Principles of Islamic Jurisprudence by M. H. Kamali

Principles of Islamic

Jurisprudence

by

M. H. Kamali

• Foreword

• Preface

 Table of Contents

• Chapter One: Introduction to Usul al-Fiqh

• Chapter Two: The First Source of Shari'ah: The Qur'an

• Chapter Three: The Sunnah

• Chapter Four: Rules of Interpretation I: Deducing the Law from Its Sources

• Chapter Five: Rules of Interpretation II: Al-Dalalat (Textual Implications)

• Chapter Six: Commands and Prohibitions

• Chapter Seven: Naskh (Abrogation)

• Chapter Eight: Ijma' or Consensus of Opinion

• Chapter Nine: Qiyas (Analogical Deduction)

• Chapter Ten: Revealed Laws Preceding the Shari'ah of Islam

• Chapter Eleven: The Fatwa of a Companion

• Chapter Twelve: Istihsan, or Equity in Islamic Law

• Chapter Thirteen: Maslahah Mursalah (Considerations of Public Interest)

• Chapter Fourteen: 'Urf (Custom)

• Chapter Fifteen: Istishab (Presumption of Continuity)

• Chapter Sixteen: Sadd al-Dhara'i (Blocking the Means)

• Chapter Seventeen: Hukm Shar'i (Law or Value of Shari'ah)

• Chapter Eighteen: Conflict of Evidences

• Chapter Nineteen: Ijtihad, or Personal Reasoning

I. Apart from the fact that the existing works on Islamic Jurisprudence in the English language do not
offer an exclusive treatment of usul al-fiqh, there is also a need to pay greater attention to the source
materials, namely the Qur'an and sunnah, in the study of this science. In the English works, the
doctrines of usul al-fiqh are often discussed in relative isolation from the authorities in which they are
founded. Furthermore, these works tend to exhibit a certain difference of style and perspective when
they are compared to the Arabic works on the subject. The usul al-fiqh as a whole and all of the various
other branches of the Shari’ah bear testimony to the recognition, as the most authoritative influence and
source, of divine revelation (wahy) over and above that of rationality and man-made legislation. This
aspect of Islamic law is generally acknowledged, and yet the relevance of wahy to the detailed
formulations of Islamic law is not highlighted in the English works in the same way as one would
expect to find in the works of Arabic origin. I have therefore made an attempt to convey not only the
contents of usul al-fiqh as I found them in Arabic sources but also the tone and spirit of the source
materials which I have consulted. I have given frequent illustrations from the Qur’an, the Sunnah and
the well-recognised works of authority to substantiate the theoretical exposition of ideas and doctrines.
The works of the madhahib, in other words, are treated in conjunction with the authority in which they
are founded.
II. The idea to write this book occurred to me in early 1980 when I was teaching this subject to
postgraduate students at the Institute of Islamic Studies at McGill University in Montreal. But it was
only after 1985 when I started a teaching post at the International Islamic University, Selangor,
Malaysia, that I was able to write the work I had intended. I was prompted to this decision primarily by
the shortage of English textbooks on Islamic jurisprudence for students who seek to acquire an
intermediate to advanced level of proficiency in this subject. Works that are currently available in
English on Islamic law and jurisprudence are on the whole generic in that they tend to treat a whole
range of topics both on usul al-fiqh and the various branches of fiqh (i.e. furu 'al-fiqh), often within the
scope of a single volume. The information that such works contain on usul al-fiqh is on the whole
insufficient for purposes of pursuing a full course of study on this subject. The only exception to note
here, perhaps, is the area of personal law, that is, the law of marriage, divorce, inheritance, etc., which
has been treated exclusively, and there are a number of English texts currently available on the subject.
Works of Arabic origin on usul al-fiqh are, on the whole, exclusive in the treatment of this discipline.
There is a selection of textbooks in Arabic, both classical and modern, at present available on this
subject, ranging from the fairly concise to the more elaborate and advanced. Works such as 'Abd alWahhab
Khallaf's 'Ilm Usul al-Fiqh, Abu Zahrah's Usul al-Fiqh,Muhammad al-Khudari's Usul al-Fiqh,and Badran's Usul al-Fiqh al-lslami are but some of the well-known modern works in the field. Classical works on usul
al-fiqh, of which there are many, are, broadly speaking, all fairly elaborate, sometimes running into several volumes. I have relied, in addition to the foregoing, on al-Ghazali's Al- Principles of Islamic Jurisprudence ~ Kamali 3
Mustasfa min 'llm al-usul, al-Amidi's Al-Ihkam fi Usul al-Ahkam, al-Shatibi's Al-Muwafaqat fi Usul alAhkam
and al-Shawkani's Irshad al-Fuhul fi Tahqiq al-Haqq min 'llm al-Usul. These are all devoted,almost exclusively, to the juridical subject matter of usul al-fiqh, and rarely, if ever, address the historical development of this discipline beyond such introductory and incidental references as the context
may require. Arabic writers tend to treat the historical development of jurisprudence separately
from the usul al-fiqh itself.There are several Arabic works of modern origin currently available on the
history of jurisprudence and its various phases of development, namely the Prophetic period, the era of
the Companions, the early schools of law in the Hijaz and Iraq, the emergence of the madhahib,
the era of imitation (taqlid), and the call for a return to ijtihad. This discipline is generally known as 'tarikh altashri' which, as the title suggests, is primarily concerned with the history of juristic thought and
institutions.
[Note for example al-Khudari's, Tarikh al-Tashri' al-lslami; al-Sabuni et al., Al- Madkhal al-Fiqhi wa Tarikh al-Tashri al-Islami; al-Qattan's
Al-Tashri' wa al-Fiqh fi al-Islam: Tarikhan wa Manhajan, and al-Nabhan's Al-Madkhal li al-Tashri' al-islami. Nish'atuh, Adwaruh al-Tarikhiyyah, Mustaqbalub.
For full publication data see my Bibliography.]
 The Arabic texts on usul al-fiqh itself are on the whole devoted to a
treatment of the sources, and methodology of the law, and tend to leave out its history of development.
The reverse of this is true with regard to works that are currently available on the general subject of
Islamic jurisprudence in the English language. Works of Western authorship on this subject are, broadly
speaking, primarily concerned with the history of jurisprudence, whereas the juridical subject matter of
usul al-fiqh does not receive the same level of attention as is given to its historical development.
Bearing in mind the nature of the existing English literature on the subject, and the fact that there is
adequate information available on the history of Islamic jurisprudence in English, the present work does
not attempt to address the historical developments and instead focuses on usul al-fiqh itself.
Another point to be noted regarding works on Islamic jurisprudence in English by both Muslim and
non-Muslim authors is that they are somewhat selective in their treatment of the relevant topics, and
certain subjects tend to be ignored or treated only briefly. Consequently, information on some topics,
such as the rules of interpretation, classification of words, commands and prohibitions, and textual
implications (al-dalalat) is particularly brief and often non-existent in these works. Even some of the
more familiar topics such as qiyas, istihsan, istislah, istishab and saad al-dhara'i are treated
superficially in most of the English books that are currently in use. The reasons for such omissions are
not always clear. The authors might have considered some of these topics to be somewhat technical and
involved for English readers whose interest in usul al-fiqh has for a long time remained confined to
general and introductory information on the subject. Some of these topics, such as the rules of
interpretation, al-dalalat and the technicalities of qiyas which draw somewhat heavily on the use of
Arabic terminology, might have been viewed in this light. The English-speaking student of Islamic
studies has been perceived as someone who would have little use for technical detail on usul al-fiqh.
This might at best offer a plausible explanation, but it is one which carries little weight, especially in
view of the greater interest that has been more recently taken in Islamic legal studies in the West, as
well as some of the English speaking institutions of higher learning that have emerged in Islamic
Principles of Islamic Jurisprudence ~ Kamali 4
countries themselves.
[Note for example the International Islamic University of Malaysia, and that of Islamabad, Pakistan, where usul al-fiqh is
offered as a core subject both in the LL.B and the masters degree programmes.]
 Moreover, the fact that Islamic countries have in
recent decades shown a fresh interest in developing greater harmony between the Shari’ah and statutory
laws has also meant that practicing lawyers and judges in these countries are increasingly encouraged to
enhance their expertise in the Shari’ah disciplines.
Modern Arabic writings on usul al-fiqh tend to differ from the older works on the subject in that the
former take cognizance of recent developments both in the Muslim communities and beyond. Thus, the
reader of many a modern work often comes across comments and comparisons which seek to explain
the application and relevance of the Shari’ah doctrines to modern legislation, and to the principles of
Western jurisprudence. Much to their credit, some ulema and writers of modern works have attempted
to relate the classical formulations and doctrines of usul al-fiqh to the contemporary socio-legal
conditions of their communities. There exists a level of concern over the gap that has gradually
developed between the Shari’ah and modern law and over the fact that the problem still remains to be
tackled.
There have also been attempts, be they in the form of individual reform proposals, a call for fresh
ijtihad over particular issues, or formal resolutions adopted at national and international gatherings of
scholars, which seek to tap the resources of usul al-fiqh in bridging the gap between the Shari’ah and
modern conditions of society. A full account of such developments would fall well beyond the scope
and objective of the present work.
[For an account of the recent trends and developments in scholarly publications, conference resolutions, and
the various periodicals and encyclopedias which are designed to promote such tendencies, the reader is referred to Muhammad Faruq al-Nabhan, Al- Madkhal li al-
Tashri al-Islami, pp 342-407 and Manna al-Qattan, Al-Tashri’ wa al-Fiqh fi al-lslam, pp. 311-355.]
 But in discussing certain doctrines such
as ijtihad, ijma', istihsan and maslahah, I have attempted to present the modern current of opinion, and
occasionally my own views, as to how these principles could be utilised in contemporary legal and
judicial processes. I have taken this liberty despite the awareness that it might fall beyond the brief of a
work which seeks to be an exposition of the existing doctrines and institutions as they are. I wish to add
here that I alone bear full responsibility for the propriety or otherwise of my views.
Furthermore, the recent Arabic texts on usul al-fiqh tend to treat their subject matter in a more
consolidated and simplified form which makes it manageable to the modern student of law. These
works are on the whole more concise by comparison with the earlier authorities on the subject. It is
primarily in matters of format and style in which they differ from the older works. As for substantive
matters, the modern works are normally expected to preserve the continuity of the earlier authorities,
and the two are basically indistinguishable in this regard. Having said this, one might add further that
the modern works tend to differ from their predecessors in one other respect, namely that the former
tend to offer a more even-handed treatment of the views and doctrines of such schools of thought as the
Mu'tazilah, the Shi'ah and the Zahiriyyah, etc., and tend to treat ideas on merit rather than their formal
acceptance and recognition by the established madhahib. In addition to the textbook materials on usul
Principles of Islamic Jurisprudence ~
 Kamali 5
al-fiqh, a number of legal encyclopedias have emerged in recent decades in Egypt and elsewhere,
usually bearing the title al-Mawsu'ah al-Fiqhiyyah' with the express purpose of offering a balanced
treatment of the views and contributions of all the prominent schools of law. As a result, the relatively
stronger orientation toward particular schools that is noticeable in the earlier works on usul al-fiqh,
especially those that were authored after the crystallisation of the madhahib, is not a prominent feature
of the modern works. A more open attitude has in fact emerged which seeks to move away from the
sectarian bias that can be found in some earlier works, and it is no longer unusual for a Sunni scholar to
write on Shi’i thought, scholars and institutions, with a view to highlighting their contributions to
Islamic law and jurisprudence. The present writer welcomes this development, but if his own work fails
to offer adequate coverage of the doctrines of the various schools, it is due solely to considerations of
brevity and space which may be expected of a handbook of this size.
III. It is perhaps true to say that Islamic jurisprudence exhibits greater stability and continuity of values,
thought and institutions when compared to Western jurisprudence. This could perhaps be partially
explained by reference to the respective sources of law in the two legal systems. Whereas rationality,
custom, judicial precedent, morality and religion constitute the basic sources of Western law, the last
two acquire greater prominence in Islamic Law. The values that must be upheld and defended by law
and society in Islam are not always validated on rationalist grounds alone. Notwithstanding the fact that
human reason always played an important role in the development of Shari'ah through the medium of
ijtihad, the Shari’ah itself is primarily founded in divine revelation.
A certain measure of fluidity and overlap with other disciplines such as philosophy and sociology is
perhaps true of both Islamic and Western jurisprudence. But it is the latter which exhibits the greater
measure of uncertainty over its scope and content. Thus according to one observer, books that bear the
title 'jurisprudence' vary widely in subject matter and treatment, because the nature of the subject is
such that no distinction of its scope and content can be clearly determined,
[Dias, Jurisprudence, p. I.]
 and in
Julius Stone's somewhat dramatic phrase, jurisprudence is described as 'a chaos of approaches to a
chaos of topics, chaotically delimited'.
[See this and other statements by Bentham, Dicey and Arnold in Curzon, Jurisprudence, p. 13.]
Usul al-fiqh, on the other hand, has a fairly well defined structure, and the ulema had little difficulty in
treating it as a separate discipline of Islamic learning. Textbooks on usul al-fiqh almost invariably deal
with a range of familiar topics and their contents are on the whole fairly predictable. This is perhaps
reflective of the relative stability that the Shari’ah in general and the usul al-fiqh in particular has
exhibited through its history of development, almost independently of government and its legislative
organs. This factor has, however, also meant that usul al-fiqh has for the most part been developed by
individual jurists who exerted themselves in their private capacity away from the government
machinery and involvement in the development of juristic thought. Consequently, usul al-fiqh has to
some extent remained a theoretical discipline and has not been internalised by the legislative machinery
of government. The history of Islamic jurisprudence is marred by a polarisation of interests and values
Principles of Islamic Jurisprudence ~
 Kamali 6
between the government and the ulema. The ulema's disaffection with the government did not
encourage the latter's participation and involvement in the development of juristic thought and
institutions, and this has to some extent discouraged flexibility and pragmatism in Islamic
jurisprudence. Note, for example, the doctrinal requirements of ijma', especially the universal consensus
of the entire body of the mujtahidun of the Muslim community that is required for its conclusion, a
condition which does not concede to considerations of feasibility and convenience. There is also no
recognition whatsoever of any role for the government in the doctrine of ijma' as a whole. The
government for its part also did not encourage the ulema's involvement and participation in its
hierarchy, and isolated itself from the currents of juristic thought and the scholastic expositions of the
ulema. The schools of jurisprudence continued to grow, and succeeded in generating a body of doctrine,
which, however valuable, was by itself not enough to harness the widening gap between the theory and
practice of law in government. One might, for example, know about qiyas and maslahah, etc., and the
conditions which must be fulfilled for their valid operation. But the benefit of having such knowledge
would be severely limited if neither the jurist nor the judge had a recognised role or power to apply it.
One might add here also the point that no quick solutions are expected to the problem over the
application of the Shari’ah in modern jurisdictions. The issue is a long- standing one and is likely to
continue over a period of time. It would appear that a combination of factors would need to be
simultaneously at work to facilitate the necessary solutions to the problem under discussion. One such
factor is the realisation of a degree of consensus and cooperation between the various sectors of society,
including the ulema and the government, and the willingness of the latter, to take the necessary steps to
bring internal harmony to its laws. To merge and to unify the Shari’ah and modern law into an organic
unity would hopefully mean that the duality and the internal tension between the two divergent systems
of law could gradually be minimised and removed.
Bearing in mind the myriad and rapidly increasing influences to which modern society is exposed, the
possibility of consensus over values becomes ever more difficult to obtain. To come to grips with the
fluctuation of attitude and outlook on basic values that the law must seek to uphold has perhaps become
the most challenging task of the science of jurisprudence in general. To provide a set of criteria with
which to determine the propriety or otherwise of law and of effective government under the rule of law,
is the primary concern of jurisprudence.
The Muslim jurist is being criticised for having lost contact with the changing conditions of
contemporary life in that he has been unable to relate the resources of Shari’ah to modern government
processes in the fields of legislation and judicial practice. A part of the same criticism is also leveled
against the government in Islamic countries in that it has failed to internalise the usul al-fiqh in its
legislative practices. The alleged closure of the door of ijtihad is one of the factors which is held
accountable for the gap that has developed between the law and its sources on the one hand and the
changing conditions of society on the other. The introduction of statutory legislation which has already
become a common practice in Islamic countries has also affected the role and function of ijtihad. Apart
Principles of Islamic Jurisprudence ~ Kamali 7