1. Definition and Scope
Usul al-fiqh, or the roots of Islamic law, expound the indications and methods by which the rules of fiqh
are deduced from their sources. These indications are found mainly in the Qur'an and Sunnah, which are
the principal sources of the Shari'ah. The rules of fiqh are thus derived from the Qur'an and Sunnah in
conformity with a body of principles and methods which are collectively known as usul al-fiqh. Some
writers have described usul al-fiqh as the methodology of law, a description which is accurate but
incomplete. Although the methods of interpretation and deduction are of primary concern to usul alfiqh,
the latter is not exclusively devoted to methodology. To say that usul
al-fiqh is the science of the sources and methodology of the law is accurate in the sense that the Qur’an and Sunnah constitute the sources as well as the subject matter to which the methodology of usul al-fiqh is applied. The Qur’an and Sunnah themselves, however, contain very little by way of methodology, but rather provide the indications from which the rules of Shari’ah can be deduced. The methodology of usul al-fiqh
really refers to methods of reasoning such as analogy (qiyas), juristic preference (istihsan), presumption of
continuity (istishab) and the rules of interpretation and deduction. These are designed to serve as an aid to
the correct understanding of the sources and ijtihad. To deduce the rules of fiqh from the indications that are provided in the sources is the expressed purpose of usul al-fiqh. Fiqh as such is the end product of usul al-fiqh; and yet the two are separate disciplines. The main difference between fiqh and usul al-fiqh is that the former is concerned with the
knowledge of the detailed rules of Islamic law in its various branches, and the latter with the methods
that are applied in the deduction of such rules from their sources. Fiqh, in other words, is the law itself
whereas usul al-fiqh is the methodology of the law. The relationship between the two disciplines
resembles that of the rules of grammar to a language, or of logic (mantiq) to philosophy. Usul al-fiqh in
this sense provides standard criteria for the correct deduction of the rules of fiqh from the sources of
Shari’ah. An adequate knowledge of fiqh necessitates close familiarity with its sources. This is borne
out in the definition of fiqh, which is 'knowledge of the practical rules of Shari’ah acquired from the
detailed evidence in the sources'. [Amidi, Ihkam, I, 6; Shawkani, Irshad, P. 3.]
The knowledge of the rules of fiqh, in other words, must be acquired directly from the sources, a requirement which implies that the faqih must be in contact with the sources of fiqh. Consequently a person who learns the fiqh in isolation from its sources is not a faqih. [Cf. Abu Zahrah, Usul, p. 6] The faqih must know not only the rule that
misappropriating the property of others is forbidden but also the detailed evidence for it in the source,
that is, the Qur’anic ayah (2:188) which provides: 'Devour not each other's property in defiance of the
law.' This is the detailed evidence, as opposed to saying merely that 'theft is forbidden in the Qur'an'.
Principles of Islamic Jurisprudence ~
Kamali 12
Knowledge of the rules of interpretation is essential to the proper understanding of a legal text. Unless
the text of the Qur’an or the Sunnah is correctly understood, no rules can be deduced from it, especially
in cases where the text in question is not self-evident. Hence rules by which one is to distinguish a
speculative text from the definitive, the manifest (zahir) from the explicit (nass), the general ('aam)
from the specific (khaas), the literal (haqiqi) from the metaphorical (majazi) etc., and how to
understand the implications (dalalat) of a given text are among the subjects which warrant attention in
the study of usul al-fiqh. An adequate grasp of the methodology and rules of interpretation also ensures
the proper use of human reasoning in a system of law which originates in divine revelation. For
instance, analogy (qiyas) is an approved method of reasoning for the deduction of new rules from the
sources of Shari’ah. How analogy should be constructed, what are its limits, and what authority would
it command in conjunction, or in conflict, with the other recognized proofs are questions which are of
primary concern to usul al-fiqh. Juristic preference, or istihsan, is another rationalist doctrine and a
recognized proof of Islamic law. It consists essentially of giving preference to one of the many
conceivable solutions to a particular problem. The choice of one or the other of these solutions is
mainly determined by the jurist in the light of considerations of equity and fairness. Which of these
solutions is to be preferred and why, and what are the limits of personal preference and opinion in a
particular case, is largely a question of methodology and interpretation and therefore form part of the
subject matter of usul al-fiqh.
The principal objective of usul al-fiqh is to regulate ijtihad and to guide the jurist in his effort at
deducing the law from its sources. The need for the methodology of usul al-fiqh became prominent
when unqualified persons attempted to carry out ijtihad, and the risk of error and confusion in the
development of Shari'ah became a source of anxiety for the ulema. The purpose of usul al-fiqh is to
help the jurist to obtain an adequate knowledge of the sources of Shari’ah and of the methods of juristic
deduction and inference. Usul al-fiqh also regulates the application of qiyas, istihsan, istishab, istislah,
etc., whose knowledge helps the jurist to distinguish as to which method of deduction is best suited to
obtaining the hukm shar'i of a particular problem. Furthermore, usul al-fiqh enables the jurist to
ascertain and compare strength and weakness in ijtihad and to give preference to that ruling of ijtihad
which is in close harmony with the nusus.
It may be added here that knowledge of the rules of interpretation, the 'Aam, the Khaas, the Mutlaq, the
Muqayyad, etc., is equally relevant to modern statutory law. When the jurist and the judge, whether a
specialist in the Shari’ah or in secular law, fails to find any guidance in the clear text of the statute on a
particular issue, he is likely to resort to judicial construction or to analogy. The skill, therefore, to
interpret a legal text and to render judicial decisions is indispensable for a jurist regardless as to whether
he sits in a Shari’ah court or in a court of statutory jurisdiction. A specialist in usul al-fiqh will thus find
his skill of considerable assistance to the understanding and interpretation of any legal text.
pp. 37-38.]
Principles of Islamic Jurisprudence ~ Kamali 13
[Cf. Badran, Usul,
To what extent is it justified to say that al-Shafi'i was the founder of usul al-fiqh? One theory has it that
usul al-fiqh has existed for as long as the fiqh has been known to exist. For fiqh could not have come
into being in the absence of its sources, and of methods with which to utilize the source materials.
Zahrah, Usul p. 8ff.]
This would in turn, imply that usul al-fiqh had existed long before al-Shafi'i. Numerous
examples could be cited to explain how in early Islam, the Companions deduced the rules of fiqh from
their sources. Usul al-fiqh, in other words, had substantially existed before the period which saw the
emergence of the leading imams of jurisprudence. But it was through the works of these imams,
especially al-Shafi'i, that usul al-fiqh was articulated into a coherent body of knowledge. Even before
al-Shafi'i, we know that Abu Hanifah resorted to the use of analogy and istihsan while lmam Malik is
known for his doctrine of the Madinese ijma', subjects to which we shall have occasion to return. When
al-Shafi’i came on the scene, he found a wealth of juristic thought and advanced levels of
argumentation on methodological issues. But the existing works were not entirely free of discordance
and diversity which had to be sifted through by the standards which al-Shafi'i articulated in his legal
theory of the usul. He devoted his Risalah exclusively to this subject, and this is widely acknowledged
to be the first work of authority on usul al-fiqh.
It is nevertheless accurate to say that fiqh precedes the usul al-fiqh and that it was only during the
second Islamic century that important developments took place in the field of usul al-fiqh.
Abu Zahrah, Usul, p. 10.]
For during the first century there was no pressing need for usul al-fiqh. When the
Prophet was alive, the necessary guidance and solutions to problems were obtained either through
divine revelation, or his direct ruling. Similarly, during the period following the demise of the Prophet,
the Companions remained in close contact with the teachings of the Prophet and their decisions were
mainly inspired by his precedent. Their proximity to the source and intimate knowledge of the events
provided them with the authority to rule on practical problems without there being a pressing need for
methodology.
[Khallaf, 'Ilm, p. 16; Abu Zahrah, Usul, pp. 16-17]
However, with the expansion of the territorial domain of
Islam, the Companions were dispersed and direct access to them became increasingly difficult. With
this, the possibility of confusion and error in the understanding of the textual sources became more
prominent. Disputation and diversity of juristic thought in different quarters accentuated the need for
clear guidelines, and the time was ripe for al-Shafi'i to articulate the methodology of usul al-fiqh. AlShafi’i
came on the scene when juristic controversy had become prevalent between the jurists of
Madinah
and Iraq, respectively known as Ahl al-Hadith and Ahl al-Ra'y. This was also a time when the
ulema of Hadith had succeeded in their efforts to collect and document the Hadith. Once the fuqaha
were assured of the subject matter of the Sunnah, they began to elaborate the law, and hence the need
for methodology to regulate ijtihad became increasingly apparent. The consolidation of usul al-fiqh as a
Shari’ah discipline was, in other words, a logical conclusion of the compilation of the vast literature of
Hadith.
[Cf. Badran, Usul, P. 12.]
Principles of Islamic Jurisprudence ~ Kamali 14
[Cf. Abu
[Khallaf, 'Ilm, p. 16;
And finally among the factors which prompted al-Shafi'i into refining the legal theory of usul al-fiqh
was the extensive influx of non-Arabs into Islamic territories and the disconcerting influence that this
brought on the legal and cultural traditions of Islam. Al-Shafi'i was anxious to preserve the purity of the
Shari’ah and of the language of the Qur’an. In his Risalah, al-Shafi'i enacted guidelines for ijtihad and
expounded the rules governing the Khaas and the 'Aam, the nasikh and the mansukh, and articulated the
principles governing ijma' and qiyas. He expounded the rules of relying on the solitary Hadith (khabar
al-wa’hid) and its value in the determination of the ahkam. Al-Shafi’i refuted the validity of istihsan
and considered it to be no more than an arbitrary exercise in law-making. Admittedly al-Shafi’i was not
the first to address these matters, but it is widely acknowledged that he brought a coherence to usul alfiqh,
which had hitherto remained scattered and unconsolidated.
[Cf. Badran, Usul, P. 14.]
It will be noted in this connection that the Shi'i ulema have claimed that their fifth Imam, Muhammad
al-Baqir, and his son and successor, Ja'far al-Sadiq, were the first to write on the subject of usul.
According to Abu Zahrah, who has written extensively on the lives and works of the early Imams, the
Shi’i Imams have written, like many others, on the subject, but neither of the two Imams have written
anything of an equivalent order to that of the Risalah. Hence al-Shafi'i's position and contribution to
usul al-fiqh remains unique, and he is rightly regarded as the founder of usul at-fiqh.
Badran, Usul, P. 14.]
The basic outline of the four principal sources of the law that al-Shafi’i spelled out was subsequently
accepted by the generality of ulema, although each of the various schools of jurisprudence has
contributed towards its further development. The Hanafis, for example, added istihsan, and custom
('urf) to the usul al-fiqh, and the Malikis reduced the concept of consensus (ijma') to the Madinese
consensus only, while the Hanbali approach to the subject closely resembled that of the Malikis. But
even so, none departed significantly from the basic principles which al-Shafi'i had articulated.
P. 14.]
Broadly speaking, the so-called closure of the gate of ijtihad at around the fourth Islamic century did
not affect the usul al-fiqh in the same way as it might have affected the fiqh itself. The era of imitation
(taqlid) which followed might even have added to the strength and prominence of usul al-fiqh in the
sense that the imitators observed, and relied on, the methodology of the usul as a yardstick of validity
for their arguments. Consequently usul al-fiqh gained universal acceptance and was, in a way, utilised
as a means with which to justify taqlid. [Badran, Usul, P. 14.] A brief word may be added here regarding the difference between the usul, and the maxims of fiqh (alqawa'id al-fiqhiyyah),as the two are sometimes confused with one another. The maxims of fiqh refer to a body of abstract rules which are derived from the detailed study of the fiqh itself. They consist of theoretical guidelines in the different areas of fiqh such as evidence, transactions, matrimonial law', etc. As such they are an integral part of fiqh and are totally separate from usul al-fiqh.
Over 200 legal
Principles of Islamic Jurisprudence ~ Kamali 15
[Abu Zahrah, Usul, p. 113.
[Badran, Usul,
maxims have been collected and compiled in works known as al-ashbah wa al-naza'ir;
both bearing the title Al-Ashbah wa al-Naza'ir are authored by Jalal al-Din al-Suyuti and Ibn Nujaym al-Hanafi respectively.]
one hundred of these,
have been adopted in the introductory section (i.e. the first 100 articles) of the Ottoman Majallah. The
name 'al-qawa'id al-fiqhiyyah' may resemble the expression usul al-fiqh, but the former is not a part of
the latter and the two are totally different from one another.
A comparison between usul al-fiqh and usul al-qanun will indicate that these two disciplines have much
in common with one another, although they are different in other respects. They resemble one another
in that both are concerned with the methodology of the law and the rules of deduction and
interpretation; they are not concerned with the detailed rules of the law itself. In the case of the law of
property, for example, both usul al-fiqh and usul al-qanun are concerned with the sources of the law of
property and not with the detailed rules governing transfer of ownership or regulating the contract of
sale. These are subjects which fall within the scope of the law of property, not the methodology of law.
Although the general objectives of usul al-fiqh and usul al-qanun are similar, the former is mainly
concerned with the Qur’an, Sunnah, consensus, and analogy. The sources of Shari'ah are, on the whole,
well-defined and almost exclusive in the sense that a rule of law or a hukm shar'i may not be originated
outside the general scope of its authoritative sources on grounds, for example, of rationality (aql) alone.
For 'aql is not an independent source of law in Islam. Usul al-fiqh is thus founded in divine ordinances
and the acknowledgement of God's authority over the conduct of man.
Usul al-qanun, on the other hand, consist mainly of rationalist doctrines, and reason alone may
constitute the source of many a secular law. Some of these are historical sources such as Roman Law or
British Common Law whose principles are upheld or overruled in light of the prevailing socioeconomic
conditions of society. The sources of Shari'ah on the other hand, are permanent in character and
may not be overruled on grounds of either rationality or the requirement of social conditions. There
is,admittedly, a measure of flexibility in usul al-fiqh which allows for necessary adjustments in the law
to accommodate social change. But in principle the Shari'ah and its sources can neither be abrogated
nor subjected to limitations of time and circumstance. The role of the jurist and the mujtahid in usul al fiqh
is basically one of deduction and inference of rules which are already indicated on the sources,while
this is not necessarily the case with regard to usul al-qanun.The Parliament or the legislative
assembly of a Western state, being the sovereign authority, can abrogate an existing statute or introduce
a new law as it may deem fit. The legislative organ of an Islamic state, on the other hand, cannot abrogate
the Qur'an or the Sunnah, although it may abrogate a law which is based on maslahah or istihsan,
etc. Abrogation is, on the whole, of a limited application to the definite rulings of divine revelation
and has basically come to an end with the demise of the Prophet.
Principles of Islamic Jurisprudence ~ Kamali 16
[Two well known works
[Cf. Badran, Usul., PP. 41-43]
Sovereignty in Islam is the prerogative of Almighty God alone. He is the absolute arbiter of values and
it is His will that determines good and evil, right and wrong. It is neither the will of the ruler nor of any
assembly of men, not even the community as a whole, which determines the values and the laws which
uphold those values. In its capacity as the vicegerent of God, the Muslim community is entrusted with
the authority to implement the Shari'ah, to administer justice and to take all necessary measures in the
interest of good government. The sovereignty of the people, if the use of the word 'sovereignty' is at all
appropriate, is a delegated, or executive sovereignty (sultan tanfidhi) only.
[Cf. Zaydan, al-Fard wa al-Dawlah, p. 29.]
Although the ,consensus or ijma' of the community, or of its learned members, is a recognised source of
law in Islam, in the final analysis, ijma' is subservient to divine revelation and can never overrule the
explicit injunctions of the Qur’an and Sunnah. The role of the ballot box and the sovereignty of the
people are thus seen in a different light in Islamic law to that of Western jurisprudence.
And lastly, unlike its Western counterpart, Islamic jurisprudence is not confined to commands and
prohibitions, and far less to commands which originate in a court of law. Its scope is much wider, as it
is concerned not only with what a man must do or must not do, but also with what he ought to do or
ought not to do, and the much larger area where his decision to do or to avoid doing something is his
own prerogative. Usul al-fiqh provides guidance in all these areas, most of which remain outside the
scope of Western jurisprudence.
II. Two Approaches to the Study of Usul al-fiqh
Following the establishment of the madhahib the ulema of the various schools adopted two different
approaches to the study of usul al-fiqh, one of which is theoretical and the other deductive. The main
difference between these approaches is one of orientation rather than substance whereas the former is
primarily concerned with the exposition of theoretical doctrines, the latter is pragmatic in the sense that
theory is formulated in light of its application to relevant issues. The difference between the two
approaches resembles the work of a legal draftsman when it is compared to the work of a judge. The
former is mainly concerned with the exposition of principles whereas the latter tends to develop a
synthesis between the principle and the requirements of a particular case. The theoretical approach to
the study of usul al-fiqh is adopted by the Shafi’i school and the Mutakallimun, that is the ulema of
kalam and the Mu'tazilah. The deductive approach is, on the other hand, mainly attributed to the
Hanafis. The former is known as usul al-Shafi'iyyah or tariqah al-Mutakallimin, whereas the latter is
known as usul al-Hanafiyyah, or tariqah al-fuqaha'.
Al-Shafi’i was mainly concerned with articulating the theoretical principles of usul al-fiqh without
necessarily attempting to relate these to the fiqh itself. As a methodologist par excellence, he enacted a
set of standard criteria which he expected to be followed in the detailed formulation of the rules of fiqh.
His theoretical exposition of usul al-fiqh, in other words, did not take into consideration their practical
Principles of Islamic Jurisprudence ~
Kamali 17
application in the area of the furu'. In addition, the Shafi'is and the Mutakallimun are inclined to engage
in complex issues of a philosophical character which may or may not contribute to the development of
the practical rules of fiqh. In this way subjects such as the 'ismah of the prophets prior to their prophetic
mission, and matters pertaining to the status of the individual or his duties prior to the revelation of the
Shari’ah, and also logical and linguistic matters of remote relevance to the practical rules of fiqh tend to
feature more prominently in the works of the Shafi’is and Mutakallimun than those of the Hanafis. The
Hanafis have on the other hand attempted to expound the principles of usul al-fiqh in conjunction with
the fiqh itself and tend to be more pragmatic in their approach to the subject. In short, the theoretical
approach tends to envisage usul al-fiqh as an independent discipline to which the fiqh must conform,
whereas the deductive approach attempts to relate the usul al-fiqh more closely to the detailed issues of
the furu al-fiqh. When, for example, the Hanafis find a principle of usul to be in conflict with an
established principle of fiqh, they are inclined to adjust the theory to the extent that the conflict in
question is removed, or else they try to make the necessary exception so as to reach a compromise.
Three of the most important works which adopt the theoretical approach to usul al-fiqh are AlMu'tamad
fi Usul al-Fiqh by the Mu'tazili scholar, Abu al-Husayn al-Basri (d. 436), Kitabal-Burhan of the Shafi’i scholar, Imam al-Haramayn al-Juwayni (d. 487) and Al-Mustasfa of Imam Abu Hamid alGhazali
(d. 505). These three works were later summarised by Fakhr al-Din al-Razi (d. 606) in his work
entitled Al-Mahsul. Sayf A-Din al-Amidi's larger work, Al-Ihkam fi usul al-Ahkam is an annotated
summary of the three pioneering works referred to above. The earliest Hanafi work on usul al-fiqh is Kitab fi al-Usul by Abu al-Hasan al-Karkhi (d. 340) whichwas followed by Usul al-Jassas of Abu Bakr al-Razi al-Jassas (d. 370). Fakhr al-Islam al-Bazdawi's (d.
483) well-known work, Usul al-Bazdawi, is also written in conformity with the Hanafi approach to the
study of this discipline. This was followed by an equally outstanding contribution by Shams al-Din alSarakhsi
(d. 490) bearing the title, Usul al-Sarakhsi.A number of other ulema have contributed to the literature
in both camps. But a difference of format which marked a new stage of development was the writing
of handbooks in the form of mukhtasir with a view to summarise the existing works for didactic purposes.
The next phase in the development of literature on usul al-fiqh is marked by the attempt to combine the
theoretical and deductive approaches into an integrated whole which is reflected in the works of both
the Shafi’i and Hanafi ulema of later periods. One such work which attempted to combine al-Bazdawi's
Usul and al-Amidi's Al-Ihkam was completed by Muzaffar al-Din al-Sa'ati (d. 694) whose title Badi' alNizam al-Jami 'Bayn Usul al-Bazdawi wa al-Ihkam is self-explanatory as to the approach the author has
taken to the writing of this work. Another equally significant work which combined the two approaches
was completed by Sadr al-Shari'ah, 'Abd Allah b. Mas'ud al-Bukhari (d. 747) bearing the title AlTawdih,
which is, in turn, a summary of Usul al-Bazdawi, Al-Mahsul, and the Mukhtasar al-Muntaha of the Maliki jurist. Abu Umar Uthman b. al-Hajib (d. 646). Three other well-known works which have
combined the two approaches to usul al-fiqh are Jam' al-Jawami of the Shafi'i jurist Taj al-Din al-Subki
Principles of Islamic Jurisprudence ~ Kamali 18
Usul al-fiqh, or the roots of Islamic law, expound the indications and methods by which the rules of fiqh
are deduced from their sources. These indications are found mainly in the Qur'an and Sunnah, which are
the principal sources of the Shari'ah. The rules of fiqh are thus derived from the Qur'an and Sunnah in
conformity with a body of principles and methods which are collectively known as usul al-fiqh. Some
writers have described usul al-fiqh as the methodology of law, a description which is accurate but
incomplete. Although the methods of interpretation and deduction are of primary concern to usul alfiqh,
the latter is not exclusively devoted to methodology. To say that usul
al-fiqh is the science of the sources and methodology of the law is accurate in the sense that the Qur’an and Sunnah constitute the sources as well as the subject matter to which the methodology of usul al-fiqh is applied. The Qur’an and Sunnah themselves, however, contain very little by way of methodology, but rather provide the indications from which the rules of Shari’ah can be deduced. The methodology of usul al-fiqh
really refers to methods of reasoning such as analogy (qiyas), juristic preference (istihsan), presumption of
continuity (istishab) and the rules of interpretation and deduction. These are designed to serve as an aid to
the correct understanding of the sources and ijtihad. To deduce the rules of fiqh from the indications that are provided in the sources is the expressed purpose of usul al-fiqh. Fiqh as such is the end product of usul al-fiqh; and yet the two are separate disciplines. The main difference between fiqh and usul al-fiqh is that the former is concerned with the
knowledge of the detailed rules of Islamic law in its various branches, and the latter with the methods
that are applied in the deduction of such rules from their sources. Fiqh, in other words, is the law itself
whereas usul al-fiqh is the methodology of the law. The relationship between the two disciplines
resembles that of the rules of grammar to a language, or of logic (mantiq) to philosophy. Usul al-fiqh in
this sense provides standard criteria for the correct deduction of the rules of fiqh from the sources of
Shari’ah. An adequate knowledge of fiqh necessitates close familiarity with its sources. This is borne
out in the definition of fiqh, which is 'knowledge of the practical rules of Shari’ah acquired from the
detailed evidence in the sources'. [Amidi, Ihkam, I, 6; Shawkani, Irshad, P. 3.]
The knowledge of the rules of fiqh, in other words, must be acquired directly from the sources, a requirement which implies that the faqih must be in contact with the sources of fiqh. Consequently a person who learns the fiqh in isolation from its sources is not a faqih. [Cf. Abu Zahrah, Usul, p. 6] The faqih must know not only the rule that
misappropriating the property of others is forbidden but also the detailed evidence for it in the source,
that is, the Qur’anic ayah (2:188) which provides: 'Devour not each other's property in defiance of the
law.' This is the detailed evidence, as opposed to saying merely that 'theft is forbidden in the Qur'an'.
Principles of Islamic Jurisprudence ~
Kamali 12
Knowledge of the rules of interpretation is essential to the proper understanding of a legal text. Unless
the text of the Qur’an or the Sunnah is correctly understood, no rules can be deduced from it, especially
in cases where the text in question is not self-evident. Hence rules by which one is to distinguish a
speculative text from the definitive, the manifest (zahir) from the explicit (nass), the general ('aam)
from the specific (khaas), the literal (haqiqi) from the metaphorical (majazi) etc., and how to
understand the implications (dalalat) of a given text are among the subjects which warrant attention in
the study of usul al-fiqh. An adequate grasp of the methodology and rules of interpretation also ensures
the proper use of human reasoning in a system of law which originates in divine revelation. For
instance, analogy (qiyas) is an approved method of reasoning for the deduction of new rules from the
sources of Shari’ah. How analogy should be constructed, what are its limits, and what authority would
it command in conjunction, or in conflict, with the other recognized proofs are questions which are of
primary concern to usul al-fiqh. Juristic preference, or istihsan, is another rationalist doctrine and a
recognized proof of Islamic law. It consists essentially of giving preference to one of the many
conceivable solutions to a particular problem. The choice of one or the other of these solutions is
mainly determined by the jurist in the light of considerations of equity and fairness. Which of these
solutions is to be preferred and why, and what are the limits of personal preference and opinion in a
particular case, is largely a question of methodology and interpretation and therefore form part of the
subject matter of usul al-fiqh.
The principal objective of usul al-fiqh is to regulate ijtihad and to guide the jurist in his effort at
deducing the law from its sources. The need for the methodology of usul al-fiqh became prominent
when unqualified persons attempted to carry out ijtihad, and the risk of error and confusion in the
development of Shari'ah became a source of anxiety for the ulema. The purpose of usul al-fiqh is to
help the jurist to obtain an adequate knowledge of the sources of Shari’ah and of the methods of juristic
deduction and inference. Usul al-fiqh also regulates the application of qiyas, istihsan, istishab, istislah,
etc., whose knowledge helps the jurist to distinguish as to which method of deduction is best suited to
obtaining the hukm shar'i of a particular problem. Furthermore, usul al-fiqh enables the jurist to
ascertain and compare strength and weakness in ijtihad and to give preference to that ruling of ijtihad
which is in close harmony with the nusus.
It may be added here that knowledge of the rules of interpretation, the 'Aam, the Khaas, the Mutlaq, the
Muqayyad, etc., is equally relevant to modern statutory law. When the jurist and the judge, whether a
specialist in the Shari’ah or in secular law, fails to find any guidance in the clear text of the statute on a
particular issue, he is likely to resort to judicial construction or to analogy. The skill, therefore, to
interpret a legal text and to render judicial decisions is indispensable for a jurist regardless as to whether
he sits in a Shari’ah court or in a court of statutory jurisdiction. A specialist in usul al-fiqh will thus find
his skill of considerable assistance to the understanding and interpretation of any legal text.
pp. 37-38.]
Principles of Islamic Jurisprudence ~ Kamali 13
[Cf. Badran, Usul,
To what extent is it justified to say that al-Shafi'i was the founder of usul al-fiqh? One theory has it that
usul al-fiqh has existed for as long as the fiqh has been known to exist. For fiqh could not have come
into being in the absence of its sources, and of methods with which to utilize the source materials.
Zahrah, Usul p. 8ff.]
This would in turn, imply that usul al-fiqh had existed long before al-Shafi'i. Numerous
examples could be cited to explain how in early Islam, the Companions deduced the rules of fiqh from
their sources. Usul al-fiqh, in other words, had substantially existed before the period which saw the
emergence of the leading imams of jurisprudence. But it was through the works of these imams,
especially al-Shafi'i, that usul al-fiqh was articulated into a coherent body of knowledge. Even before
al-Shafi'i, we know that Abu Hanifah resorted to the use of analogy and istihsan while lmam Malik is
known for his doctrine of the Madinese ijma', subjects to which we shall have occasion to return. When
al-Shafi’i came on the scene, he found a wealth of juristic thought and advanced levels of
argumentation on methodological issues. But the existing works were not entirely free of discordance
and diversity which had to be sifted through by the standards which al-Shafi'i articulated in his legal
theory of the usul. He devoted his Risalah exclusively to this subject, and this is widely acknowledged
to be the first work of authority on usul al-fiqh.
It is nevertheless accurate to say that fiqh precedes the usul al-fiqh and that it was only during the
second Islamic century that important developments took place in the field of usul al-fiqh.
Abu Zahrah, Usul, p. 10.]
For during the first century there was no pressing need for usul al-fiqh. When the
Prophet was alive, the necessary guidance and solutions to problems were obtained either through
divine revelation, or his direct ruling. Similarly, during the period following the demise of the Prophet,
the Companions remained in close contact with the teachings of the Prophet and their decisions were
mainly inspired by his precedent. Their proximity to the source and intimate knowledge of the events
provided them with the authority to rule on practical problems without there being a pressing need for
methodology.
[Khallaf, 'Ilm, p. 16; Abu Zahrah, Usul, pp. 16-17]
However, with the expansion of the territorial domain of
Islam, the Companions were dispersed and direct access to them became increasingly difficult. With
this, the possibility of confusion and error in the understanding of the textual sources became more
prominent. Disputation and diversity of juristic thought in different quarters accentuated the need for
clear guidelines, and the time was ripe for al-Shafi'i to articulate the methodology of usul al-fiqh. AlShafi’i
came on the scene when juristic controversy had become prevalent between the jurists of
Madinah
and Iraq, respectively known as Ahl al-Hadith and Ahl al-Ra'y. This was also a time when the
ulema of Hadith had succeeded in their efforts to collect and document the Hadith. Once the fuqaha
were assured of the subject matter of the Sunnah, they began to elaborate the law, and hence the need
for methodology to regulate ijtihad became increasingly apparent. The consolidation of usul al-fiqh as a
Shari’ah discipline was, in other words, a logical conclusion of the compilation of the vast literature of
Hadith.
[Cf. Badran, Usul, P. 12.]
Principles of Islamic Jurisprudence ~ Kamali 14
[Cf. Abu
[Khallaf, 'Ilm, p. 16;
And finally among the factors which prompted al-Shafi'i into refining the legal theory of usul al-fiqh
was the extensive influx of non-Arabs into Islamic territories and the disconcerting influence that this
brought on the legal and cultural traditions of Islam. Al-Shafi'i was anxious to preserve the purity of the
Shari’ah and of the language of the Qur’an. In his Risalah, al-Shafi'i enacted guidelines for ijtihad and
expounded the rules governing the Khaas and the 'Aam, the nasikh and the mansukh, and articulated the
principles governing ijma' and qiyas. He expounded the rules of relying on the solitary Hadith (khabar
al-wa’hid) and its value in the determination of the ahkam. Al-Shafi’i refuted the validity of istihsan
and considered it to be no more than an arbitrary exercise in law-making. Admittedly al-Shafi’i was not
the first to address these matters, but it is widely acknowledged that he brought a coherence to usul alfiqh,
which had hitherto remained scattered and unconsolidated.
[Cf. Badran, Usul, P. 14.]
It will be noted in this connection that the Shi'i ulema have claimed that their fifth Imam, Muhammad
al-Baqir, and his son and successor, Ja'far al-Sadiq, were the first to write on the subject of usul.
According to Abu Zahrah, who has written extensively on the lives and works of the early Imams, the
Shi’i Imams have written, like many others, on the subject, but neither of the two Imams have written
anything of an equivalent order to that of the Risalah. Hence al-Shafi'i's position and contribution to
usul al-fiqh remains unique, and he is rightly regarded as the founder of usul at-fiqh.
Badran, Usul, P. 14.]
The basic outline of the four principal sources of the law that al-Shafi’i spelled out was subsequently
accepted by the generality of ulema, although each of the various schools of jurisprudence has
contributed towards its further development. The Hanafis, for example, added istihsan, and custom
('urf) to the usul al-fiqh, and the Malikis reduced the concept of consensus (ijma') to the Madinese
consensus only, while the Hanbali approach to the subject closely resembled that of the Malikis. But
even so, none departed significantly from the basic principles which al-Shafi'i had articulated.
P. 14.]
Broadly speaking, the so-called closure of the gate of ijtihad at around the fourth Islamic century did
not affect the usul al-fiqh in the same way as it might have affected the fiqh itself. The era of imitation
(taqlid) which followed might even have added to the strength and prominence of usul al-fiqh in the
sense that the imitators observed, and relied on, the methodology of the usul as a yardstick of validity
for their arguments. Consequently usul al-fiqh gained universal acceptance and was, in a way, utilised
as a means with which to justify taqlid. [Badran, Usul, P. 14.] A brief word may be added here regarding the difference between the usul, and the maxims of fiqh (alqawa'id al-fiqhiyyah),as the two are sometimes confused with one another. The maxims of fiqh refer to a body of abstract rules which are derived from the detailed study of the fiqh itself. They consist of theoretical guidelines in the different areas of fiqh such as evidence, transactions, matrimonial law', etc. As such they are an integral part of fiqh and are totally separate from usul al-fiqh.
Over 200 legal
Principles of Islamic Jurisprudence ~ Kamali 15
[Abu Zahrah, Usul, p. 113.
[Badran, Usul,
maxims have been collected and compiled in works known as al-ashbah wa al-naza'ir;
both bearing the title Al-Ashbah wa al-Naza'ir are authored by Jalal al-Din al-Suyuti and Ibn Nujaym al-Hanafi respectively.]
one hundred of these,
have been adopted in the introductory section (i.e. the first 100 articles) of the Ottoman Majallah. The
name 'al-qawa'id al-fiqhiyyah' may resemble the expression usul al-fiqh, but the former is not a part of
the latter and the two are totally different from one another.
A comparison between usul al-fiqh and usul al-qanun will indicate that these two disciplines have much
in common with one another, although they are different in other respects. They resemble one another
in that both are concerned with the methodology of the law and the rules of deduction and
interpretation; they are not concerned with the detailed rules of the law itself. In the case of the law of
property, for example, both usul al-fiqh and usul al-qanun are concerned with the sources of the law of
property and not with the detailed rules governing transfer of ownership or regulating the contract of
sale. These are subjects which fall within the scope of the law of property, not the methodology of law.
Although the general objectives of usul al-fiqh and usul al-qanun are similar, the former is mainly
concerned with the Qur’an, Sunnah, consensus, and analogy. The sources of Shari'ah are, on the whole,
well-defined and almost exclusive in the sense that a rule of law or a hukm shar'i may not be originated
outside the general scope of its authoritative sources on grounds, for example, of rationality (aql) alone.
For 'aql is not an independent source of law in Islam. Usul al-fiqh is thus founded in divine ordinances
and the acknowledgement of God's authority over the conduct of man.
Usul al-qanun, on the other hand, consist mainly of rationalist doctrines, and reason alone may
constitute the source of many a secular law. Some of these are historical sources such as Roman Law or
British Common Law whose principles are upheld or overruled in light of the prevailing socioeconomic
conditions of society. The sources of Shari'ah on the other hand, are permanent in character and
may not be overruled on grounds of either rationality or the requirement of social conditions. There
is,admittedly, a measure of flexibility in usul al-fiqh which allows for necessary adjustments in the law
to accommodate social change. But in principle the Shari'ah and its sources can neither be abrogated
nor subjected to limitations of time and circumstance. The role of the jurist and the mujtahid in usul al fiqh
is basically one of deduction and inference of rules which are already indicated on the sources,while
this is not necessarily the case with regard to usul al-qanun.The Parliament or the legislative
assembly of a Western state, being the sovereign authority, can abrogate an existing statute or introduce
a new law as it may deem fit. The legislative organ of an Islamic state, on the other hand, cannot abrogate
the Qur'an or the Sunnah, although it may abrogate a law which is based on maslahah or istihsan,
etc. Abrogation is, on the whole, of a limited application to the definite rulings of divine revelation
and has basically come to an end with the demise of the Prophet.
Principles of Islamic Jurisprudence ~ Kamali 16
[Two well known works
[Cf. Badran, Usul., PP. 41-43]
Sovereignty in Islam is the prerogative of Almighty God alone. He is the absolute arbiter of values and
it is His will that determines good and evil, right and wrong. It is neither the will of the ruler nor of any
assembly of men, not even the community as a whole, which determines the values and the laws which
uphold those values. In its capacity as the vicegerent of God, the Muslim community is entrusted with
the authority to implement the Shari'ah, to administer justice and to take all necessary measures in the
interest of good government. The sovereignty of the people, if the use of the word 'sovereignty' is at all
appropriate, is a delegated, or executive sovereignty (sultan tanfidhi) only.
[Cf. Zaydan, al-Fard wa al-Dawlah, p. 29.]
Although the ,consensus or ijma' of the community, or of its learned members, is a recognised source of
law in Islam, in the final analysis, ijma' is subservient to divine revelation and can never overrule the
explicit injunctions of the Qur’an and Sunnah. The role of the ballot box and the sovereignty of the
people are thus seen in a different light in Islamic law to that of Western jurisprudence.
And lastly, unlike its Western counterpart, Islamic jurisprudence is not confined to commands and
prohibitions, and far less to commands which originate in a court of law. Its scope is much wider, as it
is concerned not only with what a man must do or must not do, but also with what he ought to do or
ought not to do, and the much larger area where his decision to do or to avoid doing something is his
own prerogative. Usul al-fiqh provides guidance in all these areas, most of which remain outside the
scope of Western jurisprudence.
II. Two Approaches to the Study of Usul al-fiqh
Following the establishment of the madhahib the ulema of the various schools adopted two different
approaches to the study of usul al-fiqh, one of which is theoretical and the other deductive. The main
difference between these approaches is one of orientation rather than substance whereas the former is
primarily concerned with the exposition of theoretical doctrines, the latter is pragmatic in the sense that
theory is formulated in light of its application to relevant issues. The difference between the two
approaches resembles the work of a legal draftsman when it is compared to the work of a judge. The
former is mainly concerned with the exposition of principles whereas the latter tends to develop a
synthesis between the principle and the requirements of a particular case. The theoretical approach to
the study of usul al-fiqh is adopted by the Shafi’i school and the Mutakallimun, that is the ulema of
kalam and the Mu'tazilah. The deductive approach is, on the other hand, mainly attributed to the
Hanafis. The former is known as usul al-Shafi'iyyah or tariqah al-Mutakallimin, whereas the latter is
known as usul al-Hanafiyyah, or tariqah al-fuqaha'.
Al-Shafi’i was mainly concerned with articulating the theoretical principles of usul al-fiqh without
necessarily attempting to relate these to the fiqh itself. As a methodologist par excellence, he enacted a
set of standard criteria which he expected to be followed in the detailed formulation of the rules of fiqh.
His theoretical exposition of usul al-fiqh, in other words, did not take into consideration their practical
Principles of Islamic Jurisprudence ~
Kamali 17
application in the area of the furu'. In addition, the Shafi'is and the Mutakallimun are inclined to engage
in complex issues of a philosophical character which may or may not contribute to the development of
the practical rules of fiqh. In this way subjects such as the 'ismah of the prophets prior to their prophetic
mission, and matters pertaining to the status of the individual or his duties prior to the revelation of the
Shari’ah, and also logical and linguistic matters of remote relevance to the practical rules of fiqh tend to
feature more prominently in the works of the Shafi’is and Mutakallimun than those of the Hanafis. The
Hanafis have on the other hand attempted to expound the principles of usul al-fiqh in conjunction with
the fiqh itself and tend to be more pragmatic in their approach to the subject. In short, the theoretical
approach tends to envisage usul al-fiqh as an independent discipline to which the fiqh must conform,
whereas the deductive approach attempts to relate the usul al-fiqh more closely to the detailed issues of
the furu al-fiqh. When, for example, the Hanafis find a principle of usul to be in conflict with an
established principle of fiqh, they are inclined to adjust the theory to the extent that the conflict in
question is removed, or else they try to make the necessary exception so as to reach a compromise.
Three of the most important works which adopt the theoretical approach to usul al-fiqh are AlMu'tamad
fi Usul al-Fiqh by the Mu'tazili scholar, Abu al-Husayn al-Basri (d. 436), Kitabal-Burhan of the Shafi’i scholar, Imam al-Haramayn al-Juwayni (d. 487) and Al-Mustasfa of Imam Abu Hamid alGhazali
(d. 505). These three works were later summarised by Fakhr al-Din al-Razi (d. 606) in his work
entitled Al-Mahsul. Sayf A-Din al-Amidi's larger work, Al-Ihkam fi usul al-Ahkam is an annotated
summary of the three pioneering works referred to above. The earliest Hanafi work on usul al-fiqh is Kitab fi al-Usul by Abu al-Hasan al-Karkhi (d. 340) whichwas followed by Usul al-Jassas of Abu Bakr al-Razi al-Jassas (d. 370). Fakhr al-Islam al-Bazdawi's (d.
483) well-known work, Usul al-Bazdawi, is also written in conformity with the Hanafi approach to the
study of this discipline. This was followed by an equally outstanding contribution by Shams al-Din alSarakhsi
(d. 490) bearing the title, Usul al-Sarakhsi.A number of other ulema have contributed to the literature
in both camps. But a difference of format which marked a new stage of development was the writing
of handbooks in the form of mukhtasir with a view to summarise the existing works for didactic purposes.
The next phase in the development of literature on usul al-fiqh is marked by the attempt to combine the
theoretical and deductive approaches into an integrated whole which is reflected in the works of both
the Shafi’i and Hanafi ulema of later periods. One such work which attempted to combine al-Bazdawi's
Usul and al-Amidi's Al-Ihkam was completed by Muzaffar al-Din al-Sa'ati (d. 694) whose title Badi' alNizam al-Jami 'Bayn Usul al-Bazdawi wa al-Ihkam is self-explanatory as to the approach the author has
taken to the writing of this work. Another equally significant work which combined the two approaches
was completed by Sadr al-Shari'ah, 'Abd Allah b. Mas'ud al-Bukhari (d. 747) bearing the title AlTawdih,
which is, in turn, a summary of Usul al-Bazdawi, Al-Mahsul, and the Mukhtasar al-Muntaha of the Maliki jurist. Abu Umar Uthman b. al-Hajib (d. 646). Three other well-known works which have
combined the two approaches to usul al-fiqh are Jam' al-Jawami of the Shafi'i jurist Taj al-Din al-Subki
Principles of Islamic Jurisprudence ~ Kamali 18
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