Principles of Islamic Jurisprudence
Encyclopedia
Principles of Islam
ic jurisprudence
(usool al-fiqh) is a subject that provides a critical analysis of the sources and principles that Islamic jurisprudence
(fiqh
) is built upon.
Traditionally four main sources are analysed along with a number of secondary sources and principles.
The main subject areas of discussion comprise:
Technically the term is used to refer to the body of evidences and principles that Islamic jurists utilise to provide solutions to problems.
has always been regarded as the primary legal source of Islam, the speech of Allah
. It has been transmitted through numerous chains (mutawatir) and proven through rational argument.
This has been supplemented by further revelation termed sunnah
. It comprises explanations from the Prophet Mohammed in terms of his speech, actions and silences which have been historically compiled and virified through chains of narrations called hadith
s. Sunnah is referred to for elaboration of the Quran or for clarification of a matter that is not mentioned in the Quran and is second in prioritisation to Quran.
The Muslim jurists have found that some revelation has been captured through collective agreements expressed after the death of the Prophet through consensus of his companions which were transmitted over the ages. These are compiled as instances of consensus of the companions (ijma al-sahaba).
Only when these failed to provide the authority sought did jurists resort to interpretationijtihad
.
In the very early days of Islam Muslim authorities tended to rely on their own opinions to establish their interpretation of what a prescribed law should be for any given situation not founded on the Qur'an, a practice known as ra'y.
The jurist ash-Shafi'i, however, preferred to rely solely on traditions from the prophet and thereafter on the method known as qiyas
(analogy
) where interpretations were to be derived from comparisons with relative subjects dealt with in the Qur'an or the traditions.
It is now the scholarly consensus, amongst both orientalist and traditional scholarship, that the following is a myth: "Once Shafi'i's school of law was fully established together with the other schools founded by Ahmad ibn Hanbal
, Abu Hanifa and Malik
, the "door" of ijtihad was closed and it was considered that ijma had been reached on all necessary points of law (though the schools differ in many matters to this day but mostly on minor points of interpretation). Accordingly, Islamic jurisprudence has changed little for centuries and is based fundamentally on the four sources mentioned above. There is much debate and critique as to whether closing the gates of ijtihad was acceptable and whether it contributed to the intellectual and civislisational decline of the Muslims." Wael Hallaq is widely credited for decisively discrediting this myth in the western world, whereas others such as Qasim Zaman continue to show how the Ulema continued to actively engage in Ijtihad. However, there is a valid debate over the degree to which the Ulema remained active in such endeavours ever since colonialism and modernity intruded Muslim lands. In fact, faced with such drastic change, there are certain cases that do show the Ulema to be initially dismissive of sociopolitical realities and hence lagging in their response- Nevertheless eventually finding legal stratagems to solve dilemmas. A case in point is the issue of women's divorce in the time of Ashraf Ali Thanvi.
In the Shi'a schools, they have continued with ijtihad to the present day. They however disputed the methodology of compilation of narrations of sunnah and also limited consensus of the companions to consensus of the family of the Prophet (ijma
ahl al-bayt
)
These schools share many of their rulings, but differ on the particular hadith
s they accept as authentic and the weight they give to analogy or reason (qiyas
) in deciding difficulties.
The Shiite schools comprise:
Islam
Islam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
ic jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
(usool al-fiqh) is a subject that provides a critical analysis of the sources and principles that Islamic jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
(fiqh
Fiqh
Fiqh is Islamic jurisprudence. Fiqh is an expansion of the code of conduct expounded in the Quran, often supplemented by tradition and implemented by the rulings and interpretations of Islamic jurists....
) is built upon.
Traditionally four main sources are analysed along with a number of secondary sources and principles.
The main subject areas of discussion comprise:
- General evidences and principles (adillah ijmalliya wa al-qawaid)
- Resolution of conflict and discrepancy (ta'adal wa tarjeeh)
- Determination of rules and adoption/emulation of rules (ijtihad wa taqlid)
- Islamic Law (hukm shari)
Etymology
Usool al-fiqh comprises the conjunction of two Arabic terms, usool and fiqh. Usool is derived from the root letters hamza, sad and lam which refers to basis. Fiqh linguistically refers to knowledge, deep understanding or comprehension.Technically the term is used to refer to the body of evidences and principles that Islamic jurists utilise to provide solutions to problems.
Primary sources
The Qur'anQur'an
The Quran , also transliterated Qur'an, Koran, Alcoran, Qur’ān, Coran, Kuran, and al-Qur’ān, is the central religious text of Islam, which Muslims consider the verbatim word of God . It is regarded widely as the finest piece of literature in the Arabic language...
has always been regarded as the primary legal source of Islam, the speech of Allah
Allah
Allah is a word for God used in the context of Islam. In Arabic, the word means simply "God". It is used primarily by Muslims and Bahá'ís, and often, albeit not exclusively, used by Arabic-speaking Eastern Catholic Christians, Maltese Roman Catholics, Eastern Orthodox Christians, Mizrahi Jews and...
. It has been transmitted through numerous chains (mutawatir) and proven through rational argument.
This has been supplemented by further revelation termed sunnah
Sunnah
The word literally means a clear, well trodden, busy and plain surfaced road. In the discussion of the sources of religion, Sunnah denotes the practice of Prophet Muhammad that he taught and practically instituted as a teacher of the sharī‘ah and the best exemplar...
. It comprises explanations from the Prophet Mohammed in terms of his speech, actions and silences which have been historically compiled and virified through chains of narrations called hadith
Hadith
The term Hadīth is used to denote a saying or an act or tacit approval or criticism ascribed either validly or invalidly to the Islamic prophet Muhammad....
s. Sunnah is referred to for elaboration of the Quran or for clarification of a matter that is not mentioned in the Quran and is second in prioritisation to Quran.
The Muslim jurists have found that some revelation has been captured through collective agreements expressed after the death of the Prophet through consensus of his companions which were transmitted over the ages. These are compiled as instances of consensus of the companions (ijma al-sahaba).
Only when these failed to provide the authority sought did jurists resort to interpretationijtihad
Ijtihad
Ijtihad is the making of a decision in Islamic law by personal effort , independently of any school of jurisprudence . as opposed to taqlid, copying or obeying without question....
.
In the very early days of Islam Muslim authorities tended to rely on their own opinions to establish their interpretation of what a prescribed law should be for any given situation not founded on the Qur'an, a practice known as ra'y.
The jurist ash-Shafi'i, however, preferred to rely solely on traditions from the prophet and thereafter on the method known as qiyas
Qiyas
In Islamic jurisprudence, qiyās is the process of deductive analogy in which the teachings of the Hadith are compared and contrasted with those of the Qur'an, in order to apply a known injunction to a new circumstance and create a new injunction...
(analogy
Analogy
Analogy is a cognitive process of transferring information or meaning from a particular subject to another particular subject , and a linguistic expression corresponding to such a process...
) where interpretations were to be derived from comparisons with relative subjects dealt with in the Qur'an or the traditions.
It is now the scholarly consensus, amongst both orientalist and traditional scholarship, that the following is a myth: "Once Shafi'i's school of law was fully established together with the other schools founded by Ahmad ibn Hanbal
Ahmad ibn Hanbal
Ahmad bin Muhammad bin Hanbal Abu `Abd Allah al-Shaybani was an important Muslim scholar and theologian. He is considered the founder of the Hanbali school of fiqh...
, Abu Hanifa and Malik
Malik
Malik is an Arabic word meaning "king, chieftain".It has been adopted in various other, mainly Islamized or Arabized, Asian languages for their ruling princes and to render kings elsewhere. It is also sometimes used in derived meanings...
, the "door" of ijtihad was closed and it was considered that ijma had been reached on all necessary points of law (though the schools differ in many matters to this day but mostly on minor points of interpretation). Accordingly, Islamic jurisprudence has changed little for centuries and is based fundamentally on the four sources mentioned above. There is much debate and critique as to whether closing the gates of ijtihad was acceptable and whether it contributed to the intellectual and civislisational decline of the Muslims." Wael Hallaq is widely credited for decisively discrediting this myth in the western world, whereas others such as Qasim Zaman continue to show how the Ulema continued to actively engage in Ijtihad. However, there is a valid debate over the degree to which the Ulema remained active in such endeavours ever since colonialism and modernity intruded Muslim lands. In fact, faced with such drastic change, there are certain cases that do show the Ulema to be initially dismissive of sociopolitical realities and hence lagging in their response- Nevertheless eventually finding legal stratagems to solve dilemmas. A case in point is the issue of women's divorce in the time of Ashraf Ali Thanvi.
In the Shi'a schools, they have continued with ijtihad to the present day. They however disputed the methodology of compilation of narrations of sunnah and also limited consensus of the companions to consensus of the family of the Prophet (ijma
Ijma
Ijmāʿ is an Arabic term referring to the consensus of the Muslim community. Various schools of thought within Islamic jurisprudence may define this consensus as that of the first generation of Muslims only; the consensus of the first three generations of Muslims; the consensus of the jurists...
ahl al-bayt
Ahl al-Bayt
Ahl al-Bayt is an Arabic phrase literally meaning People of the House, or family of the House. The phrase "ahl al-bayt" was used in Arabia before the advent of Islam to refer to one's clan, and would be adopted by the ruling family of a tribe. Within the Islamic tradition, the term refers to the...
)
Secondary sources
- Istihsan
- Masali Mursala
- Ihsaan (spiritual excellence, virtue)
- Istidlaal
- Urf (local custom or pre-existing law)
- Aql (reason or intellect)
- Sadd al-dharai
- Shara man qablana
- Ijma al-ummah (consensus of the worldwide Muslim community)
- Ijma khulafah al-rashideen (consensus of the first four caliphs)
- Ijma ahl al-medina (consensus of the Muslims of Medina, as reflected in early hadith collections, e. g. the Muwatta of Anas bin Malik)
- Ijma al-ullama (consensus of scholars of Islamic law)
- Ijma ahl al-hali wa al-aqd
Principles
- That which is necessary to achieve an obligation is obligatory
- That which leads to haram is haram
- Lesser of the two evils
- The doubt does not remove the certainty
The schools of Thought
The schools of Sunni Islam are each named by students of the classical jurist who taught them. The Sunni schools (and where they are commonly found) are- HanafiHanafiThe Hanafi school is one of the four Madhhab in jurisprudence within Sunni Islam. The Hanafi madhhab is named after the Persian scholar Abu Hanifa an-Nu‘man ibn Thābit , a Tabi‘i whose legal views were preserved primarily by his two most important disciples, Abu Yusuf and Muhammad al-Shaybani...
(TurkeyTurkeyTurkey , known officially as the Republic of Turkey , is a Eurasian country located in Western Asia and in East Thrace in Southeastern Europe...
, the Balkans, Central AsiaCentral AsiaCentral Asia is a core region of the Asian continent from the Caspian Sea in the west, China in the east, Afghanistan in the south, and Russia in the north...
, Indian subcontinentIndian subcontinentThe Indian subcontinent, also Indian Subcontinent, Indo-Pak Subcontinent or South Asian Subcontinent is a region of the Asian continent on the Indian tectonic plate from the Hindu Kush or Hindu Koh, Himalayas and including the Kuen Lun and Karakoram ranges, forming a land mass which extends...
, ChinaChinaChinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
and EgyptEgyptEgypt , officially the Arab Republic of Egypt, Arabic: , is a country mainly in North Africa, with the Sinai Peninsula forming a land bridge in Southwest Asia. Egypt is thus a transcontinental country, and a major power in Africa, the Mediterranean Basin, the Middle East and the Muslim world...
) - MalikiMalikiThe ' madhhab is one of the schools of Fiqh or religious law within Sunni Islam. It is the second-largest of the four schools, followed by approximately 25% of Muslims, mostly in North Africa, West Africa, the United Arab Emirates, Kuwait, and in some parts of Saudi Arabia...
(North AfricaNorth AfricaNorth Africa or Northern Africa is the northernmost region of the African continent, linked by the Sahara to Sub-Saharan Africa. Geopolitically, the United Nations definition of Northern Africa includes eight countries or territories; Algeria, Egypt, Libya, Morocco, South Sudan, Sudan, Tunisia, and...
, West AfricaWest AfricaWest Africa or Western Africa is the westernmost region of the African continent. Geopolitically, the UN definition of Western Africa includes the following 16 countries and an area of approximately 5 million square km:-Flags of West Africa:...
and several of the Arab states of the Persian GulfArab states of the Persian Gulf"Arab states of the Persian Gulf" or "Arab Persian Gulf states" or "Persian Gulf Arab states" or "Arabic Persian Gulf states" or "Arab States of The Gulf", are terms that refer to the six Arab states of Saudi Arabia, United Arab Emirates, Qatar, Kuwait, Bahrain and Oman, bordering the Persian Gulf....
) - Shafi'iShafi'iThe Shafi'i madhhab is one of the schools of fiqh, or religious law, within the Sunni branch of Islam. The Shafi'i school of fiqh is named after Imām ash-Shafi'i.-Principles:...
(IndonesiaIndonesiaIndonesia , officially the Republic of Indonesia , is a country in Southeast Asia and Oceania. Indonesia is an archipelago comprising approximately 13,000 islands. It has 33 provinces with over 238 million people, and is the world's fourth most populous country. Indonesia is a republic, with an...
, Malaysia, EgyptEgyptEgypt , officially the Arab Republic of Egypt, Arabic: , is a country mainly in North Africa, with the Sinai Peninsula forming a land bridge in Southwest Asia. Egypt is thus a transcontinental country, and a major power in Africa, the Mediterranean Basin, the Middle East and the Muslim world...
, East AfricaEast AfricaEast Africa or Eastern Africa is the easterly region of the African continent, variably defined by geography or geopolitics. In the UN scheme of geographic regions, 19 territories constitute Eastern Africa:...
, YemenYemenThe Republic of Yemen , commonly known as Yemen , is a country located in the Middle East, occupying the southwestern to southern end of the Arabian Peninsula. It is bordered by Saudi Arabia to the north, the Red Sea to the west, and Oman to the east....
and southern parts of IndiaIndiaIndia , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
) - HanbaliHanbaliThe Hanbali school is one the schools of Fiqh or religious law within Sunni Islam. The jurisprudence school traces back to Imam Ahmad ibn Hanbal but was institutionalized by his students. Hanbali jurisprudence is considered very strict and conservative, especially regarding questions of dogma...
(Arabia). - ZahiriZahiriẒāhirī , is a school of thought in Islamic jurisprudence and Aqida. The school is named after one of its early prominent jurists, Dawud ibn Khalaf al-Zahiri Ẓāhirī , is a school of thought in Islamic jurisprudence and Aqida. The school is named after one of its early prominent jurists, Dawud ibn...
No longer exists - Qurtubi No longer exists
- Laythi No longer exists
These schools share many of their rulings, but differ on the particular hadith
Hadith
The term Hadīth is used to denote a saying or an act or tacit approval or criticism ascribed either validly or invalidly to the Islamic prophet Muhammad....
s they accept as authentic and the weight they give to analogy or reason (qiyas
Qiyas
In Islamic jurisprudence, qiyās is the process of deductive analogy in which the teachings of the Hadith are compared and contrasted with those of the Qur'an, in order to apply a known injunction to a new circumstance and create a new injunction...
) in deciding difficulties.
The Shiite schools comprise:
- Jafari (IranIranIran , officially the Islamic Republic of Iran , is a country in Southern and Western Asia. The name "Iran" has been in use natively since the Sassanian era and came into use internationally in 1935, before which the country was known to the Western world as Persia...
, IraqIraqIraq ; officially the Republic of Iraq is a country in Western Asia spanning most of the northwestern end of the Zagros mountain range, the eastern part of the Syrian Desert and the northern part of the Arabian Desert....
) - Zaydi
- Abathi (OmanOmanOman , officially called the Sultanate of Oman , is an Arab state in southwest Asia on the southeast coast of the Arabian Peninsula. It is bordered by the United Arab Emirates to the northwest, Saudi Arabia to the west, and Yemen to the southwest. The coast is formed by the Arabian Sea on the...
)
Famous Muslim Jurists (Usoolis)
- Nouman bin Thabit Abu Hanifa
- Mohammed Idris al-Shafii
- Malik bin Anas
- Ahmad bin Hanbal
- Amidi
- Ghazali
- Sarkhasi
- Asnawi
- Abu Yusuf
- Shaybani
- Imam Qurtibi
- Layth bin Sa'ad
- Sufian bin 'Uyayna
- Ja'far al-Sadiq