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The Approach of the Islamic Sacred Law PDF Print E-mail

The Approach of the Islamic Sacred Law



This is an abridged exceprt from the Book: “Islamic Jurisprudence” by Dr. Taha Jabir al-Alwani.

Writers on Islamic legal history emphasize that the rationalist school of Ahl al-Raʾy (people of reasoning) was an extension of the school of Sayyidunā ʿUmar and ʿAbdullah ibn Masʿud radiyaLlahu ‘anhuma who, among the Ṣaḥabah (companions of the Noble Prophet), were the most wide-ranging in their use of ra’y (opinion/reasoning). In turn, ʿAlqamah al-Nakhaʿi (d. 60 or 70 AH), the uncle and teacher of Ibrāhim al-Nakhaʿi, was influenced by them. Ibrāhim then taught Ḥammad ibn Abū Sulaymān (d 120 AH) who, in turn, was the teacher of Abū Hanīfah rahimahumuLlah ta’ala.

The same historians stress that the traditionist school of Ahl al-Ḥadīth (people of the traditional transmission) 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 ‘Abdullah ibn ‘Umar ibn al Khattab, ‘Abdullah ibn ‘Amr ibn al ‘As, al-Zubayr, and ‘Abdullah ibn ‘Abbas radiyaLlahu ‘anhum.

The school of Ahl al-Raʾy, on the other hand, gained currency in Iraq. The scholars of this group thought that legal interpretations of the Sharīʿah (penal code) should have a basis in reason, should take into account the best interests of the people, and should be backed by discernable wisdom.

It was in response to a request from Ahl al-Ḥadīth, that al Imam al-Shafiʿī wrote his book, al-Hujjah (The Argument), in Baghdad, in order to refute the arguments which Ahl al-Raʾy brought against him.

Thereafter, al-Imam al-Shafiʿī  travelled to Egypt where he found that most of the people adhered strictly and unquestioningly to the opinions of Malik. Consequently, al-Imām al-Shafiʿī  began a critical analysis of al-Imām Malik’s legal opinions, and found that in some cases, “…he (Malik) formulates opinions on the basis of a general principle, while ignoring the specific issue; whereas at other times he gives a ruling on a specific issue and ignores the general principle.”

Al-Imam al-Shafiʿī  also found that al-Imām Malik’s opinion that the Ijma’ of the people of Madinah could be treated as source-evidence was, in fact, not very strong. He wrote a book entitled Al-Ikhtilaf maʿa Malik “Disagreement with Malik,” in which he dealt with all of the matters mentioned above.

With these matters in mind, then, al-Imam al-Shafiʿī rahimahuLlahu ta’ala came to the conclusion that the undertaking most deserving of attention was the collection of the principles of jurisprudence, the organization of the basic rules for their application, and the development of a source methodology by means of which questions of Fiqh (juridistic treatment) may be decided through proper recourse to valid and relevant forms of evidence. Thus, Fiqh might become the practical application of this methodology, so that a new Fiqh might emerge as an alternative to the two established schools of legal thought.

It was for this reason that al Imam al Shafiʿī  wrote the Risalah (the Letter), and built his Fiqh and legal teachings on the foundations of the principles and methodology he expounded in his book.

Al-Imam Ahmad ibn Hanbal said: “Until al-Imam al-Shafiʿī  came along, we never thought of things like the general and the specific al-ʿumum wa al-khuṣuṣ”.

The scholars writing on the subject of the history of Usul al-Fiqh (fundamentals of the juridistic treatment) are unanimously agreed that the first writer on the subject was al-Imam al-Shafiʿī rahimahuLlahu ta’ala, and that the first book ever written on the subject was the Risalah.

Al-Imām Al-Zarkashi rahimahuLlahu ta’ala (d 794 AH) in his book, al-Bahr al-Muhit, devoted a chapter to this, in which he said:

“Al-Imam al-Shafiʿī  was the first to write about Usul al-Fiqh. He wrote the Risalah,  Ahkam al-Qur’an (Legal Interpretations of the Qur’an), Ikhtilaf al-Ḥadīth (Conflicting Ḥadīth), Ibtāl al-Istihsan (The Invalidity of Juristic Preference),  Jima’ al-’Ilm (The Congruence of Knowledge), and al-Qiyas (Analogical Reasoning), – the book in which he discussed the error of the Mu’tazilah group, and changed his mind about accepting their testimony. Then, other scholars followed him in writing books on al-Usul.”

Al-Imām al-Juwaynī rahimahuLlahu ta’ala, in his commentary on the Risalah, wrote:

“No one before al-Imām al-Shafiʿī  wrote books on the subject of al-Usul, or had as much knowledge as he concerning it. It is related that Ibn ʿAbbās mentioned something about the particularization of the general, and that some of the others among the early scholars made pronouncements which suggested they understood these principles. Still, those who came after them said nothing about al-Usul, and they contributed nothing to it. We have seen the books of the Tābiʿūn (successors of the companions of the Noble Prophet) and the third generation (the successors of the successors of the companions of the Noble Prophet), and have found that none of them wrote books about al-Usul.”



This is the risalah of al-Shafi’i

It is sufficed as a praise for al-Shafi’i that he is al-Shafi’i

It is sufficed for al-Risalah as an eulogy that it is a writing of al-Shafi’i

It is sufficed for me as an honour that I am spreading among people the knowledge of al-Shafi’i .

Imam al-Shafiʿī rahimahuLlah ta’ala wrote al-Risalah twice, (1) The old Risalah, and (2) The new Risalah. The old Risalah is the one that Imam al-Shafiʿī rahimahuLlahu ta’ala wrote in response to the request of ‘Abd al-Rahman ibn Mahdi. The new al-Risalah was authored after he completed most of the books in al-Umm.

The preferred opinion is that Imam al-Shafiʿī dictated the new Risalah to Imam al-Rabiʿ. Only two copies of the original al-Risalah are found, the copy of Imam al-Rabīʿ and Ibn Jamāʿah. Among those who heard al-Risālah from the copy of Imam al-Rabīʿ are al-Ḥāfiẓ al-Ḥumaydī ṣāḥib al-Jamʿ bayn al-Ṣaḥihayn, al-Ḥāfiẓ Ibn Mākūlā, al-Ḥāfiẓ Ibn ʿAsākir, al-Ḥāfiẓ ʿAbd al-Qādir al-Rahāwī and others. (Muqaddimah of al-Risalah by Shaykh Aḥmad Muḥammad Shākir)

Imam al-Shafiʿī ‘s Risalah dominated studies in Islamic jurisprudence from the moment it appeared. As a result of it, the scholars divided into two groups. One group, the majority of Ahl al-Ḥadīth, accepted it, and used it in support of Imam al-Shafiʿī’s madhhab (school of law).

Some of these scholars devoted their attention to producing commentaries on al-Shafiʿī ‘s al-Risalah:

   1. Abu Bakr Muhammad ibn ‘Abd Allah (SWT) al-Ṣayrafi (330 H) It is said that he is the most knowledgeable on usul after Imam al-Shafi’ī. His commentary was mentioned in the Kashf al-Zunun, Tabaqat al-Shafiʿiyyah and khutbah of al-Bahr by al-Zarkashi.
   2. Abu al-Walid al-Naisābūrī Ḥasān ibn Muḥammad ibn Aḥmad al-Qurashī (349 H). He is the student of Imam Ibn Surayj and the teacher of al-Ḥākim Abū ʿAbdillah and the author of al-Mustakhraj ʿala Ṣaḥīḥ Muslim. His commentary was mentioned by Kashf al-Zunun al-Zarkashi. He passed away on Fridah, 5 Rabīʿ al-awwal 349 H.
   3. Al-Qaffal al-kabīr al-Shāshī Muḥammad ibn ʿAlī ibn Ismaʿīl. He was born on 291 H and passed away in the year 365 H. He commentary was mentioned by al-Zarkashī, Kashf al-Zunun and al-Ṭabaqāt.
   4. Al-Imām al-Ḥāfiẓ Abu Bakr Muḥammad ibn ʿAbdullah al-Shaybānī al-Jūzaqi al-Naisābūrī (388 H). He is the student of Imam al-Aṣam and Abū Nuʿaym and the teacher of al-Ḥākim Abū ʿAbdillah and the author of al-Musnad ʿala Ṣaḥīḥ Muslim. His commentary was mentioned by Kashf al-Zunun.
   5. Abu Muhammad ʿAbdullah ibn Yūsuf al-Juwayni, the father of the famed Imam al-Haramayn; teacher of al-Imam al-Ghazzali.

None of these commentaries, from which the scholars used to quote until after the seventh century, have come to light in modern times.

References:

Islamic Jurisprudence by Dr. Taha Jabir al-Alwani.

Al-Wajīz fī uṣūl al-tashrīʿi al-Islāmī, Dr. Muḥammad Hasan Hītū

Al-Risālah with the tahqiq of Shaykh Aḥmad Muhammad Shākir.


THE METHOD OF AL-IMAM AL-SHAFI’I IN AL-RISALAH

Al-Imam al-Shafi’i rahimahuLlahu ta’ala began his book by describing the state of mankind just before the mission of the Prophet. In doing so, he divided them into two groups:

   1. Ahl al-Kitab “The People of the Book”
   2. The Mushrikun (the polytheists) and Kafirun (the unbelievers).

Then he stated that Allah (SWT) rescued all mankind by sending the Last of the Prophets sallaLlahu ‘alayhi wa sallam, and revealing to him His Book as a means of guidance:

Then al-Imam al-Shafi’i discussed the status of the Qur’an in Islam in detail.

Followed the introduction is a chapter on al-Bayan, in which the word is defined as a legal-term, and then divided into categories in explanation of the ways that the Qur’anic declaration indicates matters of legal significance. There are five such categories:

   1. That which Allah (SWT) expressed as a specific legal-provision which admits of no interpretation other than its literal-meaning. This category of al-Bayan needs no other explanation than the Qur’an itself.
   2. That which the Qur’an mentions in texts that may be interpreted in several-ways; and for which the Sunnah (prophetic tradition) provided an explanation as to exactly which one was intended.
   3. That which was clearly stated to be obligatory; and which Rasulullah sallaLlahu ‘alayhi wa sallam explained in terms of how, why, upon whom, and when applicable and when not.
   4. That which was explained by Rasulullah sallaLlahu ‘alayhi wa sallam, but not mentioned in the Qur’an. Allah (SWT) commanded in the Qur’an that Rasulullah sallaLlahu ‘alayhi wa sallam be obeyed and his rulings accepted. Therefore, what is said on the authority of Rasulullah r, is said on the authority of Allah (SWT).
   5. That which Allah (SWT) requires His creation to seek through Ijtihad (personal jugement). This is Qiyas (analogy). According to al-Imam al-Shafi’i, Qiyas is a method for reaching a legal-decision on the basis of evidence (a precedent) in which a common reason, or an effective cause, is applicable.

Al-Imam al-Shafi’i then went on to explain these five categories in five separate chapters, giving examples and evidence for each. Thereafter, the Risalah included the following chapters:

    * The General Declaration revealed in the Qur’an is meant to be ‘Amm (comprehensive), but includes the Khass (particular).
    * The Explicit General Declaration of the Qur’an in which the General and the Particular are included.
    * The Explicit General Declaration of the Qur’an which appears to be General but is intended to be entirely Particular.
    * The Category of al-Bayan in the Qur’an by means of which meaning is clarified by context.
    * The Category of al-Bayan in the Qur’an the wording of which indicates the al-Batin (implicit) meaning rather than the al-Zahir (explicit).
    * That, of the Qur’an, which was revealed as General but which the Sunnah specifically indicates is meant to be Particular.

In the above-mentioned chapter; al-Imam al-Shafi’i 0 explained the validity of the Sunnah as evidence and its status in the religion. For this reason, he then included the following chapters:

    * The duty imposed by Allah (SWT) in the Qur’an to follow the Sunnah of Rasulullah sallaLlahu ‘alayhi wa sallam.
    * Allah (SWT)’s command ordering obedience to Rasulullah sallaLlahu ‘alayhi wa sallam is both associated with obedience to Him and ordered independently.
    * Matters in which Allah (SWT) commanded obedience to Rasulullah sallaLlahu ‘alayhi wa sallam.
    * How Allah (SWT) made it clear that Rasulullah sallaLlahu ‘alayhi wa sallam was obliged to follow what was revealed to him and to obey whatever commands Allah (SWT) gave him; and that Allah (SWT) will guide any who follow him.

In this chapter, al-Imam al-Shafi’i affirmed that parts of the Sunnah of Rasulullah sallaLlahu ‘alayhi wa sallam dealt with and were related to the Qur’an, whilst other parts explained matters concerning which there was no relevant text in the Book. Al-Imam al-Shafi’i also showed that the Sunnah existed independently of the Qur’an, and quoted evidence in refutation of those who disagreed with him in that matter.

Then he said: “I shall explain what I have already said about the Sunnah, (whether) it particularizes the Qur’an or provides additional-legislation for matters not mentioned therein; and this will illustrate what I have discussed above, Allah (SWT) willing. I shall first speak of the Sunnah based on the Book of Allah (SWT), by dealing, by means of deductive reasoning, with the subject of the Sunnah in regard to al-Nasikh (abrogating) and al-Mansukh (abrogated) passages of the Qur’an. Thereafter, I shall mention the Fard-duties specified (in the Qur’an) and the Sunnah in regard to them; the Fard-duties revealed in General-terms which Rasulullah sallaLlahu ‘alayhi wa sallam made Particular through his specifying details relating to how and when; the General texts that were intended to be understood as General, and the General texts that were intended to be understood as Particular; and, finally, the Sunnah of the Rasulullah sallaLlahu ‘alayhi wa sallam for which there is no textual authority from the Book of Allah (SWT).”

There follows a chapter entitled, “The Origin of the Abrogating and the Abrogated”; which explains that Allah (SWT) used abrogation to make (the Shari’ah) easier and more flexible. This chapter also makes the point that Ayah (a verse) of the Qur’an can only be abrogated by another verse of the Qur’an; and that the Sunnah can only be abrogated by the Sunnah.

Thereafter comes mention of the Fard-duty of Salah and the explanation in the Qur’an and the Sunnah concerning those who may be excused from performing it, and those whose Salah is not accepted because of some act of disobedience they may have committed.

Then al-Imam al-Shafi’i writes of the Abrogating and the Abrogated that are indicated by the Sunnah and al-Ijma’;

In the next chapter he discussed defects in Hadith, and explained that the contradictions between Hadith could be attributed to many reasons. He then went on to explain some of these reasons. For example, a contradiction might appear because one Hadith was abrogated by another, or because mistakes occurred in the narration of the Hadith. He explained the mistakes which might cause contradictions in the Hadith, and many other reasons for such contradictions. Then he dealt with the various types of prohibitions, and explained that some Hadith clarify others.

Al-Imam al-Shafi’i also included a chapter on knowledge, and explained that there are two types of knowledge. The first is that sort of common knowledge which no sane, mature adult could possibly not know about. All of this knowledge can be found mentioned in the text of the Qur’an, and every Muslim knows all about it because it has been transmitted down from Rasulullah sallaLlahu ‘alayhi wa sallam to each succeeding generation in turn. There is no dispute concerning the authenticity of this knowledge, and all are agreed that it is binding. Indeed, the nature of this knowledge is such that there can be no mistakes in its transmission or interpretation.

The second type of knowledge is of the details which stem from the obligations, and the specific laws relating to them. These are not mentioned in the text of the Qur’an, and most of them are not mentioned in the text of the Sunnah, apart from single-individual-narrations, Ahad.

Thus, al-Imam al-Shafi’i introduced a new subject, Khabr al-Wahid. Al-Imam al-Shafi’i then explained what is meant by this term, and the conditions which determine whether or not a narration is of the single-individual-variety. The difference between Shahadah (testimony) and Riwayah (reporting) was explained; as were those matters which may be accepted through a Khabr al-Wahid, and those for which a Khabr al-Wahid alone is not sufficient.

Then al-Imam al-Shafi’i discussed the authority of the Khabr al-Wahid, and whether such reports could be adduced as evidence. His conclusion, supported by very sound arguments, was that indeed they could be used. Thus, al-Imam al-Shafi’i succeeded in refuting all the misgivings brought up by his opponents on this issue.

The following chapters then follow:

    * On al-Ijma’: its definition, and legal-authority.
    * On al-Qiyas: its meaning and nature, the need for it, the varieties of Qiyas, and who is, and is not, competent to employ it.
    * On Ijtihad: how it is based first on the Qur’an, and then on the Sunnah; what constitutes correct and incorrect Ijtihad.
    * On al-Istihsan, Juristic Preference: al-Shafi’i was careful to explain that no Muslim is permitted to use al-Istihsan in order to contravene the Hadith, nor may he pronounce any legal-judgement which is not based on the Qur’an, Sunnah, al-Ijma’ or al-Qiyas. He also explained the difference between al-Qiyas and al-Istihsan.
    * On disagreement among the scholars: al-Imam al-Shafi’i explained that these disagreements are of two types; the type that are prohibited and the type that are not. The types of disagreements which are not allowed are those concerning matters for which Allah (SWT) has provided clear evidence in the texts of the Qur’an or Sunnah. Those disagreements which are permitted pertain to matters which could be interpreted in several-ways and to which each scholar applies his own reasoning.

The Risalah concludes with an explanation of al-Shafi’i’s opinion on the “categories of evidence” mentioned above:

“We base our judgements primarily on the Qur’an and the agreed-upon Sunnah concerning which there is no dispute, and say: ‘This is our judgement after studying both the explicit and the implicit meanings of the texts.’ Then, if we have to refer to the Sunnah that is narrated by only a few persons and concerning which there is no agreement, we say: ‘We accept the Hadith as it is, but are aware that there could be some hidden fault in its narrators.’ Then we will refer to at Ijma’ then to al-Qiyas. Al-Qiyas is weaker than at Ijma’ and it is used only when necessary because it is not lawful to use al-Qiyas when there is a narration concerning the matter being dealt with.”


The Authorized Books of Usul al-Fiqh

In the principles of Jurisprudence (usul al-fiqh), two tariqahs (methods) are well known:

    * Tarīqat al-mutakallimin (mutakallim is generally translated as ‘Muslim theologian’).
    * Tarīqat al-fuqaha (jurists)

Tarīqat al-mutakallimin is the method followed by the Shafiʿī yah, the Malikiyah, Hanabilah and the Mu’tazilah.

It was known as the method of the mutakallimun because:

    * The authors who wrote their books according to this method would      introduce them with discussions of theological-and philosophical-issues.
    * The use of the deductive method in defining the principles of source methodology, in ascertaining the validity of those principles, and in refuting those whose opinions differed without paying much attention to the issues and details which stem from the application of these principles.

The books of the Shafiʿī yah, Hanabilah, Malikiyah and Mu’tazilah all followed a similar pattern in the order of their chapters and the treatment of their subject matter.

The Shafiʿiyyah’s Books

Al-Risālah by Imam al-Shāfi’ī (204 A.H.)

Al-ʿAmad by al-Qādī ‘Abd al-Jabbār ibn Aḥmad al-Mu’tazilī (415 A.H.)

Al-Muʿtamad by Abū al-Husayn al-Mu’tazili (436 A.H.)

Al-Burhān by Imam al-Haramayn al-’Ash’arī (478 A.H.)

Al-Mustasfā by Imam al-Ghazālī al-’Ash’arī (505 A.H.)

Imam Ibn Khaldūn rahimahuLlah ta’ala mentions, “Among the best books of the Mutakallimūn on usul al-fiqh are al-Burhān by Imam al-Ḥaramayn and al-Mustaṣfā by al-Ghazālī, from the al-Ashʿariyyah. As for from the Muʿtazilah are al-ʿAhd (or al-ʿAmad) by ʿAbd al-Jabbār and its commentary al-Muʿtamad by Abū al-Ḥusayn al-Baṣrī. These four books are the foundation and pillars in this science.”

Al-Maḥṣūl by al-Rāzī (606 A.H.), summarized from the above four books, his method is that he mentions the evidences and proofs.

These four main books also had been summarized by Sayf al-dīn al-Amidī (630 A.H.) named as al-Iḥkām. His method is that he expounds the different viewpoints of the madhahib and he deduces masa’il (legal issues) contrary to Ibn al-Khatib al-Rāzi.

Ibn al-Ḥājib abridged Al-Iḥkām (646 A.H.) twice named as al-Muntahi and then became Mukhtaṣar al-Muntahi. Then Taj al-Subkī (771 A.H.) explains this Mukhtaṣar and names it Rafʿ al-ḥājib ʿan Ibn al-Ḥājib (2 vol.).

Al-Ḥāṣil by al-Armawī (652 A.H.), abridged of al-Maḥṣūl by al-Rāzī

Al-Minhāj by al-Bayḍāwī, abridged of al-Ḥāṣil, Al-Qadi al-Baydawi  (d 685) summarized al-Hasil in his book Minhaj al-Wusul Ila ‘Ilm al-Usul “The Way of Mastering the Science of Source Methodology”; but his summary was so abbreviated that the result is like a riddle, and very difficult to understand. Thus, many scholars undertook to produce commentaries on the book. Among such commentaries, the best is that of al-Isnawi (d 772), which is entitled Nihayat al-Sūl “An End to Questioning” This book occupied the attention of the scholars in the field for a long time, and the Shafiʿī yah scholars of al-Al-Azhar are still devoted to it.

Then Taqī al-din al-Subkī (756 A.H.) wrote a commentary on al-Minhāj, al-Ibhāj bi sharḥ al-Minhāj till the introduction of “al-wājib,” from there his son Taj al-dīn al-Subki (771 A.H.) completed it.

Among the Shafiʿī yah scholars, Taj al-dīn al-Subki wrote his famous book, Jam’ al-Jawami’ “The Compilation of the Comprehensive”. Imam Taj al-dīn al-Subki tried to gather as many of the  principles of fiqh possible, he gathered his commentary on al-Muntahi (Rafʿ al-hājib) and al-Minhāj (al-Ibhāj) and compiled them as Jamʿ al-jawāmiʿ. In the introduction, he mentioned that he had compiled his work from one hundred different books on al-Usul. Many scholars wrote commentaries and added footnotes to imam al-Subki’s book. Of these, perhaps the most important and most widely-available commentary is Sharh al-Jalal al-Mahalli, which remains even today the basis for studies in al-Usul, especially for the Shafiʿīyyah scholars.

Badr al-Din al-Zarkashi (d 794) wrote a commentary, entitled Tashnif al-Masamiʿ“To Please the Ears”. Imam Al-Zarkashi also wrote al-Bahr al-Muhit “The Vast Ocean”, in which he collected the submissions of scholars of al-Usul from over one hundred books.

The studie of usul al-fiqh is a vast ocean to be explored. In Islamic legal studies, it is important to study usul al-fiqh especially for us Shafi’iyyah. Our fiqh is based on al-usul and we are the ones who introduced this subject as a completed subject matter, developed it, propagated and disseminated it to the world.

References:

    * Islamic Jurisprudence, Dr. Taha Jabir al-Alwani.
    * Al-Wajīz fī uṣūl al-tashrīʿi al-Islāmī, Dr. Muḥammad Hasan Hītū, First Edition 2006, Muassasah al-Riṣalāh, Beirut.

 

 CREDITS: http://www.shafiifiqh.com/