Chapter Seven: Naskh (Abrogation) . Partial abrogation (naskh juz’i ) . The legislative organ of an Islamic state cannot abrogate the Qur’an or the Sunnah,.
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2 Contents Preface .. .. . 8 Works of Arabic origin on usul al – fiqh: .. .. 9 Chapter One: Introduction to Usul al – Fiqh .. . 16 [Definition and Scope Usul al – fiqh] .. 16 The definition of fiqh is .. . 18 The founder of usul al – fiqh .. .. 19 [The Difference Between the Usul, and the Maxims of Fiqh(alqawa’id al – fiqhiyyah)] .. . 20 Two Approaches to the Study of Usul al – fi qh .. . 22 III. Proofs of Shari’ah (Al – Adillah Al – Shar’iyyah) . 24 .. .. 24 [Classification of Proofs] .. 25 Chapter Two: The First Source of Shari’ah: The Qur’an 28 – wise 29 .. .. 29 In the Hadeeth Qudsi .. 29 [Words of non – Arabic origin] .. . 29 [Graduality] .. .. 30 [Transmission] .. .. .. 31
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3 [makki & Madani] .. .. 31 on .. .. 34 35 Brevity and Detail (al – ijmal wa’l – tafsil) .. . 38 The Five Values As a characteristic feature of Qur’anic legislation .. 41 Ratiocination (ta’lil) .. .. . 42 .. 44 Occasions of Revelation (asbab al – nuzul) .. 46 Chapter Three: The Sunnah .. . 48 Introduction .. .. .. 48 Usage .. 49 Sunnah and Hadeeth .. . 50 khabar and Athar’ .. .. . 50 Proof – Value (Hujjiyyah) of Sunnah .. 52 Classification and Value .. . 54 Verbal, Actual Sunnah and Tacit Approval .. . 54 Non – legal and Legal Sunnah .. .. 55 Qur’an and Sunnah Distinguished .. .. 62 Priority of the Qur’an over the Sunnah .. . 63 Is Sunnah an In dependent Source? .. . 65 Distortion and Forgery .. .. 69 [History of Forgery] .. .. 69
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4 [Types of Forgery] .. .. 69 Classification and Value: .. 71 [From the viewpoint of the continuity of their chains] 71 The Continuous Hadeeth .. 72 The Discontinued Hadeeth (al – Hadeeth Ghayr al – Muttasil) 76 .. .. 77 .. .. 78 Chapter Four: Rules of Interpretation I: Deducing the Law from its Sources .. .. .. 79 Words have beenclassified into various types. 79 [Benefits of learning the implications of words] 80 Ta’wil (Allegorical Interpretation) .. .. 80 .. . 81 There a re two types of ta’wil, namely .. 8 2 Classification I: Clear and Unclear Words .. 83 I. 1 & 2 The Zahir and the Nass .. . 83 I. 3 & 4 Unequivocal (Mufassar) and Perspicuous (Muhkam) .. 86 [Perceived Conflict Between Mufassar and Nass Is not Conflict] 87 II. Unclear Words (al – Alfaz Ghayr al – Wadihah) .. 88 II. 1 The Obscure (Khafi) .. . 89 II.2 The Difficult (Mushkil) .. . 89 II.3 The Ambivalent (Mujmal) .. 90
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5 II.4 The Intricate (Mutashabih) .. .. 91 Classification II: The ‘Amm (General) and the Khass (Specific). 93 ‘Amm .. .. .. 93 [Khass] .. .. . 94 .. .. .. 94 [Linguistic forms of .. .. 95 .. 96 [Takhsees by a clause in the same text] .. . 98 [Takhsees by a clause in a separate text] .. 98 Chronological order between the general and the specifying provisions. .. .. . 99 . 100 [The cause never specifies a general ruling] . 100 Conflict between ‘Amm and Khass .. . 100 Classification III: The Absolute (Mutlaq) and the Qualified (Muqayyad) .. .. .. 101 [The hanafi Position] .. .. 104 Classification IV: The Literal (Haqiqi) and the Metaphorical (Majazi) .. .. .. 104 [linguistic (lughawi), customary (urfi) and juridical (sh ar’i) usages of words] .. .. 105 The Homonym (Mushtarak) .. . 107
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6 Chapter Five: Rules of Interpretation II: Al – Dalalat (Textual Implications) .. .. .. 109 I. The Explicit Meaning (Ibarah al – Nass) .. .. 109 II. The Alluded Meaning (Isharah al – Nass) .. 110 III. The Inferred Meaning (Dalalah al – Nass) .. . 111 IV. The Required Meaning (Iqtida’ al – Nass) .. 112 [Order of Priority] .. .. . 112 V. Divergent Meaning (Mafhum al – Mukhalafah) and the Shafi’i Classification of al – Dalalat .. .. . 114 [Shafi’i approach to textual implicat ions (al – dalalat’)] 115 [Conditions of deduction by way of mafhum al – mukhalafah] 117 [Types of mafhum al – mukhalafah] .. .. 119 Chapter Six: Commands and Prohibitions .. . 122 I. Commands .. .. .. 122 [What does a command infer] .. .. 122 [Other implications of a command] .. 123 [The command after a prohibition (al – amr ba’d al – hazar)] .. 124 [ Does a command require a single compliance or repetition?] . 124 [Does a command require immediate or delayed performance?] .. 125 [Does a command to do something imply the prohibition of its opposite?] .. .. .. 125 II. Prohibitions .. .. 126
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8 Preface I . Apart from the fact that the existing works on Islamic Jurisprudence in the English language do not offer an exclusive treatment of usul al – fiqh, there is also a need to pay greater attention to the source materials, namely the Qur’an and sunnah, in the study of this sci ence. In the English works, the doctrines of usul al – fiqh are often discussed in relative isolation from the authorities in which they are founded. Furthermore, these works tend to exhibit a certain difference of style and perspective when they are compare d to the Arabic works on the subject. II . The usul al – fiqh as a whole and all of the various other branches of influence and source, of divine revelation (wahy) over and above that of r ationality and man – made legislation. This aspect of Islamic law is generally acknowledged, and yet the relevance of wahy to the detailed formulations of Islamic law is not highlighted in the English works in the same way as one would expect to find in the works of Arabic origin. I have therefore made an attempt to convey not only the contents of usul al – fiqh as I found them in Arabic sources but also the tone and spirit of the source materials which I have consulted. III . I have given frequent illustrations fro the well recognized works of authority to substantiate the theoretical exposition of ideas and doctrines. The works of the madhahib, in other words, are treated in conjunction with the authority in which they are founded. IV . The idea to write this book occurred to me in early 1980 when I was teaching this subject to postgraduate students at the Institute of Islamic Studies at McGill University in Montreal. But it was only after 1985 when I started a
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9 teaching post at the Internatio nal Islamic University, Selangor, Malaysia, that I was able to write the work I had intended. Works of Arabic origin on usul al – fiqh : There is a selection of textbooks in Arabic, both classical and modern, at present available on this subject, ranging fr om the fairly c oncise to the more elaborate . Modern Works : ‘Abd al – Wah hab Khallaf’s ‘Ilm Usul al – Fiqh Abu Zahrah’s Usul al – Fiqh Muhammad al – Khudari’s Usul al – Fiqh Badran’s Usul al – Fiqh al – lslami are some of the well – known works in the field. Classical works : I have relied on: A l – Ghazali’s Al – Mustasfa min ‘llm al – usul A l – Ami di’s Al – Ihkam fi Usul al – Ahkam A l – Shatibi’s Al – Muwafaqat fi Usul al – Ahkam and A l – Shawkani’s Irshad al – Fuhul fi Tahqiq al – Haqq min ‘llm al – Usul. [Tarikh al – Tashri] There are several Arabic works of modern origin currently available on the history of jurisprudence and its various phases of development, namely the Prophetic period, the era of the Companions, the early schools of law in the Hijaz and Iraq, the emergence of the madhahib, the era of imitation (taqlid), and the call for a return to ijtihad. This discipline is generally known as ‘tarikh altashri’ which, as the title suggests, is primarily concerned with the history of juristic thought and institutions. [Note for example al – Khudari’s, Tarikh al – Tashri’ al – lslami; al – Sabuni et al., Al – Madkhal al – Fiqhi wa Tarikh al – Tashri
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10 al – Islami; al – Qattan’s Al – Tashri’ wa al – Fiqh fi al – Islam: Tarikhan wa Manhajan, and al – Nabhan’s Al – Madkhal li al – Tashri’ al – islami. Nish’atuh , Adwaruh al – Tarikhiyyah, Mustaqbalub. For full publication data see my Bibliography.] The Arabic texts on usul al – fiqh itself are on the whole devoted to a treatment of the sources, and methodology of the law, and tend to leave out its history of development. The reverse of this is true with regard to works that are currently available on the general subject of Islamic ju risprudence in the English language. Works of Western authorship on this subject are, broadly speaking, primarily concerned with the history of jurisprudence, whereas the juridical subject matter of usul al – fiqh does not receive the same level of attentio n as is given to its historical development. Bearing in mind the nature of the existing English literature on the subject, the present work does not attempt to address the historical developments and instead focuses on usul al – fiqh itself. [Old and New W orks on Usool] As for substantive matters, the modern works are normally expected to preserve the continuity of the earlier authorities, and the two are basically indistinguishable in this regard. Having said this, one might add further that the modern wor ks tend to differ from their predecessors in one other respect, namely that the former tend to offer a more even – handed treatment of the views and doctrines of such schools of thought as the Mu’tazilah, the Shi’ah and the Zahiriyyah, etc., 1 and tend to tre at ideas on merit rather than their formal 1 The Zahiriyyah are generally from Ahl – us – an agreement of Ahl – us –
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11 acceptance and recognition by the established madhahib. In addition to the textbook materials o n usul al – fiqh, a number of legal encyclopedias have emerged in recent decades in Egypt and elsewhere, usually bearing the title al – Mawsu’ah al – Fiqhiyyah’ with the express purpose of offering a balanced treatment of the views and contributions of all the prominent schools of law. As a result, the relatively stronger orientation toward particular schools that is noticeable in the earlier works on usul al – fiqh, especially those that were authored after the crystallisation of the madhahib, is not a prominent feature of the modern works. A more open attitude has in fact emerged which seeks to move away from the sectarian bias that can be found in some earlier works, and and institutions, with a view to highlighting their contributions to Islamic law and jurisprudence. The present writer welcomes th is development, but if his own work fails to offer adequate coverage of the doctrines of the various schools, it is due solely to considerations of brevity and space which may be expected of a handbook of this size. [Islamic & Western Jurisprudence.] III . It is perhaps true to say that Islamic jurisprudence exhibits greater stability and continuity of values, thought and institutions when compared to and refuted them. However, they were always fair to the opponents. They were correct, since there is no room for the reconciliation of positions with the fact that the sources of Ahl – us – recognize al – Bukhari, – Companions, an integral part in our religious ideology, upon which much of our juridical methodology is founded.
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