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Introduction to Ul al-fiqh

Fiqh is an Arabic word which can be translated as deep understanding of Sharah or Islamic
law. Its primary sources are the Qurn and the Sunnah (the sayings and the actions of the
Prophet Muammad, peace be upon him, as recorded in the adth).
Ul al-fiqh is the study of the sources of Sharah and the methodology by which Sharah is
developed. Fiqh is the end product of the application of Ul al-fiqh which is best translated as
Islamic jurisprudence.
To be a competent Islamic jurist one must know both the law and the methods by which it was
developed. As an example, Kamali points out that Islamic law prohibits theft. However the jurist
needs to know the source which in this case is given as the Qurn 2:188 http://quran.com/2/188
"Devour not each other's property in defiance of the law."
During the lifetime of the Prophet (pbuh) Islamic law existed in the form of the Qurn and the
Prophet's rulings. However Islamic jurisprudence was not required as any new problem not
covered by existing Islamic law could be referred to the Prophet (pbuh) for a decision. That
decision would then become a part of the expanded Islamic law.
After the Prophet (pbuh)s demise, legal decisions were made by his companions, inspired by
their knowledge of his approach to decisions, and they were not in need of any formal legal
methodology or jurisprudence. However with the passage of time those who had known the
Prophet (pbuh) passed away and gradually jurisprudence became a formal methodology.

The first source of Sharah: the Qurn


Whereas Kamali is careful to define Arabic terms when he first uses them, he fails to do so with
the word "Sharah" and the word is missing from the glossary at the end of the book. I suspect
that this apparent oversight arises from the fact that Sharah is such an overarching concept for
Muslims. The original meaning of the Arabic word Sharah is a path to water, which is of course
a vital requirement in the Arabian Desert. In a religious sense, Sharah can be understood as the
path to salvation and encompasses all of the teachings and doctrines of Islam.
Given the importance of law to the practice of Islam, the common English translation of Sharah
as "Islamic law" is not unreasonable but in my view it is more accurate to think of "Islamic law"
as being fiqh and to think of Sharah as something more overarching such as Islamic doctrine.
Kamali explains that religious scholars are unanimous that the Quran is the most fundamental
source of the Sharah. Indeed, some scholars consider it to be the only source, regarding all
other sources as only being explanatory of the Quran. However Kamali points out that while the
Quran contains over 6200 verses, less than 10% relate to law and jurisprudence while the
remainder deals with matters of belief, morality and faith.

The definitive (qa) and the speculative (anni)


Given the importance of the Qurn, the way that it is to be read and understood, is fundamental.
Kamali explains that rulings in the Qurn may be conveyed in text which is either unequivocal
or in language that is open to different interpretations.
A definitive text is one which is clear and specific; it has only one meaning and admits of no
other interpretations. Kamali gives the example of Qurn 4.12 http://quran.com/4/12 which
entitles a husband to half of the estate of his deceased wife if she leaves no child: "In what your
wives leave, your share is a half, if they leave no child."
Kamali explains that a definitive text is binding upon everyone and is not open to ijtihd
(literally "exertion" and technically the effort a jurist makes in order to deduce the law, when it is
not self-evident, from its sources.)
Conversely, speculative verses of the Qurn are those which are open to interpretation and
ijtihad. Kamali explains that the best interpretation is that derived from the Qurn as a whole
while the Sunnah is another source that supplements the Qurn and helps with its interpretation.
Kamali illustrates this with Qurn 4.23 http://quran.com/4/23 "Prohibited to you are your
mothers and your daughters." The prohibition of marriage with one's mother is definitive.
However the Arabic word for "your daughters" could be taken literally which would be any girl
for whom you are the biological father. Alternatively the juridical meaning could be applied
which limits the meaning to a legitimate daughter. The jurists disagree which meaning applies.
Kamali states that the anaf School (there are four main schools of Islamic law named after
their founders) follow the first meaning prohibiting marriage to your illegitimate daughter.
Conversely the Shfi School follows the second interpretation permitting marriage with your
illegitimate daughter.

The Sunnah
Kamali starts by explaining the meaning of the word.
"Literally, Sunnah means a clear path or a beaten track but it is also used to imply normative
practice, or an established course of conduct. A Sunnah may be a good example or a bad one,
and it may be set by an individual, a sect or a community. In pre-Islamic Arabia, the Arabs use
the word "Sunnah" in reference to the ancient and continuous practices of the community that
they inherited from their forefathers. Thus it is said that the pre-Islamic tribes of Arabia each had
their own Sunnah, which they considered the basis of their identity and pride. The opposite of
Sunnah is bidah, or innovation, which is characterized by lack of precedent and continuity with
the past."
The scholars of jurisprudence consider Sunnah as referring to all that is narrated from the
Prophet (pbuh), his acts, his sayings and whatever he has tacitly approved.
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Kamali explains that although scholars have used Sunnah and adth almost interchangeably, the
words have distinct meanings. Sunnah occurs 16 times in the Qurn and is always used to imply
an established practice or course of conduct. adth occurs 23 times in the Qurn and in each
case carries the meaning of a narrative or communication. None of the occurrences in the Qurn
use the word hadith in its technical exclusive sense of being a saying of the Prophet (pbuh). In
juristic terms, Kamali states that adth is a narration of the conduct of the Prophet (pbuh)
whereas Sunnah is the law that is deduced from that conduct.

Proof-value (status) of Sunnah


Kamali explains that the scholars are unanimous that Sunnah is a source of Sharah. As the
Qurn commanded Muslims to obey the Prophet (pbuh), his words were obligatory for anyone
who heard them. For the rest of us who receive them through the verbal and written reports of
narrators, we need to ascertain their authenticity which may be definitive or it may be a
preferable conjecture; in either case such established reports should be followed.
However, the Sunnah divides into two categories, non-legal and legal.
Non-legal Sunnah mainly consists of the natural activities of the Prophet (pbuh) such as the way
he ate, slept and dressed. According to the majority of scholars, the Prophets (pbuh) preferences
in these areas such as his favorite colors were peripheral to his prophetic mission and are
therefore not part of the Sharah. The same would apply to what the Prophet (pbuh) did in very
particular circumstances such as the timing of military actions; these are considered situational
and not part of the Sharah.
In some cases it is difficult to determine the status. For example, the Prophet (pbuh) kept his
beard at a particular length and trimmed his moustache. The majority of scholars have regarded
this as an example that believers must follow. Conversely other scholars consider that the
Prophet (pbuh) was simply following the social practice of the Arabs at that time which was
designed to prevent resemblance to the Jews and to some non-Arabs who used to shave their
beards and grow their moustaches. This view makes the style of facial hair optional.
The legal Sunnah consists of the actions of the Prophet (pbuh) which were expressly intended to
set an example. This legal Sunnah itself divides into three types depending upon the capacity in
which the Prophet (pbuh) was acting:

the Messenger of God


the head of state or imm
a judge

Rules which the Prophet (pbuh) laid down in his capacity of Messenger of God pertaining to the
principles of the religion, especially in the area of devotional matters and setting out what is
permissible and what is prohibited are general legislation whose validity is not restricted by the
limitations of time and circumstance. Instead they apply to all Muslims everywhere. The
individual Muslim should act upon these laws without needing prior authorization from a
religious leader or the government.
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Conversely action which the Prophet (pbuh) authorised in his capacity as the imam can only be
acted upon by other Muslims with prior authorisation of the imam for the time being. This would
include matters such as government administration, signing treaties, division of the spoils of war,
the declaration of war etc. Kamali points out that sometimes determining the status is difficult.
He cites the adth: "Whoever kills a warrior [in battle] may take his belongings."
Kamali states:
"Imm Mlik held that the Prophet (pbuh) offered this adth in his capacity as imm, in which
case no one is entitled to the belongings of his victim in the battlefield without the express
authorization of the imm. The majority have held the view that this hadith lays down a general
law which entitles the soldier to the belongings of the deceased even without the permission of
the imam."
Sunnah originating from the Prophet (pbuh) in his capacity as a judge in particular disputes
usually has two parts. One is situational relating to the specific dispute and does not constitute
general law. The second part, being the judgement itself lays down general law. However
nobody may act upon it without the prior authorization of a competent judge since the Prophet
(pbuh) himself was acting in a judicial capacity.

The distinction between the Qurn and Sunnah


The Qurn was recorded in writing from beginning to end during the Prophet's (pbuh) lifetime.
He was anxious to ensure that his own Sunnah was not confused with the text of the Qurn and
initially discouraged his companions from writing down his Sunnah.
Accordingly, while we have a single agreed text of the Qurn, open only to disputes regarding
its meaning in certain cases, most of the Sunnah is only available in the form of narrations from
transmitters and many of the adth which have come from different lines of transmission differ
in their detailed content. Unlike the Qurn, the Sunnah faces issues not only of interpretation but
also of authenticity. Kamali discusses this later in the book.

The priority of the Quran over the Sunnah


Kamali is categorical that the Sunnah is the second source of the Sharah after the Qurn.
Accordingly the jurist looking for the solution to a legal question must resort to the Sunnah only
when he fails to find any guidance in the Qurn. If there is a clear text in the Qurn, it takes
priority over any conflicting ruling of the Sunnah.
The reason the Qurn takes priority is that it consists entirely of manifest revelation whereas the
Sunnah, even though inspired by God, is largely transmitted in the words of the narrators and
also is open to questions of authenticity. Conversely, the authenticity of the Qurn is not open to
doubt. Furthermore, the Sunnah is explanatory of the Quran.
Kamali cites the Prophet (pbuh) sending Muadh ibn Jabal as a judge to the Yemen and asking
him how he would reach his decisions. Muadh responded that he would first refer first refer to
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the "Book of God" and then to the "Sunnah of the messenger of God." He points out that this
example was expressly referred to by the second Caliph Umar ibn al-Khab in writing
addressed to two judges who were ordered to resort to the Qurn first and the Sunnah only when
they could find no guidance in the Quran.

Is Sunnah an independent source?


Kamali explains that there are three types of relationship between the Qurn and the Sunnah.
1. Sunnah which simply confirms something which is already in the Quran.
2. Sunnah which explains, clarifies or amplifies an existing teaching of the Quran.
3. Rulings in the Sunnah on which the Qurn is silent.
Kamali states that the first two varieties listed above constitute the majority of the Sunnah and
that the ulam consider that these two types are integral to the Qurn and constitute a logical
whole with it. He goes on to say:
"It is considered that the Sunnah that qualifies or elaborates the general provisions of the Qurn
on devotional matters (ibdt), on the punishment for theft, on the duty of Zakh and on the
subject of bequests, could only have originated in divine inspiration (ilm), for these cannot be
determined by means of rationality and ijtihd alone."
He states that it is the third category which is the subject of debate as to whether the Sunnah is an
independent source of law, and proceeds to discuss the alternative arguments of scholars.

Classification and value of adth


Kamali explains in this section the methodology applied to evaluate adth for genuineness and
reliability. As he has written a separate book on this subject, this review does not try to
summarize his exposition within the current book.
The highest category of hadith is mutawtir which means 'continuously recurrent.' This means "a
report by an indefinite number of people related in such a way as to preclude the possibility of
the agreement to perpetuate a lie. Kamali explains that the majority of ulam regard the
authority of a mutawtir adth as equivalent to that of the Qurn.
The next category down is a mashhur (well-known) adth. The schools of thought differ on the
level of certainty that a mashhur adth gives.

Rules of interpretation - deducing the law from its sources


Kamali explains that in Arabic there are two common words for "interpretation" namely tafsr
and tawl.

Tafsr literally means "explanation" and basically aims at explaining the meaning of a given text
and deducing the ruling from it within the confines of the words and sentences. Accordingly the
explanation follows immediately from the content of the text.
The word tawl could be translated as "allegorical interpretation" but Kamali prefers to use the
Arabic word. Tawl goes beyond the literal meaning of words and sentences and reads into them
a hidden meaning which is often based upon speculative reasoning and ijtihd. It should only be
used when there is evidence to justify the departure from the manifest meaning of a text.
Tawl itself falls into two categories:

remote or far-fetched
relevant

Kamali illustrates remote tawl with the example of the Hanafi interpretation of a hadith. One of
the companions of the Prophet (pbuh), Firuz al-Daylm embraced Islam having married two
sisters before he became a Muslim. The Prophet (pbuh) ordered him to "retain one of the two,
whichever you wish, and separate from the other."
The anaf interpretation is that al-Daylm was instructed to contract a new marriage with one
of the sisters if he had previously married both in a single contract of marriage. However if he
had married each sister in a separate contract, he was to retain the one whom he had married first
without requiring a further marriage contract.
Their logic for this tawl interpretation is that there is a rule of Sharah prohibiting two women
being married in a single contract. However the jurists regard this anaf interpretation as remote
and not supported by the wording of the hadith. As a new convert to Islam, al-Daylami would
not be expected to be familiar with the detailed rules of Sharah. Accordingly had the Prophet
(pbuh) intended the interpretation given by the anafs, he would have clarified his ruling
himself.
As an illustration of relevant tawl, Kamali cites the Qurnic verse 5.6 "O believers, when you
stand for alh [prayer], wash your faces and your hands up to the elbows." The interpretation is
that ablution is required before standing for prayer since the contrary interpretation of
performing ablution after starting to pray makes no sense.

Rules of interpretation textual implications


Kamali explains that the law normally requires compliance not only with the obvious meaning of
a sacred text but also with its implied meanings and indirect implications and inferences that
could be drawn from the text. He explains that anaf jurists have distinguished four levels of
meaning in declining order of priority.

(1) The explicit meaning (Ibarah al-Na)


This is the immediate meaning of the text derived from its obvious words and sentences. Such a
meaning conveys a definitive ruling on its own without needing corroborative evidence.

(2) The alluded meaning (Ishrah al-Na)


As well as the explicit meaning, a text may also can be an additional meaning that is logically
necessary. This alluded meaning may be easily detectable or may need deeper investigation.
Kamali gives the example of Qurn 2.233 "it is his [father's] duty to provide them with
maintenance and clothing according to custom." The explicit meaning is the father's duty to
support his child. However a further implication is that a childs descent is solely attributed to
the father. Furthermore when combined with the hadith "you and your property both belong to
your father" the text provides authority for the father if in dire need to take what he needs of his
childs property without seeking the childs permission.

(3) The inferred meaning (allah al-Na)


This is a meaning derived from the spirit and rationale of a text even when it is not indicated in
the words and sentences. Instead it is derived through analogy and some scholars have in fact
treated it as equivalent to analogical deduction (qiys jl) which is discussed later.
Kamali gives the example of Qurn 17.23 "and say not "Fie" to them [one's parents]" where the
explicit meaning is uttering words of contempt to your parents. The inferred meaning is that all
forms of abusive behavior and acts which offend your parents are forbidden.

(4) The required meaning (Iqtid al-Na)


This is a meaning on which the text itself is silent but which must be read into the text if the text
is to fulfil its proper objective. Kamali gives the example of Qurn 5.3 "Unlawful to you are the
dead carcass and blood". Although the text does not refer to eating, that is a necessary
implication for the text to convey a complete meaning.
Kamali gives an example of how the explicit meaning takes priority over the alluded meaning.
Qurn 4.93 states "Whoever deliberately kills a believer; his punishment will be permanent
hellfire." The explicit meaning of this verse is that a murderer is punished in the hereafter.
However there is an alluded meaning that a murderer does not need punishment in this lifetime
as they will be punished after death. Yet Qurn 2.178 provides "retaliation is prescribed for you
in cases of murder" and the explicit meaning of that verse takes priority over the alluded
meaning of verse 4.93.
Kamali also gives an example of the conflict between the alluded meaning and the inferred
meaning. Qurn 4.92 states "The expiation (kaffarah) of anyone who erroneously kills a believer
is to set free a Muslim slave." The explicit meaning of the text is straightforward. The inferred
meaning is that freeing a Muslim slave is also required in the case of intentional killing.
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However the following verse 4.93 quoted above has an alluded meaning that murder is so
heinous that there is no room for expiation so that the killer is not required to free a slave. The
alluded meaning of 4.93 takes priority over the inferred meaning of 4.92 so the murderer is not
required to pay expiation, although he is of course subject to retaliation.
This demonstrates the anaf school order of priority mentioned earlier.
However the Shfi School considers that the inferred meaning takes priority over the alluded
meaning on the grounds that the inferred meaning is based on the language and rationale of the
text whereas the alluded meaning is not. Accordingly the Shfi School would require the
murderer to pay expiation as well as suffering retaliation.

The divergent meaning (Mafhum al-Mukhlafah)


Kamali explains that the rule is that a legal text never implies its opposite meaning and that any
attempt to obtain two divergent meanings from one and the same text goes against the principles
of interpretation. Accordingly the anaf School basically considers that the divergent meaning
is not a valid method of interpretation. However it is used on a restricted basis by the Shfi
school but also (despite the preceding comment) by the anaf school in certain cases.
A divergent meaning is one which is derived from the words of the text but in a way that
diverges from the explicit meaning. Looking at the examples Kamali discusses in his book, I
think it is fair to say that a divergent meaning consists of trying to derive a legal ruling by
looking at the opposite of the explicit meaning of a text.
Kamali gives the example of Qurn 6.145 "Say, I find nothing in the message that is revealed to
me forbidding anyone who wishes to eat except the dead carcass and blood shed forth." Looking
at the final part of this verse, the divergent meaning would be to say that since blood shed forth is
prohibited, blood which is not shed forth is lawful for consumption. That is regarded as improper
reasoning.

Abrogation (Nasakh)
In today's world abrogation is one of the most controversial issues in Islam. At the risk of
extreme oversimplification, many of the verses in the Qurn that were revealed in Makkah
convey a universalistic message of religious tolerance while some of the verses revealed later in
Madnah can be interpreted as "warlike" or intolerant of non-Muslims. If one regards these later
verses as abrogating the earlier ones, one can paint an image of Islam that is narrow and
exclusionary. This is done today both by non-Muslims wishing to criticize Islam but also by
some Muslims (for example the adherents of Al-Q`idah) who contend that the only relationship
between Islam and other religions is one of unavoidable military conflict.
Literally the word naskh means 'obliteration.' Kamali writes:
"Nasakh may be defined as the suspension or replacement of one Sharah ruling by another,
provided the latter is of subsequent origin, and that the two rulings are enacted separately from
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one another. According to this definition, nasakh operate with regard to the rules of Sharah
only, a proviso which precludes the application of nasakh to rulings that are founded in
rationality ('aql) alone."
Kamali makes a number of points in his discussion of the subject:

Abrogation applies almost exclusively to the Qurn and the Sunnah but not to ijm and
qiys.
It is confined to the period while the Prophet (pbuh) was alive.
Ijm cannot abrogate a clear ruling of the Qurn or the Sunnah since one can never
conclude a valid ijm that contradicts the Qurn or the Sunnah.
A Qurnic ruling or a mutawtir adth cannot be abrogated by a weaker adth, by
ijm or by qiys. These are not of equal authority to the foregoing. That is also the
reason why there can be no abrogation after the Prophet (pbuh)s demise.
Statements of fact in the Qurn (such as the destruction of the people of Thamd by a
storm) cannot be abrogated since that would imply that the original statement in the
Qurn had been false.
Some Qurnic teachings (for example the attributes of God) are inherently incapable of
being abrogated.
The text itself may preclude the possibility of abrogation. For example Qurn 24:4 states
that persons who are convicted of slanderous accusation may never are admitted as
witnesses. The word never indicates that this is a principle valid for all time and
therefore not capable of being abrogated.
There are varying views as to whether a hadith can abrogate the Qurn. The general
view is that a ruling of the Qurn may be abrogated by another Qurnic text or by a
mutawtir adth. The anaf view permits abrogation of the Qurn by a mashhur adth
as that is almost as strong as a mutawtir adth.
Conversely Shf and ibn anbl considered that no adth could abrogate the Qurn.
Shfi explains his view by reference to Qurn 16:101 'and when we substitute one ayah
in place of another ayah, and God knows best what He reveals.' According to Shfi, this
text is self-evident on the point that an yah of the Qurn can only be abrogated or
replaced by another yah. That argument is further strengthened by Qurn 10:15 'Say: it
is not for me to change it of my own accord. I only follow what is revealed to me.' which
makes it clear that the Prophet (pbuh) himself cannot change any part of the Qurn.
However Kamali explains that despite Shfis arguments, the majority opinion of
scholars is that the Sunnah can abrogate the Qurn (and vice versa.)

Kamali points out that the scholars are not unanimous about whether abrogation has actually
occurred in the Qurn. He mentions that al-Suy said to have identified 21 occurrences of
abrogation within the Qurn while Shah Wal Allh accepted only 5 of those as genuine
abrogation contending that all of the rest can be reconciled. Another scholar, Abu Muslim alIsfan denied the existence of abrogation in the Qurn altogether. However the majority view
is that abrogation within the Qurn does take place as the yt quoted earlier attest to it. The
commentators in the minority who contend that there is no abrogation consider that the yt
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mentioned in these quotations as being substituted refer not to yt of the Qurn but to previous
Scriptures such as the Tawrh and the Injl.
Kamali accepts the majority view that abrogation has occurred within the Qurn but points out
the divergence regarding the number of instances, quoting the varying counts of abrogation
identified by different scholars:

214 Ibn azm al-hir


213 Wahbatullh Ibn Salmah
247 Jaml al-Dn Ibn Jawz
500 the Mutazilites
66 Abd al-Qdir al-Baghdd
21 Jall al-Dn al-Suyt
5 Shah Wal Allh
Zero Ab Muslim al-Isfan

Kamali goes on to explain the tendency of modern scholars to reduce the instances of abrogation
to the lowest possible number. He points out that some of the large numbers above arise from
confusing nasakh with takh (specification, i.e. making a ruling more specific) and also
occasions where the effective cause of a ruling disappears:
"Similarly, large numbers of Qurnic yat that advocated patience and tolerance towards the
unbelievers were claimed to have been abrogated by the yat that authorized fighting the
unbelievers. There was in reality no abrogation and both rulings were valid under different
circumstances. The earlier yat applied at a time when the Muslims were small in number and
weak, and the latter when they acquired military power."
Kamali goes on to draw upon criticism of the approach of some early Muslim scholars in the
book The Islamic Theory of International Relations: New Directions for Islamic Methodology
and Thought by Abdul md Ab Sulaymn. Kamali writes:
"The broad sweep of nasakh was, however, taken so far as to invalidate a major portion of the
Qurn. This is precisely the case with regard to the ayah of the sword (yah al-ayf) which
reads: 'and fight the polytheists all together as they fight you all together, and know that God is
with those who restrain themselves' (al-Tawbah, 9:36).
Influenced by the prevailing pattern of hostile relations with non-Muslims, some jurists took an
extreme position in interpreting this ayah, and claimed that it abrogated all preceding yat
pertaining to patients, tolerance and the right of others to self-determination. Although scholars
are not in agreement on the exact number of yat that were abrogated as a result, Mustafa Abu
Zayd has found that the yah of the sword abrogated no less than 140 yat in the Holy Book.
Jurists who were inclined to stress the aggressive aspect of jihd could only do so by applying
abrogation to a large number of Qurnic yat, and 'using abrogation in this manner has', Ab
Sulaymn contests, 'indeed narrowed the Qurnic experience' and undermined the egalitarian
substance of its teachings. In many passages the Qurn calls for peace, compassion and

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forgiveness, and promotes a set of moral values such as moderation, humility, patience and
tolerance whose scope could not be said to be confined to relations among Muslims alone."
Kamali's overall conclusion is to express doubt about the theory of abrogation:
"My general comment is that the theory of nasakh and most of its cited examples are also open
to a variety of doubts. Nasakh as a whole is really too controversial to command the alleged
support of the majority (jumhur) of Muslim scholars in its favor. To say that there were instances
where some of the rulings of Sunnah, or even of the Qurn, were amended due to the change of
circumstances is not in doubt. But then to extend the scope of this essentially circumstantial
phenomenon to a juridical doctrine with a theory, definition and typology of its own is less than
warranted. Nasakh is basically factual and has little juridical substance of its own, nor does it
seem to have a direct bearing on the substance of legal theory."

Consensus of opinion (ijm)


Ijm is defined as the unanimous agreement of the mujtahidn (jurists competent to formulate
independent tradition-based opinions in legal or theological matters) at any point in time after the
death of the Prophet (pbuh). It was clearly not relevant while the Prophet (pbuh) was alive since
during his lifetime only he was able to lay down religious decisions. Only the views of
mujtahidn are taken into account; the opinions of laymen do not matter.
Kamali states four requirements for ijm:
1. There must be a number of mujtahidn available when the issue is encountered. Ijm can
never come from a single mujtahid or from a minority of mujtahidn.
2. The majority view of the scholars is that unanimity of the mujtahidn is required to
establish ijm. Accordingly if some scholars dissent, there cannot be ijm.
3. The agreement of the mujtahidn must be demonstrated by their expressed opinion.
4. Although some scholars disagree, the generally accepted view is that any level of dissent
disqualifies the existence of ijm.

Analogical reasoning (qiys)


Qiys is a method for extending the application of Sharah from an original case to a new case
because the latter has the same effective cause as the original case. This does not involve
creating new law but only the extension of existing law. Kamali gives some simple examples:
1. The Qurn in 62:9 prohibits buying and selling goods from the last call of Friday prayer
until the Friday prayer is concluded. Using qiys this prohibition is extended to all other
kinds of transactions since the effective cause, namely diversion from prayer, is common
to all transactions.
2. There is a hadith that the killer shall not inherit from his victim. Using qiys this ruling is
extended to bequests so that the killer can also not benefit from the will of his victim.

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Revealed laws preceding the Sharah of Islam


The scholars are unanimous that all of the revealed religions (Judaism, Christianity and Islam)
are different manifestations of an essential unity. The Sharah of Islam has retained many of the
previous laws while abrogating or suspending others.
This chapter discusses the following alternative propositions:
1. The laws preceding Islam are valid unless they are specifically abrogated by the Sharah
of Islam.
2. The preceding laws are nullified for Muslims unless they are specifically upheld by the
Sharah of Islam.
After discussing the issue, Kamali concludes that proposition two is correct.

Custom (urf)
While the Qurn and the Sunnah are the primary and secondary sources of Islamic law, there are
also tertiary sources.
Kamali defines urf as "Recurring practices that are acceptable to people of sound nature." He
goes on to explain "Custom that does not contravene the principles of Sharah is valid and
authoritative; it must be observed and upheld by a court of law."
In my view this is similar to the way that English common law developed from the customs and
practices of the Anglo-Saxons living in England. It also shows that although the teaching of the
Prophet (pbuh) radically transformed pre-Islamic Arab society; it did not replace previous
practices that did not conflict with Islam. Kamali writes:
"The ulam have generally accepted urf as a valid criterion for the purposes of interpreting the
Qurn. To give an example, the Qurnic commentators have referred to urf in determining the
precise amount of maintenance a husband must provide for his wife. This is the subject of Srah
al-alq (65:7) which provides 'Let those who possess means pay according to their means.' In
this yah, the Qurn does not specify the exact amount of maintenance, which is to be
determined by reference to custom."
Kamali goes on to discuss the requirements for the existence of a valid urf and also points out
that custom will change from time to time as society itself changes.

Presumption of continuity (istishb)


Kamali explains that the word istishb literally means escorting or companionship and is used in
the sense that the past accompanies the present without any interruption or change. He writes:

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"For the Shfites and the anblites, istishb denotes 'continuation of that which is proven and
negation of that which had not existed'. Istishb, in other words, presumes the continuation of
both the positive and negative until the contrary is established by evidence."
As an illustration, if someone who owes a debt claims that it is no longer his liability, he needs to
prove that he has repaid it. Conversely if someone wishes to claim that another person owes him
money, it is up to the claimant to prove that the debt has come into being.

Personal reasoning (ijtihd)


Ijtihad is the most important source of Islamic law after the Qurn and the Sunnah. It
incorporates all of the processes for deriving Islamic law covered in the book such as consensus
of opinion, analogy, juristic preference, considerations of public interest etc. The literal meaning
of ijtihad is "striving" and of course it relates to intellectual exertion rather than physical
exertion.
Ijtihad can only be practiced by an appropriately qualified person, a mujtahid who must be a
Muslim of sound mind who has attained a level of intellectual competence that enables him to
form an independent judgement. There are detailed requirements regarding expert knowledge of
the Arabic language, of the Qurn including the details of the revelation of its verses, of the
hadith and of the work of earlier religious scholars.
Ijtihad is not possible where there is an existing clear ruling of the Qurn or the Sunnah.
However ijtihd may be practiced where the meaning of the text of the Qurn is unclear, where
a adth is unclear or where a adth is clear in its terms but the reliability of the adth is
uncertain.
Ijtihd is a religious duty; once a person is appropriately qualified as a mujtahid he may no
longer follow the rulings of others by imitation (taqld) but must reach his own decision by
practicing ijtihd and his conclusion then becomes binding upon himself.

The divisibility of ijtihd


The scholars disagree on the question of whether qualification to practice ijtihd is divisible.
Some consider that the requirements to be a mujtahid can only be met in full and that once
somebody is so qualified he can practice ijtihad in all areas of the Sharah.
Conversely other scholars consider that a person can be learned in a particular area of the
Sharah only and be qualified to practice ijtihad within that limited area but not within other
parts of the Sharah. In practice many of the most prominent imams have acknowledged their
limited knowledge in certain areas; Imm Mlik is said to have admitted that for at least 36
issues he did not know the right answer even though there are no doubts regarding his
competence as a fully-fledged mujtahid.

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Did the Prophet (pbuh) practice ijtihd?


Kamali has a section discussing this interesting question. The scholars generally agree that the
Prophet (pbuh) practiced ijtihd in temporal and military matters, but differ regarding whether he
practiced ijtihd on Sharah questions.
Some scholars point to Qurn 53:3 'he says nothing of his own desire, it is nothing other than
revelation sent down to him. They contend that this yah implies that all of the rulings of the
Prophet (pbuh) consist of divine revelation so that none of them constitute ijtihd.
Kamali explains that the majority view is that in the above yah "it" refers to the Qurn itself
and not to every word that the Prophet (pbuh) spoke. In particular, there are instances in the
Qurn where earlier decisions of the Prophet (pbuh) are overruled and he is reprimanded by
God while being given a divine pardon for his mistakes. This majority view is also supported by
the Sunnah, for example the adth 'when I do not receive a revelation, I adjudicate among you
on the basis of my opinion.'

Restrictions on ijtihd
As part of a drive to impose restrictions on ijtihd, the scholars of the fifth/eleventh century
classified the right to practice ijtihd into different categories, eventually reaching seven
categories:
1. Full mujtahid who derives rulings from the evidence in the original sources without being
restricted by the rules of a particular school of thought. Quite critically, with the
exception of the Hanbl school, the other three schools of thought concluded that
independent ijtihd had been discontinued; the so-called "closure of the gate of ijtihd."
2. Mujtahidn who are limited to expanding the law within the confines of a particular
school of thought while adhering to the principles lay down by the imm of that school.
3. Mujtahidn on particular issues only. While the practitioners within these first three
categories are called mujtahidn, the scholars in the following four categories have been
classified as imitators.
4. The ab al-takhrj who did not deduce rulings but were knowledgeable about existing
doctrine and able to indicate which view was preferable in cases of ambiguity or for
particular prevailing conditions.
5. The ab al-tarj who were competent to make comparisons and distinguish the
correct/authentic (a), the preferred (raja, arja) and the agreed upon (muft bih)
views from weaker ones.
6. The ab al-tashh who could distinguish between the manifest (hir al-riwyah) and
the rare or obscure (al-nawadir) views of the schools of thought to which they belonged.
Kamali points out that categories 4-6 overlap somewhat and could easily be consolidated
into one.
7. The muqallidn (imitators) who lack the abilities of any of the above classes.

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Over the last 200 years there has been movement back towards the wider practice of ijtihad,
seeking to renovate Islam by going back to the original sources of the Qurn and Sunnah rather
than being confined to the rulings of earlier jurists.

A new scheme for Ul al-fiqh


Kamali points out that the methods of ul al-fiqh are conspicuously absent in the legislative and
judicial decision-making processes of contemporary Muslim majority countries. He points out
the theoretical orientation of ul al-fiqh:
Usul al fiqh is often described as a theoretical, rather than empirical, discipline, which is studied
more for its own sake than as a means by which to develop the law in relation to new issues. This
is one of the problems of the legal theory of ul, which took a turning for the worse with the
domination of taqld around the fourth/tenth century. With the so-called closure of the door of
ijtihad, the ulama resorted less and less to the sources of Sharah for finding solutions to
problems. Instead of addressing social issues and attempting to find new solutions, the ulam
of later ages (al-mutaakhkhirn) occupied themselves mainly with the elaboration, annotation,
abridgement, summaries and glossaries of the works of their predecessors. At first, ijtihad was
discouraged. Then in the fifth/eleventh and sixth/twelfth centuries, scholars were restricted to
tarj, or giving preference to the opinion of one Imm or another on questions of fiqh. However
tarjih was also discouraged and scholars were restricted to choosing between rulings within a
single madhhb [school of thought]. In this way the door to independent legal thought was shut
and then barred.
Kamali emphasizes the lack of empiricism in the work of the ulam and the fact that they paid
little attention to developing systematic rational knowledge regarding law and social structure.
He also points out that ul al-fiqh was developed by private jurists working in isolation from
government and often with unfriendly relations with government. This rift began with the
Umayyad rulers and became deeper under the Abbsids.
He considers that ul al-fiqh could be considerably improved by integrating the Qurnic
principle of consultation into its procedures and also by becoming more connected with the
practicalities of government.

Conclusion (Kamali's last chapter)


Kamali reminds us that Sharah is not static:
It is equally evident that the methodology of ul al-fiqh would have little meaning and purpose
if the Sharah were meant to be a fixed and unchangeable entity. Ul al-fiqh is predicated on
the idea of development and growth, and functions as a vehicle of accommodation and
compromise between the normative values of Sharah and the practicalities of social change.
Overall, he seeks some form of integration between the elected representative assemblies that
democratic Muslim majority countries that have set up and ul al-fiqh.
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Reviewers concluding comments


Despite being 500 pages long, the book was easy to read because the importance of the subject
matter and Kamalis clear writing style keeps one reading. He brings out the differences between
the various schools of thought, and is not afraid to offer his own opinions.
Reading the book will give both Muslims and non-Muslims a much deeper appreciation of the
richness of Islamic thought. It shows the great care Muslims have taken over the interpretation of
the Qurn and Sunnah, and how they were able to extend these sources to generate new law as
circumstances changed.
All too often, some Muslims assert that theirs is the only true interpretation of Islam, with their
assertions often being accompanied by threats of takfr (pronouncement that a person has ceased
to be a Muslim) directed against anyone who dares to disagree with them. Reading this book will
equip Muslims to treat such assertions with the skepticism that they deserve.

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