USUL AL FIQH AL ISLAMI

In the Name of Allah.
the Compassionate, the Merciful,
Praise be to Allah, Lord of the Universe,
and Peace and Prayers be upon
His Final Prophet and Messenger

Dedication

We present this study to those Muslim youth who are searching for a ray of light in the deepest darkness that surrounds us, and who are seeking a solution and a way out of the crisis that currently overwhelms us; in the hope that it may be of benefit to them, in Sha'a Allah.

A Word From the Editors

Legal studies in any language pose problems to authors and readers alike. In translation, those same problems are compounded, even many times over at some places in the text, so that quite often the result is, to say the least, disappointing. Unfortunately, with regard to English translations of classical works of the Islamic intellectual heritage, this sort of disappointment has been the rule rather than the exception.

Certainly, to the student of Usul al Fiqh this disappointment has been all the more acute. While translations of classical works in the field are non-existent, with the shining exception of professor Khadduri's excellent rendition of al Imam al Shafi'i's Risalah, there is as yet no general and systematic study of the discipline in English. Even survey literature on the subject is scarce.

Yet, despite this near desperate situation, the International Institute of Islamic Thought has not published the present volume merely in order to fill a void in the library. Rather, it is in recognition of the dynamics of intellectual reform, and of the role of Ijtihad in that process, that the Institute is undertaking to publish a series of works by its President, Dr. Taha Jabir al 'Alwani, on the subject of al Usul and, in particular, Ijtihad.

This volume should be understood as an overview of the field, and as an introduction to the classical discipline. Subsequent volumes, however, will, In Sha'a Allah, present much that is original, and even vital. For it is the conviction of the Institute that the source methodology developed by the scholars of al Usul for dealing with and interpreting the texts of the Qur'an and Sunnah is what now needs to be placed before our Muslim social scientists so that they, with this important and versatile tool in hand, may proceed to fashion the outlines of a new relevancy for Islam.

Certainly, for our part, we can only hope that we have succeeded in making the text clear. Moreover, we have taken pains to include a full Subject Index, with the help of Cindex version 4.0 software, that should prove useful to specialist and generalist alike. Also, while the Arabic edition of this book was published with topic headings, it was not divided into chapters. In the interest of clarity, we have divided the work into chapters by converting, where necessary, topic headings into chapter headings; and by adding brief explanatory notes. May Allah give His guidance to the Ummah of Muhammad (PBUH).

A.S. Al Shaikh-Ali Yusuf Talal DeLorenzo
IIIT-London Department of Research-IIIT

Jumada al Akhirah 1411 AH
December 1990 AC

Introduction

The research for this work originally formed part of the studies I undertook in Islamic Jurisprudence for the doctoral program at Al Azhar University in 1392/1973. On the occasion of the Second International Conference on Islamic Thought, held in Islamabad, Pakistan in 1402/1982 on the subject of the "Islamization of Knowledge", material from this thesis was presented in a revised form.

When the League of Muslim Youth expressed their desire to hold a course on Usul al Fiqh "Source Methodology in Islamic Jurisprudence", the material for this study formed one of the six subjects covered in the course. Then, as many of those who attended the course expressed a wish to obtain the lectures in printed form, and as the study was already being printed as one of the papers for the Islamabad Conference on the Islamization of Knowledge, which the International Institute of Islamic Thought will soon be publishing(*), In Sha'a Allah, we decided to take this opportunity to present this part of the Conference material to those who attended the course and to others who may wish to gain knowledge of this essential science of Shari'ah.

The science of Usul al Fiqh is rightly considered to be the most important method of research ever devised by Muslim Thought. Indeed, as the solid foundation upon which all the Islamic disciplines are based, Usul al Fiqh not only benefited Islamic civilization but contributed to the intellectual enrichment of world civilization as a whole. It will not be out of place to note here that the methods of analogical developed within the framework of Islamic jurisprudence constituted the methodological starting-point for the establishment and construction of empiricism, which in turn is considered to be the basis of contemporary civilization.

We present this brief work to all who are interested in gaining some knowledge of this science; and we ask Allah Ta'ala to help us benefit from what we learn, and to learn that which will benefit us, and to protect us from knowledge that is not beneficial, and from deeds that are not acceptable to Him. Wa Akhiru Da'wana an al Hamdu Lillah Rabb al 'Alamin! (All praise and thanksgiving belong to Allah, the Lord and Sustainer of all the worlds!)

Dr. Taha Jabir al Alwani, President, International Institute of Islamic Thought

Herndon, Virginia
Dhu al Hijjah 1408 AH
July 1988

(*) The edited proceedings of the Islamabad Conference were published by the Institute as volume number 5 in the Islamization of Knowledge Series, and is entitled ISLAM: Source and Purpose of Knowledge.

THE SAHABAH WHO GAVE FATAWA DURING THE PROPHET'S LIFETIME

The Sahabah who gave Fatawa in the Prophet's lifetime were: Abu Bakr, 'Uthmtan, 'Ali, 'Abd al Rahman ibn 'Awf, Abd Allah ibn Mas'ud, Ubay ibn Kab, Mu'adh ibn Jabal, Ammar ibn Yasir, Hudhayfah ibn al Yaman, Zayd ibn Thabit, Abu al Darda, Abu Musa al Ash'ari and Salman al Farisi, may Allah be pleased with them.

Some Sahabah gave more Fatawa than others. Those who gave the most Fatawa were: 'Aishah Umm al Mu'minin, 'Umar ibn al Khattab and his son Abd Allah, 'Ali ibn Abu Talib, Abd Allah ibn Abbas and Zayd ibn Thabit. The Fatawa given by any one of these six would fill a great volume. For example, Abu Bakr Muhammad ibn Musa ibn Ya'qub ibn al Khalifah Ma'mun collected the Fatawa of Ibn Abbas in twenty volumes.

Those from whom a lesser number of Fatawa were narrated are: Umm Salmah Umm al Mu'minin, Anas ibn Malik, Abu Sa'id al Khudri, Abu Hurayrah, 'Uthman ibn 'Affan, Abd Allah ibn Amr ibn al 'As, 'Abd Allah ibn Zubayr, Abu Musa al Ash'ari, Sa'd ibn Abu Waqqas, Salman al Farisi, Jabir ibn Abd Allah, Mu'adh ibn Jabal and Abu Bakr al Siddiq. The Fatawa of each of these thirteen would fill only a small part of a book.

To this list can be added Talhah, al Zubayr, 'Abd al Rahman ibn Awf, 'Imra-n ibn Husayn, Abu Bakrah, 'Ubadah ibn al Samit and Mu'awiyah ibn Abu Sufyan. The rest gave only a few Fatawa, and only one or two, in some instances more, have been transmitted from any of them. Their Fatawa could be collected into a small volume, but only after much research and sifting through texts18.

In preparing their Fatawa the Sahabah used to compare the particulars of events that had happened to them with similar matters for which judgments had been given in the texts of the Qur'an and the Sunnah. In thus referring the matter to the sources, they employed the method of looking for the meaning and legal significance through examination of the text's literal wording, its implications, and any other relevant details.

Having arrived at a decision, they would then explain to others how they had adduced the arguments that led them to their judgments, whether these had been derived from the letter of the text or from its spirit, and the people would follow them. Indeed, these early Muslim jurists never stopped researching a question until they reached a decision they felt certain of, and until they were completely satisfied that they had done their best and could do no more.

THE ERA OF THE GREAT SAHABAH

After the time of the Noble Prophet (s) came the era of the Great Sahabah and the Rightly Guided Caliphs Khulafa' Rashidun . This period lasted from 11 to 40 AH. The Reciters Qurra' was the term used at the time to denote those Sahabah who had a good understanding of Fiqh and gave Fatawa.

THE TIME OF ABU BAKR AL SIDDIQ

Maymun ibn Mahran summed up Abu Bakr's method of arriving at legal judgments as follows:

Whenever a dispute was referred to him, Abu Bakr used to look in the Qur'an; if he found something according to which he could pass a judgment, he did so. If he could not find a solution in the Qur'an, but remembered some relevant aspect of the Prophet's Sunnah, he would judge according to that. If he could find nothing in the Sunnah, he would go and say to the Muslims: 'Such and such a dispute has been referred to me. Do any of you know anything in the Prophet's Sunnah according to which judgment may be passed?'. If someone was able to answer his question and provide relevant information, Abu Bakr would say: 'Praise be to Allah Who has enabled some of us to remember what they have learnt from our Prophet.' If he could not find any solution in the Sunnah, then he would gather the leaders and elite of the people and consult with them. If they agreed on a matter then he passed judgment on that basis.19

If all the methods mentioned above failed to produce any result, then he would make Ijtihad and form his own opinion, either by interpreting a text in such a way as its legal implications became apparent, or by exercising his own legal acumen.

An example of Ijtihad of the first kind was when he was asked about the Kalalah. In response, Abu Bakr said: "My opinion, if it is correct, then it is from Allah, and if it is wrong, then it is from myself and from the Shaytan. The Kalalah is one who has neither ascendants nor descendants."20

Another example of the same was the instance when 'Umar mentioned to him the following Hadith of the Prophet (s): "I have been commanded to wage war against people until they say that there is no god but Allah..."21, and Abu Bakr said, "Zakah is a part of it."22

When Abu Bakr wanted to wage war against those who were withholding Zakah, 'Umar cited this Hadith to show that fighting them was not permitted, because the Prophet had said: "...until they say that there is no god but Allah. Then, if they say this, their blood and their wealth will be spared by me, except where due by right (ie. unless they do acts that are punishable in accordance with the Shari'ah of Islam).

According to 'Umar, these acts were: adultery, murder, and apostasy; since withholding Zakah was not expressly mentioned by the Prophet (s). But Abu Bakr said to him: "Zakah is a part of it. By Allah, I would fight anyone who performed Salah but did not pay Zakah! If anyone were to withhold from me even the smallest amount they used to pay to the Prophet, I would go to war with them over it."

An example of the second type of Ijtihad was when he decided that the mother's mother may inherit, but the father's mother may not.

Some of the Ansar said to him: "You allow a woman to inherit from the deceased, while he would not inherit from her if she were the deceased. And you have left with nothing the woman from whom he would inherit were the situation reversed." Abu Bakr then decided that both maternal and paternal grandmothers would share one-sixth of the inheritance.

Another example is his judgment that everyone should receive an equal share from the public treasury. 'Umar asked him: "How can you consider one who entered Islam with misgivings to be equal to one who left his home and wealth behind, and migrated to be with the Prophet?" Abu Bakr, however, insisted that: "They all entered Islam for the sake of Allah, and their reward is with Him; this world is nothing." when, however, 'Umar became the Khalifah, he differentiated between people and paid the "stipend" according to how early each person had entered Islam, whether they had migrated, and how much they had suffered for the sake of Islam.

Another example of Abu Bakr's exercise of Ijtihad was when he compared the appointment by the Khalifah of his own successor, to the appointment by means of Bay'ah. Thus, he appointed 'Umar to be the Khalifah after him, and the Sahabah agreed with him.

Khalid ibn al Walid wrote to Abu Bakr, telling him that in some areas of the Arabian Peninsula he had found men engaging in homosexual practices. Abu Bakr decided to consult the Sahabah of the Prophet (s) as to what he should do about it. One of the Sahabah was 'Ali, and his was the strictest judgment.

He said, "his sin was known only in one nation, and you know what Allah did to them. I suggest that these people should be burnt to death."

Abu Bakr wrote back to Khalid to tell him that they should be burnt to death; and this was done.23

SPECIAL FEATURES OF FIQH IN THE PERIOD

a.         The use of al Qiyas was widespread in cases where there was no relevant text in the Qur'an or Sunnah and none of the Sahabah objected to this.

b.         Al Ijma' was also widely used as a basis for judgment. This was facilitated by the fact that the Sahabah were few, and it was easy for them to agree amongst themselves. They used al Ijma' in many cases; for example, their decisions that the Khalifah or Imam should be appointed, that apostates should be fought and killed, that an apostate could not be taken as a prisoner of war, and that the Qur'an should be collected and written down in one volume.

THE TIME OF 'UMAR IBN AL KHATTAB

'Umar's recommendations to the judge, Shurayh, as mentioned above, explain his way of deriving judgments from the available evidence. The most noticeable feature of 'Umar's methodology, however, is the fact that he often consulted the Sahabah and discussed matters with them so as to reach the best understanding and find the most appropriate way to carry out judgments. In his approach to questions of legalities, 'Umar was like a shrewd and cautious chemist whose intent is to produce medicine that will cure disease without causing adverse side effects.

As a result, 'Umar left us a great wealth of jurisprudence. Ibrahim al Nakha'i (d.97 AH) said that when 'Umar was martyred, "nine-tenths of all knowledge disappeared with him.24

Ibn Mas'ud said of him, "whatever path 'Umar chose, we found it easy to follow."25

'Umar's understanding was comprehensive and he was possessed with good common sense. Thus, he was quick to relate the particular to the general, and could pursue the ramifications of an issue back to basic principles in order to see its wider implications. This is how he was during the time of the Prophet (s) and Abu Bakr, and he did not change when he himself became the Khalifah.

'Umar learnt a great deal from the Prophet (s). He often noticed that the Prophet would refrain from issuing an order to the people to do something good, although he wanted to do so, because he did not want to subject them to hardship. He (s) often used to say: "If it were not that I am afraid to impose hardship on my Ummah, I would have commanded them to do... such and such."26

Sometimes he would forbid them to do certain things, and then, when he saw that the reason for forbidding them was no longer valid, he would lift the ban. On other occasions, he would be about to forbid something, and they would tell him of the hardship and distress that such a prohibition would cause them, so he would refrain from it so as to protect them from hardship.

'Umar saw how the Prophet (s), whenever he was faced with a choice between two things, would always choose the easier of the two; and this had a great effect on 'Umar. Indeed, he well understood that the Shari'ah has purposes and aims which must be discerned and considered; and that there are grounds for, and reasons behind, these judgments; some of which are made clear in the primary texts while others are only alluded to. He felt it the duty of scholars to discover those reasons which are not specified in the texts, so that legal judgments may be applied to new issues and developments, and everything brought under the judgment of Allah so that people will not become accustomed to seeking remedies and legal rulings on their problems outside the law of Allah.

Hence, when we look at 'Umar's practice of Ijtihad , we will find clear methods of arriving at judgments. Anyone who studies his Fatawa will readily see that the reasoning behind them is based on the public interest, on taking precautions to prevent wrong-doing or to combat corruption, and on adopting the easiest and most expedient course under the law.

'Umar, for example, declared some judgments invalid because the reasons for enforcing them no longer applied, or because some of the conditions for following them no longer prevailed. Among those judgments: his request to the Prophet (s) that the prisoners of the battle of Badr should be killed; his suggestions about Hijab, and that the Prophet (s) should not tell the people that whoever said "there is no god but Allah" would enter Paradise, in case they relied only on that and made no further effort; his suggestion to Abu Bakr that he should no longer give an extra share from the public treasury to those who had recently embraced Islam; and his decision not to share out the conquered land among the army.

THE TIME OF UTHMAN IBN 'AFFAN

When allegiance was given to 'Uthman, it was done on the condition that he work in accordance with the Book of Allah, the Sunnah of His Prophet, and the precedent set by the first two Khulafa'. This, he promised to do. 'Ali, however, indicated that when he became Khalifah he would be prepared to work according to the Book of Allah and the Sunnah of His Prophet, and then to do the best that his own knowledge and energy would allow. Because 'Uthman showed that he was willing to undertake to work in accordance with the precedents set by the first two Khulafa' he was supported by Abd al Rahman, who had the casting vote. Thus, a third source of legislation, the precedent set by the first two Khulafa'; was added at the time of the third Khalifah, and was approved by him.

Since 'Ali had reservations about this, when he himself became the Khalifah he acted according to his own Ijtihad in matters for which the earlier Khulafa' had already produced Ijtihad . For example, 'Ali reconsidered the issue of whether slave women who had begotten children for their masters could be sold.

'Uthman ibn Affan was one of the Sahabah who did not produce a great number of Fatawa, probably because most of the matters he came across had already been dealt with by Abu Bakr and 'Umar, and he preferred to adopt their opinions. But in some cases, he had to make Ijtihad , just as his predecessors had done. Once, before 'Uthman had become Khalifah, 'Umar asked him about a legal matter. In reply, 'Uthman said: "If you follow your own opinion, that will be right. But, if you follow the opinion of the Khalifah before you (i.e. Abu Bakr), that is better, because he was so good at passing judgment!"

He also performed his own Ijtihad when, during the Hajj, he did not shorten Salah in Mina; though certainly it is permitted to do so. There are two possible explanations for this: the first is that he had been married at Makkah, and thought that the people of Makkah were not permitted to shorten their Salah in Mina; the second explanation is that he was afraid that some bedouins might be confused when they watched him do so, and so he did not.

'Uthman also formulated the Ijtihad that all people should read the Qur'an according to Zayd's way of recitation, because he thought that this was the most sound, and the most likely to forestall the occurrence of disagreements.

THE TIME OF 'ALl IBN ABU TALIB

'Ali was like 'Umar ibn al Khattab in the way he understood and applied the texts of the Qur'an and in his deep concern with linking particular issues to general principles. Prior to his assuming the office of Khalifah, he was considered the best judge in Madinah.

When the Prophet (s) appointed 'Ali judge in Yemen, he (s) prayed for him, saying: "0 Lord! Guide his heart and make him speak the truth." Indeed, 'Ali proved to be an excellent judge, and resolved many difficult cases.

'Ali described his own knowledge by saying: "By Allah, no verse of the Qur'an was ever revealed except that I knew concerning what it was revealed, and where and why it was revealed. My Lord has bestowed upon me a heart that is understanding and a tongue that is articulate."

Whenever a matter was referred to Ali for judgment, he would accept it without hesitation. And if he was asked to give a Fatwa, he would do so by citing from the Book of Allah, and then the Sunnah of the Prophet (s). Indeed, the extent of his knowledge of the Qur'an and Sunnah was very well known.

'A'ishah said: "In regard to the Sunnah of the Prophet (s), he was the most knowledgeable of all people."

'Ali used to formulate his own opinion by means of Ijithad based on al Qiyas, al Istishab27, al Istihsan28 and al Istislah29, always basing his opinion on the broader aims of the Shari'ah. when consulted concerning a possible increase in the Hadd-punishment for one found guilty of drinking alcohol, he compared drunkenness to the false basis that drunkenness could lead a person to make such an accusation.

During his Khilafah, 'Umar consulted 'Ali concerning the punishment of a group of people who jointly conspired to commit premeditated murder. 'Ali said, "0 Commander of the Faithful! If a group of people joined together in stealing, would you not cut one hand off of each of them?" when 'Umar replied in the affirmative, 'Ali said, "Then the same applies in this case." Consequently, 'Umar uttered his famous saying: "If all the citizens of San'a were to join together in murdering one man, I would execute the lot of them."

The analogy between murder and robbery was made because in each case there is a criminal motive shared between all who commit these acts, and it is this which requires rebuke and deterrent punishment.

Moreover, 'Ali preferred to burn alive those overzealous apostates and heretics who defied him, although he was well aware that the Sunnah ruling was merely to put such disbelievers and apostates to death. In this ruling, 'Ali showed himself keen to establish the strictest possible deterrent from the worst kinds of apostasy, because he considered this to be a very serious matter. Thus, he established the harshest punishment for such an act, so as to deter people from committing it. Moreover, to emphasize this, he recited the following verses of poetry extemporaneously:

"when I realized how grievous the matter was, I lit my bonfire and called for Qanbar."

Once 'Umar heard of a woman whose husband was away on a military expedition, and who was receiving strangers in her home. He therefore decided to send a messenger to her that she should not receive strangers while her husband was absent. when the woman heard that the Khalifah wanted to speak to her, she became fearful and, as she was pregnant, she miscarried the child on her way to see 'Umar.

'Umar, greatly disturbed by what had occurred, consulted the Sahabah about the matter. Some of them, including 'Uthman ibn 'Affan and 'Abd al Rahman ibn 'Awf, assured him: "You were merely attempting to educate her; you have done nothing wrong."

Then 'Umar turned to 'Ali, asking his opinion. 'Ali replied, "These men have spoken, and if this is the best opinion they can come up with, then fair enough. But, if they have spoken only to please you, then they have cheated you. I hope that Allah will forgive you for this sin, for He knows that your intention was good. But, by Allah, you should pay compensation for the child."

'Umar said, "By Allah, you have spoken sincerely to me. I swear that you should not sit down until you have distributed this money among your people."

THE FUQAHA' AMONG THE SAHABAH AND THE TABI'UN

This period is considered to have begun with the passing of the period that preceded it, in 40 AH, when the period of the "Rightly Guided" Caliphs ended. Thus began a new era, that of the Fuqaha' from among the Sahabah and the elder Tabi'un. Legislation at this stage was still very much as it had been during the previous stage, as the sources of that legislation, ie. the Qur'an, the Sunnah, al Ijma' and al Qiyas, remained the same. Nonetheless, legislation at this stage differed in many aspects from what had gone before.

Among the more significant changes were the following:

1.         Scholars had become more interested in delving into what lay beyond the explicit meanings of the texts.

2.         Their ways of dealing with the Sunnah underwent a great deal of change. Essentially, this difference was the outcome of political differences that accompanied the emergence of various sectarian and philosophical factions, such as the Shi'ah and Khawarij, whose attitude to the Sunnah was different. The Shi'ah refused to accept Hadith which were not narrated by their own followers; and the Khawarij refused to accept Hadith if, anywhere in the chain of the Hadith's narrators there was no more than a single narrator30. The Khawarij also rejected all Hadith not supported by a text from the Qur'an.

3.         Owing to the divisions which had arisen, al Ijma' was no longer a possibility in this period. Basically, this was because every group mistrusted the scholars of every other group, and would no longer accept any of their opinions, whether they agreed or disagreed with them. In addition, the Fuqaha' from among the Sahabah had become scattered all over the Islamic world, so that it was no longer possible for them to meet in order to discuss matters.

4.         Also in this period, the narration of Hadith and Sunnah became popular, whereas this had not previously been the case.

5.         The fabrication of Hadith, for many well-known reasons which we do not need to discuss here, became widespread. In this respect, Muslim reported that Ibn Abbas said: "We used to narrate many Hadith from the Prophet (s) without ever having to worry about fabrication. But when people started to be careless in narrating things attributed to the Prophet, we stopped narrating Hadith."

AL IMAM AL SHAFI'I

Al Imam al Shafi'i was horn in 150 AH, the year in which al Imam Abu Hanifah died. He studied Fiqh, first in Makkah with some scholars of Ahl al Hadith, such as Muslim ibn Khalid al Zinji (d 179) and Sufyan ibn 'Uyaynah (d 198). Then he went to the Imam of Madinah and leader of Ahl al Hadith, Malik ibn Anas, and studied with him, and committed to memory (so as later to relate it) his collection of Hadith and legal opinions, the Muwatta. Indeed, al Imam al Shafi'i ever felt himself indebted to al Imam Malik.

It is reported that Yunus ibn 'Abd al A'la heard al Imam al Shafi'i say: "whenever the 'Ulama' are mentioned [and their work and knowledge compared], Malik outshines them all. No one has ever done me a greater favour than Malik ibn Anas."40 This is what al Imam al Shafi'i said after he had studied language, poetry, literature, some of the natural and mathematical sciences, and history.

Al Imam al Shafi'i was not impressed with all that he learned of the work of Ahl al Hadith. For example, he criticized them for their accepting a Hadith which Munqati'41, saying: "The Munqati' is nothing."

Al Imam al Shafi'i also criticized them for accepting the Mursal42 variety of Hadith, (though he himself made an exception in the case of Mursal Hadith related by Sa'id ibn al Musayyab,) and for imposing overly strict conditions for the acceptance of narrators as reliable (and the Hadith they related as authentic).

When al Imam al Shafi'i went to Iraq, the stronghold of Ahl al Ra'i, he noticed that they were ever eager to find fault with the legal methods and opinions of the people of Madinah, and especially of his teacher, al Imam Malik. Thus, al Imam al Shafi'i stood up in defense of his teacher, his school of thought and his methods. It is narrated that he once said:

Muhammad ibn al Hasan said to me: "Our teacher (i.e. Abu Hanifah) was more knowledgeable than yours. Your teacher should not have spoken, but our teacher would have been wrong to remain silent." I became angry and said to him: "I ask you by Allah, who had more knowledge of the Sunnah of the Prophet, Malik or Abu Hanifah?" He said, "Malik. But our teacher was more adept at Qiyas." I replied, "Yes, and Malik was more knowledgeable than Abu Hanifah about the Qur'an, about its abrogation, and about the Sunnah of the Prophet. Whoever has more knowledge of the Qur'an and Sunnah has more right to speak!"43

Al Imam al Shafi'i studied the books of Muhammad ibn al Hasan and other Iraqi scholars44. Indeed, he became Muhammad ibn al Hasan's pupil, and discussed his opinions, all the while supporting the Sunnah and Ahl al Hadith.

Al Imam al Shafi'i left Baghdad for a period of time, and when he returned, in 195 AH, there were forty or fifty study-circles that met regularly in the great mosque. Al Imam al Shafi'i began moving from one circle to another, explaining what "Allah and the Prophet said", while other teachers spoke only of what their teachers said. Eventually, there were no study groups in the mosque other than al Imam al Shafi'i's study group.

Some of the great scholars of the Ahl al Ra'i, like Abu Thawr, al Za'farani, al Karabisi and others, attended the study circles of al Imam al Shafi'i. Many abandoned the way of Ahl al Ra'i and began to follow al Imam al Shafi'i. Al Imam Ahmad ibn Hanbal also attended this circle, and it is narrated that he said: "Any narrator of Hadith who ever carried an inkpot benefited in some way from al Imam al Shafi'i". when al Imam Ahmad was asked to explain, he said: "The Ahl al Ra'i used to laugh at Ahl al Hadith until al Imam al Shafi'i taught them otherwise, and vindicated the traditionist position through sound arguments."45

Moreover, it was in response to a request from Ahl al Hadith, that al Imam al Shafi'i wrote his book, Al Hujjah (The Argument), in Baghdad, in order to refute the arguments which Ahl al Ra'i brought against him.46

Thereafter, al Imam al Shafi'i travelled to Egypt where he found that most of the people adhered strictly and unquestioningly to the opinions of Malik. Consequently, al Imam al Shafi'i began a critical analysis of Malik's legal opinions, and found that in some cases, "...he (Malik) formulates opinions on the basis of a general principle, while ignoring the specific issue; whereas at other times he gives a ruling on a specific issue and ignores the general principle."

Al Imam al Shafi'i also found that Malik sometimes rejected a sound Hadith in favour of a statement made by one of the Sahabah or the Tabi'un, or in preference to his own reasoning. Sometimes, al Imam al Shafi'i discovered, Malik rejected the statement of one of the Sahabah in favour of the opinion of a Tabi'i, or his own personal opinion; and that he would do this in individual cases, and in extrapolating legal details, without taking general principles into account. Moreover, Malik claimed in many cases that there was Ijma' concerning the matter, when there was, in fact, disagreement about it.

Al Imam al Shafi'i also found that Malik's opinion that the Ijma' of the people of Madinah could be treated as source-evidence was, in fact, not very strong. He wrote a book entitled Al Ikhtilaf Ma'a Malik "Disagreement with Malik; in which he dealt with all of the matters mentioned above.47

According to al Imam al Shafi'i, al Imam Malik exceeded proper bounds in applying his principle of al Masalih al Mursalah (the Interest of the Greater Good) without having recourse to the abundance of source-evidence available. His opinion in regard to Abu Hanifah was that, in many cases, he concentrated on the particular, on minor issues and details, without regard for basic rules and principles.48

With these matters in mind, then, al Imam al Shafi'i came to the conclusion that the undertaking most deserving of attention was the collection of the principles of jurisprudence, the organization of the basic rules for their application, and the development of a source methodology by means of which questions of Fiqh may be decided through proper recourse to valid and relevant forms of evidence. Thus, Fiqh might become the practical application of this methodology, so that a new Fiqh might emerge as an alternative to the two established schools of legal thought.

It was for this reason that al Imam al Shafi'i wrote the Risalah, and built his Fiqh and legal teachings on the foundations of the principles and methodology he expounded in his book.

Al Imam Ahmad ibn Hanbal said: "Until al Imam al Shafi'i came along, we never thought of things like the general and the specific al 'Umum wa al Khusus".49

Al Imam al Shafi'i used to say to Imam Ahmad: "You have more knowledge about Hadith and narrators than I. So, if a Hadith is authentic, then tell me. If it is authentic, I will accept it, even if it is (reported by narrators) from Kufah, Basrah or Damascus.50 This statement clearly indicates that al Imam al Shafi'i was more concerned with establishing principles than with dealing with minor issues and details.

The scholars writing on the subject of the history of Usul al Fiqh are unanimously agreed that the first writer on the subject was al Imam al Shafi'i, and that the first book ever written on the subject was the Risalah51.

In his book, al Bahr al Muhit, al Zarkashi (d 794 AH) devoted a chapter to this, in which he said:

"Al Imam al Shafi'i was the first to write about Usul al Fiqh. He wrote the Risalah, Ahkam al Qur'an (Legal Interpretations of the Qur'an), Ikhtilaf al Hadith (Conflicting Hadith), Ibtal al Istihsan (The Invalidity of Juristic Preference), Jima' al 'Ilm (The Congruence of Knowledge), and al Qiyas (Analogical Reasoning)-the book in which he discussed the error of the Mu'tazilah group, and changed his mind about accepting their testimony. Then, other scholars followed him in writing books on al Usul."

In his commentary on the Risalah, Al Juwayni wrote:

"No one before al Imam al Shafi'i wrote books on the subject of al Usul, or had as much knowledge as he concerning it. It is related that Ibn 'Abbas mentioned something about the particularization of the general, and that some of the others among the early scholars made pronouncements which suggested they understood these principles. Still, those who came after them said nothing about al Usul, and they contributed nothing to it. We have seen the books of the Tabi'un and the third generation, and have found that none of them wrote books about al Usul."52

THE METHOD OF AL IMAM AL SHAFI'I IN HIS BOOK, AL RISALAH

Al Imam al Shafi'i began his book by describing the state of mankind just before the mission of the Prophet. In doing so, he divided them into two groups:

1.         Ahl al Kitab "the People of the Book"; or, the followers of earlier revelation who had altered their scripture and tampered with some of its legal injunctions. Essentially, these people had lapsed into disbelief and then attempted to fuse their falsehood with the Truth which Allah had revealed.

2.         The Mushrikun and Kafirun who worshipped idols instead of Allah.

Then al Imam al Shafi'i went on to say that Allah rescued all mankind by sending the Last of the Prophets, and revealing to him His Book, so that they might be delivered by means of it from the blindness of disbelief into the light of guidance:

Behold, it is a Divine Scripture, sublime. No falsehood can attain to it openly and neither in a stealthy manner; (since it is] bestowed from on high by One who is Truly Wise, Ever to be Praised (41 : 41-42).

Then al Imam al Shafi'i went on to discuss in detail the status of the Qur'an in Islam and its comprehensive statements about what Allah had permitted and prohibited, how man is to worship Allah, the rewards of those who obey Him, the punishments of those who disobey Him, and how He admonished them by telling the stories of those who had gone before.

Then, al Imam al Shafi'i explained that students seeking knowledge of Islam should learn as much of the Qur'an and its sciences as possible; and that when their intentions are pure they may both quote its verses and infer meanings from them.

At the end of his Introduction to the Risalah, al Imam al Shafi'i said: "No problem will ever beset any of the followers of Allah's religion except that there be guidance in the Book of Allah to indicate the right way. For, Allah, the Blessed and Most High, said:

A Book We send to you, that you may bring forth mankind from darkness to light, by the permission of their Lord to the path of the Almighty, the Praiseworthy (14:1).

He also said:

And We sent down to you the Reminder, that you may make clear to mankind what was sent down to them; and so haply they may reflect (16:46).

Also:

And We have sent down to you the Book as an explanation of everything; and as a guidance, and a mercy, and good tidings to the Muslims (16:91).

And:

Likewise, We have revealed to you a spirit of our bidding. You did not know what the Book was, nor the faith; but We made it a light by which We guide whomsoever We will of Our servants. And, verily, you shall be a guide unto a right path, the path of Allah (42:52).

There follows a chapter on al Bayan53 in which the word is defined as a legal term, and then divided into categories in explanation of the ways that the Qur'anic declaration indicates matters of legal significance. There are five such categories:

1.         That which Allah expressed as a specific legal provision which admits of no interpretation other than its literal meaning. This category of al Bayan needs no other explanation than the Qur'an itself.

2.         That which the Qur'an mentions in texts that may be interpreted in several ways; and for which the Sunnah provided an explanation as to exactly which one was intended.

3.         That which was clearly stated to be obligatory; and which the Prophet, upon him be peace, explained in terms of how, why, upon whom, and when applicable and when not.

4.         That which was explained by the Prophet, upon him be peace, but not mentioned in the Qur'an. Allah (SWT) commanded in the Qur'an that the Prophet be obeyed and his rulings accepted. Therefore, what is said on the authority of the Prophet, is said on the authority of Allah.

5.         That which Allah requires His creation to seek through Ijtihad . This is Qiyas. According to al Imam al Shafi'i, Qiyas is a method for reaching a legal decision on the basis of evidence (a precedent) in which a common reason, or an effective cause, is applicable.

Al Imam al Shafi'i then went on to explain these five categories in five separate chapters, giving examples and evidence for each. Thereafter, the Risalah included the following chapters:

�           The General Declaration revealed in the Qur'an is meant to be Comprehensive 'Amm, but includes the Particular Khass.

�           The Explicit General Declaration of the Qur'an in which the General and the Particular are included.

�           Explicit General Declaration of the Qur'an which appears to be General but is intended to be entirely Particular.

�           The Category of al Bayan in the Qur'an by means of which meaning is clarified by context.

�           The Category of al Bayan in the Qur'an the wording of which indicates the Implicit al Batin meaning rather than the Explicit al Zahir.

�           That, of the Qur'an, which was revealed as General but which the Sunnah specifically indicates is meant to be Particular.

In the above-mentioned chapter; al Imam al Shafi'i explained the validity of the Sunnah as evidence and its status in the religion. For this reason, he then included the following chapters:

�           The duty imposed by Allah in the Qur'an to follow the Sunnan of His Prophet.

�           Allah's command ordering obedience to the Prophet is both associated with obedience to Him and ordered independently.

�           Matters in which Allah commanded obedience to the Prophet.

�           How Allah made it clear that the Prophet was obliged to follow what was revealed to him and to obey whatever commands Allah gave him; and that Allah will guide any who follow him.

In this chapter, al Imam al Shafi'i affirmed that parts of the Sunnah of the Prophet dealt with and were related to the Qur'an, whilst other parts explained matters concerning which there was no relevant text in the Book. Al Imam al Shafi'i also showed that the Sunnah existed independently of the Qur'an, and quoted evidence in refutation of those who disagreed with him in that matter. Then he said: "I shall explain what I have already said about the Sunnah, (whether) it particularizes the Qur'an or provides additional legislation for matters not mentioned therein; and this will illustrate what I have discussed above, Allah willing. I shall first speak of the Sunnah based on the Book of Allah, by dealing, by means of deductive reasoning, with the subject of the Sunnah in regard to the abrogating al Nasikh and abrogated al Mansukh passages of the Qur'an. Thereafter, I shall mention the Fard-duties specified (in the Qur'an) and the Sunnah in regard to them; the Fard-duties revealed in General terms which the Prophet (s) made Particular through his specifying details relating to how and when; the General texts that were intended to be understood as General, and the General texts that were intended to be understood as Particular; and, finally, the Sunnah of the Prophet (s) for which there is no textual authority from the Book of Allah."

There follows a chapter entitled, "The Origin of the Abrogating and the Abrogated"; which explains that Allah (SWT) used abrogation to make (the Shari'ah) easier and more flexible. This chapter also makes the point that a verse Ayah of the Qur'an can only be abrogated by another verse of the Qur'an; and that the Sunnah can only be abrogated by the Sunnah.

Then he dealt with the abrogating and the abrogated which are indicated in part by the Qur'an, and in part by the Sunnah.

Thereafter comes mention of the Fard-duty of Salah and the explanation in the Qur'an and the Sunnah concerning those who may be excused from performing it, and those whose Salah is not accepted because of some act of disobedience they may have committed.

Then al Imam al Shafi'i writes of the Abrogating and the Abrogated that are indicated by the Sunnah and al Ijma';

�           of the Fard-duties which Allah laid down in the text of the Qur'an,

�           of the Fard-duties laid down in the text of the Qur'an which the Prophet (s) also dealt with in the Sunnah.

�           of the Fard-duties laid down in the text of the Qur'an which the Sunnah indicated were meant to be Particular in application,

�           of the Fard-duties in general which are clearly meant to be compulsory and for which the Prophet (s) gave the explanation as to how they were to be performed; like Salah, Hajj, Zakah, the number of wives, women whom one is not permitted to marry, and dietary prohibitions.

In the next chapter he discussed defects in Hadith, and explained that the contradictions between Hadith could be attributed to many reasons. He then went on to explain some of these reasons. For example, a contradiction might appear because one Hadith was abrogated by another, or because mistakes occurred in the narration of the Hadith. He explained the mistakes which might cause contradictions in the Hadith, and many other reasons for such contradictions. Then he dealt with the various types of prohibitions, and explained that some Hadith clarify others.

Al Imam al Shafi'i also included a chapter on knowledge, and explained that there are two types of knowledge. The first is that sort of common knowledge which no sane, mature adult could possibly not know about. All of this knowledge can be found mentioned in the text of the Qur'an, and every Muslim knows all about it because it has been transmitted down from the Prophet (s) to each succeeding generation in turn. There is no dispute concerning the authenticity of this knowledge, and all are agreed that it is binding. Indeed, the nature of this knowledge is such that there can be no mistakes in its transmission or interpretation.

The second type of knowledge is of the details which stem from the obligations, and the specific laws relating to them. These are not mentioned in the text of the Qur'an, and most of them are not mentioned in the text of the Sunnah, apart from single-individual narrations, Ahad.

Thus, al Imam al Shafi'i introduced a new subject, the single- individual narration, Khabr al Wahid. Al Imam al Shafi'i then explained what is meant by this term, and the conditions which determine whether or not a narration is of the single-individual variety. The difference between testimony and reporting, Shahadah and Riwayah, was explained; as were those matters which may be accepted through a single-individual narration, and those for which a Khabr al Wahid alone is not sufficient.

Then al Imam al Shafi'i discussed the authority of the Khabr al Wahid, and whether such reports could be adduced as evidence. His conclusion, supported by very sound arguments, was that indeed they could be used. Thus, al Imam al Shafi'i succeeded in refuting all the misgivings brought up by his opponents on this issue.

The following chapters then follow:

�           On al Ijma': its definition, and legal authority.

�           On al Qiyas: its meaning and nature, the need for it, the varieties of Qiyas, and who is, and is not, competent to employ it.

�           On Ijtihad : how it is based first on the Qur'an, and then on the Sunnah; what constitutes correct and incorrect Ijtihad .

�           On al Istihsan, Juristic Preference: al Shafi'i was careful to explain that no Muslim is permitted to use al Istihsan in order to contravene the Hadith, nor may he pronounce any legal judgement which is not based on the Qur'an, Sunnah, al Ijma' or al Qiyas. He also explained the difference between al Qiyas and al Istihsan.

�           On disagreement among the scholars: al Imam al Shafi'i explained that these disagreements are of two types; the type that are prohibited and the type that are not. The types of disagreements which are not allowed are those concerning matters for which Allah has provided clear evidence in the texts of the Qur'an or Sunnah. Those disagreements which are permitted pertain to matters which could be interpreted in several ways and to which each scholar applies his own reasoning. Al Imam al Shafi'i then gave examples of both kinds of disagreements, and mentioned the reasons for each. He also gave examples of issues on which the Sahabah had disagreed, such as 'Iddah, oaths and inheritance. In this chapter; al Imam al Shafi'i mentioned something of his methodology for assigning preference to the opinions of the Sahabah when they differed.

The Risalah concludes with an explanation of al Shafi'i's opinion on the "categories of evidence" mentioned above:

"We base our judgements primarily on the Qur'an and the agreed-upon Sunnah concerning which there is no dispute, and say: 'This is our judgement after studying both the explicit and the implicit meanings of the texts.' Then, if we have to refer to the Sunnah that is narrated by only a few persons and concerning which there is no agreement, we say: 'We accept the Hadith as it is, but are aware that there could be some hidden fault in its narrators.' Then we will refer to at Ijma' then to al Qiyas. Al Qiyas is weaker than at Ijma' and it is used only when necessary because it is not lawful to use al Qiyas when there is a narration concerning the matter being dealt with."

From the writings of al Imam al Shafi'i, we know which sources of Islamic jurisprudence were agreed upon, and which were the cause of disagreement at that time.

The sources which were agreed upon were: The Qur'an and the Sunnah in general.

The sources concerning which there was disagreement included the Sunnah in its entirety, to some, and the Khabr al Wahid narrations (which al Imam al Shafi'i referred to as al Khassah) in particular. But al Imam al Shafi'i's contribution was that he examined these two issues in their entirety in the Risalah and in his Jim' al 'Ilm.

Other matters concerning which there were disagreements included:

1.         Al Ijma': There were disagreements concerning its validity as evidence; concerning the different types of al Ijma'; whose Ijma' may be accepted as evidence; matters m which al Ijma' may be considered as evidence; and how the public may be made aware that there is Ijma' on any particular matter.

2.         Al Qiyas and al Istihsan: There were disputes concerning the meaning of these terms, their nature, validity as evidence, the possibility and method of using them, and whether the actions of the Sahabah could be considered Qiyas or Istihsan.

3.         There was also open disagreement concerning the significance of the Qur'anic command and prohibition, their meanings and their impact on the rest of the legal, Fiqh judgements. We may notice that in this period, the four Sunni Imams did not use strictly defined terminology such as al Tahrim "Prohibition", al Ijab "obligation", etc., as these words were not commonly used in their vocabulary. Rather, this kind of legal terminology appeared later on, as Ibn Qayyim has stated.54

4.         Other sources of Islamic jurisprudence concerning which there are differences were not commonly discussed at the time of the early jurists. For example, such terms as al 'Urf, al 'Adah, and al Istishab were not part of their vocabulary.

ISSUES RELATED TO Ijtihad

The subject of Ijtihad traditionally took up an entire chapter of a book of al Usul. In that chapter, the author would first deal with Ijtihad by defining it, explaining the conditions for its validity, and differentiating between the various kinds of Ijtihad . Thereafter, he would discuss whether or not the Prophet (s) considered Ijtihad to be a form of worship 'Ibadah, whether or not it constituted a form of 'Ibadah for the Sahabah during the Prophet's lifetime, whether only one answer resulting from Ijtihad on any issue could be correct, or whether there could be several correct answers, and when Ijtihad was and was not permitted. Then the scholars dealt with the subject of Taqlid in the same fashion.

In the eighth century AH, Ibrahim ibn Musa al Shatibi (d 790) wrote al Muwafaqat "The Congruences", in which he spoke of Ijtihad in terms of its being an intellectual exercise based on two pillars. The first pillar was complete knowledge of the grammar and syntax of the Arabic language. He left this subject to the scholars of the Arabic language and other writers on al Usul. The second pillar of Ijtihad , in al Shatibi's opinion, was knowledge of the purposes behind the legislation of the All-Wise Lawgiver.

Al Shatibi's predecessors in the field of al Usul had never paid a great deal of attention to these purposes. Rather, the most they had done in this direction had been to search for principal causes 'Illah. Al Shatibi, on the other hand, wrote his book in order to deal with this important matter. Indeed, knowledge of the purposes Maqasid of the Shari'ah is essential to understanding the legislation of the Lawgiver. Yet, the scholars of al Usul have never given this book the attention it deserves. This may perhaps be explained by the notion fixed in the minds of many scholars that it is not permitted to seek reasons for legislation by the Almighty, for the reason that such speculation cannot be regulated or rendered precise.70 When this is the case, or so goes the reasoning of a great many scholars, the study of such matters is little more than a needless intellectual luxury.

Anyway, al Shatibi's book is in print and widely available; and we can only hope that teachers of al Usul and those responsible for drawing up curricula will direct their students' attention to this important work; especially those who are studying al Qiyas,al Ta'lil and Ijtihad . In our own times, the two great scholars, Ibn 'Ashur and 'Allal al Fasi have written on the subject of the purposes of the Shari'ah.

Ibn Humam (d 861) wrote al Tahrir "The Writing", and his student, Ibn Amir al Hajj (d 879) wrote a commentary on it entitled al Taqrir wa al Tahbir. Both are in print. Al Tahrir is one of the books written in the combined Hanafiyah- Mutakallimun method. There is another commentary, by Amr Badshah, entitled Taysir al Tahrir "Facilitating the Writing".

Al Qadi 'Ala' al Din al Mardawi (d 885) wrote a summary of Usul Ibn Muflih71 (d 763) entitled Tahrir al Manqul wa Tahdhib 'Ilm al Usul. This work has been researched and edited, and is due to be published soon. The same researcher has also dealt with Usul Ibn Muflih.

Later, Ibn al Najjar al Futuhi of the Hanbali school of legal thought wrote a summary of Tahrir al Mardawi, and wrote an excellent commentary on it. This commentary is considered to be one of the best and most comprehensive of the later books about al Usul. An incomplete version of the book was printed in Egypt before it was researched and edited by two prominent professors, Dr. Nazih Hammad and Dr. Muhammad al Zuhayli. Their work was published by the Center for Academic Research in the College of Shari'ah at Makkah. Most of the book has now been published, and what remains is at the press.

In the twelfth century AH, Muhibb Allah ibn 'Abd al Shakur al Bihari, of the Hanafi school (d 1119 AH) wrote his famous book on Usul, Musallam al Thubut. This is one of the most precise and comprehensive books written by the later generation of Hanafi scholars. The book has been printed on its own, and with a commentary, in India; and has also been printed, with its famous commentary Fawatih al Rahamut, on the margin of al Imam al Ghazzali's al Mustasfa, several times.

All of these books were written following the methods mentioned above, and all of them concentrated on supporting their author's Madhab and refuting those of his opponents. From the sixth century until the present, there is no book to be found which is concerned with presenting Usul al Fiqh as a research tool that will protect the Muslim jurist from making errors in Ijtihad ; apart from one remark made in passing by al Shaykh Mustafa Abd al Razzaq in his book Tamhid li al Tarikh al Falsafah al Islamiyah "Preface to the History of Islamic Philosophy". His student, Dr. Nashshar, tried to explain this remark in his book Manahij al Bahth "Methods of Research".

In the thirteenth century AH, al Qadi al Shawkani (d 1255) wrote his well-known book on Usul, Irshad al Fuhul "Guidance of the Masters". This book, despite its diminutive volume, presents different opinions in the field of al Usul, and the evidence given by the proponents of each, in a brief but excellent fashion. The author also states which of the opinions he prefers. This book, which has been printed several times is a useful one for the student of Usul al Fiqh and comparative studies in jurisprudence. However, to the best of our knowledge, it has not been included in the curriculum of any institute, despite its suitability.

Muhammad Siddiq Khan (d 1307) summarized this work in a book entitled Husul al Ma'mul min 'Ilm al Usul "The attainment of the Hoped For in the Science of al Usul", which is in print.

Indeed, Irshad al Fuhul is considered to be an accurate summary of al Zarkashi's al Bahr al Muhit; and al Mahallawi's Tashil al Usul is considered to be a summary of Irshad al Fuhul.

After this period, we find that the study of al Usul has followed either one of two major trends:

1.         Writing study guides, summaries and notes. This has been done by the professors at various colleges of Shari'ah and Law in order to make the study of Usul al Fiqh easier for their students; after they realized that their students were unable, or unwilling, to study this subject. Certainly, these notes represent no sort of advance in the field; and in most cases they are mere attempts at recasting the issues of Usul al Fiqh in a simplified modern idiom. The following scholars, al Marsafi, al Mahallawi, al Khudari, Abd al Wahhab Khallaf,al Shinqiti, al Sayis, Mustafa 'Abd al khaliq, 'Abd al Ghani 'Abd al Khaliq, Abu Zahrah, Abu Nur Zuhayr, Ma'ruf al Dawalibi, 'Abd al Karim al Zaydan, Zaki al Din Sha'ban, Muhammad Sallam Madkur, and others, all wrote books which were originally lectures they had delivered in the colleges of Law and Shari'ah where they taught.

2.         The second trend has been the writing of university theses on different aspects of this science, and the researching and editing of unpublished manuscripts. Undoubtedly, both aspects of this trend are of great benefit, and I certainly do not intend to demean the efforts of anyone; but these nonetheless fall short of achieving any sort of development in the field, and the science of Usul al Fiqh remains in the same place our predecessors left it in the sixth century AH.

From the above, we may draw the following conclusions:-

1. Nothing of the discipline now known as Usul al Fiqh had emerged, with its particular terminology, during the time of the Prophet (s) or his Sahabah.

Nonetheless, almost all of the various Ijtihad processes employed during these two periods could be classified under the principles articulated by this science. The reason for this is that they used to derive detailed legal rulings on particular issues from the sources of law as a matter of instinct, just as they used to speak Arabic instinctively, or without being aware of the grammatical rules which were still unknown at the time.

2. The first scholar to compile a book about the principles of the science of Usul al Fiqh was al Imam Muhammad ibn Idris al Shafi'i (150-204 AH).

The first comprehensive book on the subject was the Risalah, which he wrote in response to a request from al Imam 'Abd al Rahman ibn al Mahdi (135-198 AH). This was after the two famous schools of Fiqh, the school of Ahl al Hadith, led by al Imam Malik ibn Anas (93-179 AH), and the school of Ahl al Ra'i, led by al Imam Abu Hanifah (70-150 AH), had become established and widespread.

Following the widespread circulation of these two legal schools of thought, there arose between the followers of these two schools, in addition to the political, theological and philosophical conflicts of the period, what can be described as "The Fiqh Controversy".72

3. Usul al Fiqh is a method of research for the jurist,73 and its place in Fiqh is analogous to that of Logic in Philosophy.74 Therefore, it was defined as "the aggregate, considered per se, of legal proofs and evidence that, when studied properly, will lead either to certain knowledge of a Shari'ah ruling or to at least a reasonable assumption concerning the same; the manner by which such proofs are adduced, and the status of the adducer."75

So, Usul al Fiqh offers comprehensive guidelines which protect the Mujtahid from making mistakes in the various ways he uses source material for the purpose of deriving legal judgements.76 Nonetheless, it was not used in this way until al Imam al Shafi'i put it to use in his "New" Fiqh.77

4. An important fact which should be borne in mind is that scholars studied Fiqh, and made pronouncements concerning it, before anyone began to speak of its Usul (apart from al imam al Shafi'i in his "New" Fiqh).

Thus, the role given by others to Usul al Fiqh was little more than that of justification for legal pronouncements Fatawa that they made on specific issues, and of the substance of argument and debate among them. They did not view Usul al Fiqh as a comprehensive legal guideline, or as a methodology capable of regulating the entire legal system. The jurists Fuqaha, when faced with questions and situations, used to refer these back directly to the relevant evidence, without feeling the need to have recourse to the general principles articulated in Usul al Fiqh.

So, al Imam Abu Hanifah gave Fatawa on nearly half a million issues,78 which his students learnt and passed on. But, the legal principles on which al Imam Abu Hanifah based these Fatawa were never transmitted with anything like an uninterrupted line of authority from him,79 apart from a few reports in which he refers to some of the sources of his Ijtihad . He said, in one of those reports:

"I follow the book of Allah, and if I find no solution there, I follow the Sunnah of the Prophet, peace be on him. If I find no solution in either the Qur'an or the Sunnah, I follow whichever of the pronouncements of the Sahabah I prefer, and leave whichever I wish. If there is a pronouncement on a particular matter by any of the Sahabah, I would not adopt any other opinion made by any other scholar. But, if I found a solution only in the opinions of Ibrahim, al Sha'bi, Ibn Sirin, Hasan al Basri, 'Ata' or Sa'id ibn al Musayyab, I would make Ijtihad just as they did."80

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

"The situation is not as you have heard, 0 Amir al Mu'minin! I work according to the Book of Allah, then according to the Sunnah of the Prophet, then according to the judgements of Abu Bakr, 'Umar, 'Uthman and 'Ali, then according to the judgements of the rest of the Sahabah. Then, if there are any differences between their pronouncements, I resort to al Qiyas. No one of Allah's creatures is inherently closer to Him than any other."81

When he was accused of preferring al Qiyas to an explicit text Nass in the Qur'an, he replied: "By Allah, those who say that we prefer al Qiyas to a Nass have lied and slandered us. Is there any need for al Qiyas after [finding an explicit] Nass?"82

5. It is quite obvious that from the beginning of the Umawi period until the destruction of the Islamic Khilafah, authority and leadership in the Ummah were in the hands of those who were not qualified to perform Ijtihad , whilst the responsibility for Ijtihad passed to the 'Ulama' who had no authority. And it is difficult to find exceptions to this state of affairs, apart from the Khilafah of 'Umar ibn 'Abd al 'Aziz, from whom many judgements involving questions of jurisprudence have been narrated. This situation had the far-reaching effect of separating Fiqh and its Usul from the practical aspects of Muslim life, so that in many cases these subjects became theoretical and idealistic.83 Essentially, both subjects became descriptions of how Muslim life ought to be; not how it really was, or what it might become.

6. The writers and historians of this science classified it among the sciences of the Shari'ah that are based on transmitted evidence,84 even though some writers said that its principles are taken from the Arabic language, the rational sciences, and certain other Islamic disciplines.85 One of the most prominent writers in the field, al Imam al Ghazzali, wrote:

The noblest sciences are those in which reason 'Aql and received evidence Sama' are married, and in which conclusions based on reason accompany those based on revelation. The science of Fiqh and its Usul is one of these sciences. It draws equally from the purity of revelation and the best of reason. Yet, it does not rely purely on reason in a way that would be unacceptable to revealed law, nor is it based simply on the kind of blind acceptance that would not be supported by reason.86

The statements of al Imam al Ghazzali and other writers on the subject of al Usul enable us to suggest that there are three sources of Fiqh:

i.          Wahy Divine revelation: this includes both the recited, or the inimitable Qur'an, and the unrecited, or the Sunnah.

ii.          'Aql or reason: to explain the texts, to seek ways in which they may be applied and ways in which various parts may be connected to the whole, to search for the reasons behind legislation that seems to have no reason, to derive laws in matters for which the Lawgiver did not lay down an explicit judgement in the texts, and other similar matters which can be defined and explained.

iii.         Experience, customs and the public interest.

All the Usul, both those which scholars have agreed upon and those concerning which there are disagreements, may be classified under the above three headings, as follow: The Qur'an, the Sunnah, al Ijma', al Qiyas, the idea that what is basically beneficial is permitted and what is basically harmful is prohibited, al Istishab and al Istihsan. In addition, the pronouncements of the Sahabah which were well-known among them and which none of them opposed; the principle of always adopting the least rigorous alternative; studying a few of the available relevant cases for purposes of comparison; common interest and customs which were neither commanded nor prohibited in any Islamic source; the conclusion that there is no law when there is nothing to indicate any law; the laws of nations before Islam, and closing the door on justifications.

7. There were certain factors in our history, some of which were mentioned above, that both intimidated and imposed many restrictions upon us. Thus, the focus of our Islamic mentality and intellectual attention was diverted to minor issues, so that we were distracted from thinking in comprehensive terms, characteristics considered to be the distinguishing features of Islamic thought. This had a far-reaching effect on the way we dealt with Fiqh and on the solutions we produced, in that these also bore the same characteristics and features.

8. It is well-known that in every science and sphere of life, there are some matters that naturally accept development, that sometimes require it in order to realize their full potential. Yet, there are other matters that are fixed and immutable. According to the logic of Islam, the two must be integrated. Hence Usul al Fiqh has fixed rules which cannot be changed, and others which rely on continual development and renewal. This is clear from the foregoing discussion of Ijtihad .

Hence, while we urge all Muslim scholars not to begin from a vacuum, but to benefit from the reasoning and Ijtihad of the scholars who went before them, we affirm that no one can claim that it is obligatory to follow any Mujtahid in matters where his pronouncements were based solely on his individual reasoning. The best we can say in this matter is that his pronouncements are "an opinion, and an opinion can be shared."87

9. From studying the methods of the early Muslims, it is clear to us that their aim was not simply to ascertain the law and then to produce Fatawa. On the contrary, their objective was always the establishment of Allah's rule through the application of His law. What this means, essentially, is that the circumstances surrounding the application of law cannot be separated from the conditions attached to it.

If, having understood the above, we wish to restore this science to its rightful place among the Islamic sciences, and transform it into a method of research into the source evidence of the Shari'ah from which we may derive rulings on, and solutions to, our contemporary problems, (thus maintaining the sovereignty of the Shari'ah), we must do the following:

i. Review the topics covered by this science, and eliminate those without relevance to the modern scholar or jurist. These might include, Hukm al Ashya' Qabl al Shar" "Rulings before the Shari'ah", Shukr al Mun'im "How one is required to thank the Almighty Bestower", Mabahith Hakimiyyat al Shar' "Studies about the Sovereignty of the Shari'ah", and excessive concern with definitions. We should also dispense with disputes concerning the uncommon Qira'at Shadhdhah "Alternate Recitations" of the Qur'an, and the Arabic nature of the entire Qur'an. Likewise, we should now end the long disagreement about single-narrator Hadith by saying that if such a narration is proven to have met the conditions of being authentic Sahih it will be acceptable, and laws may be derived from it.

Moreover, we should re-examine all the conditions, laid down by certain early jurists, that seem to have been dictated by circumstances. For example, the condition that a Hadith should not contradict the general principles they established, that it should not be narrated by other than a Faqih, that it should not contradict al Qiyas, or the traditions of the people of Madinah, or the explicit meaning Zahir of the Qur'an. Or the condition that a Hadith, if it deals with a common issue or hardship or affliction, must be widely known. All of these conditions should be rejected, and the same must be done with other conditions which were and are still controversial and a source of disagreement among Muslims, and which still occupy the time of scholars.

ii. Undertake linguistic studies relating to Fiqh which will examine the styles of expression used by the Arabs at the time of the Prophet (s), and note the stages of development which these styles later passed through, and the various meanings assigned to words in current usage at the time. This will enable us to understand the texts as they should be understood.

iii. Pay special attention to the methods and the principles involved in performing Ijtihad , such as al Qiyas, al Istihsan, al Maslahah, and others, and study them from a historical perspective, taking into account the circumstances which dictated the pronouncements of the Mujtahidun. We should also try to instil a juristic frame of mind into those who are researching in the fields of al Fiqh and al Usul.

iv. Realize that it is impossible at this time for there to be a Mujtahid Mutlaq, or one who is a legal authority (on the interpretation of the sources) in his own right, to pass judgements on issues. As long as this is so, academic councils are the best alternative.

In order to enable these councils to meet the needs of the Ummah in matters of legislation, they should be composed of experts whose specializations cover all aspects of life, and who would be able to clearly perceive any problem presented to them. In addition to this, they would have to have complete knowledge of the general rules and principles of the Shari'ah of Islam. Such councils would also include jurists of the highest level possible, knowledgeable in both the sciences of the Shari'ah and the detailed source evidence. Perhaps one of our great jurists was referring to this idea when he was approached by someone who wanted to break his fast in the month of Ramadan and the jurist told the man to seek the opinion of a trustworthy Muslim doctor; adding that if the doctor considered the fast injurious to his health, then it would be permissible for him to abstain.

v. We must make it easier for specialists in other fields to study what they need of the sciences of the Shari'ah.

vi. We must become familiar with the Fiqh of the Sahabah and Tabi'un; and especially with the principles on which they derived their judgements. In particular, the Fiqh of the Khulafa' Rashidun and their contemporaries deserves deep study. Then, this knowledge may be presented to those whose task it is to formulate legislation and make judgements in response to the demands of contemporary Muslim society.

vii. We need to take an interest in knowing the aims and purposes of the Shari'ah, and in developing the study of this matter, by setting down rules and guidelines.

And Allah is the Giver of Tawfiq (success and prosperity)!