Welcome to the Class of

Islamic Jurisprudence
By:
Prof Madya Dr Md Anowar Zahid
Faculty of Law, UKM
Tel: (03) 8911-8443
Cell: 019-3668390
E-mail: anowar_zahid@ukm.my

1 Thursday, May 10, 2018

  Lecture 1:
Part I of Islamic Jurisprudence: Preliminary Matters

2 Thursday, May 10, 2018

 Synopsis:

 Meaning and Definition of Usul al-fiqh

 Nature, Scope and Importance of Usul al-fiqh
 Development of Usul al-fiqh
 Recapitulation and Conclusion

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 I. Meaning and Definition of Usul al-Fiqh

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 I. Meaning and Definition of Usul al-
Fiqh (cont’d.)

 General Meaning of Usul-al-Fiqh:

Principles of Lawmaking

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 I. Meaning and Definition of Usul al-Fiqh
(cont’d.)
Two constituents: Usul and Fiqh
1. Fiqh
• Literal Meaning: Understanding
• Technical Meaning: two meanings-
 Lawmaking/how the law is made: The Knowledge of Shar’i ahkam (legal
rules given by the Lawgiver, ALLAH), pertaining to conduct (of the
subjects of the hukm), that have been derived from their specific evidences
in texts (Qur’an and Sunnah) or extended through reasoning from general
propositions of the Shari’ah in the light of its maqasid.
(See Nyazee, Islamic Jurisprudence (2000), at p. 31)
 Shar’ i ahkam (legal rules) themselves.

• 2. Usul:
Principles by the use of which the mujtahid (high ranking jurist) derives the Shari’i
ahkam from Shariah sources.

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  Dissection of the Definition
 The Knowledge of Shar’i ahkam (legal rules given by
Lawgiver, ALLAH), pertaining to conduct (of the
subjects of the hukm)
 Those rules are
o derived from their specific evidences in texts (Qur’an
and Sunnah), OR
o extended through reasoning from general propositions of
the Shari’ah in the light of its maqasid (objectives of
Shari’ah).
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  Component One:
 Rules related to human CONDCUCT (actions/a’mal)
 Belief (Imaan) is not the concern of this field of knowledge

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  Component Two:
 How the rules are made
In two ways rules are made:
o Directly received from the sources (Qur’an and Sunnah) or
by analogy (qiyas)
o If the first method is not helpful, rules are made by applying
general principles or Islamic law or the maqasid (objectives)
of Shari’ah.

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 I. Meaning of Usul al-Fiqh (contd.)
 Lawmaking by the first method (i.e.,
The Knowledge of Shar’i ahkam …derived
from their specific evidences in texts)
Methods:
1. Literal application of qat’i rulings,
2. Interpretation of zanni rulings, and
3. Analogical deductions (qiyas)

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  Lawmaking by the first method (continued):
 Methods 1 & 2: Lawmaking from qat’i/zanni rulings:
Example-1:
 Is wine prohibited?
 “O ye who believe! Wine and Gambling… are filth- a work of
Satan’s (Devil); avoid such (abomination), that ye may prosper.”
[Al-Maida 5:90]
 Rule (hukm) derived from the source of Qur’an: Wine is
forbidden.
 Principle applied: “Everything is permissible unless
prohibited”

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 I. Meaning and Definition of Usul al-Fiqh
(cont’d.)
 Lawmaking by the first method (continued):
Example-2:
Methods 1 & 2: Lawmaking from qat’i/zanni
rulings:
 Is misappropriation of trust property allowed?
 “A” is an orphan
 “B” is the trustee of his trust property
 “B” misappropriated the property
 Is “B” liable under Islamic Law?

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 I. Meaning and Definition of Usul al-Fiqh
(cont’d.)
A rule (hukm) is found in the Qur’an:
 “Devour not each other’s property unlawfully” (Qur’an, 2:188)
 “Give unto orphans their wealth. Exchange not the good for the
bad (in your management thereof) nor absorb their wealth into
your own wealth. Lo! that would be a great sin.” (Qur’an, 4:2)

 Hukm (rule) derived: Misappropriating trust property is

haram (prohibited)
 Principle applied: “Everything is permissible unless
prohibited”

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  Lawmaking by the first method (continued):
 Lawmaking Method 3: Analogical deduction (qiyas):
Example:
1. Specific Qur’anic rule: Wine is prohibited (as seen above)
2. How about narcotic drugs/products like marijuana? Are they
prohibited? Can we extend this rule to them? What is the reasoning
behind the rule?
We can extend the rule of prohibition by qiyas
(analogy/comparison) as both (wine and narcotic drugs)
have the same effective cause (‘illah), namely intoxication.

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  Lawmaking by the second method (i.e., The Knowledge
of Shar’i ahkam (legal rules)… extended through
reasoning from general propositions of the Shari’ah in
the light of its maqasid):
Example:
 How about smoking, which is not intoxicating, but harmful for
human health?

We cannot apply qiyas, but still can extend the rule by maqasid Shari’ah, which is to
do good to mankind and to remove their harms with respect to five main things-
religion, life, family, intellect and property. Here smoking is harmful to health
(life). So, a rule should be made (haram/makruh) to remove this harm.

15 Thursday, May 10, 2018

  Components of the Definition, which are subjects
for Discussion in this Course:
 Law (Hukm) and its three elements, namely Lawgiver (Hakim),
Object of the Law (mahkum fih) and Subject of the Law
(mahkum ‘alayh)
 Sources of law (Hukm), e.g., Qur’an, Sunnah
 Methodologies and methods by which law (hukm) is made
from the sources, namely verbatim adoption and
interpretation, analogical deduction (qiyas), general
principles and objectives of Shariah (maqasid al-Shari’ah)

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  II. Nature, Scope and Importance of Usul
al-Fiqh

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 Nature: Of Divine origin and stable nature unlike Western
jurisprudence which is “a chaos of approaches to a chaos of
topics, chaotically determined” (Curzon, Jurisprudence, p. 13)
Scope: Concerned with sources and the procedure of deriving
rules from those sources
Importance: Regulation of Ijtihad (interpretation and making
law)

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  III. Development of Usul al-Fiqh

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 Prophet’s Time (610-632 AD)
 Methodology of the Prophet’s Lawmaking, such as direct
revelation (wahy), qiyas, custom, etc.
 Prophet’s Approval of his Companions’ Practice of Ijtihad (Hadith
Muadh bin Jabal )
Time of the orthodox Caliphs (632-661 AD)
 Caliphs’ Methodology- Qur’an, Sunnah, Ijma’, Qiyas and maqasid
Examples:
Punishment for drinking alcohol (qiyas with qadhf)
Suspension of hadd punishment for theft (maqasid)
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 III. Development of Usul al-Fiqh (contd.)
Post-Orthodox Caliphs (661 AD-today)
• Umayyad Period (661-717 AD):
two divergent approaches of Prophet’s Companions and
their students to ijtihad (interpretation):
 Strict approach (Makkah-Madinah approach) called Ahl
al-Hadeeth
 Liberal approach (Bagdad approach) called Ahl al-Ra’y.
Examples: use of qiyas, custom as a source of law.
• Abbassids period (717-833 AD)
The Rise of Main Four Theories of Interpretation (Juristic
Schools) as Practiced today
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 III. Development of Usul al-Fiqh (contd.)
Abbassids period (717-833 AD) (cont’d.)
A Brief Overview of the Juristic Schools
o Liberal Theory of Interpretation:
 Hanafi School
o Strict Theories of Interpretation:
 Maliki School
 Shafi’i School
 Hanbali School
Example: No marriage without a guardian (Ahad
Hadith)
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  Basic Divergent Features of the Schools:
Hanafi-
Qur’an is the supreme source and Sunnah next to it. In case of their conflict, the
Qur’an will be preferred. Qiyas (analogy) used to be made very frequently.
Maliki-
Sunnah supported by Madina practice acceptable. Qiyas used as a means of law but on
the basis of the consensus of the people of Madinah.
Shafi-i-
Sunnah is the explanation of the Qur’an. So, Sunnah apparently contradicting the Qur’an
was equally acceptable. Though qiyas used to be made, Sunnah was preferred to qiyas.
Hanbali-
All sunnahs are acceptable. Qiyas was the last resort.
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  IV. Recapitulation and Conclusion

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  Usul al-Fiqh: Principles of interpretation of texts
 Nature, Scope and Importance:
 Divine origin and stable
 Concerned with sources of law and procedure of making rules
from law
 Chain relation between social needs, lawmaking and ijtihad
 Development of Theories:
 Enrichment of the legal system and not a disintegration/division
of the Muslim World?

25 Thursday, May 10, 2018