Usool al Fiqh

[Ibn Sina]

Gonna compile a bunch of articles and stuff on Usool al Fiqh :up:
______________________________________

In the Name of Allah. the Compassionate, the Merciful,
Praise be to Allah, Lord of the Universe, and Peace and Prayers be upon His Final Prophet and Messenger Usul Al Fiqh Al Islami


Source Methodology In Islamic Jurisprudence:

Methodology for Research and Knowledge

Taha Jabir Al 'Alwani (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/taha.htm)

© 1411 AH/1990 AC by
The International Institute of Islamic Thought
555 Grove Street
Herndon, Va. 2207O-4705, U.S.A.

ISBN 0-912463-56-2 [/INDENT]



Dedication


We present this study to those Muslim youth who are searching for a ray of light in the deepest darkness that surrounds us, and who are seeking a solution and a way out of the crisis that currently overwhelms us; in the hope that it may be of benefit to them, in Sha'a Allah. Contents


A Word From the Editors (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/a_word_from_the_editors.htm)
Introduction (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/intr.htm)
Chapter One (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/ch1.htm)
Usul al Fiqh: Methodology for Research and Knowledge in Islamic Jurisprudence

Definition
Subject Matter
Benefit
The Sciences From Which Usul al Fiqh Derived its Academic Basis
Origins and Development of Usul al Fiqh
Methods For Deriving Rulings From the Sources
Chapter Two (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/ch2.htm)
The Sahabah who Gave Fatawa During the Prophet's Lifetime

The Era of the Great Sahabah
The Time of Abu Bakr al Siddiq
Special Features of Fiqh in that Period
The Time of 'Umar Ibn al Khattab
The Time of 'Uthman Ibn 'Affan
The Time of 'Ali Ibn Abu Talib
The Fuqaha' Among the Sahabah and the Tabi'unChapter Three (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/ch3.htm)




Legislation After the Time of the Sahabah

After the Tabi'un: The Time of the Mujtahid Imams
Rationalists and Traditionists: Ahl al Hadith and Ahl al Ra'iChapter Four (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/ch4.htm)




Al Imam al Shafi'i

The Method of al Imam al Shafi'i in His Book: Al RisalahChapter Five (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/ch5.htm)




[INDENT][I]Usul al Fiqh After al Imam al Shafi'i
[LIST]
Developments in Usul Al Fiqh After al Imam al Shafi'i
The Ro

[Ibn Sina]

The hell with the :bang: *formatting* :bangbang:

A Word From the Editors

Legal studies in any language pose problems to authors and readers alike. In translation, those same problems are compounded, even many times over at some places in the text, so that quite often the result is, to say the least, disappointing. Unfortunately, with regard to English translations of classical works of the Islamic intellectual heritage, this sort of disappointment has been the rule rather than the exception.

Certainly, to the student of Usul al Fiqh this disappointment has been all the more acute. While translations of classical works in the field are non-existent, with the shining exception of professor Khadduri's excellent rendition of al Imam al Shafi'i's Risalah, there is as yet no general and systematic study of the discipline in English. Even survey literature on the subject is scarce.

Yet, despite this near desperate situation, the International Institute of Islamic Thought has not published the present volume merely in order to fill a void in the library. Rather, it is in recognition of the dynamics of intellectual reform, and of the role of Ijtihad in that process, that the Institute is undertaking to publish a series of works by its President, Dr. Taha Jabir al 'Alwani, on the subject of al Usul and, in particular, Ijtihad.

This volume should be understood as an overview of the field, and as an introduction to the classical discipline. Subsequent volumes, however, will, In Sha'a Allah, present much that is original, and even vital. For it is the conviction of the Institute that the source methodology developed by the scholars of al Usul for dealing with and interpreting the texts of the Qur'an and Sunnah is what now needs to be placed before our Muslim social scientists so that they, with this important and versatile tool in hand, may proceed to fashion the outlines of a new relevancy for Islam.

Certainly, for our part, we can only hope that we have succeeded in making the text clear. Moreover, we have taken pains to include a full Subject Index, with the help of Cindex version 4.0 software, that should prove useful to specialist and generalist alike. Also, while the Arabic edition of this book was published with topic headings, it was not divided into chapters. In the interest of clarity, we have divided the work into chapters by converting, where necessary, topic headings into chapter headings; and by adding brief explanatory notes. May Allah give His guidance to the Ummah of Muhammad http://islamicweb.com/images/saws.gif.

A.S. Al Shaikh-Ali Yusuf Talal DeLorenzo
IIIT-London Department of Research-IIIT

Jumada al Akhirah 1411 AH
December 1990 AC

Introduction

The research for this work originally formed part of the studies I undertook in Islamic Jurisprudence for the doctoral program at Al Azhar University in 1392/1973. On the occasion of the Second International Conference on Islamic Thought, held in Islamabad, Pakistan in 1402/1982 on the subject of the "Islamization of Knowledge", material from this thesis was presented in a revised form.

When the League of Muslim Youth expressed their desire to hold a course on Usul al Fiqh "Source Methodology in Islamic Jurisprudence", the material for this study formed one of the six subjects covered in the course. Then, as many of those who attended the course expressed a wish to obtain the lectures in printed form, and as the study was already being printed as one of the papers for the Islamabad Conference on the Islamization of Knowledge, which the International Institute of Islamic Thought will soon be publishing(*), In Sha'a Allah, we decided to take this opportunity to present this part of the Conference material to those who attended the course and to others who may wish to gain knowledge of this essential science of Shari'ah.

The science of Usul al Fiqh is rightly considered to be the most important method of research ever devised by Muslim Thought. Indeed, as the solid foundation upon which all the Islamic disciplines are based, Usul al Fiqh not only benefited Islamic civilization but contributed to the intellectual enrichment of world civilization as a whole. It will not be out of place to note here that the methods of analogical developed within the framework of Islamic jurisprudence constituted the methodological starting-point for the establishment and construction of empiricism, which in turn is considered to be the basis of contemporary civilization.

We present this brief work to all who are interested in gaining some knowledge of this science; and we ask Allah Ta'ala to help us benefit from what we learn, and to learn that which will benefit us, and to protect us from knowledge that is not beneficial, and from deeds that are not acceptable to Him. Wa Akhiru Da'wana an al Hamdu Lillah Rabb al 'Alamin! (All praise and thanksgiving belong to Allah, the Lord and Sustainer of all the worlds!)

Dr. Taha Jabir al Alwani, President, International Institute of Islamic Thought

Herndon, Virginia
Dhu al Hijjah 1408 AH
July 1988

(*) The edited proceedings of the Islamabad Conference were published by the Institute as volume number 5 in the Islamization of Knowledge Series, and is entitled ISLAM: Source and Purpose of Knowledge.

[Ibn Sina]

CHAPTER ONE

USUL AL FIQH: METHODOLOGY FOR RESEARCH AND KNOWLEDGE IN ISLAMIC JURISPRUDENCE

Definition:

The science of Source Methodology in Islamic Jurisprudence Usul al Fiqh has been defined as the aggregate, considered per se, of legal proofs and evidence that, when studied properly, will lead either to certain knowledge of a Shari'ah ruling or to at least a reasonable assumption concerning the same; the manner by which such proofs are adduced, and the status of the adducer 1 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot1.htm#fn1)

Subject Matter:

As its subject matter, this science deals with the proofs in the Shari'ah source-texts, viewing them from the perspective of how, by means of Ijtihad, legal judgements are derived from their particulars; though after, in cases where texts may appear mutually contradictory, preference has been established.2 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot1.htm#fn2)

Benefit:
The science of Usul al Fiqh engenders the ability to have knowledge of Shari'ah rulings through study, on the part of those qualified to perform Ijtihad and who meet all its requirements, of the legal proofs revealed in the sources by the Lawgiver.

The benefit to be had from this science to those not qualified to perform Ijtihad is that, through their study of the classical schools of legal thought madhahib of the mujtahidun (those who practise Ijtihad) and the reasoning behind their rulings, the student of Source Methodology in Islamic Jurisprudence is enabled to understand the various schools of thought, to analyze them, to choose from among their interpretations and assign preference, and to adduce legal arguments on the basis of the principles formulated by the classical mujtahidun.

THE SCIENCES FROM WHICH USUL AL FIQH DERIVED ITS ACADEMIC BASIS


The science of Usul al Fiqh is in fact an independent and autonomous field. It is, however, based on certain fundamental predications muqaddamat, knowledge of which the Islamic legal scholar cannot do without. These predications have been derived from several other disciplines:

Some are derived from the science of Aristotelian logic which the philosopher-theologian writers mutakallimun had become accustomed to discussing in the introductions to their works. These academic discussions dealt, for example, with the ways in which words convey meanings, the division of subjects into present and predicable, the need for, and varieties of, discourse depending on conceptual principles taken from interpretations and definitions, the validity of conclusions based on inductive reasoning, and discussions about evidence and how it may be used to prove the claims of the one who is adducing it, or to refute contradictions, and so on.
Some are derived from Ilm al Kalam Scholastic Theology, and include discussions of such questions as the nature of the Sovereign Hakim, in the sense of whether it is the Shari'ah itself or reason which decides what is right and what is wrong; or such as whether one can have knowledge of right and wrong before revelation; or such as whether rendering thanks to the Bounteous Creator is a duty derived from the Shari'ah or from human reasoning.
Some are general linguistic rules which the scholars of al Usul developed through linguistic research and presented in a crystallized form, such as research dealing with languages and their origins, the classification of words into metaphorical and literal, discussions of etymology, synonymity, emphasis, generalization, specification, the meanings of grammatical particles and so on.
Some are derived from the classical sciences of the Qur'an and the Sunnah, such as discussions concerning the transmission of Hadith by a single narrator Ahad, or by an impeccable plurality of narrators Tawatur, the non-standard recitations of the Qur'an and the rules about them, the criteria for the acceptance Ta'dil or rejection Jarh of narrators of Hadith, abrogation of legislation al Nasikh wa al Mansukh3 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot1.htm#fn3), the condition of the text of a Hadith and its chain of narrators, and so on.
Finally, the examples cited by the scholars of al Usul in illustration of their arguments are derived from the specifics of Fiqh, and from the detailed evidence for the same as taken from the Qur'an and the Sunnah.The issues with which the scholars of al Usul are primarily concerned include the following:

Logic and its predications
Linguistics
Commands and Prohibitions
Comprehensive al 'Amm and Particular terms al Khass
Inconclusive al Mujmall and Determined concepts al Mubayyan
Abrogation al Naskh
Deeds (in particular, those of the Prophet, upon whom be
peace, and their significance)
Consensus al Ijma'
Narrations relating to the Sunnan
Analogical reasoning al Qiyas
Indicating preference in cases of apparent contradiction
Exercising legal acumen and scholarship Ijtihad
Following a specific school of legal thought Taqlid
Disputed Sources (those other than the four "agreed" sources)ORIGINS AND DEVELOPMENT OF USUL AL FIQH


It is difficult to attempt a study of Usul al Fiqh and its development without considering the history of Fiqh, the practical precepts of Shari'ah that have been gleaned from detailed source-evidence.

The lexical meaning of Usul is foundation, or basis Asl; plural Usul or that upon which something else is built. In the legal system of Islam, Fiqh is built upon and stems from the bases Usul which constitute its source-evidence. Hence, in order to understand the origins of Usul al Fiqh, we need to have a general idea of the history of Islamic legislation Tashri'.

Establishing Shari'ah legislation, prescribing law, laying down rules and regulations, and defining systems is a function which is specific to Allah alone. Anyone who presumes to ascribe these functions to any other than Allah commits the sin of al Shirk, as, in doing so, he has effectively contradicted the belief in the Oneness of Allah Tawhid.

Allah has provided articulate proofs and clear source-evidence in order that the believers should have no trouble in finding their way to the particulars of His legislation, or Ahkam. with reference to some of this source-evidence, the Islamic Ummah has agreed on its validity and its relevance to the Ahkam, and has accepted it as such. However there are differences with regard to other source-evidence.

The source-evidence upon which the whole Ummah fully agrees, and on the validity of which there is general consensus, comprises the two sources that formed the basis of legislation at the time of the Prophet http://islamicweb.com/images/saws.gif. These two sources of legislation are:

1. The Qur'an: This may be defined as the words revealed to the Prophet http://islamicweb.com/images/saws.gif the recitation of which itself constitutes an act of worship, the shortest Surah of which is a challenge to mankind to produce anything the like thereof, every letter of which has been transmitted to us via an indisputably authentic chain of authority Tawatur; which is written between the two covers of the Holy Book Mushaf beginning with Surat al Fatihah "The Opening Chapter" and ending with the Surat al Nas.

2. The Sunnah: This includes everything, other than the Qur'an, which has been transmitted from the Prophethttp://islamicweb.com/images/saws.gif; what he said, did, and agreed to. Thus, every utterance of the Prophet http://islamicweb.com/images/saws.gif, apart from the Qur'an, and his every deed, from the beginning of his mission to the last moment of his life, constitute his Sunnah, in the general sense of the word, whether these establish a ruling which is generally applicable to all members of the Ummah, or a ruling which applies only to the Prophet himself or to some of his Sahabah.


Regardless of whether what the Prophet http://islamicweb.com/images/saws.gif did was instinctive or otherwise, his every word, deed and approval may be taken as the basis for evidence in a legal ruling. This is so regardless of whether his utterances or actions related to matters of faith or practice, or whether they were concerned with commanding or recommending, prohibiting, disapproving, or allowing; and regardless of whether his word or action was based on a ruling previously revealed in the Qur'an, or whether it served independently to establish legislation.



During the lifetime of the Prophet http://islamicweb.com/images/saws.gif, all the legal rulings Ahkam of the Shari'ah, inclusive of all of its classifications, such as principal and derived rulings, teachings on the fundaments of the faith, and regulations regarding personal practice and legalities, were derived from these two sources, the Qur'an and the Sunnah.3. Ijtihad was practiced by the Prophet http://islamicweb.com/images/saws.gif and by those of his companions with legal proclivities Ahl al Nazar. The Prophet's Ijtihad was sometimes confirmed by the Qur'an and sometimes not; in which case it was explained that the better solution was other than that which he had adopted.

The Ijtihad made by the Companions was always in response to situations which actually occurred to them. Later, when they met the Prophet http://islamicweb.com/images/saws.gif, they would explain what happened and tell him what they had decided. Sometimes he http://islamicweb.com/images/saws.gif approved of their Ijtihad, and such decisions of theirs (having gained the approval of the Prophet) became a part of the Sunnah. If he http://islamicweb.com/images/saws.gif disapproved of their Ijtihad, his explanation of the correct procedure would become the Sunnah.

Thus, we can say that at that stage legislation depended on the two forms of Divine revelation Wahy:

Recited revelation Wahy Matlu; or the Qur'an with its absolute inimitability I'jaz
Non-recited revelation Wahy Ghayr Matlu; or the Sunnah of the Prophet http://islamicweb.com/images/saws.gif
Indeed, the Ijtihad made by the Prophet http://islamicweb.com/images/saws.gif set a precedent for his Sahabah and later Muslims, that clearly proved the legitimacy of Ijtihad, so that when they could not find an express legal ruling in the Qur'an or Sunnah, they were to make use of Ijtihad in order to arrive at a judgement on their own.

Moreover; probably to reinforce and establish this concept, the Prophet http://islamicweb.com/images/saws.gif used to order certain of his Companions to make Ijtihad concerning certain matters in his presence. Then he would tell them who was correct and who was mistaken.

METHODS FOR DERIVING RULINGS FROM THE SOURCES

As to the Qur'an..

The Qur'an was learned and understood by the Sahabah without their ever having recourse to formal rules of grammar. Likewise, endowed as they were with clear vision, sharp wits and common sense, they readily understood the aims of the Lawgiver and the wisdom behind His legislation

Indeed, the Sahabah rarely used to question the Prophet http://islamicweb.com/images/saws.gif about any matter unless he himself mentioned it first.

It is reported that Ibn Abbas said: "I have never seen any people better than the Sahabah of the Prophet, may Allah bless him and grant him peace. Throughout his mission, until he passed away, they only asked him about thirteen matters, all of which are mentioned in the Qur'an. For example, [the meaning of]: 'They ask you about fighting in the sacred month...' (2:212); and 'They ask you about the menstruating woman...' (2:222)" Ibn Abbas said, "They only asked him about matters which were of actual concern to them."4 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot1.htm#fn4)

Ibn 'Umar said in this respect: "Don't ask about something that hasn't happened, for I heard my father, 'Umar ibn al Khattab, curse one who asked about something which had not occurred."5 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot1.htm#fn5)

Qasim said (to the third generation of Muslims): "You ask about things we never asked about, and quarrel about things we never quarrelled about. You even ask about things which I'm not familiar with; but if we did know, it would not be permitted for us to remain silent concerning them."6 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot1.htm#fn6)

Ibn Ishaq said: "I met more of the Prophet's Sahabah than anyone else did; and I have never seen a people who lived more simply, or who were less demanding on themselves."7 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot1.htm#fn7)

'Ubadah ibn Nusay al Kindi said: "I have known a people whose austerity was not as rigid as yours, and whose questions were quite other than the ones you ask."8 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot1.htm#fn8)

Abu 'Ubaydah said in his book Majaz al Qur'an: "It has never been reported that any of the Sahabah went to the Prophet http://islamicweb.com/images/saws.gif for knowledge of anything which could be found in the Qur'an."9 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot1.htm#fn9)

As to the Sunnah...

The parts of the Sunnah which consist of the Prophet's words were in the Companions' own language, so they knew its meaning and understood its phrases and context.

As far as the Prophet's deeds were concerned, they used to witness them, then tell others exactly what they had seen. For example, hundreds of people saw the Prophet http://islamicweb.com/images/saws.gif making ablutions Wudu' and then adopted his practice without asking him about details; like which of the various actions in Wudu' were obligatory and which were recommended, which were merely allowed and which were not. Likewise, they witnessed him http://islamicweb.com/images/saws.gif performing Hajj and Salah, and the other acts of worship.

People were heard asking the Prophet http://islamicweb.com/images/saws.gif to give Fatawa concerning various matters, and he did so. Cases were referred to him, and he would pronounce his judgement. Problems would arise amongst the Sahabah, and he would give a definite answer; whether the problems concerned mutual relations, personal conduct, or various political matters. They witnessed all these situations and they understood the context in which they took place, so that the wisdom and purposes of the Prophets judgements were not hidden from them.

People also saw how the Prophet http://islamicweb.com/images/saws.gif used to notice the conduct of his Sahabah and others. Thus, if he http://islamicweb.com/images/saws.gif praised anybody, they knew that the person's act had been a good one; and if he http://islamicweb.com/images/saws.gif criticized anybody, they knew that there had been something wrong with what the person had done.

Moreover, all the reports concerning the Prophet's Fatawa, rulings, decisions and approval or disapproval of various matters indicate that they took place in the presence of many people. So, just as the colleagues of a doctor know, due to their long association and experience10 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot1.htm#fn10), the reasons for his prescribing certain medicines, so also the Sahabah of the Prophet http://islamicweb.com/images/saws.gif knew exactly the reasoning behind his decisions.

As to Ijtihad...


The indications that Ijtihad is valid and relevant in the contemporary context are many. For example, Mu'adh ibn Jabal states that when the Prophet http://islamicweb.com/images/saws.gif sent him to Yemen, he asked: "what will you do if a matter is referred to you for judgement?" Mu'adh said: "I will judge according to the Book of Allah." The Prophet asked: "what if you find no solution in the Book of Allah?" Mu'adh said: "Then I will judge by the Sunnah of the Prophet." The Prophet asked: "And what if you do not find it in the Sunnah of the Prophet?" Mu'adh said: "Then I will make Ijtihad to formulate my own judgement." The Prophet patted Mu'adh's chest and said "Praise be to Allah who has guided the messenger of His Prophet to that which pleases Him and His Prophet."11 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot1.htm#fn11)

This Ijtihad and forming of one's own judgement, as mentioned by Mu'adh, is further explained in the advice 'Umar gave to Abu Musa when he appointed him a judge: "Judgement is to be passed on the basis of express Qur'anic imperatives or established Sunnah practices.." Then he added: "Make sure that you understand clearly every case, that is brought to you for which there is no applicable text of the Qur'an or the Sunnah. Yours, then, is a role of comparison and analogy, so as to distinguish similarities -in order to reach a judgement that seems nearest to justice and best in the sight of Allah."12 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot1.htm#fn12)
Consequently, al Imam al Shafi'i explained "opinion" as meaning Ijtihad, and Ijtihad as meaning al Qiyas. He said: "They are two names for the same thing."13 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot1.htm#fn13)

Abu Bakr al Siddiq, Khalifat Rasul Allah, said: "As far as the Prophet is concerned, his opinion was always correct because Allah always guided him. In our case, however, we opine and we conjecture."14 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot1.htm#fn14)

Thus, we may state that the concept of Ijtihid or "opinion", at that stage, went no further than one of the following:

Applying one or another of the possible meanings in cases where a sentence may lend itself to two or more interpretations, e.g. when the Prophet http://islamicweb.com/images/saws.gif ordered the Muslims to pray among Banu Qurayzah.15 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot2.htm#fn15)
Comparative Qiyas; which deals with a matter by comparing it with another, similar matter which is dealt with in the Qur'an or Sunnah. For example, the Qiyas of 'Ammar who compared the case of Tayammum when in a state of Janabah to Ghusl, and therefore rubbed his whole body with dust.16 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot2.htm#fn16)
Ijtihad by taking into account something which is potentially beneficial; or prohibiting something which could lead to wrongdoing; or deriving a particular ruling from general statements; or adopting a specific interpretation; and so on.The extent of the Prophet's concern with encouraging the Sahabah to make Ijtihad and training them in its use can be seen in his saying "When a judge makes Ijtihad and reaches a correct conclusion, he receives a double reward; and if his conclusion is incorrect, he still receives a reward."17 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot2.htm#fn17)

The Ijtihad of many of the Sahabah was so accurate that in many cases the revelations of the Qur'an confirmed it, and the Prophet http://islamicweb.com/images/saws.gif supported it. Obviously, their close association with the Prophet http://islamicweb.com/images/saws.gif had afforded them a keen sense of the aims of the All-wise Lawgiver, of the basic purposes behind the Qur'anic legislation, and of the meanings of the texts; opportunities which those who came after them did not directly enjoy.

[ibn_abbas]

All the matters of logic and ilm al kalam has nothing to do with usul al fiqh, actually salaf was harsh against ilm al kalam, and concerning jabir ulwani, then he has errered in many issues, his understanding of usul al fiqh aint the same as salaf.

[chitownmuslim]

All the matters of logic and ilm al kalam has nothing to do with usul al fiqh, actually salaf was harsh against ilm al kalam, and concerning jabir ulwani, then he has errered in many issues, his understanding of usul al fiqh aint the same as salaf.

the salaf were hard against the type of kalam that the Mu'tazila and Jahmiyyah were involved in propagating and also the extreme use of philosophy to understand religion.. however the kalam and logic (mantiq) as explained by Ahlus Sunnah was of great benefit to the science of usool al-fiqh and to defending the beliefs of Ahlus Sunnah.. so actually logic (mantiq) has a lot to do with usool al-fiqh

[al-ghazalli]

Jazkallah Khair Sidi chitownmuslim. I remember once one of Professors in University said the same comment as Sidi ibn_abbas but it doesn't make any sense if you take the comments generally.

Just as the tools and pieces in your garage play a large role in the type of things you can build, so do the intellectual tools in the types of conclusions you can build.

without without kalām how can one analyse modern interpretative paradigms and methodologies (e.g. deconstructionists, post-modern deconstructionists) and the like. More importantly 4th century, books of usul were written in the style of logicians and theologians: without basic knowledge of kalam you aren’t going to get far. Many of today’s interpretative paradigms are extensions of paradigm built upon classic logic and rhetoric, so one needs kalam in order to truly understand the paradigms.

[Ibn Sina]

All the matters of logic and ilm al kalam has nothing to do with usul al fiqh, actually salaf was harsh against ilm al kalam, and concerning jabir ulwani, then he has errered in many issues, his understanding of usul al fiqh aint the same as salaf.

How can you say that logic has nothing to do with usool al-fiqh? Qiyas, one of the methods used in deriving fiqh, is solely dependent on logic....

Though I'm also not sure about using kalam as a principle for deriving fiqh, I know that it can be used in defense of beliefs (that's the manner which Imam Abu'l Hassan al-Asha'ri put it to use) but this is the first time I've ever read that it can be used in usool al-fiqh ....

[al-ghazalli]

Though I'm also not sure about using kalam as a principle for deriving fiqh, I know that it can be used in defense of beliefs (that's the manner which Imam Abu'l Hassan al-Asha'ri put it to use) but this is the first time I've ever read that it can be used in usool al-fiqh ....

not as a principle sidi but rather as a tool to help in the thought process of Usul al-Fiqh, kalam sharpens the mind and helped rationalize aspects of our Usul.

Also the style of which are Usul is written is evident upon itself since its written in the style logicians and theologians.

It's evident when you read some of the most famous books of Usul;

Ghazalli's Al-Mutasfa min `Ilm al-Usul which is perhaps the most famous book on Usul al-Fiqh.

al-Amidi's Al-Ikham fi Usul al-Ahkam

Al-Shatibi's Al-Muwafaqat fi Usul al-Ahkam

Al-Shawkani's Irshad al-Fuhul fi Tahqiq al-Haqq min `Ilm al-Usul.

The more contemporary books of Usul would include;

`Abd al-Wahhab Khallaf's `Ilm Usul al-Fiqh

Abu Zahrah's Usul al-Fiqh

And then if you study the historical development of Usul al-Fiqh it discusses the issue more deeply; I would recomend any book on tarikh al-tashri.

[al-ghazalli]

Qiyas, one of the methods used in deriving fiqh, is solely dependent on logic....

Sidi Ibn Sina not only Qiyas, but istihsan, istislah, and istishab are basically all rationalist doctrines though they are in many ways dependant on the transmitted proofs. Rationality alone is not an independent proof in Islam, which is why the rational proofs cannot be totally seperated 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.


And Allah Knows Best.

[Ibn Sina]

:jkk: sidi al-ghazalli, I knew I could count on you :up:

Oh yeah, I know that the qiyas has to be based on the Qur'an, Sunnah, [Ah]hadith or `ijma .... what I meant is that qiyas itself, the analogy, is logic. Just wanted to clarify myself on that :up:

[Ibn Sina]

CHAPTER TWO


THE SAHABAH WHO GAVE FATAWA DURING THE PROPHET'S LIFETIME

The Sahabah who gave Fatawa in the Prophet's lifetime were: Abu Bakr, 'Uthmtan, 'Ali, 'Abd al Rahman ibn 'Awf, Abd Allah ibn Mas'ud, Ubay ibn Kab, Mu'adh ibn Jabal, Ammar ibn Yasir, Hudhayfah ibn al Yaman, Zayd ibn Thabit, Abu al Darda, Abu Musa al Ash'ari and Salman al Farisi, may Allah be pleased with them.

Some Sahabah gave more Fatawa than others. Those who gave the most Fatawa were: 'Aishah Umm al Mu'minin, 'Umar ibn al Khattab and his son Abd Allah, 'Ali ibn Abu Talib, Abd Allah ibn Abbas and Zayd ibn Thabit. The Fatawa given by any one of these six would fill a great volume. For example, Abu Bakr Muhammad ibn Musa ibn Ya'qub ibn al Khalifah Ma'mun collected the Fatawa of Ibn Abbas in twenty volumes.

Those from whom a lesser number of Fatawa were narrated are: Umm Salmah Umm al Mu'minin, Anas ibn Malik, Abu Sa'id al Khudri, Abu Hurayrah, 'Uthman ibn 'Affan, Abd Allah ibn Amr ibn al 'As, 'Abd Allah ibn Zubayr, Abu Musa al Ash'ari, Sa'd ibn Abu Waqqas, Salman al Farisi, Jabir ibn Abd Allah, Mu'adh ibn Jabal and Abu Bakr al Siddiq. The Fatawa of each of these thirteen would fill only a small part of a book.

To this list can be added Talhah, al Zubayr, 'Abd al Rahman ibn Awf, 'Imra-n ibn Husayn, Abu Bakrah, 'Ubadah ibn al Samit and Mu'awiyah ibn Abu Sufyan. The rest gave only a few Fatawa, and only one or two, in some instances more, have been transmitted from any of them. Their Fatawa could be collected into a small volume, but only after much research and sifting through texts18 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot2.htm#fn18).

In preparing their Fatawa the Sahabah used to compare the particulars of events that had happened to them with similar matters for which judgments had been given in the texts of the Qur'an and the Sunnah. In thus referring the matter to the sources, they employed the method of looking for the meaning and legal significance through examination of the text's literal wording, its implications, and any other relevant details.

Having arrived at a decision, they would then explain to others how they had adduced the arguments that led them to their judgments, whether these had been derived from the letter of the text or from its spirit, and the people would follow them. Indeed, these early Muslim jurists never stopped researching a question until they reached a decision they felt certain of, and until they were completely satisfied that they had done their best and could do no more.

THE ERA OF THE GREAT SAHABAH

After the time of the Noble Prophet http://islamicweb.com/images/saws.gif came the era of the Great Sahabah and the Rightly Guided Caliphs Khulafa' Rashidun . This period lasted from 11 to 40 AH. The Reciters Qurra' was the term used at the time to denote those Sahabah who had a good understanding of Fiqh and gave Fatawa.

THE TIME OF ABU BAKR AL SIDDIQ


Maymun ibn Mahran summed up Abu Bakr's method of arriving at legal judgments as follows:Whenever a dispute was referred to him, Abu Bakr used to look in the Qur'an; if he found something according to which he could pass a judgment, he did so. If he could not find a solution in the Qur'an, but remembered some relevant aspect of the Prophet's Sunnah, he would judge according to that. If he could find nothing in the Sunnah, he would go and say to the Muslims: 'Such and such a dispute has been referred to me. Do any of you know anything in the Prophet's Sunnah according to which judgment may be passed?'. If someone was able to answer his question and provide relevant information, Abu Bakr would say: 'Praise be to Allah Who has enabled some of us to remember what they have learnt from our Prophet.' If he could not find any solution in the Sunnah, then he would gather the leaders and elite of the people and consult with them. If they agreed on a matter then he passed judgment on that basis.19 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot2.htm#fn19) If all the methods mentioned above failed to produce any result, then he would make Ijtihad and form his own opinion, either by interpreting a text in such a way as its legal implications became apparent, or by exercising his own legal acumen.

An example of Ijtihad of the first kind was when he was asked about the Kalalah. In response, Abu Bakr said: "My opinion, if it is correct, then it is from Allah, and if it is wrong, then it is from myself and from the Shaytan. The Kalalah is one who has neither ascendants nor descendants."20 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot2.htm#fn20)

Another example of the same was the instance when 'Umar mentioned to him the following Hadith of the Prophet http://islamicweb.com/images/saws.gif: "I have been commanded to wage war against people until they say that there is no god but Allah..."21 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot2.htm#fn21), and Abu Bakr said, "Zakah is a part of it."22 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot2.htm#fn22)

When Abu Bakr wanted to wage war against those who were withholding Zakah, 'Umar cited this Hadith to show that fighting them was not permitted, because the Prophet had said: "...until they say that there is no god but Allah. Then, if they say this, their blood and their wealth will be spared by me, except where due by right (ie. unless they do acts that are punishable in accordance with the Shari'ah of Islam).

According to 'Umar, these acts were: adultery, murder, and apostasy; since withholding Zakah was not expressly mentioned by the Prophet http://islamicweb.com/images/saws.gif. But Abu Bakr said to him: "Zakah is a part of it. By Allah, I would fight anyone who performed Salah but did not pay Zakah! If anyone were to withhold from me even the smallest amount they used to pay to the Prophet, I would go to war with them over it."

An example of the second type of Ijtihad was when he decided that the mother's mother may inherit, but the father's mother may not.

Some of the Ansar said to him: "You allow a woman to inherit from the deceased, while he would not inherit from her if she were the deceased. And you have left with nothing the woman from whom he would inherit were the situation reversed." Abu Bakr then decided that both maternal and paternal grandmothers would share one-sixth of the inheritance.

Another example is his judgment that everyone should receive an equal share from the public treasury. 'Umar asked him: "How can you consider one who entered Islam with misgivings to be equal to one who left his home and wealth behind, and migrated to be with the Prophet?" Abu Bakr, however, insisted that: "They all entered Islam for the sake of Allah, and their reward is with Him; this world is nothing." when, however, 'Umar became the Khalifah, he differentiated between people and paid the "stipend" according to how early each person had entered Islam, whether they had migrated, and how much they had suffered for the sake of Islam.

Another example of Abu Bakr's exercise of Ijtihad was when he compared the appointment by the Khalifah of his own successor, to the appointment by means of Bay'ah. Thus, he appointed 'Umar to be the Khalifah after him, and the Sahabah agreed with him.

Khalid ibn al Walid wrote to Abu Bakr, telling him that in some areas of the Arabian Peninsula he had found men engaging in homosexual practices. Abu Bakr decided to consult the Sahabah of the Prophet http://islamicweb.com/images/saws.gif as to what he should do about it. One of the Sahabah was 'Ali, and his was the strictest judgment.

He said, "his sin was known only in one nation, and you know what Allah did to them. I suggest that these people should be burnt to death."
Abu Bakr wrote back to Khalid to tell him that they should be burnt to death; and this was done.23 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot2.htm#fn23)

SPECIAL FEATURES OF FIQH IN THE PERIOD

The use of al Qiyas was widespread in cases where there was no relevant text in the Qur'an or Sunnah and none of the Sahabah objected to this.
Al Ijma' was also widely used as a basis for judgment. This was facilitated by the fact that the Sahabah were few, and it was easy for them to agree amongst themselves. They used al Ijma' in many cases; for example, their decisions that the Khalifah or Imam should be appointed, that apostates should be fought and killed, that an apostate could not be taken as a prisoner of war, and that the Qur'an should be collected and written down in one volume.THE TIME OF 'UMAR IBN AL KHATTAB

'Umar's recommendations to the judge, Shurayh, as mentioned above, explain his way of deriving judgments from the available evidence. The most noticeable feature of 'Umar's methodology, however, is the fact that he often consulted the Sahabah and discussed matters with them so as to reach the best understanding and find the most appropriate way to carry out judgments. In his approach to questions of legalities, 'Umar was like a shrewd and cautious chemist whose intent is to produce medicine that will cure disease without causing adverse side effects.

As a result, 'Umar left us a great wealth of jurisprudence. Ibrahim al Nakha'i (d.97 AH) said that when 'Umar was martyred, "nine-tenths of all knowledge disappeared with him.24 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot2.htm#fn24)

Ibn Mas'ud said of him, "whatever path 'Umar chose, we found it easy to follow."25 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot2.htm#fn25)

'Umar's understanding was comprehensive and he was possessed with good common sense. Thus, he was quick to relate the particular to the general, and could pursue the ramifications of an issue back to basic principles in order to see its wider implications. This is how he was during the time of the Prophet http://islamicweb.com/images/saws.gif and Abu Bakr, and he did not change when he himself became the Khalifah.

'Umar learnt a great deal from the Prophet http://islamicweb.com/images/saws.gif. He often noticed that the Prophet would refrain from issuing an order to the people to do something good, although he wanted to do so, because he did not want to subject them to hardship. He http://islamicweb.com/images/saws.gif often used to say: "If it were not that I am afraid to impose hardship on my Ummah, I would have commanded them to do... such and such."26 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot2.htm#fn26)

Sometimes he would forbid them to do certain things, and then, when he saw that the reason for forbidding them was no longer valid, he would lift the ban. On other occasions, he would be about to forbid something, and they would tell him of the hardship and distress that such a prohibition would cause them, so he would refrain from it so as to protect them from hardship.

'Umar saw how the Prophet http://islamicweb.com/images/saws.gif, whenever he was faced with a choice between two things, would always choose the easier of the two; and this had a great effect on 'Umar. Indeed, he well understood that the Shari'ah has purposes and aims which must be discerned and considered; and that there are grounds for, and reasons behind, these judgments; some of which are made clear in the primary texts while others are only alluded to. He felt it the duty of scholars to discover those reasons which are not specified in the texts, so that legal judgments may be applied to new issues and developments, and everything brought under the judgment of Allah so that people will not become accustomed to seeking remedies and legal rulings on their problems outside the law of Allah.

Hence, when we look at 'Umar's practice of Ijtihad, we will find clear methods of arriving at judgments. Anyone who studies his Fatawa will readily see that the reasoning behind them is based on the public interest, on taking precautions to prevent wrong-doing or to combat corruption, and on adopting the easiest and most expedient course under the law.

'Umar, for example, declared some judgments invalid because the reasons for enforcing them no longer applied, or because some of the conditions for following them no longer prevailed. Among those judgments: his request to the Prophet http://islamicweb.com/images/saws.gif that the prisoners of the battle of Badr should be killed; his suggestions about Hijab, and that the Prophet http://islamicweb.com/images/saws.gif should not tell the people that whoever said "there is no god but Allah" would enter Paradise, in case they relied only on that and made no further effort; his suggestion to Abu Bakr that he should no longer give an extra share from the public treasury to those who had recently embraced Islam; and his decision not to share out the conquered land among the army.

THE TIME OF UTHMAN IBN 'AFFAN

When allegiance was given to 'Uthman, it was done on the condition that he work in accordance with the Book of Allah, the Sunnah of His Prophet, and the precedent set by the first two Khulafa'. This, he promised to do. 'Ali, however, indicated that when he became Khalifah he would be prepared to work according to the Book of Allah and the Sunnah of His Prophet, and then to do the best that his own knowledge and energy would allow. Because 'Uthman showed that he was willing to undertake to work in accordance with the precedents set by the first two Khulafa' he was supported by Abd al Rahman, who had the casting vote. Thus, a third source of legislation, the precedent set by the first two Khulafa'; was added at the time of the third Khalifah, and was approved by him.

Since 'Ali had reservations about this, when he himself became the Khalifah he acted according to his own Ijtihad in matters for which the earlier Khulafa' had already produced Ijtihad. For example, 'Ali reconsidered the issue of whether slave women who had begotten children for their masters could be sold.

'Uthman ibn Affan was one of the Sahabah who did not produce a great number of Fatawa, probably because most of the matters he came across had already been dealt with by Abu Bakr and 'Umar, and he preferred to adopt their opinions. But in some cases, he had to make Ijtihad, just as his predecessors had done. Once, before 'Uthman had become Khalifah, 'Umar asked him about a legal matter. In reply, 'Uthman said: "If you follow your own opinion, that will be right. But, if you follow the opinion of the Khalifah before you (i.e. Abu Bakr), that is better, because he was so good at passing judgment!"

He also performed his own Ijtihad when, during the Hajj, he did not shorten Salah in Mina; though certainly it is permitted to do so. There are two possible explanations for this: the first is that he had been married at Makkah, and thought that the people of Makkah were not permitted to shorten their Salah in Mina; the second explanation is that he was afraid that some bedouins might be confused when they watched him do so, and so he did not.

'Uthman also formulated the Ijtihad that all people should read the Qur'an according to Zayd's way of recitation, because he thought that this was the most sound, and the most likely to forestall the occurrence of disagreements.

THE TIME OF 'ALl IBN ABU TALIB

'Ali was like 'Umar ibn al Khattab in the way he understood and applied the texts of the Qur'an and in his deep concern with linking particular issues to general principles. Prior to his assuming the office of Khalifah, he was considered the best judge in Madinah.

When the Prophet http://islamicweb.com/images/saws.gif appointed 'Ali judge in Yemen, he http://islamicweb.com/images/saws.gif prayed for him, saying: "0 Lord! Guide his heart and make him speak the truth." Indeed, 'Ali proved to be an excellent judge, and resolved many difficult cases.

'Ali described his own knowledge by saying: "By Allah, no verse of the Qur'an was ever revealed except that I knew concerning what it was revealed, and where and why it was revealed. My Lord has bestowed upon me a heart that is understanding and a tongue that is articulate."

Whenever a matter was referred to Ali for judgment, he would accept it without hesitation. And if he was asked to give a Fatwa, he would do so by citing from the Book of Allah, and then the Sunnah of the Prophet http://islamicweb.com/images/saws.gif. Indeed, the extent of his knowledge of the Qur'an and Sunnah was very well known.

'A'ishah said: "In regard to the Sunnah of the Prophet http://islamicweb.com/images/saws.gif, he was the most knowledgeable of all people."

'Ali used to formulate his own opinion by means of Ijithad based on al Qiyas, al Istishab27 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot2.htm#fn27), al Istihsan28 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot2.htm#fn28) and al Istislah29 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot2.htm#fn29), always basing his opinion on the broader aims of the Shari'ah. when consulted concerning a possible increase in the Hadd-punishment for one found guilty of drinking alcohol, he compared drunkenness to the false basis that drunkenness could lead a person to make such an accusation.

During his Khilafah, 'Umar consulted 'Ali concerning the punishment of a group of people who jointly conspired to commit premeditated murder. 'Ali said, "0 Commander of the Faithful! If a group of people joined together in stealing, would you not cut one hand off of each of them?" when 'Umar replied in the affirmative, 'Ali said, "Then the same applies in this case." Consequently, 'Umar uttered his famous saying: "If all the citizens of San'a were to join together in murdering one man, I would execute the lot of them."

The analogy between murder and robbery was made because in each case there is a criminal motive shared between all who commit these acts, and it is this which requires rebuke and deterrent punishment.




Moreover, 'Ali preferred to burn alive those overzealous apostates and heretics who defied him, although he was well aware that the Sunnah ruling was merely to put such disbelievers and apostates to death. In this ruling, 'Ali showed himself keen to establish the strictest possible deterrent from the worst kinds of apostasy, because he considered this to be a very serious matter. Thus, he established the harshest punishment for such an act, so as to deter people from committing it. Moreover, to emphasize this, he recited the following verses of poetry extemporaneously:"when I realized how grievous the matter was, I lit my bonfire and called for Qanbar." Once 'Umar heard of a woman whose husband was away on a military expedition, and who was receiving strangers in her home. He therefore decided to send a messenger to her that she should not receive strangers while her husband was absent. when the woman heard that the Khalifah wanted to speak to her, she became fearful and, as she was pregnant, she miscarried the child on her way to see 'Umar.


'Umar, greatly disturbed by what had occurred, consulted the Sahabah about the matter. Some of them, including 'Uthman ibn 'Affan and 'Abd al Rahman ibn 'Awf, assured him: "You were merely attempting to educate her; you have done nothing wrong."

Then 'Umar turned to 'Ali, asking his opinion. 'Ali replied, "These men have spoken, and if this is the best opinion they can come up with, then fair enough. But, if they have spoken only to please you, then they have cheated you. I hope that Allah will forgive you for this sin, for He knows that your intention was good. But, by Allah, you should pay compensation for the child."

'Umar said, "By Allah, you have spoken sincerely to me. I swear that you should not sit down until you have distributed this money among your people."

THE FUQAHA' AMONG THE SAHABAH AND THE TABI'UN

This period is considered to have begun with the passing of the period that preceded it, in 40 AH, when the period of the "Rightly Guided" Caliphs ended. Thus began a new era, that of the Fuqaha' from among the Sahabah and the elder Tabi'un. Legislation at this stage was still very much as it had been during the previous stage, as the sources of that legislation, ie. the Qur'an, the Sunnah, al Ijma' and al Qiyas, remained the same. Nonetheless, legislation at this stage differed in many aspects from what had gone before.

Among the more significant changes were the following:

Scholars had become more interested in delving into what lay beyond the explicit meanings of the texts.
Their ways of dealing with the Sunnah underwent a great deal of change. Essentially, this difference was the outcome of political differences that accompanied the emergence of various sectarian and philosophical factions, such as the Shi'ah and Khawarij, whose attitude to the Sunnah was different. The Shi'ah refused to accept Hadith which were not narrated by their own followers; and the Khawarij refused to accept Hadith if, anywhere in the chain of the Hadith's narrators there was no more than a single narrator30 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot3.htm#fn30). The Khawarij also rejected all Hadith not supported by a text from the Qur'an.
Owing to the divisions which had arisen, al Ijma' was no longer a possibility in this period. Basically, this was because every group mistrusted the scholars of every other group, and would no longer accept any of their opinions, whether they agreed or disagreed with them. In addition, the Fuqaha' from among the Sahabah had become scattered all over the Islamic world, so that it was no longer possible for them to meet in order to discuss matters.
Also in this period, the narration of Hadith and Sunnah became popular, whereas this had not previously been the case.
The fabrication of Hadith, for many well-known reasons which we do not need to discuss here, became widespread. In this respect, Muslim reported that Ibn Abbas said: "We used to narrate many Hadith from the Prophet http://islamicweb.com/images/saws.gif without ever having to worry about fabrication. But when people started to be careless in narrating things attributed to the Prophet, we stopped narrating Hadith."

[Ibn Sina]

CHAPTER THREE

LEGISLATION AFTER THE TIME OF THE SAHABAH


The time of the Sahabah came to an end between 90-l00 AH, and was followed by the time of the Tabi'un whose scholars became responsible for Fiqh and giving Fatawa. The last of the Sahabah in Kufah died in 86 or 87 AH. The last one in Madinah, Sahl ibn Sa'd al Sa'idi, died in 91 AH. The last one in Basrah, Anas ibn Malik, died in 91 AH (some say 93 AH). The last one in Damascus, 'Abd Allah ibn Yusr, died in 88 AH. The last one of the Sahabah, 'Amir ibn Wathilah ibn 'Abd Allah (Abu Tufayl), died in 100 AH.

Thereafter, those who became responsible for issuing Fatawa were the freed men Mawali, most of whom had lived with the Fuqaha' among the Sahabah, such as: Nafi', the freed man of Ibn 'Umar; 'Ikramah, the freed man of Ibn 'Abbas; 'Ata' ibn Rabah, the Faqih of Makkah; Tawus, the Faqih of the people of Yemen; Yahya ibn Kathir, the Faqih of Yamamah; Ibrahim al Nakha'i, the Faqih of Kufah; Hasan al Basri, the Faqih of Basrah; Ibn Sirin, also of Basrah; 'Ata' al Khurasani in Khurasan, and others. Indeed, Madinah was unique in having a Faqih from Quraysh, Sa'id ibn al Musayyab.


These Tabi'un very rarely altered the Fatawa of the Sahabah from whom they had gained their knowledge; hence it is difficult to find differences between their methods of deriving judgements and those of their predecessors. Even so, the methods of deriving judgements were, at this stage, starting to evolve and, in the process, to become clearer than ever before. It is narrated that Hasan ibn 'Ubayd Allah al Nakha'i said: "I asked Ibrahim al Nakha'i: 'Did you hear from others all the Fatawa which I hear you giving?' He said, 'No.' I asked him: 'Then you give Fatawa that you did not hear?' He said: 'I heard what I heard; but when I was confronted with matters concerning which I had not heard anything, I compared them, by analogy, with matters which I had heard about.'"31 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot3.htm#fn31)
Among the significant features of this period was the emergence of differences of opinion between legal scholars on a variety of matters. This was underscored by two decisions taken by the Khalifah of the times, 'Umar ibn 'Abd al 'Aziz.


He ordered that practices attributed to the Prophet http://islamicweb.com/images/saws.gif should be collected and written down. Accordingly, the people of every locality wrote down in books whatever they knew to be a part of the Sunnah32 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot3.htm#fn32).
He restricted the authority to issue Fatawa, in most districts, to a few named individuals, as he did in Egypt, when he named only three people for this purpose. Interestingly, two of them were freedmen, Yazid ibn Abu Habib and Abd Allah ibn Abu J'afar, and the third was an Arab, Ja'far ibn Rabi'ah. When the Khalifah was questioned about appointing two freedmen and only one Arab, he answered : "What fault is it of mine if the freedmen are improving themselves and you are not?"33 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot3.htm#fn33)In his letter to Abu Bakr Muhammad ibn 'Amr ibn Hazm al Ansari, the Khalifah explained his reasons for ordering that the practices attributed to the Prophet http://islamicweb.com/images/saws.gif should be written down. He wrote: "Look for whatever Hadith of the Prophet http://islamicweb.com/images/saws.gif, or Sunnah, or practice you can find. Then write these down for me; for I fear that this knowledge will pass away with the passing of the scholars."34 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot3.htm#fn34)

AFTER THE TABI'UN: THE TIME OF THE MUJTAHID IMAMS



This period was described by Wali Allah al Dahlawi as follows: "The Fuqaha' of the period took the Hadith of the Prophet http://islamicweb.com/images/saws.gif, the decisions of the early judges, and the legal scholarship of the Sahabah, the Tabi'un and the third generation, and then produced their own Ijtihad."


This was the way the legal scholars of those times worked. Basically, all of them accepted both the Musnad35 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot3.htm#fn35) as well as the Mursal36 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot3.htm#fn36) Hadith."
Moreover, it became their practice to cite the opinions of the Sahabah and Tabi'un as evidence. Essentially, there were two reasons for this:

Such opinions were actually Hadith of the Prophet http://islamicweb.com/images/saws.gif which had been narrated by one of the Sahabah or the Tabi'un who had, for fear of misquoting, not dared to attribute the Hadith to the Prophet http://islamicweb.com/images/saws.gif.
The other likelihood is that such opinions were derived by the Sahabah from the texts of Hadith, and represented their own understanding of the Sunnah.In this respect, of course, the Sahabah were better than those who came later, because they had known the Prophet http://islamicweb.com/images/saws.gif, and were thus more capable of interpreting what he had said. Therefore, their judgements and opinions were accepted as authoritative, except in cases where they themselves differed, or where their pronouncements were in clear contradiction to sound Hadith of the Prophet http://islamicweb.com/images/saws.gif.

On the other hand, in cases where two or more Hadith conflicted, the scholars would refer to the opinions of the Sahabah in order to determine which of the two Hadith was the correct one. Thus, if the Sahabah said that a Hadith had been abrogated, or was not to be understood literally; or if they did not expressly say anything about a Hadith, but had ignored it, and had not acted in conformity with it, thus indicating that the Hadith was in some way defective, or that it had been abrogated, or that its interpretation was other than the literal, then the Mujtahid Imams would accept their opinions.

When the pronouncements of the Sahabah and Tabi'un differed on any matter, then each Faqih would follow the rulings of those from the same region as himself, and his own teachers, because he would be more able to discern the authenticity, owing to his familiarity with the narrators, of the opinions and sayings that reached him on their authority. Likewise, the Faqih would be better acquainted with their legal methodology.

The legal school of thought based on the opinions of 'Umar, 'Uthman, Ibn 'Umar, 'A'ishah, Ibn Abbas and Zayd ibn Thabit, and their companions from among the Tabi'un, like Sa'id ibn al Musayyab (d 93 AH), 'Urwah ibn Zubayr (d 94), Salim (d 106), Ata' ibn Yasar (d 103), Qasim ibn Muhammad (d 103), 'Ubayd Allah ibn 'Abd Allah (d 99), al Zuhri (d 124), Yahya ibn Sa'd (d 143), Zayd ibn Aslam (d 136) and Rabi'at al Ra'i (d 136), was the school most acceptable to the people of Madinah. It was for this reason that Imam Malik based his legal arguments on their teachings.

In the same way, the legal opinions of 'Abd Allah ibn Mas'ud and his companions, the judgements of the Khalifah 'Ali, Shurayh (d 77), and al Sha'bi (d 104), and the Fatawa of Ibrahim al Nakha'i (d 96) were the most acceptable to the people of Kufah.


Commenting on this phenomenon, Wall Allah al Dahlawi wrote: When Masruq (d 63 AH) followed Zayd ibn Thabit's opinion concerning sharing out the inheritance between the grandfather and the brothers [of the deceased], 'Alqamah (d 62) asked him, "Is any of you more knowledgeable than Abd Allah (ibn Mas'ud)?"


Masruq answered, "No, but Zayd ibn Thabit and the people of Madinah share the inheritance between the grandfather and the brothers..."


Thus, if the people of Madinah agreed on a matter, the scholars of the generation following the Tabi'un adopted it resolutely. This is what Malik meant when he said: 'The Sunnah concerning which we, the people of Madinah, have not differed is such-and-such.'


If the early scholars at Madinah had differed concerning any matter, the later scholars would follow those opinions which were stronger and more dependable either by virtue of their having been adopted by a majority of the early scholars, or of their having been the result of sound legal analogy, al Qiyas, or which were derived from some text in the Qur'an or the Sunnah. It is to this process that Malik refers when he says: 'This is the best that I have heard.' Then, if the later scholars could find no solution to a problem in the work of their predecessors, they would themselves turn to the relevant texts in order to formulate their own legal opinions.


At this stage, the scholars were inspired to start recording things in writing. So Malik (d 179) in Madinah, Ibn Abu Dhi'b (d 158), Ibn Jurayj (d 150?) and Ibn 'Uyaynah (d 196) in Makkah, al Thawri (d 161) in Kufah, and Rabi' ibn Subayh (d 160) in Basrah, began to write things down, and they all followed the same method.


When the Khalifah, Mansur, performed Hajj and met al Imam Malik, he said: 'I have decided to order that copies be made of these books which you have written. I will send a copy to every region of the Muslim world and order the scholars to act in accordance with them and not refer to any other works.'

Malik said '0 Amir al Mu'minin, do not do that! Already the people have heard different legal opinions, and listened to Hadith and narrations; and they have accepted whatever reached them first, so that this has contributed to differences in the prevailing practices among people. Leave the people of each town with the choice they have already made.'


The same story is told with reference to the Khalifah, Harun al Rashid, that he wanted to obligate the people to follow the Muwatta.'


But Malik said to him: 'Do not do that, for the Sahabah of the Prophet used to differ on the Sunnah. Then they scattered and settled throughout the Muslim world; and now their different ways are firmly established.'


... Malik was the most knowledgeable about the Hadith related by the people of Madinah from the Prophet http://islamicweb.com/images/saws.gif, and Malik's chains of narrators were the most reliable. He was also the most knowledgeable about the judgements of 'Umar and the legal pronouncements of 'Abd Allah ibn 'Umar and 'A'ishah and their companions from among the seven Fuqaha'. The sciences of Hadith narration and Fatawa were based on the knowledge of Malik and those like him.


Abu Hanifah was the most devoted to the legal interpretations of Ibrahim al Nakha'i and his colleagues, and would very rarely transgress their arguments. He was excellent at producing decisions based on Ibrahim's method, exact in employing that methodology in order to deal with details of case law.


If you wish to know the truth about what we have stated, then summarize the teachings of Ibrahim and his cohorts as recorded in the following works: Al Athar "Traditions" by Muhammad al Shaybani, the Jami' "The Compendium" of Abd al Razzaq and the Musannaf "Compilation' of Ibn Abu Shaybah, and compare them with Abu Hanifah's formal opinions. Indeed, you will find that Abu Hanifah departs only rarely from their way, and even then his opinion will not differ from the opinions of the jurists of Kufah."37 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot3.htm#fn37)
In fact, al Dahlawi's comments need to be considered. He was very eager to stress that al Imam Malik and Abu Hanifah, and their companions, were more or less conforming to the opinions of the Tabi'un and the Sahabah before them (as opposed to generating their own Ijtihad), and had not transcended the jurisprudence of their predecessors. This, however, is a conclusion with which it is difficult to agree.

It is well known that there are various approaches to Fiqh; and each of the Imams adopted a different approach to the subject. It is not a simple matter to claim that these were drawn from the Sahabah and the Tabi'un. Consider, for example, Malik's taking the customs and practices of the people of Madinah as a (secondary) source for legislation; or Abu Hanifah's use of al Istihsan and al 'Urf.38 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot3.htm#fn38)

Moreover, neither of them based their arguments on the Fatawa of the Tabi'un, but rather competed with them, saying: "They were men [of knowledge] and so are we."

In addition, unlike anyone before them, each had laid down his own set of conditions for accepting Hadith as authentic.

Moreover, the incidence of an increased circulation of Hadith in those times, in addition to the appearance of Hadith that had never been circulated at all, led, in some cases, to legal rulings and positions quite different from those held by the Sahabah.

RATIONALISTS AND TRADITIONISTS: AHL AL HADITH AND AHL AL RA'I


Perhaps this truth may become all the more intelligible when we mention the emergence of two informal schools of legal thought, the rationalists or Ahl al Ra'i, and the traditionists or Ahl al Hadith, and the appearance of differences between them concerning both source methodology, and issues of case law. While it is true that both of these schools had their roots in the approaches of the preceding two generations, it was at this time that their differences in matters of Fiqh become clear; and it was at this time that people began grouping themselves on the basis of their differences in deriving legal points from the sources.

Writers on Islamic legal history emphasize that the rationalist school of Ahl al Ra'i was an extension of the school of 'Umar and Abd Allah ibn Mas'ud who, among the Sahabah, were the most wide-ranging in their use of Ra'y (lit. opinion). In turn, 'Alqamah al Nakha'i (d. 60 or 70 AH), the uncle and teacher of Ibrahim al Nakha'i, was influenced by them. Ibrahim then taught Hammad ibn Abu Sulayman (d 120 AH) who, in turn, was the teacher of Abu Hanifah.

The same historians stress that the traditionist school of Ahl al Hadith was a continuation of the school of those Sahabah whose fear of contradicting the letter of the source texts Nusus made them circumspect to the point where they never went any further than the texts. This was the case, by and large, with 'Abd Allah ibn 'Umar ibn al Khattab, 'Abd Allah ibn 'Amr ibn al 'As, al Zubayr, and 'Abd Allah ibn 'Abbas.

The school of Ahl al Hadith became widespread in the Hijaz for many reasons, of which perhaps the most important were the great number of Hadith and other narrations known to the people of that area, and the fact that the region was more stable after the seat of the Khilafah had been moved, and most of the political activity had been transferred, first to Damascus, then to Baghdad. The Imam of Madinah, Sa'id ibn al Musayyab (d 94 AH), once noted that the people of Makkah and Madinah had not lost much of the Hadith and Fiqh, because they were familiar with the Fatawa and reports of Abu Bakr, 'Umar, 'Uthman, 'Ali (before he became Khalifah), 'A'ishah, Ibn Abbas, Ibn 'Umar, Zayd ibn Thabit and Abu Hurayrah, and thus did not need to use Ra'i in order to derive law.

The school of Ahl al Ra'i, on the other hand, gained currency in Iraq. The scholars of this group thought that legal interpretations of the Shari'ah should have a basis in reason, should take into account the best interests of the people, and should be backed by discernable wisdom. Indeed, these scholars felt it their duty to uncover these meanings and the wisdom behind the laws, and to make the connection between them; so that if the reasons for any law were to lose relevance with the passing of time and the changing of circumstances, the law would no longer be valid. If they found the reasons behind the law, they would sometimes prefer to cite arguments based on an analytical treatment of those reasons. Thus, in many cases, reason would be accorded legalistic preference when such reasoning conflicted with the evidence of certain categories of Hadith.

The spread of this method in Iraq was helped by the numbers of Sahabah influenced by the methods of 'Umar. Among them were Ibn Mas'ud, Abu Musa al Ash'ari, 'Imran ibn Husayn, Anas ibn Malik, Ibn Abbas and others. The spread was also assisted by the transfer of the Khilafah to Iraq, and the settling there of 'Ali and his supporters.

When the sects, like the Shi'ah and Khawarij, appeared in Iraq, conflict arose and the fabrication of Hadith became widespread39 (http://islamicweb.com/beliefs/fiqh/alalwani_usulalfiqh/foot3.htm#fn39). Consequently, the legal scholars of Iraq were forced to lay down conditions for the acceptance of Hadith, according to which only a few of the reports given by the Sahabah living in Iraq were acceptable. Moreover, the great number of legal problems and the constant increase in unprecedented legal issues in that area were more than could be dealt with on the basis of reliable Hadith.

So, it was in this way that the Ummah, those who had not become involved with either the Shi'ah or the Khawarij, was divided into two groups, Ahl al Hadith and Ahl al Ra'i; and the conflict between them intensified.

Thus, Ahl al Ra'i often used to criticize Ahl al Hadith for having little intelligence and less Fiqh-understanding; while Ahl al Hadith claimed that the opinions of Ahl al Ra'i were based on no more than conjecture, and that they had distanced themselves from the necessary circumspection in those matters of religious significance which could only be ascertained through recourse to the source-texts.

In fact, Ahl al Ra'i agreed with all Muslims that once a person has clearly understood the Sunnah, he may not reject it in favour of what is no more than someone's opinion. Their excuse in all those cases in which they were criticized for contradicting the Sunnah is simply that they did not know any Hadith concerning the matter in dispute, or that they did know a Hadith but did not consider it sound enough owing to some weakness in the narrators or some other fault they found in it (a fault which perhaps others did not consider to be damaging), or that they knew of another Hadith which they considered sound and which contradicted the legal purport of the Hadith accepted by others.

Moreover, Ahl al Hadith agreed with Ahl al Ra'i on the necessity of having recourse to reason whenever a matter occurs for which there is no specific ruling in the source texts. Still, in spite of these areas of agreement, the conflict and tension between the two groups remained acute.

[Ibn Sina]

Here's part-1 (http://64.233.169.104/books/azhmd-p1.pdf) and part 2 (http://64.233.169.104/books/azhmd-p2.pdf) of volume one of Imam al-Ghazali's Al-Mustasfa min `Ilm al-Usool in English.

And here (http://feqh.al-islam.com/bookhier.asp?DocID=15&Mode=0) is the Arabic edition of the Mustasfa.