We use cookies to enhance your experience on our website. By continuing to use our website, you are agreeing to our use of cookies. You can change your cookie settings at any time. Find out more Uṣūl al-fiqh - Oxford Islamic Studies Online
Select Translation What is This? Selections include: The Koran Interpreted, a translation by A.J. Arberry, first published 1955; The Qur'an, translated by M.A.S. Abdel Haleem, published 2004; or side-by-side comparison view
Chapter: verse lookup What is This? Select one or both translations, then enter a chapter and verse number in the boxes, and click "Go."
:
  • Previous Result
  • Results
  • Highlight On / Off
  • Look It Up What is This? Highlight any word or phrase, then click the button to begin a new search.
  • Next Result

Uṣūl al-fiqh

By:
Farhat J. Ziadeh
Source:
The Oxford Encyclopedia of the Islamic World What is This? Provides comprehensive scholarly coverage of the full geographical and historical extent of Islam

Uṣūl al-fiqh

Muslim jurists generally define uṣūl al-fiqh (roots of law) as the body of principles and the investigative methodology through which practical legal rules are derived from their particular sources. Its scope of interest may be likened to the field of jurisprudence in English law as discussed by John Austin or Carleton Allen, as well as to the field of interpretation of statutes. Of prime importance in its inquiry is the question of the legitimacy of rules and whether such rules depend on a certain or a probable base. Rules of probable legitimacy, according to most jurists, are binding in law, whereas in theology beliefs must depend on bases that are certain.

According to Muslim jurists, the primary base or source, certain as to its being the word of God that came down to us in a concurrent transmission (tawātur), is the Qurʿān. The second source for legal rules is sunnah, the reports about the sayings, actions, or tacit approvals of the Prophet. Depending upon the probity and number of the transmitters, these reports can be considered certain or probable. Those of many concurrent transmissions (mutawātir) are considered certain; those that are well known and of slightly lesser standing of authenticity (mashhūr) are also considered by Ḥanafī jurists as certain; but those that depend upon one or a few transmitters (āḥādī) are considered of probable authenticity (zānnī).

The third source is the consensus of all Muslim interpretive scholars in a specific age on a legal rule about a new happening not covered in the Qurʿān or sunnah. Most Sunnī scholars consider such consensus binding for all times; other scholars, including Shīʿī scholars, say this consensus is impossible. Jurists also differ on the value of consensus by silence (sukūtī), a situation in which some scholars would not give an opinion on a happening or a measure and are presumed to have agreed with the expressed opinion of other scholars. Most jurists would not accept such a consensus as binding, but Ḥanafī scholars accept it as such.

The fourth source is analogy, which has been defined as making a situation with no textual provision as to its rule follow the rule of another situation with such a textual provision, because both situations share in the cause (ʿillah) of such rule. The classic example is the making of all intoxicants follow the rule of wine, which was specifically prohibited in the Qurʿān (5:90), because the cause of the prohibition is intoxication, common to all of them. Jurists make a distinction between the cause and the underlying reason (ḥikmah) of the rule. The latter, which is deemed either to bring a benefit to people or ward off a harm from them, is often not apparent or, at least, too indefinite to be the basis for the rule. On the other hand, the cause (ʿillah) must be apparent and definite for it to be the basis for the rule. Analogy, therefore, operates when the cause, not the underlying reason, is the same in both situations.

In addition to these four basic sources, several principles and presumptions aid the interpretive jurist in arriving at a rule. One such principle is preference (istiḥsān); using this principle, a jurist would abandon the result of a clear analogy for a latent analogy or would reject a general rule for an exceptional rule, because of “an indication that sparks in his mind.” For example, despite the general rule that the subject of a contract must be in existence, the contract of rent (the subject of which is a future benefit) was allowed by preference because of the peoples’ need for it. Ḥanafī jurists were prominent in the articulation of this principle.

Another principle is that of unregulated interest (al-maṣlaḥah al-mursalah), which serves as a basis for a rule. It is an interest that no legal provision has approved or disapproved; examples are the establishment of prisons and the coinage of money. The interest to be served must be real, of a general nature, and not in conflict with a principle established by a legal provision or consensus.

A third principle is the presumption of continuity (istiṣḥāb). A situation existing previously is presumed to be continuing at present until the contrary is proven. Accordingly, a person is presumed to be free from liability (his or her original situation at birth) until the contrary is proven.

In interpreting the Qurʿān and the sunnah, jurists dealt with the workings of language in detail in an attempt to arrive at the intended meaning. They dealt with such questions as the ways in which words indicate meanings, what is general and what is specific, how the specific limits the general, whether the imperative signifies an obligation and the prohibitive signifies forbiddenness, what is capable of a hidden meaning and what is not, and so forth. These questions are similar to those dealt with by the field of interpretation of statutes.

The rudiments of this science started to appear in the second century A.H. The Fihrist of Ibn al-Nadīm mentions that the Ḥanafī jurist Abū Yūsuf (d. AH 182/798 CE) collected its principles in a separate volume, but that volume must have been lost. The earliest book that has come down to us is the Al-risālah of Muḥammad ibn Idrīs al-Shāfiʿī (d. 204/820); therefore, its author has been reputed as the founder of this science, which was later named uṣūl al-fiqh. Subsequent jurists followed two distinct methodologies in their expositions. One group, made up mostly of Mālikīs and Shāfiʿīs, followed a theological and logical methodology and paid scant attention to the concrete rules of the particular law school. These men included Abū Ḥāmid al-Ghazālī (d. 505/1111) in Al-mustasfā and al-Āmidī (d. 631/1233) in Al-iḥkām. The other group, made up of Ḥanafīs, deduced the principles from the concrete rules of their school. Hence, they often cite the rules to exemplify the principles; these men included al-Dabūsī (d. 430/1039) in Taqwīm, al-Bazdawī (d. 482/1089) in Uṣūl al-fiqh, and al-Nasafī (d. 710/1310) in Al-manār. Later jurists combined the two methodologies.

In modern times jurists who have written about the subject have, in the main, adopted a progressive approach to accommodate this science to the changing times. Muḥammad ibn ʿAlī al- Shawkānī (d. 1250/1834), a Yemeni jurist, railed against those who stick to imitating the established schools (taqlīd) and called for interpretation (ijtihād) with due consideration given to public interest (maṣlaḥah). The modern reformer Muḥammad ʿAbduh (d. 1323/1905) and his student Muḥammad Rashīd Riḍā (d. 1354/1935) found support in his writings for their progressive ideas. Several other writers and jurists also supported in varying ways the principle of public interest (maṣlaḥah) as a factor for modernization. These include ʿAbd al-Wahhāb Khallāf (d. 1375/1956), Muḥammad al-Khuḍarī (d. 1354/1927), Muṣṭafā Zayd, Ṣubḥī Maḥmaṣānī, Maʿrḥanafīf Dawālībī, Muṣṭafā al-Shalabī, Aḥmad Zakī Yamānī, Kemal Faruki, and Khālid Masʿḥanafīd. Some harked back to Najm al-Dīn al-Ṭūfī (d. 716/1316), a Ḥanbalī jurist who had held that the principle of maṣlaḥah could restrict (takhṣīṣ) the application of consensus as well as that of the Qurʿān and sunnah if such application were harmful to public interest. Others invoked the Andalusian jurist al-Shāṭibī (d. 790/1316) for similar views. Most seemed to widen the doctrine of maṣlaḥah from the confined field of an unregulated interest (maṣlaḥah al-mursalah) to an independent principle for the interpretation of law; thereby it could prevail over precise rules or over contradictory regulations provided it remained faithful to the higher objectives of law, which aim at preserving religion, physical well-being, progeny, property, and mental faculty. Many also expanded the restricted principle that rules change with changing times to become a cardinal principle of interpretation, or at least called for an eclectic approach whereby rules could be drawn from any Islamic school of law if they better conform to the requirements of modern life. Jurists who have written in a more traditional vein include Muḥammad Abḥanafī Zahrah, Saʿīd Ramaḍān al-Bḥanafīṭī, and the Shīʿī jurist Muḥammad Bāqir al-Ṣadr.

The jurists mentioned above as being progressive managed to stay within the main stream of Muslims, although some of them were subject to criticism by traditional elements. Two highly progressive jurists, however, may be considered nonconformist in calling for the reinterpretation of basic Islamic rules. One is the Indian Fāṭimid jurist A. A. A. Fyzee, who called for a “Protestant” Islam that would separate the church and state, would question the authority of “ancient scholars and imams,” and would reinterpret the Qurʿān according to modern exigencies. The other is ʿAbd Allāh al-Naʿīm, the Sudanese student of the late Maḥmūd Muḥammad Ṭāhā, who was killed by the Sudanese President Jaʿfar Nimeiri in 1985 for “heresy.” Al-Naʿīm, following his master, would distinguish Qurʿānic verses meant to apply in the early stages of the Islamic community from those that were meant to have permanent validity, and so derive rules more consonant with modern life.

See also FYZEE, ASAF ALI ASGHAR; LAW, SUBENTRY ON LEGAL THOUGHT AND JURISPRUDENCE and MODERN LEGAL REFORM; and SADR, MUHAMMAD BāIR.

Bibliography

  • Abū Zahrah, Muḥammad. Mālik. Cairo, 1946.
  • Āmidī, ʿAlī ibn Muḥammad al-. Al-Iḥkām fī uṣḥanafīl al-aḥkām. 4 vols.Cairo, 1967. For an appreciation of this work, see Weiss, below.
  • Bazdawī, ʿAlī ibn Muḥammad al-. Uṣūl al-fiqh. On the margin of ʿAbd al-ʿAzīz al-Bukhārī. Kashf al-asrār ʿan uṣḥanafīl Fakhr al-Islām al-Bazdawī, 4 vols. Istanbul, AH1308.
  • Dabḥanafīsī, ʿAbd Allah ibn ʿUmar al-. Taqwīm al-adillah fī uṣūl al-fiqh. Dublin.
  • Dawālībī, Maʿrḥanafīf. Al-Madkhal ila ʿilm uṣūl al-fiqh. Damascus, 1959. Textbook for law schools.
  • Dien, M. Izzi. Islamic Law: From Historical Foundations to Contemporary Practice. Notre Dame, 2004.
  • Faruki, Kemal A.Islam Today and Tomorrow. Karachi, 1974.
  • Fyzee, Asaf A. A.A Modern Approach to Islam. New York, 1963.
  • Ghazālī, Abḥanafī Ḥāmid al-. Al-Mustaṣfā min ʿilm al-uṣḥanafīl. Edited by Muḥammad Muṣṭsafā Abḥanafī al-ʿAlāʿ. Cairo, 1971.
  • Hallaq, Wael B.A History of Islamic Legal Theories: An Introduction to Sunnī Usḥanafīl al-Fiqh. Cambridge, 1997.
  • Khadduri, Majid. Islamic Jurisprudence: Shāfiʿi's Risāla. Baltimore, 1961. Masterful translation of the first extant work on uṣūl al-fiqh.
  • Khallāf, ʿAbd al-Wahhāb. ʿIlm uṣūl al-fiqh. Kuwait, 1972. Very lucid introduction to the subject, with examples from the sharīʿah and positive law.
  • Khuḍarī, Muḥammad al-. Uṣūl al-fiqh. Cairo, 1933.
  • Maḥmaṣānī, Subḥī. Falsafat al-tashrīʿ fī al-Islām. Translated by Farhat Ziadeh as Philosophy of Jurisprudence in Islam. Leiden, 1961. Excellent introduction by a liberal jurist who is also familiar with Western jurisprudence.
  • Masud, Muhammad Khalid. Islamic Legal Philosophy: A Study of Abḥanafī Isḥāq al-Shāṭibī's Life and Thought. Islamabad, 1977. Study of the most original jurist of Andalusia.
  • Naim, ʿAbd Allah Ahmad. Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law. Syracuse, N.Y., 1990.
  • Nasafi, ʿAbd Allah ibn Aḥmad al-. Kashf al-asrār fī sharḥ al-manār. 2 vols.Cairo, 1898.
  • Sadr, Muḥammad Bāqir al-. A Short History of ʿIlmul Uṣḥanafīl. Accra, London, and New York, 1984. Shīʿī work by an ayatollah who was liquidated by the Iraqi regime in 1980. The translation into English is especially good.
  • Shalabī, Muṣṭafā al-. Al-Fiqh al-Islāmī bayna al-mithālīyah wa-al-wāqiʿ īyah. Beirut, 1982.
  • Shawkānī, Muḥammad ibn ʿAlī al-. Al-Qawl al-mufīd fī adillat al-ijtihād wa-al-taqlīd. Cairo, 1934.
  • Shawkānī, Muḥammad ibn ʿAlī al-. Irshād al-fuḥḥanafīl ilā taḥqīq al-ḥaqq min ʿilm al-uṣḥanafīl. Cairo, 1937.
  • Weiss, Bernard G.The Search for God's Law: Islamic Jurisprudence in the Writing of Sayf al-Dīn al-Āmidī. Salt Lake City, 1992.
  • Yamānī, Aḥmad Zakī. Al-Sharīʿah al-khālidah wa-mushkilāt al-ʿaṣr. Jiddah, 1983.
  • Zayd, Muṣṭafā. Al-Maslaḥah fī al-tashrīʿ al-Islāmī wa-Najm al-Dīn al-Ṭḥanafīfī. Cairo, 1954.
  • Zysow, Aron. The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory. Ph.D diss. Harvard University, 1984.
  • Previous Result
  • Results
  • Highlight On / Off
  • Look It Up What is This? Highlight any word or phrase, then click the button to begin a new search.
  • Next Result
Oxford University Press

© 2019. All Rights Reserved. Cookie Policy | Privacy Policy | Legal Notice