it has been explained by the Quran itself and has become clear. If the explanation provided by the lawgiver is insufficient, Mujmal turns into Mushkil which is open to Ijtihad and Tawil. Mutashabih (Intricate) is a word whose meaning is a mystery. Harful Muqattaat (such as Alif Lam Mim) are Mutashabihat. Nobody knows their meaning (please see various opinions regarding the use of these words in the text books on Usul). Many scholars hold that passages of the Quran which draw resemblance between man and God are Mutashabihat. Some scholars hold there is no Mutashabihat except Haruful Muqattaat. Mutashabihat do not occur in the legal texts.

Interpretation-II

From the point of view of scope, words are classified into Amm (General) and Khass (specific). Amm is basically a word which has a single meaning and which applies to many things, not limited in number, and it includes everything to which it is applicable. Insan (human being) 'whoever' are example of Amm. When the article Al (the) precedes a noun, the noun becomes Amm (see example in the text book qu oting 24 : 2 etc.). The Arabic expressions Jami (all), Kaffah (all), Kull (all, entire) when precede or succeed a word, the word becomes Amm. An indefinite word (al-Nakirah) when used to convey the negative becomes Amm. For instance the Hadith 'la darar wa la dirar fil Islam (no harm shall be inflicted, no harm shall be accepted), [see usul text books]. When a command is issued by Amm words, it shall be applicable to all it applies. In determining the scope of Amm, reference is made not only to the rules of the language but also to the usage of the people; and in case of conflict, priority is given to the latter. Amm can be of 3 types -  a) Absolutely general [ref. The words "ma min dabbatin" in Hud 11:6] b) Amm which is meant to imply [Al Imran : 97]. c) An Amm which has been specified elsewhere [ see Baqarah : 228 and Ahzab : 49 together, see also usul text books for other examples and explanations].

The word "man" (in Arabic meaning he who) is Khass in application but when used in conditional speech it becomes Amm. (ref. The Al-Quran - 4 : 92, 2 : 185). Khass is a word which is applied to a limited number of things but applies to everything to which it can be applied. The words one, two, one hundred, Dina, Jannah. Imran, Boby, a horse, a human being are Khass. Legal rules or commands conveyed in specific terms are definite in application and are not normally open to Tawil. There is general agreement that Khass is Qati (definitive), i.e. it's meaning and application are beyond doubt clear.

Ulama have differed on Amm, whether it is Qati or Zanni. The majority holds it to be Zanni, minority holds it to be Qati. The result of this disagreement becomes clear in the event of conflict between Khass and Amm. In the case of two rulings on the same point, one Amm and one Khass (in the Quran or the Sunnah), according to the majority, Khass only explains the Amm. Minority holds that Khass specifies the Amm (see the example in Kamali's book under conflict between Amm and Khass).

According to all, Khass is Qati (Amm is not), as such it will prevail over Amm. According to minority, Amm is also Qati, and as such, Amm will be specified by Khass, if the two rulings are chronologically parallel. Khass will be abrogated if Amm is of later origin. Amm will be partially specified if Khass is of later origin. According to majority, an Amm (general) proposition may be specified by a dependent clause which may occur in the same text (same verse or in another text (another verse). This may be done by introducing an Istisna (an exception reference - 2 : 282), a Shart (condition, ref. 4 : 12) or Sifah (quality, ref. 4 : 23) or by indicating extent of application (ghayah, ref. 5 : 6). 

The effect of Amm is that it remains in force unless specified. Even after partial specification Amm remains legal authority for unspecified portion. According to the majority Amm is speculative as a whole, whether before or after Takhsis (limitation) and as such open to Tawil. The cause (Sabab) of general ruling can not limit the application of the ruling. For instance, Asbab an Nazul (causes of revelation of verses of the Quran) will not limit the application of law based on the verse to the cause only. 

Mutlaq and Muqayyid Mutlaq denotes a word which is neither qualified nor limited in its application. When we say a book', it applies to any book without restriction. Mutlaq is unspecified and unqualified. When Mutlaq word is qualified by another word or words, it becomes Muqayyad. For instance, 'a red book'. Whereas Amm and Khass deal with scope of the words, Mutlaq and Muqayyad deal with essentially qualification (though Mutlaq has resemblance to Amm and Muqayyad has resemblance to Khass). An example of Mutlaq is "Fa tahriru rakabatin" (freeing a slave) in Sura Al-Maida (5 : 92). An example of Muqayyad is "freeing of a believing slave in Sura Nisa (4 : 92). 

Mutlaq remains absolute in application unless there is a limitation to qualify it (see example in the textbook). When Mutlaq is qualified into Muqayyad, the latter will get priority (see example in the textbook based on Quran 5 : 3 and 6 : 145). If there are two texts on the issue, one Mutlaq and the other Muqayyad, if they differ in their ruling and cause, both will operate, neither will be qualified. This is the majority view. Imam Shafii differs some what. He says that if the two texts vary in ruling but has the same cause, the Mutlaq will be qualified by the Muqayyad (see example based on verses 5 : 7 and 4 : 43 of the Quran). Early Hanafi scholars think that if Mutlaq and Muqayyad differ in their causes, one does not qualify the other.

Haqiqi (literal) and Mujazi (metaphorical) Words are normally used in their Haqiqi (literal) sense. Literal will normally prevail over metaphorical, particularly in law. Most of the Quran is Haqiqi. But Majazi also occurs in the Quran. For instance, the Quran says in 40 : 13 that "Allah sends down sustenance from the heavens which in fact means rain" (other examples, see textbook).

If the metaphorical (Majazi) meaning becomes dominant, it will prevail over the literal. For instance the literal meaning of "talaq" (that is release or removal of restriction) has been abandoned for metaphorical meaning of divorce. 

Haqiqi has sub-divisions of linguistic, customary and juridical (please see the textbook). Haqiqi and Majazi have been subdivided into "Sarih" and "Kinayah". 

Sarih (plain) is a word where the meaning is plain. You need not ask the speaker or writer to know the meaning. Kinayah (allusive) is a form of speech which does not disclose the intention of the speaker, you require further explanation from the speaker to know the intention. For instance, the use of the word 'Itaaddi' (start counting). Divorce is not clearly indicated (see Kamali). 

A Mushtarak is a word which has more than one meaning. 'Ayn' in Arabic is a Mushtarak which may mean eye, water-spring, gold and spy. Plurality of meaning of Mushtarak may be because of usage or acquisition of metaphorical meaning over time. The rule in regard to commands and prohibitions of the Shariah is that the lawgiver does not intend to hold more than one meaning of the Mushtarak (see examples in Kamali). The Mushtarak is in the nature of Mushkil and it is for the expert (Mujtahid) to determine the correct meaning in the context (Mujtahids may differ in this - this happens always with Ijtihad). 

Textual Implications (Al-Dalalah) There are two major analysis regarding levels of meaning of words and texts, the Hanafi and Shafii. There is not much difference in essence between the two. The Hanafi Ulema of Usul have distinguished four levels of meaning - First level is Ibarah al Nass (the explicit meaning). Ibarah al Nass is obviously perceptible from the text and also represents the principal theme of the text, if there are subsidiary themes also. (For example, limiting polygamy is a conclusion derived by Ibarah an Nass from the verse 4 : 3)

Most of the Nasus (legal texts) of Shariah convey their rulings by way of Ibarah Al Nass. Ibarah Al Nass conveys a Hukm Qati (definitive ruling) on its own and does not require corroborative evidence. Second level is Isharah Al Nass. This is an indicative meaning or alluded meaning present in the text. An example of indicative meaning is the verse 2:236 where it is not clearly said that marriage can be contracted without prior fixation of marital gift but deeper investigation suggests so. (see Kamali for this and other examples. It may be noted that in any event marital gift has to be given to wife in terms of verse 4 : 4 of the Quran.

Third method of deduction is Dalalah Al Nass ( inferred meaning). This is a meaning derived from the spirit and rationale of a legal text even if it is not indicated in the text. For instance from verse 17 : 23, we can infer that not only we can not say "Uff" to parents, we can not use any abusive language (see Kamali or other Usul books for examples). Forth method of deduction or level of meaning is Iqtida Al Nass (required meaning) that is a meaning on which the text is silent, yet it must be assumed to fulfil proper objective. For instance in verse 4: 22, it must be assumed that prohibition of marriage of mother or daughter means who are mothers or daughters through marriage (see examples in Kamali and other Usul books). In case of conflict, the first level (Ibarah Al Nass) will take precedence over second level (Isharah Al Nass) and so on (for examples, see Kamali).

The Shafiis have classified Texual implications into two basic types - Dalalah Al Mantuq (pronounced meaning) and Dalalah Al Mafhum (implied meaning). Dalalah Al Mantuq has been divided into Dalalah Al Iqtida (required meaning) and Dalalah as Isharah (alluded meaning). Dalalah Al Mafhum (implied meaning) has been subdivided into Mafhum al Muwafaqah (harmonious meaning) and Mafhum Al Mukhtalifa (divergent meaning or meaning not in accord with the purpose of text). Shafiis do not accept Mafhum al Mukhtalifa unless they fulfil six conditions (see Kamali for explanation and examples). They have also imposed restrictions in regards to Sifah (attribute), Shart (condition) and Ghayah (extent).

Hanafi scholars are more opposed to Mafhum Al Mukhtalifa. They do not accept any meaning which is not in accord with the text or its spirit. They do not accept it at all in the case of interpretation of the Quran and the Sunnah.

Command, Prohibitions and Nask

Commands and Prohibitions A command (Amr) is defined as a verbal demand to do something from a position of superiority to an inferior. Command (also prohibition) may occur in a variety of form.

Command is mostly in imperative mood. In some cases, use of a simple past tense in Arabic may also indicate command to do something [Sura Baqarah : 178]. A Quranic injunction may occur in a form of moral condemnation (Al-Baqara : 189, see also Kamali for explanation).

Quranic command may be conveyed as a promise of reward or punishment (see Kamali, see also the Quran - 4 : 13-14). An important question is : What is primary in command, is it obligation, a recommendation or simple permissibility? (as 'command' may mean all these). According to the majority, command implies obligation unless there are clues to suggest otherwise. Some have held that Amr (i.e. command) is in the nature of Mushtarak or which impart all (obligation, recommendation and permission). Some have held it implies only obligation or recommendation (Nadb). Some others have held that Amr means permission to do something. Clearly, the majority opinion is more rational and justified.

Command (Amr) may sometimes mean permissibility. For instance when the Quran says, "Kulu Washrabu" (eat and drink - ref. 7 : 31), the context suggests that it is mere permissibility. Similar examples can be seen in verse 5:2 (wa idha halaltum Fastadu) and 62:10 (Fantashiru fil Ard), (see also Kamali.) A command may convey a recommendation in some cases (see Kamali, also Sura Baqara : 282). A command in a few cases may indicate threat, i.e. advise to desist from doing a particular thing (ref. 24:33 and 17:64 - also textbook of the course) A command may imply supplication or prayer also (Ref. Baqara : 286). However command (Amr) mostly means obligation (Farz or Wazib, depending on whether the text and meaning both are Qati or not.)

Majority of Ulama held a command following a prohibition means permissibility, not obligation (ref. Quran 5:2 and 62:10). According to majority , a single instance of compliance of the command is an obligation, in the absence of indications for repeated compliance. When a command is issued in conditional terms, then it must be complied whenever it (condition) occurs (Ref. The Quran 5:7). When a command is dependent on a cause or attribute, it must be fulfilled whenever the cause is present (Ref. Quran 17:18).

As regard immediate or delayed execution of an Amr, it depends on the text and its indications. If the command does not itself specifies time limit (such as the times of prayers), it may be delayed. As regards whether the command implies the prohibition (Nahy) of the opposite, the majority thinks so. 

Prohibition (Nahy) is the opposite of command. It is a demand to avoid doing of something. Prohibition may occur in the form of a statement (ref. Quran 2 : 221) or in the form of an order not to do something (62 : 9; 22 : 30). Nahy may convey Tahrim (total prohibition) or guidance (irshad) or reprimand (tadib). Nahy which implies reprehension may be seen in Quran 5 : 87. Nahy which conveys moral guidance may be seen in Quran 5 : 104). Majority hold that Nahy primarily implies Tahrim, if there is no other indication to think otherwise.

If the act (other than Ibadat) is not prohibited in itself but becomes prohibited because of an extraneous reason, it is Batil (void) according to Shaffi's and Fasid according to Hanafii's. (please read carefully the textbook here). Batil means, it can not be corrected (there are many instances where marriage becomes Fasad according to some scholars and Batil according to other scholars - so is the case of many business transactions - see a book on marriage or on business in Islamic Law). The position is different about Ibadat (devotional matters). The Fasid here is equaivalent to Batil. In other words, there is only Batil, not Fasid in the area. 

Prohibition requires immediate and repeated compliance, whenever the prohibition is applicable. If the prohibition is conditional, it will be applicable where the condition is present (Ref. Quran 60 : 10). When a prohibition succeeds a command, it conveys Tahrim (illegality). 

Explicit (Sarih) injunctions (whether Amr or Nahy) require total compliance. However, the spirit of the Law should also be kept in view, not only letters (as for instance in "Fazah ila zikrillah" in Quran 62 : 9). Implicit injunctions, unless made explicit elsewhere, can be understood by scholars and they may differ therein. The means which lead to observance of command or prohibition are covered by the same ruling which applies to commands and prohibitions. Only a small portion of Nasus (texts) gives precise meaning. The larger portion of Nasus have to be interpreted by Mujtahid or scholars in the light of the general principles and objectives of Shariah. 

Naskh (Abrogation) Naskh literally means obliteration. Naskh has been defined as the suspension or replacement of one Shariah ruling by another. Naskh operates only in law, not in beliefs. Naskh operates only when, 

1. two evidences are of equal strength, 
2. they are present in 2 separate texts, 
3. there is genuine conflict which can not be reconciled, and 
4. the two texts are of two timeframe (one is later to the other). 

There are scholars who do not agree that there is abrogation in the Quran (please see in Kamali's book and argument against Naskh in the Quran). They say that in Ayat 2 : 106 and 16 : 106, reference of "Ayah" is not to abrogation within the Quran but abrogation of earlier scriptures by the Quran. They also say that the 'so-called' conflict in the Quran can all be reconciled. Muhammad Asad has also mentioned in his Tafsir that there is no Naskh in the Quran. Abdul Hamid Abu Suleman feels that it was wrong on the part of earlier Ulama to turn Naskh into a doctrine of permanent validity instead of understanding as the circumstance of history. (Ref. Islamic Theory of International Relations, a IIIT's publication - please also see discussion in the book by Kamali on Naskh). Abu Suleman suggests that Naskh's application should be limited to clear cases only such as change of Qiblah.

According to the majority, there is Naskh in the Quran and the Sunnah. According to majority, Ijma can not abrogate a ruling of the Quran and the Sunnah. Qiyas can not repeal a text of the Quran or the Sunnah. Abrogation may be explicit (sarih) or implicit (dimni). [please see Kamali for examples]. According to Imam Shafii, there are two types of Naskh - 

1. Naskh of Quran by Quran and 
2. Naskh of Sunnah by Sunnah. 

According to majority there are 4 types of Naskh : 

1. Quran by Quran, 
2. Quran by Sunnah, 
3. Sunnah by Quran, 
4. Sunnah by Sunnah. [please see examples in Kamali]. 

There is also another classification : 

1. Naskh al Hukm, 
2. Naskh al Qiraah, and 
3. Naskh al Hukm Wal Tilwah. 

Naskh al Hukm means that ruling has been abrogated but the text remains. Naskh al Qiraah means that the text has been abolished but the ruling remains. In Naskh al Hukm wal Tilwah, both the text and rulings are treated as abrogated. Of the above three, Nakh al Hukm has some basis but the other two have very weak basis. Sayyid Abul Ala Maududi has explained in his "Rasail wa Masail", why Naskh wal Qiraah is not acceptable?

There is difference between Naskh (abrogation) and Takhsis (specification or qualification of a general text). There is no real conflict in Takhsis. Another issue is whether addition (Tazid) amounts to abrogation. The majority answer is negative, which is correct.

 

Edited by rami