An Introduction to

Islamic Jurisprudence (Usul al-Fiqh)

Definition and Historical Background

Dr. Muhammad Yusuf Saleem

International Center For Education in Islamic Finance (INCEIF)

INCEIF 2014

Definition
Usul literally means foundation or basis upon which
something else is built.
The meaning of Fiqh
The knowledge of the legal rules (Al Ahkam Al
Shariyyah), pertaining to conduct that have been
acquired from the detailed evidence in the sources(the
Quran and the Sunnah)

The early definition of fiqh was provided by Abu

Hanifah as: the knowledge of self, its right and
obligations

 Usul al-Fiqh is a body of principles and methods by

which the detailed rules of Fiqh are deduced from
their sources


Usul al-Fiqh deals with the
Sources of Shariah and
Methods of deduction of rules and rules of interpretation

Fiqh in contrast, is more concerned with the

knowledge of the detailed rules of Islamic law
The broader and technical meanings of Fiqh

Usul al-Fiqh as a
Methodology
Fiqh is the law while Usul al-Fiqh is the
methodology of Fiqh
The words of Allah (swt) and human reason
Reason is not an independent source of knowledge
Reason is subjective
Need for a set of rules and standards to
Release reason from subjectivity
Evaluate the arrangements of thought and propositions

Reason has to rely on certain tools for the

investigation of the truth
These tools differ from discipline to a discipline

The Meaning and Significance of

Methodology
A methodology deals with a particular field of enquiry
Methodology determines
The sources from which a particular knowledge can be derived
By setting standards for the acceptability of sources/evidence
By determining the role of reason in an investigation

The suitability of the methods and techniques of reasoning

employed in a particular field of enquiry

By providing standards for the acceptability of evidence and

a set of methods for a systematic ordering of thoughts, a
methodology liberates reason from subjectivity and
personal inclinations
Methodology
Provides a framework or guidance for reasoning
Puts certain restrictions and limitations on reasoning

The Meaning of Methods

A method is defined as a systematic arrangement and
ordering of thoughts
A method teaches us how to arrange thoughts, propositions
and arguments in a way appropriate to the investigation of
a certain proposition or observation
It refers to
a procedure or way of investigation according to a defined and
regular plan
A structured reasoning such as induction or deduction where
thoughts progress in an orderly way from one stage to another
until they reach a certain objective and convincing conclusion

Method also refers to research techniques and tools used to

gather data such as observation, case studies, or surveys or
experimentation

Objectives of Usul al-Fiqh

To enable a jurist to
Obtain adequate knowledge of the Sources
of Shariah
Provide the jurists with methods to guide
them in their efforts to derive rules from
the sources
Identify the most suitable method for the
derivation of a particular Fiqh rule
Identify the weakness of an ijtihad and to
give preference to another ruling of ijtihad

The Academic Basis of Usul

al-Fiqh
Although Usul al-fiqh is an independent discipline, it is based on
certain fundamental presumptions which are derived from several
other disciplines
Sciences of Quran and Hadith
The knowledge of causes of revelation, Makki and Madani surah, abrogation
Transmission of hadith and the criteria for its acceptability

Logic
Conceptual principles, definitions, validity of conclusion based on inductive
reasoning, etc.

Scholastic theology (ilm al-kalam)

Whether reason alone can decide what is right or wrong
The place and status of reason

General linguistic rules

Classification of words into metaphorical and literal, general and specific,
etc.

Historical Development
Usul al-fiqh as a discipline did not
exist during the time of the Prophet
(pbAbuh) or the companions
During Prophet's time all legal rulings
of the Shariah and fundamentals of
faith were derived from:
The Quran
The Sunnah of the Prophet

Ijtihad during the Prophets time

The Madrasah of the Prophet
The use of personal opinions in matters of Shariah gets its legitimacy
from the
Quranic injunctions that commands the use of reason
Inviting people to read Al-kitab and use their rational power (Aql) and Tadabbur

Instructions of the Prophet to his companions to apply reason to problem not

addressed by the Quran or Sunnah

The companions learned and understood the Quran, Sunnah and the
objectives of Shariah and the wisdom behind it
They witnessed all the situations in which the Prophet gave judgment
They understood the context in which the incidents took place and
judgments were given
If the Prophet would praise some one's action
Approved

If the Prophet would not praise some one's action

Disapproved

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The companions practiced ijtihad in response to the
situations which actually occurred to them
Their ijtihad, if approved, would become part of the Sunnah
The concept of Ijtihad at that time was confined to the
following:
When a text had more than one interpretation, personal opinion
would be used to apply the one which a companion thought was
the most suitable meaning.
For e.g. when the Prophet ordered Muslims to move toward the territory of
Banu Quraidha and pray their Asr there. Some prayed on their way and
understood Prophet's order to mean to reach the place as soon as possible
other delayed their prayer until they reached the place. The Prophet did
not oppose the actions of both the groups
The literal understanding of the Prophets order
The purposive understanding of the Prophets order

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Analogy
when an issue or matter would be compared
with another issue or matter dealt with by
the Quran

Using personal opinion to allow

beneficial things or to prohibit things or
actions that would lead to harm and
wrongdoing
Deriving a particular ruling from a
general statements

 Later on the understanding of the revelation

necessitated the rules of interpretation and
the existence of methods
To understand the implications of a given text
when it is not self evident
Is it literal meaning (haqiqi)or metaphorical
(majazi)
Is it particular (khas) or general (aam)
whether it conveys obligation (wujub),
recommendation (mandub), permissibility (halal),
abomination (makruh) or prohibition (haram)

Caliphs Period
Abu Baker's (r.a.) method
First he would refer to the Quran and the Sunnah
If a solution not found he would refer to companions if they
knew of the Sunnah of the Prophet on the point
If found he would give judgment according to the Sunnah
If not he would consult with the leaders of the companions and
based on their agreement he would give the judgment
If this method also failed, he would use his personal opinion or
ijtihad ( ) either by interpreting a text, or by providing his
opinion
E.g. waging war against those who refused to pay zakat

Qiyas and Ijma' of the companions were widely used

E.g. the decision that a Caliph should be appointed, that apostates
should be fought, that the Quran should be collected and written

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Umars (r.a.) Method
In addition to the methods used by the
first Caliph
Umar (r.a.) would also refer to the
purpose and aim of shariah
The reason for prohibition
Prevent wrong doings or corruption
(fasad)
Public interest

 Not giving a share of the zakat fund to those who had

recently embraced Islam or would return to Islam
Not to distribute the conquered land in Iraq among the
soldiers
Suspension of the Hadd punishment for theft at the time
of famine
Permission to the women to remarry in case if their
husbands are not heard of for a period of 4 years- in place
of the condition of information of the husband's death
The punishment for a group of people who jointly killed
one person
The extension of the practice of Aqila

 During Caliph Usman time there

were not many decisions
collection of the Quran

Ali (ra)Used to formulate his own

opinions by means of Ijtihad, based
on Qiyas, Istishab and the broader
objectives of the shariah

 During Caliph Usman's time the companions spread

out in different parts of the Muslim world and occupied
the positions of intellectual and religious leadership
They were approached by the people of their regions
for decisions regarding various problems
They gave their decisions either
According to what they had learnt and retained in their
memory from the commandments of the Prophet
According to what they understood from the Quran and the
Sunnah.

Often they formed an opinion by looking to the Shariah

value which led the Prophet to take a decision

Reasons for Differences of

opinions
1- Different interpretations of the Quranic verses
The interpretation of the Quran caused differences of opinion
among the companions.
The points on which the Quranic injunctions were either silent
or ambiguous were to be explained. These verses were some
time interpreted in the light of the traditions from the
Prophet, and some times on the basis of opinion
"2:228 "
"Women who are divorced shall wait, keeping themselves
apart, three courses.
Abdullah ibn Masud, Ali, and Umar (ra) interpreted to
mean menstruations.
Aisha, Abdullah ibn Umar and Zaid ibn Thabit interpreted
to mean the period of purity between menstruation

 2- Differences also arose with regard to Hadith due to

certain factors:
Non-availability of hadith
E.g. the Hadith on Riba al-fadhl
According to Abdullah ibn Abas and Usamah ibn Zaid there is no
Riba except on loan.
Abu Said al-Khudri, Ibadah ibn Samit, Abu Hurairah and Uthman ibn
Affan reported the famous Hadith on Riba in six commodities in a
hand-to-hand transaction.
The first opinion was later rejected in favor of the second opinion on
the basis of Ijma'

In some case a Hadith was not known to a companion, and

he therefore decided a problem brought to him on the basis
of his opinion. When the relevant tradition was brought to his
attention, he withdrew his personal judgment

 3-Another factor that produced difference of

opinion among jurists was the exercise of personal
opinion (ijtihad)
For example Ibn Mswoud was asked about a womans
entitlement to dower (mahr) if her husband died without
fixing its amount and consumatinging the marriage
His view- she is entitled to the average dower which a
woman of her social standing might expect, received full
share in the inheritance of her husband and that there
would be a period of waiting (iddah)
In the opinion of Abdullah ibn Umar and Zaid ibn Thabit
such a widow would not receive any dower but is entitled
to her share in the inheritance

The Period of the scholars of the

Successors ()
Most of the successors who gave fatwa lived with the fuqaha
among the sahabah. Their methods of giving fatawa did not
differ from those of the sahabah
The successors
Retained in their memory ahadith of the Prophet and the opinions of his
companions
Took their stand on the opinions expressed by the companions
Attempted to reconcile the opposite views

With the end of the successors period, there began a period

wherein the followings were in circulation in each principal town
Different interpretations of some Quranic verses
the traditions of the Prophet
the opinions and decisions of the companions and
the opinions and decisions of the successors

 There were also differences among the jurists in

each principal town
In the absence of a procedure to guide personal
opinions differences increased
Contradicting legal decisions were given on the
same case in the same city and at the same time
In order to unify legal opinions Umar bin Abdul Aziz
decided that:
That the practices and sayings attributed to the Prophet
should be collected and written down
That fatwa should be given by certain scholars named by
the khalifa

The time of Imams of Ijtihad

The fuqaha of this period took the
Ahadith of the Prophet
Legal decisions of the Caliphs
Legal scholarship of the sahabah and the 3 rd
generation
and then produced their own ijtihad

They cited the opinions of the

companions and the successors as
evidence to support their own arguments

The Traditionalist and

Rationalist Schools
Differences in legal opinions were also due to local and regional factors
After the time of the Successors the people began grouping themselves
on the basis of their differences in deriving legal points from the sources
The jurists of different regions based their decisions and legal verdicts on
the opinion and decision of the Companions and successors who lived in
their respective places
The jurists of Madinah derived their legal knowledge from the reports and
verdicts of Umar, Abdullah ibn Umar and Aisha (ra)
The jurists of Iraq derived their legal doctrine from the reports, opinions
and judgments of Ali and Abdullah ibn Masud (ra)
There emerged the two early schools of
Hijazi or Medina School-the traditionalist ( )
Iraqi or Kufa School-the rationalist ( )

They were engaged in intense legal activities had different approaches

on how to derive legal rules from the sources

 The center of Traditionalist school (

) was in Madinah, Hijaz because the
great number of ahadith was known to the
people of that area
In addition there were the fatwa and reports
of the four caliphs and the Companions and
they did not need to use deductive
reasoning ( )in order to derive law
The region was more stable- no changescontinuation

 The school of Rationalist ( ) was

centered in Kufah, Iraq
There were comparatively few ahadith in circulation
Kufah was the new capital of Caliphate and
attracted new people from different backgrounds
great number of legal problems, unprecedented
legal issues
The fabrication of hadith became wide spread. The
scholars were forced to lay down condition for the
acceptance of ahadith
only few ahadith given by few Companions living in
Iraq were accepted

 The scholars of this group thought that legal

interpretations of the Shariah should
Have a basis in reason
Take into account the best interest of the people
Be backed by wisdom

They in many cases would give legalistic

preference to the reason when it conflicted with
the evidence of certain categories of ahadith
(ahad hadith)
Applying different criteria for determining the
authenticity of a certain ahadith

From Geography to
Personalities
The principal scholar and teacher in Madinah was
Imam Malik
Taught Hadith and had his own collection of Ahadith
(al-Muwatta)
The practice of the people of Madinah (amal ahlMadinah)

The principal scholar and teacher in Kufah was

Imam Abu Hanifa
Had access and relied on fewer Hadith
Deductive reasoning (Qiyas) and juristic preference
(Istihsan)
Custme (Urf)

 Imam Shafi'i was born in 150 AH

Studied Fiqh first in Mecca, went to Madinah studied hadith from
Imm Mlik ibn Anas and memorized his al-Muwatta
Went to Iraq and attended the study circles of Imam Muhammad
al-Shaybani.

Imam Shafi'i did not agree with some approaches of Ahl al

Hadith,
The practice of the people of Madina,
The ijma of the people of Madinah

He also could not agree with the rationalist camp (ahl-alrai) for imposing overly strict conditions for the acceptance
of Hadith with regard to the narrators reliability.
He was unavoidably drawn into disagreement

 At first Shafi'i was more inclined towards ahl al hadith,

defending their positions, giving them leadership and
supplying methods of defense against the advocates of
rationalist school
Later on after settling in Egypt, Shafi'i seems to have
felt more strongly the need to strike a balance between
the two schools of thought, and he sought to find a
common ground of agreement
When Shafi'i came on the scene, he found a wealth of
juristic thought and arguments on methodological
issues
These were later sifted and articulated by Imm Shafi'I
in his Risalah

 Imm Shafi'i came to the conclusion that a methodology

was needed
to collect the principles of jurisprudence (usul al-fiqh)
to organize the basic rules for their application
to develop a methodology by means of which question of Fiqh may
be decided through proper recourse to valid and relevant forms of
evidence.

The application of these methods would produce a Fiqh that

would provide an alternative to the two established schools
of legal thought.
It was for this purpose that he wrote al-Risalah ( )
which is the first work of authority on Ushul al Fiqh.
He built his Fiqh on the foundations and principles
expounded in that book

 With the expansion of conquest and the consequent

widening of the outlook of Islam these early scholars and
legists had to undertake a wide view of things, and to study
local conditions of life and habits of new peoples that came
within the fold of Islam. Mohammad Iqbal, The
Reconstruction of Religious Thought in Islam. Iqbal referring
to the emergence of almost 19 schools of law from the
middle of the 1st century to the beginning of the 4th century.
He further says: The schools of law are "individual
interpretations and as such cannot claim any finality".
The founders of our school never claimed finality for their
reasoning. Each generation should be permitted to solve its
own problems in the light of their own experience guided by
Qur'an and the Sunnah.

 It was due to the needs of everyday practical life

that fiqh, and not economics and social sciences
in general, got the greatest attention from the
Muslim jurists in the formative history of Islamic
law. This focus on the actions, rights, and duties
of an individual Muslim has subsequently
influenced the later efforts of Muslim jurists in
developing a methodology for fiqh. Usul al-fiqh
has the most comprehensive methods for legal
reasoning. Saleem, Methods and Methodology in
Fiqh and Islamic Economics, Review of Islamic
Economics

Thank You

Dr. Muhammad Yusuf Saleem

Tel No. 603 7651 4161
Tel:
+603 2781 4000
Email: yusuf@inceif.org

Email:
Website: www.inceif.org

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