220724P - USUL AL FIQH: A BASIC ISLAMIC METHODOLOGICAL SCIENCE

Presented at the OPENING OF THE COURSE ON a certificate in USUL AL FIQH held at IIUM by Omar Hasan Kasule MB ChB (MUK), MPH (Harvard), DrPH (Harvard)

1.0 HISTORICAL BACKGROUND OF ACADEMIC DISCIPLINES TO STUDY OF THE LAW

1.1 Development of Fiqh

• The start of schools of law was not planned. The companion of the prophet, Ibn Mas'ud, could be said to have started the first school of law in Kufa where he stayed and taught many people. His disciples taught his interpretation of the law to others. In this way, his views spread. Other jurists who followed just taught students or gave opinions on questions of law. They became founders of schools of law posthumously when their students spread their views.
• It is not surprising that the doyen of jurists, Abu Hanifa, was born and was raised in Iraq where Ibn Mas'ud taught. The compilation of the law became a practical necessity because of the expanding Islamic state and new issues arising. Abu Hanifah gave opinions on these issues and these were systematized later by his students to become the Hanafi school of law.
• Several schools of law arose after Abu Hanifa. Most of them became extinct and only 5 survive to our day: the Hanafi, Shafi, Hanbali, Maliki, and Ja'afari schools.

1.2 Development of Usul Al Fiqh

• Usul al fiqh developed as a solution to the confrontation between ahl al ra'ay and ahl al hadith. Abu Hanifah represented the school of ahl al ra'ay. Malik, al Shafei, Ibn Hanbal, and Daud al Dhahiri were champions of Ahl al hadith.
• The distinction between ahl al hadith and ahl al ra'ay was not black and white. Each group used the other's methodology. It is also not true to say that ahl al ra-ay did not use hadith. Abu Hanifa and his colleagues were muhaddithiin and based the preponderant majority of their opinions on the nass of the hadith. They differ from ahl al hadith in their more liberal use of qiyaas where it is appropriate.
• Usul al fiqh was developed by Shafe’I to provide a systematic methodology for the Law.

1.3 Development of the Purposes of the Law, maqasid al shariat

• Maqasid al shariat is like legal theory with the difference that they are developed from text whereas legal theory is developed from actual court cases.
• Al Juwayni (d. 478H) in his book al Burhan proposed extensions to the methodology of qiyaas and also proposed general principles, qawaid.
• Ghazali (d. 505H) developed and systematized al Juwayni's ideas, proposed broad principles of maslahat, and introduced the term maqasid al shariat. He divided the maqasid into religious, maqasid diini, and earthly, mawasid duniyawi. Each purpose has dual aspects: securing a benefit, tahsil, and preservation with prevention of harm, ibqa. The term ri'atyat al maqasid covers both tahsil and ibqa. Ibqa as mentioned above has both hifdh and  …., promotion.
• Ghazzali divided the maqasid into three parts: necessities, dharurat; needs, hajiyat; and tawasu'u & taysiir. The third part has come to be known as embellishments, tahsinat. Some authors included maqasid al shariat under the general theme of ashbaah wa al nadhair.
• The new theory of maqasid al shariat opened the way for further development of the flexible part of the Law and excited the interest of many jurists, the most famous being the Andalusian Maliki scholar Abu Ishaq al Shatibi. Most of al Shatibi's work was an elaboration of the ideas proposed by Ghazzali.
• The new theory did not however lead to major practical changes because by that time the Islamic state was in decline and the flexible part of the law was in the hands of the political leaders and not the jurists.

1.4 Development of Principles of the Law

• Qawaid al shariat are legal axioms or legal codes. Codification of the principles, tadwin, al qawa’id, started in the 4^th century H.
• The Law is comprehensive. The Qur'an left out nothing[1]. The reality however is that ayat al ahkaam and the sunnat do not explicitly and specifically cover every imaginable situation. This means that the Qur'an and sunnat are comprehensive in the sense of providing general principles that can be applied to specific situations.
• Principles are either stated in the nass or are derived by inductive reasoning.

[1] (6:38)
 
2.0 DEFINITION and SCOPE OF USUL AL FIQH:

2.1 Definition

• Usul al fiqh is the basic framework or methodology that jurists use to deduce objective and logical conclusions in the form of legal rulings, istinbat al ahkam, from the basic sources of the Qur’an and sunnat. Usul al fiqh is analogous to logic in philosophy in being a methodology of analysis to reach a conclusion.
• Imaam al Shafei is credited with founding the discipline of usul al fiqh which he defined in his book al Risalat as knowledge of the legal rulings as derived from their specific evidence, al ‘ilm bi al ahkaam al shar’iyyat al muktasab min adillatiha al tafsiiliyyat.
• al Qadh’i al Baydh’awi defined ‘ilm usul al fiqh as knowledge of the evidence of  fiqh in general and how to use the evidence and the circumstances of the user, ma’arifat dalaa’il al fiqh’ ijmaalan wa kayfiyat al istifadat minh’a wa h’aal al mustafiid’.
• Ibn Khuldun defined ‘ilm usul al fiqh as dealing with evidence of shari’at and how legal rulings are derived from them, h’uwa fi al adillat al sh’ar’iyyat min h’ayth’u tu’ukhadh’ minh’a al ahkaam.
• A general definition of ilm al usul is principles by the use of which the mujtahid arrives at legal rules through specific evidence, ‘al qawaid allati yatawasalu biha al mujtahid ila ahkaam al shariat al amaliyyat min adillatiha al tafsiliyyat[i]. Usul al fiqh deals with the general principles and not the details, min hayth al jumlat la min hayth al tafsiil.

2.2 Sources of ‘Ilm Usuul Al Fiqh: 

• The sources of usul al fiqh are the Qur’an, the sunnat, and other Islamic sciences such as ‘ilm usul al ddiin and ilm al llughat. The Qur’an is mainly a source of methodology. The sunnat is a corpus of legal rulings and practices from which methodological principles can be derived.
• In its historical evolution, ilm usul al fiqh, like many other Islamic sciences were influenced by Greek deductive logic either directly or through Greek impact on ‘ilm usul al ddiin. There is therefore a need to Islamise some of the current concepts in this discipline.
• ‘Ilm usul al fiqh is very particular in its definitions and terminology which requires a good grounding in the Arabic language. The many legal rulings over the past 14 centuries continue to provide a methodological framework that is a continuous methodological inspiration for students and practitioners of usul al fiqh.

2.3 The Subject Matter of ‘Ilm Al Usuul Al Fiqh:

• Usul al fiqh does not deal with the legal rulings themselves; that is the concern of fiqh. Usul al fiqh deals with the methodology of analyzing evidence, adillat, in order to derive rulings or conclusions. It is a methodological discipline par excellence. ‘ilm usul al fiqh deals with all sources of law as basic evidence. The sources of law (in order of importance) that are unanimously accepted: Qur’an, Sunnat, Ijma, qiyaas, ijma, and qiyaas operate together. Scholars are not unanimous about all the following as secondary sources of law: istihsaan, maslahat mursalat, istishab, ‘urf, & sadd al dharaei. The evidence may be absent, incomplete or weak. There may be a need for combining weak evidence from more than one source to reach a conclusion.

3.0 IMPORTANCE OF USUL AL FIQH

3.1 The Benefits of ‘Ilm Al Usul Al Fiqh:

• Usul al fiqh provides a methodological guideline for the mujtahid so that he can pursue his analysis in a systematic and tried way. It also lends credibility to the conclusions of the mujtahid because people will know that he followed an established methodology and was not following his personal whims or fancies. Thus usul al fiqh helps people trust the conclusions of the mujtahid.

3.2 Rationalists, ahl al ra’ay, and Traditionalists, ahl al hadith:

• There is a division among scholars of usul al fiqh that also mirrors the dichotomy in tafsir: rationalists, ahl al raay, and traditionalists, ahl al hadith. The former relies a lot on reason while the latter rely more on tradition. One of the motivations for the rise of usul al fiqh was to close the gap between the school of traditionalists and rationalists by providing them with a common methodological framework. The two schools appeared in the second century of hijra. The former was in Hejaz and relied on riwayat and athar in explanation of the nass. The latter arose in Iraq and relied mainly on ijtihad.

3.3 Importance of Terminology:

• Because of the reliance on text, the use of exact language and definition of terms is very important. Fiqh requires exact language as science requires mathematics for exactitude. The need for exact definitions makes usul al fiqh a difficult subject to study. Sometimes too much concern with exactitude in terminology constraints imagination and intellectual exploration that could open up new areas of thought.

3.4 Use of General Principles:

• Sophisticated methods have enabled usul scholars to derive conclusions even where there is no textual evidence. They rely on general paradigms that are developed from situations with textual evidence and are used where there is no evidence.

Tools beyond Maqasid and Qawaid

• Re-read Qur’an and Sunnat
• Innovative thinking
• Problem-solving in a virtual economy
• Uncertainty of too much speculation
• System controlled by vested interests
• Economic justice
• Incentives for work and saving

4.0 MAIN AUTHORS OF FIQH AND USUL AL FIQH: AUTHORS ON USUUL AL FIQH ALA AL MADH’HAB AL SHAFEI

• Imaam Muhammad Ibn Idris al Shafei (d. 204H) wrote al Risaalat;  Jamau al ‘ilm (devoted to proving the validity of khabar al ahad); ibtaal al istihsaan; and Ikhtilaaf Al Hadith (reconcile hadiths that appear contradictory).
• Abi al Husain Muhammad bin Ali bin al Taib al Basri (d. 436H) wrote Al Mu’tamad Fi Usuul Al Fiqh.
• Hujjat al Islam Abi Hamid Muhammad bin Muhammad al Ghazzali (d. 505) wrote Al Mustasfa Fi Uluum Al Usuul; Shifau Al Ghaliil;  and  Al Mankhuul Min Ta’aliiqaat Al Usuul.
• Abi al Thanai Mahmud bin Ahmad al Hamawi al Fayuumi ibn al Khatiib al Dahshat (d. 834) wrote Mukhtasar Fi Qawaid Al ‘Alaai Wa Kalaam Al Asnawi.

5.0 APPLICATION OF USUL TO MODERN ECONOMICS

• Many attempts were made to apply fiqh al muamalaat to modern economics but there are limitations because modern financial operations are very sophisticated, interlinked, and speculative
• Maqasid can be applied in a general but not technical way to economic operations the limitation is that we cannot go into details.
• Modern economics depends on building models and then testing them with actual data. The problem is that the data is from an economy distorted by special interests.
• Modern usul thinkers cannot start with the sophisticated models that exist. New models are needed starting with creating the concept of qariyat tayyiban with moral moorings on which the economy can be built. Progressive modelling being guided by usul al fiqh sources (quran, sunnat, maqasid, and qawaid).
• The concept of maslahat needs clarification to be comprehensive: moral, spiritual, social, and material with a time-space dimension.
• I think future developments in usul regarding economics will revolve around the paradigm of maslahat (interest).  Maslahat duniyawiyah and maslahat ukhrawiyah.
• We will continue using the tools of qiyas…. But these will break down when dealing with complex economic issues…. New modes of investment, new currencies including bitcoin, new methods of economic exchange, etc.