USUL AL-FIQH & THE DISTINCTION BETWEEN SHARI'AH AND FIQH

USUL AL-FIQH & THE DISTINCTION BETWEEN SHARI`AH AND FIQH

ASSEMBLED BY MALLAM ABBA ABANA, KUBWA, ABUJA, NIGERIA

http://variousislamicdawadocuments.blogspot.com

emails:gonidamgamiri@yahoo.com; abba.abana@gmail.com

Dated 19th May 2015

Bismillah Walhamdulillah Was Salaatu Was Salaam 'ala Rasulillah. As-Salaam Alaikum Wa-Rahmatullahi Wa-Barakatuhu.

Praise be to Allaah; we seek His help and His forgiveness. We seek refuge with Allaah from the evil of our own souls and from our bad deeds. Whomsoever Allaah guides will never be led astray, and whomsoever Allaah leaves astray, no one can guide. I bear witness that there is no god but Allaah, and I bear witness that Muhammad (Sallalhu alaihi Wasalam) is His slave and Messenger.

PART ONE

 

BRIEF DEVELOPMENT OF USUL AL-FIQH IN ISLAM

 

CONTENTS

1) Introduction

2) Rules of Islamic law

3) Sources of Islamic law

4) Objectives of Islamic law

 

INTRODUCTION

•Definition of Usulal-Fiqh

•Subject Matter of Usulal-Fiqh

•Objectives of studying Usulal-Fiqh

•Historical development of Usulal-Fiqh

 

Definition of Usulal-Fiqh

•Two considerations:

•Firstly; based on the components of the two words: usuland fiqh

•Secondly; Usulal-Fiqh as a discipline of knowledge or science of Islamic discipline

•The HanafiSchool of law defines Usulal-Fiqh as the knowledge of the principles that can be reached to the derivation of the rules from its sources or the principles of derivation of the rules.

•Meanwhile, the Shafi’Ijurists define Usulal-Fiqh as the knowledge of the proofs of fiqhin general, methods of deriving the rules from the proofs and position of a person who derives the rules.

•Thus usulal-fiqhis concerning with the principles and methodologies of deriving Islamic law.

RELATIONSHIP BETWEEN USUL AL-FIQH AND FIQH

•Fiqh is the knowledge of the rules relating to a conduct of person ( sayings or doings ) or the rules themselves.

•It principally consists of two main divisions: devotions (ibadah) like fasting etc.; and civil matter (adat/muamalat) e.g. rules relating to family ( munakahat), crime (jinayah), transaction (mu’amalat), etc, ;

•Usulal-Fiqh is the knowledge of principles or methodologies of deriving the rules (relating to a conduct of person: sayings or doings) from specific sources or the principles or methodologies themselves.

•Thus these two disciplines are inter related as their common object is to derive Islamic law.

•The jurist or scholar of fiqhhas to rely on the principles and methodologies that have been laid down by the scholar of usulal-fiqhin deriving the law.

SUBJECT MATTER OF USUL AL-FIQH

•Proofs or Sources (al-adillah) of Islamic law e.g. al-Qur’an, Sunnah, Ijma’ Qiyas, MasalihMursalahetc.

•Rules of Islamic law (al-ahkam) and the components of the rules: Law Giver (Hakim), the act of the subject (Mahkumfihi), the subject (mahkum‘alaihi.e. a person who is addressed by the law –mukallaf).

•Conflicts of proofs and preference (al-Ta’arudwaal-Tarjih)

•Rules of Interpretations

•Mujtahid: person who derives the rules

Thus the subject of usulfiqhconsists of all principles and methodologies which are necessary for the jurists (faqih) to rely upon in the derivation of the rules.

OBJECTIVES OF STUDYING USUL AL-FIQH

1. Have an ability of deriving the rules (Islamic law) i.e. ability to exercise ijtihadand to give preference when there is a conflict of laws.

2. Have an ability of comparing the Islamic laws as propounded by the different schools.

•This is because the law is based on proofs, so we may know whether the laws of each school is based on a strong and valid proofs.

3. To know the methodology and principles used by the jurists of different school of laws in deriving the rules.

•Enable a person to understand the basis principles and proofs that have been relied upon by the jurists of different school of law in their ijtihad.

•So that we are able to understand the Islamic law better.

•We clearly understand that Islamic law is not merely based on opinion but it is based on legal proofs either from the Qur’an and Sunnah or the principles which derived from the Qur’an and Sunnah for example istihsan, masalihmarsalahetc. These principles are derived from the Quran.

12 Historical Development of Usulal-Fiqh

•Usulal-Fiqh exists as the fiqhexists

•When there is fiqh, it is necessarily that there is usulal-fiqh

•Nevertheless the compilation of fiqhbegins before the compilation of usulal-Fiqh.

•Because there is no necessity for compilation of usulal-fiqhat early period.

13 Historical continue…

•There is no need for the principles of usulal-fiqhduring the period of Prophet (pbuh) since the Prophet himself is the source of reference.

•After the death of the Prophet (saw), there arise many events and cases which require exercise of opinions (ijtihad) and derivation of the rules from the Quran and the Sunnah of the Prophet (saw).

•As regards the companions of the Prophet (saw) who are knowledgeable and familiar with the rules of extraction from the two sources, they do not really in need of the principles to derive the law when exercising ijtihadas they are well verse and familiar with Arabic language and its grammar.

•They also well understand with the rule of interpretation of legal texts and the spirit and objective of the Shari’ahas well as the reasons of the revelation of the Quran and the reasons of the coming of Sunnah

•Therefore, during the period of the Companions, usulal-fiqhwas not also compiled. As the principles of usulfiqhhas already exited and developed in their heart and mine and were not formally expressed.

•Similarly during the period of the Successors (tabi’un). This is due to the fact that there is no necessity towards it. Furthermore, the period of tabi’unis also closed to the period of the Prophet (saw) and they learned the principles and methodology of ijtihadfrom the companions.

•The need to the compilation of usulal-Fiqh appeared in the period after the Tabi’unas the Islamic territory has expanded. This is due to several factors:

•Mixing of Arab with non-Arab

•Problems and cases require the exercise of ijtihadincrease

•The emergence of many mujtahidswith different methods of derivation of law

•Arising of discussion, arguments and dispute among the scholars of fiqhe.g. school of Hadith in Hijazand school of opinion in Kufah, Iraq.

•The above factors led to a conclusion that it is necessary for the jurists to lay down the principles and methodology of deriving the rules in order to be reference for the jurists in exercising (ijtihad). So that they may arrive at Islamic law with a correct/ right opinion.

•Those principles which are relied upon by the mujtahidin deriving the rule i.e. the rule of interpretation and its principles, the objectives and spirit of the Shari’ah, consideration of public interest, the methodologies adopted by the companions while deriving the law, etc. are known as Usulal-fiqh.

•It said that the first who wrote on Usulal-Fiqh is Abu Yusuf, the disciple of Imam Abu Hanifah. However, the book did not reach us until today. The famous view of the jurists asserts that the first who writes on Usulal-Fiqh is Imam al-Shafi’I(d. 204h) in his famous work al-Risalah.

•After Imam al-Shafi’I, Imam Ahmad bin Hanbalhas written on ‘Ta’ahal-Rasul’ ( Obedience to the Prophet i.e. sunnahas one of the source of law), on ‘al-Nasikhwaal-Mansukh’ (Rule of abrogation).

•Afterwards, many books on Usulal-Fiqh were written and extended by the Muslim jurists, egal-Usulby al-Jassas(al-Hanafi) (d. 370 H), al-Burhanby al-Juwayni(al-Shafi’i) (d. 413) al-usulby Fakhral-Din al-Bazdawi(d. 482 H) and al-Mustasfaby al-Ghazali(d. 505 H).

 

PART TWO

 

INTRODUCTION TO USUL AL-FIQH

INTRODUCTION TO USUL AL-FIQH (ISLAMIC JURISPRUDENCE)

By Asst. Prof. Dr. Mohamed Fadzli Hassan,

Harun M. Hashim Law Centre, Ahmad Ibrahim Kulliyyah of Laws

International Islamic University Malaysia.

Islamic Jurisprudence - The Collection of articles for Islamic Jurisprudence II, LLM- Administration Of Islamic Law, International Islamic Universiti of Malaysia. sesion 2007/2008. The articles are given by our lacturer and class presenter group.

SHARI`AH v. FIQH

Shari`ah has been loosely defined as “Islamic law” and so has fiqh. These terms are not synonymous either in the Arabic language or to the Muslim jurists.

SHARI`AH ISLAMIYYAH

1. Shari`ah literally means a waterhole, the source of life, or the straight path as in the Qur’anic verse:

“Then we put you on the straight path (shari`ah) in your affairs, so follow it and do not follow the desires of those who have no knowledge” (al-Jaathiyah, 45:18)

2. Terminologically, it refers to the sum total of Islamic laws which were revealed to the Prophet Muhammad (s.a.w), which are recorded in the Qur’an as well deducible from the Sunnah of the Prophet.

3. In short Shari`ah is the whole teaching of Islam itself that covers both matter of belief (aqidah) and laws (fiqh).

AL-FIQH

1. Fiqh literally means deep understanding about something, as in the Qur’anic verse:

2. “They have hearts wherewith they understand not”, (al-A`raaf, 7:179)

3. Terminologically it means, the knowledge or understanding of the laws or legal rules of Shari`ah that have been derived from their specific sources.

4. In short fiqh is Islamic law, that comprises all branches of law, public and private, substantive as well procedural law

THE DISTINCTION BETWEEN SHARI`AH AND FIQH

1. Shari`ah has wider meaning than fiqh which includes both laws and a tenets of faith.

2. Shariah is the whole teachings found in the Qur’an and sunnah, while fiqh is a body of laws deduced from the Shari`ah to cover specific situations not directly treated in both sources.

3. Shari`ah is fixed and unchangeable, whereas fiqh may change according to time and circumstances under which it is applied.

4. Shari`ah, in most part, are general. They lay down basic principles. In contrast fiqh is specific. It is developed by the exercise of ijtihad of the jurists. It demonstrate how the basic principles of Shari`ah should be applied in given circumstances.

THE SCOPE OF FIQH (ISLAMIC LAW)

1. Ibadat - religious observance

2. Muamalat - dealing with others

3. Munakahat - marriage, divorce etc -- family matters.

4. Jinayat - criminal law matters

5. Nizam al-Hukm wa al-qanuun al-dusturiyy – which includes constitutional and administrative law

6. Siyaar - International law

7. Qanun ijra’aat - Civil and criminal procedure law.

IBADAT

Specific religious duties to be adhered to such as:

1.salat

2.zakat

3.fasting

4.hajj, etc.

MUAMALAT (Law of Transaction)

Inclusive of laws governing transactions, such as sales and purchase, lease, loan, banking, state administration, etc.

MUNAKAHAT(Family Law)

1. Concerns with family matters; marriage, divorce and

2. Inheritance

3. Maintenance

4. Described as Islamic Family Law or Personal Law or Muslim Law of Personal Status

JINAYAT(criminal law)

Crime: consists in legal prohibitions imposed by Allah, whose infringement entails punishment prescribed by Him.

1.Hudud

2.Qisas

3.Ta’zir

NIZAM AL-HUKM WA AL-QANUN AL-DUSTURIYY (Constitutional and administrative law)

1• Law of Constitution.

2• Separation of powers.

3• Appointment of State’s officers and their duties.

4• Fundamental liberties.

5• Governement organs and their jurisdictions, etc.

AL-SIYAAR (International Law)

1• It includes law of treaties and conventions.

2• War and international crimes.

3• Law of space and sea.

4• Conflict of law.

5• International relations, etc.

QANUN AL-IJRA`AAT (Civil and criminal procedural law)

1• Deals with civil proceedings such as witnesses and courts procedures.

2• Criminal proceeding which include prosecutions, witnesses, evidences, and all court’s procedures.

USUL FIQH

INTRODUCTION

Usul al-fiqh or Islamic jurisprudence generally explains the origin and nature of Islamic law as well as the structure of its legal system. In Islamic legal system, a rule of law in order to be valid has to be derived from the sources of Islamic law. This is accomplished by acceptable system of interpretation. Usul al-fiqh imparts instruction about the available systems of interpretation and their proper use.

Brief comparison between Islamic and western jurisprudence

1) The Law-giver or legislator

2) The sources and objective of law

3) The roles and functions of jurists (fixed and flexible part of the Shari`ah)

4) Why do we obey the law

5) The punishments and sanctions

6) Law and morality

7) The validity and legality (positivism, utilitarianism, natural law, etc.)

8) Madzhab and schools of jurisprudence

Definition of Usul al-Fiqh (Islamic Jurisprudence)

The term usul al-fiqh composed of two terms, usul and al-fiqh.

1)Usul : Basis, origin, root, foundation and sources. Something from which another thing originates, or something upon which another thing is constructed.

2)Fiqh: Literally means understanding and knowledge of the law. Terminologically, fiqh means the knowledge of the legal rules (hukm or ahkam al-Shari`ah), pertaining to conduct, which have been derived from their specific sources for example; the five daily prayers are obligatory (wajib), usury (riba’) is prohibited (haram), and marriage is permissible (mubah). Wajib, haram and mubah here are the legal rules. These rules are derived from specific provisions in the sources or through ijtihad which is regulated by usul al-fiqh.

Rules of law in the Shari`ah can be generally divided into two types:

1) The rules relating to belief (i`tiqad) like the existence of God, the mission of the Prophet, Day of Judgment, sin and reward, hell and heaven and so on.

2) The rules relating to act (conduct) which includes physical acts, the acts which take place in the heart and mind (intention, love, hate, jealousy etc), and those that relate to speech or acts arising out of spoken words.

The word used in the definition is conduct (amaliyyah), which qualifies the rules of law to only those that pertain to acts or conducts. Thus rules with respect to belief is excluded from the scope of fiqh.

Definition and objective of usul al-fiqh

Usul al-fiqh has been defined as principles or methodology used by the jurists (mujtahid) to deduce the practical Shari`ah ruling from their sources.

Thus the purpose of usul al-fiqh is to regulate the prosess of adjudication (ijtihad) and to guide the jurist (mujtahid) in his effort at deducing the rules from the sources. This would explain the issue of how do Muslim judges and jurists discover and apply the law.

Example…

Allah says in the Qur`an:

“O ye who believe! Devour not each other’s property in defiance of the law, but let there be amongst you traffic and trade (sale) by mutual consent and good-will, nor kill or destroy yourselves for verily Allah has been to you Most Merciful” (al-Nisa’, 4:29)

- The Qur`an is the source of the Shari`ah and the text or verse is the specific provision which provide of the rule or law (hukm).

- Through the methodology of usul al-fiqh the jurists have concluded that it is prohibited (haram) to take, eat, use, and consume the property belong to others unless it is authorized by the law, such as getting his consent or true contractual agreement (buying and selling, etc) which is consented by both parties. To commit murder, suicide or genocide is similarly prohibited.

More examples…

1)Allah says:

“O ye who believe! Devour not usury, doubled and multiplied; but fear Allah ; that you may really prosper” (Aali- `Imraan, 3:130)

2)The Prophet (s.a.w) said:

“I had forbidden you from visiting the graves. Nay, visit them, for they remind you of the Hereafter”.

Scope of usul al-fiqh

The study of usul al-fiqh generally covers the following subject matters:

1) the Law-giver or the legislator (al- Haakim)

2) the subject of law which includes the act and the actor (mukallaf).

3) the legal rules or laws (hukm or ahkam)

4) the jurists (mujtahidin); who are they and what are their qualifications.

5) the methods of deducing the law.

The Development of Usul al-Fiqh

1) Legislative period i.e the time of the Prophet Muhammad (s.a.w) (whether the Prophet practiced ijtihad?)

2) During the time of the Great Companions.

3) During the reign of Bani Umayyah and Abassiyyah.

4) The emergence of madzahib.

5) The growth of ijtihad and the codification of law.

6) Islamic law during Western colonization; the closing door of ijtihad (taqlid)?

Development of usul fiqh

• Why al-Imam al-Shafi’e was regarded as the father and founder of usul fiqh?

• Tariqah al-mutakallimin (the appoach of ) and tariqah al-fuqaha’ (the method of the jurists) or usul al-Shafi’eyyah and usul al-Hanafiyyah.

Al-Ahkam al-Shariyyah (The Shariah Rules)

1) Introduction, definition and brief comparison with modern legislation.

2) Pillars of hukm al-shar`ei-

a) al-Haakim (the law-giver)

b) al-mahkum fih (the act on which the law applies)

c) al-mahkum ‘alayh (subject or the legal personality) and al-ahliyyah (legal

capacity)

3) Divisions al-ahkam al-shar`iyyah:

a) al-hukm al-taklifi (defining law or obligations creating rules)

b) al-hukm al-wadh`ei (declaratory rules)

Al-Haakim (The Law-Giver)

• Allah as a true source of law. “The hukm belongs to Allah alone” as a fundamental or grundnorm.

• Issues:

a) If Allah alone makes law, then what is the function Muslim jurists?

b) If the law is for the interest of man (maslahah), can interest be the independent source of law?

• Are the Shari`ah and natural law compatible?

• Whether reason alone without revelation can discover the law (the question of good and bad)?

Mahkum fiih (the act)

For the existence of obligations (taklif) two important conditions need to be fulfilled:

a) the act that should be performed or avoided must be known.

(ignorance of the law is no excuse??)

b) the act should be able to be performed by the subject.

Mahkum `alaihi (the subject of the law)

• To acquires rights and accept duties.

• Types of al-ahliyyah:

a) ahliyyah al-wujub – capacity to acquire rights.

b) ahliyyah al-ada’ – capacity to execute.

AL-HUKM AL-SHAR`I (LAW OR LEGAL RULE)

1) Definition of al-hukm

“a communication of the Law-giver related to the acts of the subjects which consists a demand (to do or not to do), an option or declaration”.

2) Al-hukm al-shar`i is divided into two main varieties:

a) Al-hukm al-taklifi (primary rules/defining law)

b) Al-hukm al-wad`ei (secondary rules/declaratory law)

AL-HUKM AL-TAKLIFI (PRIMARY RULES/ DEFINING LAW)

1. Wajib/fard (obligatory)

2. Mandub (recommended )

3. Ja’iz (permissible)

4. Makruh (abominable)

5. Haram (prohibited)

WAJIB AND FARDH (OBLIGATORY)

• It is a binding demand of the Law-giver addressed to the mukallaf in respect of doing something.

• Acting upon something wajib/fardh leads to reward, while omitting it leads to punishment in this world or in Hereafter.

• Examples are five daily prayers, fasting in the month of Ramadhan, to pay zakat etc.

Divisions of wajib

• Ayni (personal) and kafa’i (collective)

• Muwaqqat (time-limit) and mutlaq or muassa` (absolute)

• Muhaddad (quantified) and ghair muhaddad (unquantified)

MANDUB (RECOMMENDED)

• A demand of the Law-giver which asks the mukallaf to do something which is, however, not binding.

• To comply with the demand earns the mukallaf a spiritual reward. No punishment, however, is inflicted for failure to perform it.

• Examples are give sadaqah to the needy, give salam, attending the sick, nawafil prayers etc.

• Mandub is also known as sunnah and nawafil.

JA’IZ OR MUBAH (PERMISSABLE)

• Optional; permissible, its concerning the conduct of the mukallaf which gives him the option, to do or not to do it.

• Generally no reward or punishment for the its commission or omission. However the hukm may change according to the intention of doing it or omitting it.

• Examples are eating or drinking lawful foods or water, entering into contracts, walking in the fresh air etc.

MAKRUH (DISLIKE OR ABOMINABLE)

• A demand of the Law-giver which requires the mukallaf to avoid from doing something but not binding.

• Does not constitute a binding law – omitting something makruh is preferable;

• Committing it is not liable to punishment

• Examples are avoiding unpleasant acts or foods such as raw onions and garlic before going to congregational prayers or attending the crowd. Talaq “The most abominable of permissible things in the sight of Allah is talaq.

HARAM (PROHIBITED OR FORBIDDEN)

• A binding demand of the Lawgiver in respect of abandoning something;

• Committing the haram is punishable either in this world or in the Hereafter, while omitting it is rewarded.

• Examples are riba, alcohol, theft, murder, adultery etc.

• Haram is divided into two types, lidhatihi and lighairi (haram for its own sake and forbidden because of something else).

HUKM AL-WADH`EI (SECONDARY OR DECLARATORY LAW)

1) Cause (sabab)

2) Condition (shart)

3) Hindrance (mani`)

4) Strict law (azimah) and concessionary lay (rukhsah)

5) Valid, irregular and void (sahih, fasid and batil)

1) SABAB (CAUSE)

• It is the cause on the basis of which a primary rule is invoked or established.

• Its presence necessitates the presence of the hukm, and its absence means the hukm is also absent.

• Examples are the setting of the sun is the cause for the obligatory of the evening prayer, the coming of the month of Ramadhan is the cause for the obligatory of fasting and the committing of a crime is the cause of implementing the punishment.

2) SHART (CONDITION)

• Its existence must take place before the invoking the related hukm.

• Its absence necessitates the absence of the hukm.

• Example: “There is no nikah without two witnesses”, the ablution (wudhu’) is a necessary condition of salah (prayer)

3. MANI` (HINDRANCE)

• Its presence means the absence of the hukm.

• Its existence prevent the hukm from being applied even if the cause is found and the condition is met.

• Examples: Menstruation hinders women from the obligatory of prayer, being in debt hinders the cause of zakat and etc.

4. AZIMAH AND RUKHSAH (STRICT AND CONCESSIONARY LAW)

• The Law-giver may indicate that one hukm is to be considered as an obligation imposed initially as a general rule (azimah). This may be followed by another rule that is exemption (rukhsah).

• Drinking of wine is prohibited as a general rule. In cases of duress, however, one is allowed to consume it if it saves him from dying of thirst.

• Similarly, it is allowed to shorten and combine between two prayers in traveling.

5. SAHIH, FASID AND BATIL (VALID, IRREGULAR AND VOID)

• An act may be required to be performed in certain manner by the Law-giver. When it is performed properly it is considered as valid (sahih), otherwise it might be irregular (voidable) (fasid) or null and void (batil).

• Only a valid contract of sale can give rise to its legal consequences. A contract is void when it is deficient in respect of any of its requirement. A voidable contract, although deficient in some respect, is still a contract and produces some of its legal consequences, but not all.

http://ufaoil.blogspot.com/2008/02/introduction-to-usul-al-fiqh.html?m=1

REFERENCES

Usul Al-Fiqh, Dr. Badruddin Hj Ibrahim

Certificate In Islamic Law, Harun M. Hashim Law Centre, Aikol Iium

http://darulfiqh.com/introduction-to-usul-al-fiqh/

http://ufaoil.blogspot.com/2008/02/introduction-to-usul-al-fiqh.html

https://www.al-islam.org/message-thaqalayn/vol-13-no-3-autumn-2012/introduction

http://www.jibreelinstitute.com/introduction-to-usul-al-fiqh-principles-of-islamic-jurisprudence

http://www.quranicstudies.com/law/sharia-fiqh-and-usul-al-fiqh-in-islamic-law/