(d. 771), Al-Tahrir of Kamil al-Din b. al-Humam al-Hanafi (d. 860), and Musallam al-Thubut of the
Hanafi jurist Muhibb al-Din b. 'Abd al-Shakur (d. 1119). And finally, this list would be deficient
without mentioning Abu Ishaq Ibrahim al-Shatibi's Al-Muwafaqat, which is comprehensive and perhaps
unique in its attention to the philosophy (hikmah) of tashri' and the objectives that are pursued by the
detailed rulings of the Shari’ah.
[Abu Zahrah, Usul, PP. 14-20; Hitu, Wajiz, pp. 13-24; Zuhayr, Usul, I, 4.]
III. Proofs of Shari'ah (Al-Adillah Al-Shar'iyyah)
The adillah Shar’iyyah, and the ahkam, that is, laws or values that regulate the conduct of the mukallaf,
are the two principal themes of usul al-fiqh. Of these two, however, the former is by far the more
important as, according to some ulema, the ahkam are derived from the adillah and are therefore
subsidiary to them. It is perhaps in view of the central importance of these two topics to usul al-fiqh that
al-Amidi defines the latter as the science of the 'Proofs of fiqh (adillah al-fiqh) and the indications that
they provide in regard to the ahkam of the Shari'ah.
[Amidi, Ihkam, I, 7; Badran, Usul, P. 36.]
Literally, dalil means proof, indication or evidence. Technically it is an indication in the sources from
which a practical rule of Shari’ah, or a hukm is deduced. The hukm so obtained may be definitive
(qat’i') or it may be speculative (zanni) depending on the nature of the subject, clarity of the text, and
the value which it seeks to establish.
[Amidi, Ihkam, I. 9; Badran, Usul, P. 46, Hitu, Wajiz, p. 99.]
In the terminology of usul
al-fiqh, adillah Shar’iyyah refer to four principal proofs, or sources of the Shari’ah, namely the Qur’an,
Sunnah, consensus and analogy. Dalil in this sense is synonymous with asl, hence the four sources of
Shari’ah are known both as adillah and usul. There are a number of ayat in the Qur’an which identify
the sources of Shari’ah and the order of priority between them. But one passage in which all the
principal sources are indicated occurs in Sura al-Nisa' (4: 58-59) which is as follows: 'O you believers!
Obey God and obey the Messenger and those of you who are in charge of affairs. If you have a dispute
concerning any matter, refer it to God and to the Messenger,' 'Obey God' in this ayah refers to the
Qur’an, and 'Obey the Messenger' refers to the Sunnah. Obedience to 'those who are in charge of affairs'
is held to be a reference to ijma', and the last portion of the ayah which requires the referral of disputes
to God and to the Messenger authorises qiyas. For qiyas is essentially an extension of the injunctions of
the Qur’an and Sunnah. The rationale or the effective cause of qiyas may be clearly indicated in these
sources or it may be identified by way of inference (istinbat). In either case, qiyas essentially consists of
the discovery of a hukm which is already indicated in the divine sources.
[Cf. Badran, Usul, pp. 51-52.]
Some fuqaha' have drawn a distinction between dalil and amarah (lit. sign or allusion) and apply dalil
to the kind of evidence which leads to a definitive ruling or that which leads to positive knowledge
('ilm). Amarah on the other hand is reserved for evidence or indication which only leads to a speculative
Principles of Islamic Jurisprudence ~
Kamali 19
ruling.
[Amidi, Ihkam, I, 9.]
In this way, the term 'dalil' would only apply to the definitive proofs, namely the
Qur’an, Sunnah and ijma', and the remaining proofs which comprise a measure of speculation, such as
qiyas and istihsan, etc., would fall under the category of amarat.
The proofs of Shari'ah have been further divided into transmitted proofs (adillah naqliyyah) and
rational proofs (adillah 'aqliyyah). The authority of the transmitted proofs is independent of their
conformity or otherwise with the dictates of reason, although as we shall later elaborate, most of the
transmitted proofs can also be rationally justified. However, the authority and the binding force of the
Qur’an, Sunnah and ijma' are independent of any rational justification that might exist in their favour.
To these are added two other transmitted proofs, namely the ruling of the Companions, and the laws
revealed prior to the advent of Islam (shara'i man qablana)
[Cf. Badran, Usul, PP. 54-55.]
The rational proofs are, on the other hand, founded in reason and need to be rationally justified. They
can only be accepted by virtue of their rationality. Qiyas, istihsan, istislah and istishab are basically all
rationalist doctrines although they are in many ways dependent on the transmitted proofs. Rationality
alone is not an independent proof in Islam, which is why the rational proofs cannot be totally separated
from the transmitted proofs. Qiyas, for example, is a rational proof, but it also partakes in the
transmitted proofs to the extent that qiyas in order to be valid must be founded on an established hukm
of the Qur’an, Sunnah or ijma'. However the issue to which qiyas is applied (i.e. the far') must have a
'illah in common with the original hukm. To establish the commonality of the 'illah in qiyas is largely a
matter of opinion and ijtihad. Qiyas is therefore classified under the category of adillah aqliyyah.
As noted above, the adillah Shar’iyyah are on the whole in harmony with reason. This will be clear
from the fact that the Shari’ah in all of its parts is addressed to the mukallaf, that is, the competent
person who is in possession of his faculty of reasoning. The Shari’ah as a whole does not impose any
obligation that would contradict the requirements of 'aql. Since the criterion of obligation (taklif) is 'aql,
and without it all legal obligations fall to the ground, it would follow that a hukm shar'i which is
abhorrent to 'aql is of no consequence.
[Amidi, Ihkam, III, 180; Badran, Usul, P. 50]
The adillah Shar’iyyah have been further classified into mustaqill and muqayyad, that is independent
and dependent proofs respectively. The first three sources of the Shari'ah are each an independent asl,
or dalil mustaqill, that is, a proof in its own right. Qiyas on the other hand is an asl or dalil muqayyad in
the sense, as indicated above, that its authority is derived from one or the other of the three independent
sources. The question may arise as to why ijma’ has been classified as an independent proof despite the
fact that it is often in need of a basis (sanad) in the Qur'an or the Sunnah. The answer to this is that
ijma’ is in need of a sanad in the divine sources for its formulation in the first place. However, once the
ijma’ is concluded, it is no longer dependent on its sanad and it becomes an independent proof. Unlike
qiyas, which continues to be in need of justification in the form of a 'illah, a conclusive ijma' is not in
need of justification and is therefore an independent asl.
[Amidi, Ihkam, I, 260.]
Principles of Islamic Jurisprudence ~
Kamali 20
The only other classification or adillah which needs to be mentioned is their division into definitive
(qat’i) and speculative (zanni) proofs. This division of dalil shar'i contemplates the proofs of Shari'ah
not only in their entirety but also in respect of the detailed rules which they contain. In, this way, the
Qur’an, Sunnah and ijma' are definitive proofs in the sense that they are decisive and binding. However
each of these sources contains speculative rules which are open to interpretation. A dalil in this sense is
synonymous with hukm. A Dalil may be qat’i in regards to both transmission (riwayah) and meaning
(dalalah). The clear injunctions of the Qur’an and Hadith Mutawatir are all qat’i in respect of both
transmission and meaning. We shall have occasion later to elaborate on this subject in the context of the
characteristic features of Qur’anic legislation. Suffice it here to say that the Qur’an is authentic in all of
its parts, and therefore of proven authenticity (qat’i al-thubut). The solitary, or ahad, Hadith on the
other hand is of speculative authenticity and therefore falls under the category of speculative proofs.
[Shawkani, Irshad, p. 47; Badran, Usul, p. 53; Hitu, Wajiz, p. 305.]
Similarly, a ruling of ijma’ may have reached us by
continuous testimony (tawatur) in which case it would be definitely proven (qat’i al-thubut). But when
ijma’ is transmitted through solitary reports, its authenticity would be open to doubt and therefore zanni
al-thubut.
The text of the Qur’an or the Hadith may convey a command or a prohibition. According to the general
rule, a command (amr) conveys obligation (wujub), and prohibition (nahy) conveys tahrim unless there
is evidence to suggest otherwise. It is in the light of the wording of the text, its subject-matter and other
supportive evidence that the precise shar’i value of a textual ruling can be determined. A command
may thus imply a recommendation (nadb) or a mere permissibility (ibahah) and not wujub. Likewise a
prohibition (nahy) in the Qur’an or the Sunnah may be held to imply abomination (karahah) and not
necessarily tahrim. Consequently, when the precise value of the qat’i and the zanni on the scale of five
values is not self-evident, it is determined by supportive evidence that may be available in the sources
or by ijtihad. The qat’i of the Qur’an and Sunnah is basically not open to interpretation. The scope of
interpretation and ijtihad is consequently confined to the zanni proofs alone.
711; Shaltut, Al-IsIam, p. 498.]
[Khallaf, 'Ilm, p. 35, Abu Zahrah, Usul, p.19
Being the verbal noun of the root word qara'a (to read), 'Qur’an' literally means 'reading' or 'recitation'.
It may be defined as 'the book containing the speech of God revealed to the Prophet Muhammad in
Arabic and transmitted to us by continuous testimony, or tawatur'.
[The Qur’an also calls itself by alternative names, such as
kitab, huda, furqan, and dhikr (book, guide, distinguisher, and remembrance respectively). When the definite article, al, is prefixed to the Qur’an, it refers to the
whole of the Book; but without this prefix, the Qur’an can mean either the whole or a part of the Book. Thus one may refer to a singular sura or ayah thereof as the
Qur’an, but not as al-Qur'an.]
It is a proof of the prophecy of Muhammad, the most authoritative guide for
Muslims, and the first source of the Shari’ah. The ulema are unanimous on this, and some even say that
it is the only source and that all other sources are explanatory to the Qur’an. The revelation of the
Qur’an began with the Sura al-'Alaq (96:1) starting with the words 'Read in the name of your Lord' and
ending with the ayah in sura al-Ma’idah (5:3): 'Today I have perfected your religion for you and
completed my favour toward you, and chosen Islam as your religion.
[Some disagree on this point, saying that the last ayah
of the Qur’an was al-Baqarah 2: 281 as follows: 'Fear the day when you will be brought back to God; then every soul will be paid in full according to whatever it
has earned, and they will not be treated unjustly.']
Learning and religious guidance, being the first and the last themes of
the Qur’anic revelation, are thus the favour of God upon mankind.
There are 114 suras and 6235 ayat of unequal length in the Qur’an. The shortest of the suras consist of
four and the longest of 286 ayat. Each chapter has a separate title. The longest suras appear first and the
suras become shorter as the text proceeds. Both the order of the ayat within each sura, and the sequence
of the suras, were re-arranged and finally determined by the Prophet in the year of his demise.
According to this arrangement, the Qur’an begins with sura al-Fatihah and ends with sura al-Nas.
Dictionary, P. 485ff; von Denffer, ‘Ulum, p. 68ff.]
The contents of the Qur’an are not classified subject-wise. The ayat on various topics appear in
unexpected places, and no particular order can be ascertained in the sequence of its text. To give just a
few examples, the command concerning salah appears in the second sura, in the midst o other ayat
which relate to the subject of divorce (al-Baqarah, 2:228-248). In the same sura, we find rules which
relate to wine-drinking and war, followed by passages concerning the treatment of orphans and the
marriage of unbelieving women (al-Baqarah, 216-211) Similarly the ayat relating to the pilgrimage of
hajj occur both in sura al-Baqarah (196-2O3) and sura al-Hajj (22:26-27). Rules on marriage divorce
and revocation (rij'ah) are found in the suras al-Baqarah, al-Talaq, and al-Nisa. From this a conclusion
has been drawn that the Qur’an is an indivisible whole and a guide for belief and action which must be
accepted and followed in its entirety. Hence any attempt to follow some parts or the Qur'an and
abandon others will be totally invalid. This is in fact the purport of the Qur’anic text (al-Ma’idah, 5: 52)
where the Prophet has been warned: 'Beware of them (i.e. the disbeliever’s) lest they seduce you away
from a part of that which God has sent down to you.
[Shaltut, Al-Islam, PP. 499-500; Qattan, Tashri’, p. 83; Badran, Usul, P. 72.]
Principles of Islamic Jurisprudence ~ Kamali 22
[Hughes,
The Qur’an consists of manifest revelation (wahy zahir), which is defined as communication from God
to the Prophet Muhammad, conveyed by the angel Gabriel, in the very words of God. Manifest
revelation differs from internal revelation (wahy batin) in that the latter consists of the inspiration
(ilham) of concepts only: God inspired the Prophet and the latter conveyed the concepts in his own
words. All the sayings, or ahadith, of the Prophets fall under the category of internal revelation, and as
such they are not included in the Qur’an. A brief word may be added here concerning Hadith Qudsi. In
this variety of Hadith, the Prophet narrates a concept directly from God. Hadith Qudsi differs from the
other varieties of Hadith in form only. The Prophet himself has not distinguished Hadith Qudsi from
other ahadith: it was in fact introduced as a separate category by the ulema of Hadith at around the fifth
century Hijrah. Hadith in all of its varieties consists of divine inspiration which is communicated in the
words of the Prophet. No Hadith may be ranked on equal footing with the Qur’an. The salah cannot be
performed by reciting the Hadith, nor is the recitation of Hadith considered as of the same spiritual
merit as the Qur'an.
[Khallaf, ‘Ilm, P. 23; Abdur Rahim, Jurisprudence, p. 69; Abu Zahrah, Usul, P. 59.]
The Qur’an explicitly states that it is all communicated in pure and clear Arabic (al-Nahl, 16:3o).
Although the ulema are in agreement that words of non-Arabic origin occur in the Qur'an, they are,
nevertheless, words which were admitted and integrated into the language of the Arabs before the
revelation of the Qur’an. To give just a few examples, words such as qistas (scales - occurring in the
Sura al-Isra', 17:35), ghassaq (intense cold) in Sura al-Naba' (78:2 5) and sijjil (baked clay - in al-Hijr,
15:74) are of Greek, Turkish and Persian origins respectively.
Qur'an see Shawkani, Irshad, p. 22ff. See also Ghazali, Mustasfa, I, 68.]
[For an exclusive treatment of words of foreign origin in the
But this usage is confined to odd words; a phrase or a
sentence of non-Arabic origin does not occur in the Qur’an.
[Shaltut, Al-Islam, P. 486; von Denffer, 'Ulum, P. 73.]
Since
the Qur’an consists of manifest revelation in Arabic, a translation of the Qur’an into another language,
or its commentary whether in Arabic or other languages, are not a part of the Qur’an. However, Imam
Abu Hanifah has held the view that the Qur’an is the name for a meaning only, and as such, salah may
be performed in its Persian translation. But the disciples of Abu Hanifah have disagreed with this view
and it is reported that Abu Hanifah himself reversed his initial ruling, and this is now considered to be
the correct view of the Hanafi school.
[This report is attributed to a Nuh b. Maryam who has confirmed that Abu Hanifah changed his initial
ruling. See Aba Zahrah, Usul, p. 60; Shaltut, Al-Islam, P. 478; Sabuni, Madkhal, P. 4.]
The Prophet himself memorised the Qur’an, and so did his Companions. This was, to a large extent,
facilitated by the fact that the Qur’an was revealed piecemeal over a period of twenty-three years in
relation to particular events. The Qur’an itself explains the rationale of graduality (tanjim) in its
revelation as follows: 'The unbelievers say, why has not the Qur’an been sent down to him
[Muhammad] all at once. Thus [it is revealed] that your hearts may be strengthened, and We rehearse it
to you gradually, and well-arranged' [al-Furqan, 23:32].
Principles of Islamic Jurisprudence ~
Kamali 23
Elsewhere we read in the text: 'It is a Qur’an We have divided into parts in order that you may recite it
to people at intervals: We have revealed it by stages' (Bani Isra'il, 17:106). In yet another passage,
Almighty God addresses the Prophet: 'By degrees shall We teach you to declare [the message] so that
you do not forget' (al-A'la, 87:6).
Graduality in the revelation of Qur’an afforded the believers the opportunity to reflect over it and to
retain it in their memories. Revelation over a period of time also facilitated continuous contact and
renewal of spiritual strength so that the hostility of the unbelievers toward the new faith did not weaken
the hearts of the Muslims. Furthermore, in view of the widespread illiteracy of the Arabs at the time,
had the Qur’an been revealed all at once, they would have found it difficult to understand. The Qur’anic
legislation concerning matters which touched the lives of the people was therefore not imposed all at
once. It was revealed piecemeal so as to avoid hardship to the believers.
p. 61; Qattan, Tashri’, P. 57ff.]
[Sabuni, Madkhal, PP. 41-42.; Abu Zahrah, Usul,
The ban on the consumption of alcohol affords an interesting example of the
Qur’anic method of graduality in legislation, and throws light on the attitude of the Qur’an to the nature
and function of legislation itself. Consumption of alcohol was apparently, subject to no restriction in the
early years. Later, the following Qur’anic passage was revealed in the form of a moral advice: 'They ask
you about alcohol and gambling, say: in these there is great harm and also benefit for the people, but
their harm far outweighs their benefit' (al-Baqarah; 2:219). Then offering prayers while under the
influence of alcohol was prohibited (al-Nisa', 4:43). Finally a total ban on wine drinking was imposed
(al-Ma’idah, 5:93) and both alcohol and gambling were declared to be 'works of the devil ... the devil
wants to sow enmity and rancour among you'. This shows the gradual tackling of problems as and when
they arose.
The ulema are in agreement to the effect that the entire text of the Qur’an is Mutawatir, that is, its
authenticity is proven by universally accepted testimony. It has been retained both in memory and in
written record throughout the generations. Hence nothing less that tawatur is accepted in evidence to
establish the authenticity of the variant readings of the Qur’an. Thus the variant reading of some words
in a few ayat, attributed to 'Abdullah ibn Mas'ud, for example, which is not established by tawatur is
not a part of the Qur’an. In the context of penance (kaffarah) of a false oath, for example, the standard
text provides this to be three days of fasting. But Ibn Mas'ud's version has it as three consecutive days
of fasting. Since the additional element (i.e. consecutive) in the relevant ayah in sura al-Ma’idah (5:92)
is not established by tawatur, it is not a part of the Qur’an and is therefore of no effect.
Shawkani, Irshad, P. 30; Shaltut, Al-Islam, P. 440; The same would apply to the two other instances of variant readings which are attributed to ‘Abdullah ibn
Mas’ud concerning the punishment of theft, and the form of divorce known as ila in sura al-Ma'idah (5: 38) and al-Baqarah (2: 226) respectively. Since these are
only supported by solitary reports (Ahad) they do not constitute a part of the Qur’an.]
During the lifetime of the Prophet, the text of the Qur’an was preserved not only in memories, but also
in inscriptions on such available materials as flat stones, wood and bones, which would explain why it
could not have been compiled in a bound volume. Initially the first Caliph, Abu Bakr, collected the
Principles of Islamic Jurisprudence ~ Kamali 24
[Ghazali, Mustafa, I. 64;
Qur'an soon after the battle of Yamamah which led to the death of at least seventy of the memorisers of
the Qur'an. Zayd b. Thabit, the scribe of the Prophet, was employed on the task of compiling the text
which he accomplished between 11 and 14 Hijrah. But several versions and readings of this edition
soon crept into use. Hence the third Caliph, 'Uthman, once again utilised the services of Zayd to verify
the accuracy of the text and compiled it in a single Volume. All the remaining variations were then
destroyed. As a result only one authentic text has remained in use to this day.
Jurisprudence, P. 71.]
[Abu Zahrah, Usul, p. 62; Abdur Rahim,
The Qur’an was revealed in two distinct periods of the Prophet's mission in Mecca and Madinah
respectively. The larger part of the Qur’an, that is nineteen out of the total of thirty parts, was received
during the first twelve and a half years of the Prophet's residence in Mecca. The remainder of the Qur'an
was received after the Prophet's migration to Madinah over a period of just over nine and a half years.
[To be precise, the Meccan period lasted twelve years, five months and thirteen days, and the Madinan period, nine years, seven months and seven days.]
The
Meccan part or the Qur'an is mainly devoted to matters of belief, the Oneness of God (Tawhid), the
necessity of the prophethood of Muhammad, the hereafter, disputation with the unbelievers and their
invitation to Islam. But the Madinese part of the Qur’an also comprised legal rules and regulated the
various aspects of life in the new environment of Madinah. Since the Madinese period signified the
formation of the ummah and of the nascent Islamic state, the Qur’anic emphasis was shifted to
principles regulating the political, legal, social and economic life of the new community. During this
period Islam expanded to other parts of Arabia, and the Qur’anic response to the need for rules to
regulate matters of war and peace, the status and rights of the conquered people as well as the
organisation of the family and principles of government feature prominently in the Madinese part of the
Qur’an.
[Cf. Sabuni, Madkhal, PP. 41-44; Khallaf, ‘Ilm, P. 24.]
The knowledge of the Meccan and the Madinese contents of
the Qur’an gives one an insight into the context and circumstances in which the ayat were revealed; it is
particularly relevant to the understanding of the incidence of abrogation (naskh) in the Qur’an. To
distinguish the abrogating (al-nasikh) from the abrogated (al-mansukh) portions of the text depends on
determining the chronological order in the revelation of the relevant ayat. Similarly, most of the general
(Amm) rulings of the text have been qualified either by the text itself or by the Hadith. Thus the
knowledge of the Makki and Madani parts of the revelation facilitates a better understanding of some of
the characteristic features of the Qur’anic legislation.
A sura is considered to be Makki if its revelation had begun in Mecca, even if it contained ayat that
were later revealed in Madinah. The Qur’an consists of eighty-five Meccan and twenty-nine Madinan
suras. The differences of content and style that are observed in each are reflective of the prevailing
circumstances of each period. Since Muslims were in the minority in Mecca the Meccan ayat may thus
be especially meaningful to Muslims living in a dominantly un-Islamic environment, whereas the
Madinese ayat may take for granted the presence of the sovereign authority of the Islamic state. The
Meccan suras are generally short but rhythmical and intense in their emotional appeal to the pagan
Principles of Islamic Jurisprudence ~ Kamali 25
Hanafi jurist Muhibb al-Din b. 'Abd al-Shakur (d. 1119). And finally, this list would be deficient
without mentioning Abu Ishaq Ibrahim al-Shatibi's Al-Muwafaqat, which is comprehensive and perhaps
unique in its attention to the philosophy (hikmah) of tashri' and the objectives that are pursued by the
detailed rulings of the Shari’ah.
[Abu Zahrah, Usul, PP. 14-20; Hitu, Wajiz, pp. 13-24; Zuhayr, Usul, I, 4.]
III. Proofs of Shari'ah (Al-Adillah Al-Shar'iyyah)
The adillah Shar’iyyah, and the ahkam, that is, laws or values that regulate the conduct of the mukallaf,
are the two principal themes of usul al-fiqh. Of these two, however, the former is by far the more
important as, according to some ulema, the ahkam are derived from the adillah and are therefore
subsidiary to them. It is perhaps in view of the central importance of these two topics to usul al-fiqh that
al-Amidi defines the latter as the science of the 'Proofs of fiqh (adillah al-fiqh) and the indications that
they provide in regard to the ahkam of the Shari'ah.
[Amidi, Ihkam, I, 7; Badran, Usul, P. 36.]
Literally, dalil means proof, indication or evidence. Technically it is an indication in the sources from
which a practical rule of Shari’ah, or a hukm is deduced. The hukm so obtained may be definitive
(qat’i') or it may be speculative (zanni) depending on the nature of the subject, clarity of the text, and
the value which it seeks to establish.
[Amidi, Ihkam, I. 9; Badran, Usul, P. 46, Hitu, Wajiz, p. 99.]
In the terminology of usul
al-fiqh, adillah Shar’iyyah refer to four principal proofs, or sources of the Shari’ah, namely the Qur’an,
Sunnah, consensus and analogy. Dalil in this sense is synonymous with asl, hence the four sources of
Shari’ah are known both as adillah and usul. There are a number of ayat in the Qur’an which identify
the sources of Shari’ah and the order of priority between them. But one passage in which all the
principal sources are indicated occurs in Sura al-Nisa' (4: 58-59) which is as follows: 'O you believers!
Obey God and obey the Messenger and those of you who are in charge of affairs. If you have a dispute
concerning any matter, refer it to God and to the Messenger,' 'Obey God' in this ayah refers to the
Qur’an, and 'Obey the Messenger' refers to the Sunnah. Obedience to 'those who are in charge of affairs'
is held to be a reference to ijma', and the last portion of the ayah which requires the referral of disputes
to God and to the Messenger authorises qiyas. For qiyas is essentially an extension of the injunctions of
the Qur’an and Sunnah. The rationale or the effective cause of qiyas may be clearly indicated in these
sources or it may be identified by way of inference (istinbat). In either case, qiyas essentially consists of
the discovery of a hukm which is already indicated in the divine sources.
[Cf. Badran, Usul, pp. 51-52.]
Some fuqaha' have drawn a distinction between dalil and amarah (lit. sign or allusion) and apply dalil
to the kind of evidence which leads to a definitive ruling or that which leads to positive knowledge
('ilm). Amarah on the other hand is reserved for evidence or indication which only leads to a speculative
Principles of Islamic Jurisprudence ~
Kamali 19
ruling.
[Amidi, Ihkam, I, 9.]
In this way, the term 'dalil' would only apply to the definitive proofs, namely the
Qur’an, Sunnah and ijma', and the remaining proofs which comprise a measure of speculation, such as
qiyas and istihsan, etc., would fall under the category of amarat.
The proofs of Shari'ah have been further divided into transmitted proofs (adillah naqliyyah) and
rational proofs (adillah 'aqliyyah). The authority of the transmitted proofs is independent of their
conformity or otherwise with the dictates of reason, although as we shall later elaborate, most of the
transmitted proofs can also be rationally justified. However, the authority and the binding force of the
Qur’an, Sunnah and ijma' are independent of any rational justification that might exist in their favour.
To these are added two other transmitted proofs, namely the ruling of the Companions, and the laws
revealed prior to the advent of Islam (shara'i man qablana)
[Cf. Badran, Usul, PP. 54-55.]
The rational proofs are, on the other hand, founded in reason and need to be rationally justified. They
can only be accepted by virtue of their rationality. Qiyas, istihsan, istislah and istishab are basically all
rationalist doctrines although they are in many ways dependent on the transmitted proofs. Rationality
alone is not an independent proof in Islam, which is why the rational proofs cannot be totally separated
from the transmitted proofs. Qiyas, for example, is a rational proof, but it also partakes in the
transmitted proofs to the extent that qiyas in order to be valid must be founded on an established hukm
of the Qur’an, Sunnah or ijma'. However the issue to which qiyas is applied (i.e. the far') must have a
'illah in common with the original hukm. To establish the commonality of the 'illah in qiyas is largely a
matter of opinion and ijtihad. Qiyas is therefore classified under the category of adillah aqliyyah.
As noted above, the adillah Shar’iyyah are on the whole in harmony with reason. This will be clear
from the fact that the Shari’ah in all of its parts is addressed to the mukallaf, that is, the competent
person who is in possession of his faculty of reasoning. The Shari’ah as a whole does not impose any
obligation that would contradict the requirements of 'aql. Since the criterion of obligation (taklif) is 'aql,
and without it all legal obligations fall to the ground, it would follow that a hukm shar'i which is
abhorrent to 'aql is of no consequence.
[Amidi, Ihkam, III, 180; Badran, Usul, P. 50]
The adillah Shar’iyyah have been further classified into mustaqill and muqayyad, that is independent
and dependent proofs respectively. The first three sources of the Shari'ah are each an independent asl,
or dalil mustaqill, that is, a proof in its own right. Qiyas on the other hand is an asl or dalil muqayyad in
the sense, as indicated above, that its authority is derived from one or the other of the three independent
sources. The question may arise as to why ijma’ has been classified as an independent proof despite the
fact that it is often in need of a basis (sanad) in the Qur'an or the Sunnah. The answer to this is that
ijma’ is in need of a sanad in the divine sources for its formulation in the first place. However, once the
ijma’ is concluded, it is no longer dependent on its sanad and it becomes an independent proof. Unlike
qiyas, which continues to be in need of justification in the form of a 'illah, a conclusive ijma' is not in
need of justification and is therefore an independent asl.
[Amidi, Ihkam, I, 260.]
Principles of Islamic Jurisprudence ~
Kamali 20
The only other classification or adillah which needs to be mentioned is their division into definitive
(qat’i) and speculative (zanni) proofs. This division of dalil shar'i contemplates the proofs of Shari'ah
not only in their entirety but also in respect of the detailed rules which they contain. In, this way, the
Qur’an, Sunnah and ijma' are definitive proofs in the sense that they are decisive and binding. However
each of these sources contains speculative rules which are open to interpretation. A dalil in this sense is
synonymous with hukm. A Dalil may be qat’i in regards to both transmission (riwayah) and meaning
(dalalah). The clear injunctions of the Qur’an and Hadith Mutawatir are all qat’i in respect of both
transmission and meaning. We shall have occasion later to elaborate on this subject in the context of the
characteristic features of Qur’anic legislation. Suffice it here to say that the Qur’an is authentic in all of
its parts, and therefore of proven authenticity (qat’i al-thubut). The solitary, or ahad, Hadith on the
other hand is of speculative authenticity and therefore falls under the category of speculative proofs.
[Shawkani, Irshad, p. 47; Badran, Usul, p. 53; Hitu, Wajiz, p. 305.]
Similarly, a ruling of ijma’ may have reached us by
continuous testimony (tawatur) in which case it would be definitely proven (qat’i al-thubut). But when
ijma’ is transmitted through solitary reports, its authenticity would be open to doubt and therefore zanni
al-thubut.
The text of the Qur’an or the Hadith may convey a command or a prohibition. According to the general
rule, a command (amr) conveys obligation (wujub), and prohibition (nahy) conveys tahrim unless there
is evidence to suggest otherwise. It is in the light of the wording of the text, its subject-matter and other
supportive evidence that the precise shar’i value of a textual ruling can be determined. A command
may thus imply a recommendation (nadb) or a mere permissibility (ibahah) and not wujub. Likewise a
prohibition (nahy) in the Qur’an or the Sunnah may be held to imply abomination (karahah) and not
necessarily tahrim. Consequently, when the precise value of the qat’i and the zanni on the scale of five
values is not self-evident, it is determined by supportive evidence that may be available in the sources
or by ijtihad. The qat’i of the Qur’an and Sunnah is basically not open to interpretation. The scope of
interpretation and ijtihad is consequently confined to the zanni proofs alone.
711; Shaltut, Al-IsIam, p. 498.]
[Khallaf, 'Ilm, p. 35, Abu Zahrah, Usul, p.19
Being the verbal noun of the root word qara'a (to read), 'Qur’an' literally means 'reading' or 'recitation'.
It may be defined as 'the book containing the speech of God revealed to the Prophet Muhammad in
Arabic and transmitted to us by continuous testimony, or tawatur'.
[The Qur’an also calls itself by alternative names, such as
kitab, huda, furqan, and dhikr (book, guide, distinguisher, and remembrance respectively). When the definite article, al, is prefixed to the Qur’an, it refers to the
whole of the Book; but without this prefix, the Qur’an can mean either the whole or a part of the Book. Thus one may refer to a singular sura or ayah thereof as the
Qur’an, but not as al-Qur'an.]
It is a proof of the prophecy of Muhammad, the most authoritative guide for
Muslims, and the first source of the Shari’ah. The ulema are unanimous on this, and some even say that
it is the only source and that all other sources are explanatory to the Qur’an. The revelation of the
Qur’an began with the Sura al-'Alaq (96:1) starting with the words 'Read in the name of your Lord' and
ending with the ayah in sura al-Ma’idah (5:3): 'Today I have perfected your religion for you and
completed my favour toward you, and chosen Islam as your religion.
[Some disagree on this point, saying that the last ayah
of the Qur’an was al-Baqarah 2: 281 as follows: 'Fear the day when you will be brought back to God; then every soul will be paid in full according to whatever it
has earned, and they will not be treated unjustly.']
Learning and religious guidance, being the first and the last themes of
the Qur’anic revelation, are thus the favour of God upon mankind.
There are 114 suras and 6235 ayat of unequal length in the Qur’an. The shortest of the suras consist of
four and the longest of 286 ayat. Each chapter has a separate title. The longest suras appear first and the
suras become shorter as the text proceeds. Both the order of the ayat within each sura, and the sequence
of the suras, were re-arranged and finally determined by the Prophet in the year of his demise.
According to this arrangement, the Qur’an begins with sura al-Fatihah and ends with sura al-Nas.
Dictionary, P. 485ff; von Denffer, ‘Ulum, p. 68ff.]
The contents of the Qur’an are not classified subject-wise. The ayat on various topics appear in
unexpected places, and no particular order can be ascertained in the sequence of its text. To give just a
few examples, the command concerning salah appears in the second sura, in the midst o other ayat
which relate to the subject of divorce (al-Baqarah, 2:228-248). In the same sura, we find rules which
relate to wine-drinking and war, followed by passages concerning the treatment of orphans and the
marriage of unbelieving women (al-Baqarah, 216-211) Similarly the ayat relating to the pilgrimage of
hajj occur both in sura al-Baqarah (196-2O3) and sura al-Hajj (22:26-27). Rules on marriage divorce
and revocation (rij'ah) are found in the suras al-Baqarah, al-Talaq, and al-Nisa. From this a conclusion
has been drawn that the Qur’an is an indivisible whole and a guide for belief and action which must be
accepted and followed in its entirety. Hence any attempt to follow some parts or the Qur'an and
abandon others will be totally invalid. This is in fact the purport of the Qur’anic text (al-Ma’idah, 5: 52)
where the Prophet has been warned: 'Beware of them (i.e. the disbeliever’s) lest they seduce you away
from a part of that which God has sent down to you.
[Shaltut, Al-Islam, PP. 499-500; Qattan, Tashri’, p. 83; Badran, Usul, P. 72.]
Principles of Islamic Jurisprudence ~ Kamali 22
[Hughes,
The Qur’an consists of manifest revelation (wahy zahir), which is defined as communication from God
to the Prophet Muhammad, conveyed by the angel Gabriel, in the very words of God. Manifest
revelation differs from internal revelation (wahy batin) in that the latter consists of the inspiration
(ilham) of concepts only: God inspired the Prophet and the latter conveyed the concepts in his own
words. All the sayings, or ahadith, of the Prophets fall under the category of internal revelation, and as
such they are not included in the Qur’an. A brief word may be added here concerning Hadith Qudsi. In
this variety of Hadith, the Prophet narrates a concept directly from God. Hadith Qudsi differs from the
other varieties of Hadith in form only. The Prophet himself has not distinguished Hadith Qudsi from
other ahadith: it was in fact introduced as a separate category by the ulema of Hadith at around the fifth
century Hijrah. Hadith in all of its varieties consists of divine inspiration which is communicated in the
words of the Prophet. No Hadith may be ranked on equal footing with the Qur’an. The salah cannot be
performed by reciting the Hadith, nor is the recitation of Hadith considered as of the same spiritual
merit as the Qur'an.
[Khallaf, ‘Ilm, P. 23; Abdur Rahim, Jurisprudence, p. 69; Abu Zahrah, Usul, P. 59.]
The Qur’an explicitly states that it is all communicated in pure and clear Arabic (al-Nahl, 16:3o).
Although the ulema are in agreement that words of non-Arabic origin occur in the Qur'an, they are,
nevertheless, words which were admitted and integrated into the language of the Arabs before the
revelation of the Qur’an. To give just a few examples, words such as qistas (scales - occurring in the
Sura al-Isra', 17:35), ghassaq (intense cold) in Sura al-Naba' (78:2 5) and sijjil (baked clay - in al-Hijr,
15:74) are of Greek, Turkish and Persian origins respectively.
Qur'an see Shawkani, Irshad, p. 22ff. See also Ghazali, Mustasfa, I, 68.]
[For an exclusive treatment of words of foreign origin in the
But this usage is confined to odd words; a phrase or a
sentence of non-Arabic origin does not occur in the Qur’an.
[Shaltut, Al-Islam, P. 486; von Denffer, 'Ulum, P. 73.]
Since
the Qur’an consists of manifest revelation in Arabic, a translation of the Qur’an into another language,
or its commentary whether in Arabic or other languages, are not a part of the Qur’an. However, Imam
Abu Hanifah has held the view that the Qur’an is the name for a meaning only, and as such, salah may
be performed in its Persian translation. But the disciples of Abu Hanifah have disagreed with this view
and it is reported that Abu Hanifah himself reversed his initial ruling, and this is now considered to be
the correct view of the Hanafi school.
[This report is attributed to a Nuh b. Maryam who has confirmed that Abu Hanifah changed his initial
ruling. See Aba Zahrah, Usul, p. 60; Shaltut, Al-Islam, P. 478; Sabuni, Madkhal, P. 4.]
The Prophet himself memorised the Qur’an, and so did his Companions. This was, to a large extent,
facilitated by the fact that the Qur’an was revealed piecemeal over a period of twenty-three years in
relation to particular events. The Qur’an itself explains the rationale of graduality (tanjim) in its
revelation as follows: 'The unbelievers say, why has not the Qur’an been sent down to him
[Muhammad] all at once. Thus [it is revealed] that your hearts may be strengthened, and We rehearse it
to you gradually, and well-arranged' [al-Furqan, 23:32].
Principles of Islamic Jurisprudence ~
Kamali 23
Elsewhere we read in the text: 'It is a Qur’an We have divided into parts in order that you may recite it
to people at intervals: We have revealed it by stages' (Bani Isra'il, 17:106). In yet another passage,
Almighty God addresses the Prophet: 'By degrees shall We teach you to declare [the message] so that
you do not forget' (al-A'la, 87:6).
Graduality in the revelation of Qur’an afforded the believers the opportunity to reflect over it and to
retain it in their memories. Revelation over a period of time also facilitated continuous contact and
renewal of spiritual strength so that the hostility of the unbelievers toward the new faith did not weaken
the hearts of the Muslims. Furthermore, in view of the widespread illiteracy of the Arabs at the time,
had the Qur’an been revealed all at once, they would have found it difficult to understand. The Qur’anic
legislation concerning matters which touched the lives of the people was therefore not imposed all at
once. It was revealed piecemeal so as to avoid hardship to the believers.
p. 61; Qattan, Tashri’, P. 57ff.]
[Sabuni, Madkhal, PP. 41-42.; Abu Zahrah, Usul,
The ban on the consumption of alcohol affords an interesting example of the
Qur’anic method of graduality in legislation, and throws light on the attitude of the Qur’an to the nature
and function of legislation itself. Consumption of alcohol was apparently, subject to no restriction in the
early years. Later, the following Qur’anic passage was revealed in the form of a moral advice: 'They ask
you about alcohol and gambling, say: in these there is great harm and also benefit for the people, but
their harm far outweighs their benefit' (al-Baqarah; 2:219). Then offering prayers while under the
influence of alcohol was prohibited (al-Nisa', 4:43). Finally a total ban on wine drinking was imposed
(al-Ma’idah, 5:93) and both alcohol and gambling were declared to be 'works of the devil ... the devil
wants to sow enmity and rancour among you'. This shows the gradual tackling of problems as and when
they arose.
The ulema are in agreement to the effect that the entire text of the Qur’an is Mutawatir, that is, its
authenticity is proven by universally accepted testimony. It has been retained both in memory and in
written record throughout the generations. Hence nothing less that tawatur is accepted in evidence to
establish the authenticity of the variant readings of the Qur’an. Thus the variant reading of some words
in a few ayat, attributed to 'Abdullah ibn Mas'ud, for example, which is not established by tawatur is
not a part of the Qur’an. In the context of penance (kaffarah) of a false oath, for example, the standard
text provides this to be three days of fasting. But Ibn Mas'ud's version has it as three consecutive days
of fasting. Since the additional element (i.e. consecutive) in the relevant ayah in sura al-Ma’idah (5:92)
is not established by tawatur, it is not a part of the Qur’an and is therefore of no effect.
Shawkani, Irshad, P. 30; Shaltut, Al-Islam, P. 440; The same would apply to the two other instances of variant readings which are attributed to ‘Abdullah ibn
Mas’ud concerning the punishment of theft, and the form of divorce known as ila in sura al-Ma'idah (5: 38) and al-Baqarah (2: 226) respectively. Since these are
only supported by solitary reports (Ahad) they do not constitute a part of the Qur’an.]
During the lifetime of the Prophet, the text of the Qur’an was preserved not only in memories, but also
in inscriptions on such available materials as flat stones, wood and bones, which would explain why it
could not have been compiled in a bound volume. Initially the first Caliph, Abu Bakr, collected the
Principles of Islamic Jurisprudence ~ Kamali 24
[Ghazali, Mustafa, I. 64;
Qur'an soon after the battle of Yamamah which led to the death of at least seventy of the memorisers of
the Qur'an. Zayd b. Thabit, the scribe of the Prophet, was employed on the task of compiling the text
which he accomplished between 11 and 14 Hijrah. But several versions and readings of this edition
soon crept into use. Hence the third Caliph, 'Uthman, once again utilised the services of Zayd to verify
the accuracy of the text and compiled it in a single Volume. All the remaining variations were then
destroyed. As a result only one authentic text has remained in use to this day.
Jurisprudence, P. 71.]
[Abu Zahrah, Usul, p. 62; Abdur Rahim,
The Qur’an was revealed in two distinct periods of the Prophet's mission in Mecca and Madinah
respectively. The larger part of the Qur’an, that is nineteen out of the total of thirty parts, was received
during the first twelve and a half years of the Prophet's residence in Mecca. The remainder of the Qur'an
was received after the Prophet's migration to Madinah over a period of just over nine and a half years.
[To be precise, the Meccan period lasted twelve years, five months and thirteen days, and the Madinan period, nine years, seven months and seven days.]
The
Meccan part or the Qur'an is mainly devoted to matters of belief, the Oneness of God (Tawhid), the
necessity of the prophethood of Muhammad, the hereafter, disputation with the unbelievers and their
invitation to Islam. But the Madinese part of the Qur’an also comprised legal rules and regulated the
various aspects of life in the new environment of Madinah. Since the Madinese period signified the
formation of the ummah and of the nascent Islamic state, the Qur’anic emphasis was shifted to
principles regulating the political, legal, social and economic life of the new community. During this
period Islam expanded to other parts of Arabia, and the Qur’anic response to the need for rules to
regulate matters of war and peace, the status and rights of the conquered people as well as the
organisation of the family and principles of government feature prominently in the Madinese part of the
Qur’an.
[Cf. Sabuni, Madkhal, PP. 41-44; Khallaf, ‘Ilm, P. 24.]
The knowledge of the Meccan and the Madinese contents of
the Qur’an gives one an insight into the context and circumstances in which the ayat were revealed; it is
particularly relevant to the understanding of the incidence of abrogation (naskh) in the Qur’an. To
distinguish the abrogating (al-nasikh) from the abrogated (al-mansukh) portions of the text depends on
determining the chronological order in the revelation of the relevant ayat. Similarly, most of the general
(Amm) rulings of the text have been qualified either by the text itself or by the Hadith. Thus the
knowledge of the Makki and Madani parts of the revelation facilitates a better understanding of some of
the characteristic features of the Qur’anic legislation.
A sura is considered to be Makki if its revelation had begun in Mecca, even if it contained ayat that
were later revealed in Madinah. The Qur’an consists of eighty-five Meccan and twenty-nine Madinan
suras. The differences of content and style that are observed in each are reflective of the prevailing
circumstances of each period. Since Muslims were in the minority in Mecca the Meccan ayat may thus
be especially meaningful to Muslims living in a dominantly un-Islamic environment, whereas the
Madinese ayat may take for granted the presence of the sovereign authority of the Islamic state. The
Meccan suras are generally short but rhythmical and intense in their emotional appeal to the pagan
Principles of Islamic Jurisprudence ~ Kamali 25
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