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Principles of Islamic jurisprudence

Principles of Islamic jurisprudence, also known as uṣūl al-fiqh (Arabic: أصول الفقه, lit. roots of fiqh), are traditional methodological principles used in Islamic jurisprudence (fiqh) for deriving the rulings of Islamic law (sharia).[1]

Traditional theory of Islamic jurisprudence elaborates how the scriptures (Quran and hadith) should be interpreted from the standpoint of linguistics and rhetoric.[2] It also comprises methods for establishing authenticity of hadith and for determining when the legal force of a scriptural passage is abrogated by a passage revealed at a later date.[2] In addition to the Quran and hadith, the classical theory of Sunni jurisprudence recognizes secondary sources of law: juristic consensus (ijmaʿ) and analogical reasoning (qiyas).[3] It therefore studies the application and limits of analogy, as well as the value and limits of consensus, along with other methodological principles, some of which are accepted by only certain legal schools (madhhabs).[2] This interpretive apparatus is brought together under the rubric of ijtihad, which refers to a jurist's exertion in an attempt to arrive at a ruling on a particular question.[2] The theory of Twelver Shia jurisprudence parallels that of Sunni schools with some differences, such as recognition of reason (ʿaql) as a source of law in place of qiyas and extension of the notions of hadith and sunnah to include traditions of the imams. [1][4]

Etymology

Uṣūl al-fiqh is a genitive construction with two Arabic terms, uṣūl and fiqh. Uṣūl means roots or basis. Some says, Uṣūl, the plural form of Aṣl, means Rajih (preponderant). Also means Qa’idah (rules) which the real application of the word. For example: “every sentence must contain a verb“ is a rule of Grammar. Fiqh linguistically refers to knowledge, deep understanding or comprehension. In the context of Islamic law, it refers to traditional Islamic jurisprudence.

Overview

Classical jurists held that human reason is a gift from God which should be exercised to its fullest capacity.[5] However, they believed that use of reason alone is insufficient to distinguish right from wrong, and that rational argumentation must draw its content from the body of transcendental knowledge revealed in the Quran and through the sunnah of Muhammad.[5]

Sources of sharia

Primary sources

Quran

In Islam, the Quran is considered to be the most sacred source of law.[6] Classical jurists held its textual integrity to be beyond doubt on account of it having been handed down by many people in each generation, which is known as "recurrence" or "concurrent transmission" (tawātur).[3][6] Only several hundred verses of the Quran have direct legal relevance, and they are concentrated in a few specific areas such as inheritance, though other passages have been used as a source for general principles whose legal ramifications were elaborated by other means.[7][6]

Hadith

The body of hadith provides more detailed and practical legal guidance, but it was recognized early on that not all of them were authentic.[7][6] Early Islamic scholars developed a methodology for evaluating their authenticity by assessing trustworthiness of the individuals listed in their transmission chains.[6] These criteria narrowed down the vast corpus of prophetic traditions to several thousand "sound" hadiths, which were collected in several canonical compilations.[6] The hadiths which enjoyed concurrent transmission were deemed unquestionably authentic; however, the vast majority of hadiths were handed down by only one or a few transmitters and were therefore seen to yield only probable knowledge.[6][3] The uncertainty was further compounded by ambiguity of the language contained in some hadiths and Quranic passages.[6] Disagreements on the relative merits and interpretation of the textual sources allowed legal scholars considerable leeway in formulating alternative rulings.[7]

Secondary sources

Ijma' (consensus)

Consensus (ijma) could in principle elevate a ruling based on probable evidence to absolute certainty.[8][7] This classical doctrine drew its authority from a series of hadiths stating that the Islamic community could never agree on an error.[8] This form of consensus was technically defined as agreement of all competent jurists in any particular generation, acting as representatives of the community.[8][7][9] However, the practical difficulty of obtaining and ascertaining such an agreement meant that it had little impact on legal development.[8][7] A more pragmatic form of consensus, which could be determined by consulting works of prominent jurists, was used to confirm a ruling so that it could not be reopened for further discussion.[7] The cases for which there was a consensus account for less than 1 percent of the body of classical jurisprudence.[8]

Qiyas (analogical reasoning) and 'aql (reason)

Analogical reasoning (qiyas) is used to derive a ruling for a situation not addressed in the scripture by analogy with a scripturally based rule.[3] In a classic example, the Quranic prohibition of drinking wine is extended to all intoxicating substances, on the basis of the "cause" (ʿilla) shared by these situations, which in this case is identified to be intoxication.[3] Since the cause of a rule may not be apparent, its selection commonly occasioned controversy and extensive debate.[10] Twelver Shia jurisprudence does not recognize the use of qiyas, but relies on reason (ʿaql) in its place.[11]

Ijtihad

 
Turkish mufti (17th-century Spanish drawing)

The classical process of ijtihad combined these generally recognized principles with other methods, which were not adopted by all legal schools, such as istihsan (juristic preference), istislah (consideration of public interest) and istishab (presumption of continuity).[3] A jurist who is qualified to practice ijtihad is known as a mujtahid.[12] The use of independent reasoning to arrive at a ruling is contrasted with taqlid (imitation), which refers to following the rulings of a mujtahid.[12] By the beginning of the 10th century, development of Sunni jurisprudence prompted leading jurists to state that the main legal questions had been addressed and the scope of ijtihad was gradually restricted.[12][13] From the 18th century on, leading Muslim reformers began calling for abandonment of taqlid and renewed emphasis on ijtihad, which they saw as a return to the vitality of early Islamic jurisprudence.[13]

Decision types (aḥkām)

Sharia rulings fall into one of five categories known as "the five rulings" (al-aḥkām al-khamsa): mandatory (farḍ or wājib), recommended (mandūb or mustaḥabb), neutral (mubāḥ), reprehensible (makrūh), and forbidden (ḥarām).[7][11] It is a sin or a crime to perform a forbidden action or not to perform a mandatory action.[7] Reprehensible acts should be avoided, but they are not considered to be sinful or punishable in court.[7][14] Avoiding reprehensible acts and performing recommended acts is held to be subject of reward in the afterlife, while neutral actions entail no judgement from God.[7][14] Jurists disagree on whether the term ḥalāl covers the first three or the first four categories.[7] The legal and moral verdict depends on whether the action is committed out of necessity (ḍarūra).[7]

Aims of sharia and public interest

Maqāṣid (aims or purposes) of sharia and maṣlaḥa (welfare or public interest) are two related classical doctrines which have come to play an increasingly prominent role in modern times.[15][16][17] They were first clearly articulated by al-Ghazali (d. 1111 C.E/ 505 A.H), who argued that maslaha was God's general purpose in revealing the divine law, and that its specific aim was preservation of five essentials of human well-being: religion, life, intellect, offspring, and property.[18] Although most classical-era jurists recognized maslaha and maqasid as important legal principles, they held different views regarding the role they should play in Islamic law.[15][17] Some jurists viewed them as auxiliary rationales constrained by scriptural sources and analogical reasoning.[15][19] Others regarded them as an independent source of law, whose general principles could override specific inferences based on the letter of scripture.[15][20] While the latter view was held by a minority of classical jurists, in modern times it came to be championed in different forms by prominent scholars who sought to adapt Islamic law to changing social conditions by drawing on the intellectual heritage of traditional jurisprudence.[15][3][16] These scholars expanded the inventory of maqasid to include such aims of sharia as reform and women's rights (Rashid Rida); justice and freedom (Mohammed al-Ghazali); and human dignity and rights (Yusuf al-Qaradawi).[15]

Schools of law

 
Distribution of Sunni, Shia, Quranist, Ibadi, and Nondenominational Muslim branches

The main Sunni schools of law (madhhabs) are the Hanafi, Maliki, Shafi'i and Hanbali madhhabs.[12] They grew out of differences of opinion and methodology between the sahaba and each generation of students after them. Initially there were hundreds of schools of thought which eventually contracted into the prominent four.[21] These four schools recognize each other's validity and they have interacted in legal debate over the centuries.[21][12] Rulings of these schools are followed across the Muslim world without exclusive regional restrictions, but they each came to dominate in different parts of the world.[21][12] For example, the Maliki school is predominant in North and West Africa; the Hanafi school in South and Central Asia; the Shafi'i school in Lower Egypt, East Africa, and Southeast Asia; and the Hanbali school in North and Central Arabia.[21][12][7]

The first centuries of Islam also witnessed a number of short-lived Sunni madhhabs.[2] The Zahiri school, which is commonly identified as extinct, continues to exert influence over legal thought.[2][12][21] The development of Shia legal schools occurred along the lines of theological differences and resulted in formation of the Twelver, Zaidi and Ismaili madhhabs, whose differences from Sunni legal schools are roughly of the same order as the differences among Sunni schools.[2][7] The Ibadi legal school, distinct from Sunni and Shia madhhabs, is predominant in Oman.[12]

The transformations of Islamic legal institutions in the modern era have had profound implications for the madhhab system.[21] Legal practice in most of the Muslim world has come to be controlled by government policy and state law, so that the influence of the madhhabs beyond personal ritual practice depends on the status accorded to them within the national legal system.[21] State law codification commonly utilized the methods of takhayyur (selection of rulings without restriction to a particular madhhab) and talfiq (combining parts of different rulings on the same question).[21] Legal professionals trained in modern law schools have largely replaced traditional ulema as interpreters of the resulting laws.[21] Global Islamic movements have at times drawn on different madhhabs and at other times placed greater focus on the scriptural sources rather than classical jurisprudence.[21] The Hanbali school, with its particularly strict adherence to the Quran and hadith, has inspired conservative currents of direct scriptural interpretation by the Salafi and Wahhabi movements.[21] Other currents, such as networks of Indonesian ulema and Islamic scholars residing in Muslim-minority countries, have advanced liberal interpretations of Islamic law without focusing on traditions of a particular madhhab.[21]

Principles within Sunni Islam

Islamic scholar Sayyid Rashid Rida (1865 - 1935 C.E) lists the four basic principles of Islamic law, agreed upon by all Sunni Muslims:

"the [well-known] sources of legislation in Islam are four: the Qur'an, the Sunnah, the consensus of the ummah and ijtihad undertaken by competent jurists"

[22]

The contribution of al-Shafi'i

Al-Shafi'i documented a systematized set of principles, developing a cohesive procedure for legal derivation of verdicts. His approach contrasted with the Hanafite methodology that determined the sources from the sayings and rulings of the companions and successors. Furthermore, he raised the Sunnah to a place of prominence and restricted its legal use. According to Shafi'i, only practices directly passed down from Muhammad were valid, eliminating the legitimacy of practices of Muhammad's followers. Prior to Shafi'i, legal reasoning included personal reasoning thus suffering from inconsistency. Shafi'i is probably best known for writing Risala, a prime example of applying logic and order to Islamic jurisprudence.[23] While Risala is considered a seminal work in the field of principles, it has been noted that the term "usul" is neither found in the title of the book nor is it used as such within the text.[24]

Evolution of methods

Between Shafi'i's Al-Risala and the next attested works of Usul al-Fiqh is a gap of several hundred years. These later works were significantly different from Shafi'is book, likely due to the insertion of Mu'tazilite and Ash'arite theology into works of jurisprudence.[25] The difference between Shafi'i's work and these later works  – in terms of both content and the large chronological gap between which they were all composed  – is so great that modern scholarship has questioned the status of Shafi'i as the founder of Islamic jurisprudence.[26][27][28]

Indeed, even the division of the sources of Sunni law into four  – Qur'an, prophetic tradition, consensus and analogical reason  – was not present in Shafi'is books at all, despite Muslim scholarship generally attributing this division to him.[29] According to Qadi al-Nu'man, one of the earliest jurists to write about usul after Shafi'i did - perhaps during Shafi'is lifetime - was Abū 'Ubaid al-Qāsim b. Sallām, who actually considered the sources of law to consist of only three  – the Qur'an, the prophetic tradition, and consensus consisting of either scholarly consensus or consensus of the early generations.[24] This division into four sources is most often attributed to later jurists upon whose work most Sunni jurisprudence has been modeled such as Baqillani and Abd al-Jabbar ibn Ahmad,[30] of the Ash'arite and Mu'tazilite schools respectively. Thus, the four main sources often attributed to Shafi'i evolved into popular usage long after his death.

Application of sources

Even after this evolution, there are still some disputes among Sunni jurists regarding these four sources and their application. Malik ibn Anas, Ahmad ibn Hanbal and in particular Dawud al-Zahiri rejected all forms of analogical reason in authentic narrations from them,[31][32][33] yet the later Malikites and Hanbalites  – and in some cases, even Zahirites  – gravitated toward the acceptance of varying levels of analogical reason already accepted by Shafi'ites and Hanafites.[32] Malik and Abu Hanifa both accepted pure reason as a source of law; Ahmad and Shafi'i did not, and Shafi'i was especially hostile to juristic preference as implemented by Abu Hanifa, yet pure reason later found its way into all Sunni schools of law.

The question of consensus has evolved considerably. Abu Hanifa, Ahmad and Zahiri only accepted the consensus of the first generation of Muslims,[34][35] while Malik was willing to accept the consensus of the first generation in general or the consensus of later generations within the community of Medina.[32][36] Shafi'i insinuated that consensus was not practically possible to confirm.[37] Later scholars of all schools eventually followed the views of Al-Ghazali and Ibn Taymiyyah in expanding the definition of accepted consensus to include scholarly consensus and silent consensus as well.[35][38]

Principles within Shia Islam

In Shi'a legal theory, analogical reason isn't recognised as a source of law; pure reason is, however. [1][39] Shi'ites may differ in the exact application of principles depending on whether they follow the Ja'fari, Ismaili or Zaidi subdivisions of Shi'ism.

Ja'fari principles

There are two interpretations of what constitutes sources of law among jurists of the Ja'fari school.

  • According to the Akhbari view, the only sources of law are the Quran and the Hadith, and any case not explicitly covered by one of these must be regarded as not having been provided for.
  • According to the majority Usuli view, it is legitimate to seek general principles by induction, in order to provide for cases not expressly provided for. This process is known as ijtihad, and the intellect is recognised as a source of law. It differs from the Sunni qiyas in that it does not simply extend existing laws on a test of factual resemblance: it is necessary to formulate a general principle that can be rationally supported.

Javadi Amoli wrote about source of revelation in Shiism:

  1. The most important source in Shiite law is the Quran itself, which interprets itself
  2. The other source is the tradition of the "infallibles" (the family of Muhammad), according to the successive tradition (Saqalain) passed down by the family of the Muhammad as well as according to the Quran itself: to accept one without the other is equivalent to rejecting both of them.
  3. A third source is theoretical wisdom where it is impossible to conceive the contrary, which proves the existence of God and the necessity of his unity, eternity, pre-existence, power, will and other exalted attributes: this cannot be denied with any verse.
  4. Although we cannot impose science upon the Quran, we can use verified scientific, experimental, historical, artistic, logical and other evidence to interpret the subject addressed in a given passage, rather than through another verse.[40]

In doubtful cases the law is often derived not from substantive principles induced from existing rules, but from procedural presumptions (usul 'amaliyyah) concerning factual probability. An example is the presumption of continuity: if one knows that a given state of affairs, such as ritual purity, existed at some point in the past but one has no evidence one way or the other whether it exists now, one can presume that the situation has not changed.[41]

The analysis of probability forms a large part of the Shiite science of usul al-fiqh, and was developed by Muhammad Baqir Behbahani (1706-1792) and Shaykh Murtada al-Ansari (died 1864). The only primary text on Shi'ite principles of jurisprudence in English is the translation of Muhammad Baqir as-Sadr's Durus fi 'Ilm al-'Usul.

Parts of the Shiite Uşūl al-Fiqh

Discussions of this science are presented in various parts in the works of uşūl al-fiqh. However, the best division is presented by al-Muhaqqiq al-Isfahani (d. 1940) in his last course of teaching (as narrated by his great student Muhammad Rida al-Muzaffar in his Uşūl al-Fiqh, p. 11) according to which all uşūlī topics are discussed in the four following parts: Discussions of "terms," of "intellectual implications," of "the authority," and of "practical principles." Discussions of terms deal with denotations and appearances of terms from a general aspect, such as appearance of the imperative in the obligation, that of the prohibition in the unlawfulness, and the like. Discussions of intellectual implications survey implications of precepts even though such precepts may not be inferred from terms, such as discussing truthfulness of mutual implication of intellectual judgments and juristic precepts, of obligation of something necessitating obligation of its preliminaries (known as "the problem of preliminary of the mandatory act"), of obligation of something necessitating unlawfulness of its opposite (known as "the problem of the opposite"), of possibility of conjunction of the command and the prohibition, and so on. Discussions of the authority investigate whether some specific thing is juristically treated as a proof; for instance, whether report of a single transmitter, appearances, appearances of the Quran, Sunna, consensus, intellect, and the like are authoritative proofs. Discussions of practical principles deal with what the jurist refers to when he cannot find a persuasive proof, such as the principle of clearance from obligation, that of precaution, and so forth. For more on this science, see An Introduction to Methodology of Islamic Jurisprudence(A Shiite Approach)

Ismaili principles

Most early Ismaili works within the field of the principles of jurisprudence were actually responses to Sunni works on the topic.[42] Qadi al-Nu'man's Differences Among the Schools of Law is most likely the first of such written responses.

Famous classical Muslim jurists (usoolis)

Famous contemporary Muslim jurists (usoolis)

  • Sheikh Abdur Rahman Nasir as sathi
  • Sheikh Adam Al ethiyopie

See also

References

Citations

  1. ^ a b c Dahlén 2003, chpt. 4c.
  2. ^ a b c d e f g Calder 2009.
  3. ^ a b c d e f g Ziadeh 2009.
  4. ^ Kamali 1999, pp. 121–22.
  5. ^ a b Hallaq 2009, p. 15.
  6. ^ a b c d e f g h Hallaq 2009, pp. 16–18.
  7. ^ a b c d e f g h i j k l m n o Vikør 2014.
  8. ^ a b c d e Hallaq 2009, pp. 21–22.
  9. ^ Kamali 1999, p. 146.
  10. ^ Hallaq 2009, pp. 23–24.
  11. ^ a b Schneider 2014.
  12. ^ a b c d e f g h i Rabb 2009b.
  13. ^ a b Rabb 2009c.
  14. ^ a b Hallaq 2009, p. 20.
  15. ^ a b c d e f Duderija 2014, pp. 2–6.
  16. ^ a b Brown 2009.
  17. ^ a b Gleave 2012.
  18. ^ Opwis 2007, p. 65.
  19. ^ Opwis 2007, pp. 66–68.
  20. ^ Opwis 2007, pp. 68–69.
  21. ^ a b c d e f g h i j k l Hussin 2014.
  22. ^ Rashīd Riḍā, Muhammad (1996). The Muhammadan Revelation. Alexandria, VA: Al-Saadawi Publications. p. 127. ISBN 1-881963-55-1.
  23. ^ . Archived from the original on 2010-12-16. Retrieved 2011-02-15.
  24. ^ a b Stewart, pg. 105.
  25. ^ Devin J. Stewart, "Muhammad b. Dawud al-Zahiri's Manual of Jurisprudence." Taken from Studies in Islamic Law and Society Volume 15: Studies in Islamic Legal Theory. Edited by Bernard G. Weiss. Pg. 102. Leiden: 2002. Brill Publishers.
  26. ^ Wael Hallaq, Was al-Shafi'i the Master Architect of Islamic Jurisprudence?, International Journal of Middle East Studies, 4 (November 1993), pg. 587-605.
  27. ^ George Makdisi, Juridical Theology, pg. 16.
  28. ^ Stewart, pg. 103.
  29. ^ "Does Shafi'i Have a Theory of 'Four Sources' of Law?, taken from the PhD dissertation of Joseph E. Lowry, The Legal-Theoretical Content of the Risala of Muhammad B. Idris al-Shafi'i, University of Pennsylvania, 1999.
  30. ^ Hallaq, A history of Islamic legal theories : an introduction to Sunnī uṣūl al-fiqh. Pg. 30-35. New York: Cambridge University Press, 1997.
  31. ^ Chiragh Ali, The Proposed Political, Legal and Social Reforms. Taken from Modernist Islam 1840-1940: A Sourcebook, pg. 280. Edited by Charles Kurzman. New York City: Oxford University Press, 2002.
  32. ^ a b c Mansoor Moaddel, Islamic Modernism, Nationalism, and Fundamentalism: Episode and Discourse, pg. 32. Chicago: University of Chicago Press, 2005.
  33. ^ Reuben Levy, Introduction to the Sociology of Islam, pg. 237, 239 and 245. London: Williams and Norgate, 1931-1933.
  34. ^ Muhammad Muslehuddin, "Philosophy of Islamic Law and Orientalists," Kazi Publications, 1985, p. 81
  35. ^ a b Dr. Mohammad Omar Farooq, "The Doctrine of Ijma: Is there a consensus?," June 2006
  36. ^ Muslehuddin, p. 81
  37. ^ Majid Khadduri, Introduction to Al-Shafi'i's al-Risala, pg.33
  38. ^ Khadduri, pg. 38-39.
  39. ^ Moaddel, pg. 33.
  40. ^ Tasnim (tafsir), Vol 1, Page 57
  41. ^ One can compare, in Western legal systems, the presumption of innocence and the presumption in favour of possession. Similarly Catholic moral theology distinguishes between "direct principles" and "reflex principles", the latter being the equivalent of Murtada al-Ansari's usul 'amaliyyah.
  42. ^ Stewart, pg. 116.

Sources

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External links

principles, islamic, jurisprudence, also, known, uṣūl, fiqh, arabic, أصول, الفقه, roots, fiqh, traditional, methodological, principles, used, islamic, jurisprudence, fiqh, deriving, rulings, islamic, sharia, traditional, theory, islamic, jurisprudence, elabora. Principles of Islamic jurisprudence also known as uṣul al fiqh Arabic أصول الفقه lit roots of fiqh are traditional methodological principles used in Islamic jurisprudence fiqh for deriving the rulings of Islamic law sharia 1 Traditional theory of Islamic jurisprudence elaborates how the scriptures Quran and hadith should be interpreted from the standpoint of linguistics and rhetoric 2 It also comprises methods for establishing authenticity of hadith and for determining when the legal force of a scriptural passage is abrogated by a passage revealed at a later date 2 In addition to the Quran and hadith the classical theory of Sunni jurisprudence recognizes secondary sources of law juristic consensus ijmaʿ and analogical reasoning qiyas 3 It therefore studies the application and limits of analogy as well as the value and limits of consensus along with other methodological principles some of which are accepted by only certain legal schools madhhabs 2 This interpretive apparatus is brought together under the rubric of ijtihad which refers to a jurist s exertion in an attempt to arrive at a ruling on a particular question 2 The theory of Twelver Shia jurisprudence parallels that of Sunni schools with some differences such as recognition of reason ʿaql as a source of law in place of qiyas and extension of the notions of hadith and sunnah to include traditions of the imams 1 4 Contents 1 Etymology 2 Overview 2 1 Sources of sharia 2 1 1 Primary sources 2 1 1 1 Quran 2 1 1 2 Hadith 2 1 2 Secondary sources 2 1 2 1 Ijma consensus 2 1 2 2 Qiyas analogical reasoning and aql reason 2 2 Ijtihad 2 3 Decision types aḥkam 2 4 Aims of sharia and public interest 3 Schools of law 4 Principles within Sunni Islam 4 1 The contribution of al Shafi i 4 2 Evolution of methods 4 3 Application of sources 5 Principles within Shia Islam 5 1 Ja fari principles 5 1 1 Parts of the Shiite Usul al Fiqh 5 2 Ismaili principles 6 Famous classical Muslim jurists usoolis 7 Famous contemporary Muslim jurists usoolis 8 See also 9 References 9 1 Citations 9 2 Sources 10 External linksEtymology EditUṣul al fiqh is a genitive construction with two Arabic terms uṣul and fiqh Uṣul means roots or basis Some says Uṣul the plural form of Aṣl means Rajih preponderant Also means Qa idah rules which the real application of the word For example every sentence must contain a verb is a rule of Grammar Fiqh linguistically refers to knowledge deep understanding or comprehension In the context of Islamic law it refers to traditional Islamic jurisprudence Overview EditClassical jurists held that human reason is a gift from God which should be exercised to its fullest capacity 5 However they believed that use of reason alone is insufficient to distinguish right from wrong and that rational argumentation must draw its content from the body of transcendental knowledge revealed in the Quran and through the sunnah of Muhammad 5 Sources of sharia Edit Main article Sources of sharia Primary sources Edit Quran Edit In Islam the Quran is considered to be the most sacred source of law 6 Classical jurists held its textual integrity to be beyond doubt on account of it having been handed down by many people in each generation which is known as recurrence or concurrent transmission tawatur 3 6 Only several hundred verses of the Quran have direct legal relevance and they are concentrated in a few specific areas such as inheritance though other passages have been used as a source for general principles whose legal ramifications were elaborated by other means 7 6 Hadith Edit The body of hadith provides more detailed and practical legal guidance but it was recognized early on that not all of them were authentic 7 6 Early Islamic scholars developed a methodology for evaluating their authenticity by assessing trustworthiness of the individuals listed in their transmission chains 6 These criteria narrowed down the vast corpus of prophetic traditions to several thousand sound hadiths which were collected in several canonical compilations 6 The hadiths which enjoyed concurrent transmission were deemed unquestionably authentic however the vast majority of hadiths were handed down by only one or a few transmitters and were therefore seen to yield only probable knowledge 6 3 The uncertainty was further compounded by ambiguity of the language contained in some hadiths and Quranic passages 6 Disagreements on the relative merits and interpretation of the textual sources allowed legal scholars considerable leeway in formulating alternative rulings 7 Secondary sources Edit Ijma consensus Edit Consensus ijma could in principle elevate a ruling based on probable evidence to absolute certainty 8 7 This classical doctrine drew its authority from a series of hadiths stating that the Islamic community could never agree on an error 8 This form of consensus was technically defined as agreement of all competent jurists in any particular generation acting as representatives of the community 8 7 9 However the practical difficulty of obtaining and ascertaining such an agreement meant that it had little impact on legal development 8 7 A more pragmatic form of consensus which could be determined by consulting works of prominent jurists was used to confirm a ruling so that it could not be reopened for further discussion 7 The cases for which there was a consensus account for less than 1 percent of the body of classical jurisprudence 8 Qiyas analogical reasoning and aql reason Edit Analogical reasoning qiyas is used to derive a ruling for a situation not addressed in the scripture by analogy with a scripturally based rule 3 In a classic example the Quranic prohibition of drinking wine is extended to all intoxicating substances on the basis of the cause ʿilla shared by these situations which in this case is identified to be intoxication 3 Since the cause of a rule may not be apparent its selection commonly occasioned controversy and extensive debate 10 Twelver Shia jurisprudence does not recognize the use of qiyas but relies on reason ʿaql in its place 11 Ijtihad Edit Main article Ijtihad Turkish mufti 17th century Spanish drawing The classical process of ijtihad combined these generally recognized principles with other methods which were not adopted by all legal schools such as istihsan juristic preference istislah consideration of public interest and istishab presumption of continuity 3 A jurist who is qualified to practice ijtihad is known as a mujtahid 12 The use of independent reasoning to arrive at a ruling is contrasted with taqlid imitation which refers to following the rulings of a mujtahid 12 By the beginning of the 10th century development of Sunni jurisprudence prompted leading jurists to state that the main legal questions had been addressed and the scope of ijtihad was gradually restricted 12 13 From the 18th century on leading Muslim reformers began calling for abandonment of taqlid and renewed emphasis on ijtihad which they saw as a return to the vitality of early Islamic jurisprudence 13 Decision types aḥkam Edit Main article Ahkam Sharia rulings fall into one of five categories known as the five rulings al aḥkam al khamsa mandatory farḍ or wajib recommended mandub or mustaḥabb neutral mubaḥ reprehensible makruh and forbidden ḥaram 7 11 It is a sin or a crime to perform a forbidden action or not to perform a mandatory action 7 Reprehensible acts should be avoided but they are not considered to be sinful or punishable in court 7 14 Avoiding reprehensible acts and performing recommended acts is held to be subject of reward in the afterlife while neutral actions entail no judgement from God 7 14 Jurists disagree on whether the term ḥalal covers the first three or the first four categories 7 The legal and moral verdict depends on whether the action is committed out of necessity ḍarura 7 Aims of sharia and public interest Edit Main articles Maqasid and Maslaha Maqaṣid aims or purposes of sharia and maṣlaḥa welfare or public interest are two related classical doctrines which have come to play an increasingly prominent role in modern times 15 16 17 They were first clearly articulated by al Ghazali d 1111 C E 505 A H who argued that maslaha was God s general purpose in revealing the divine law and that its specific aim was preservation of five essentials of human well being religion life intellect offspring and property 18 Although most classical era jurists recognized maslaha and maqasid as important legal principles they held different views regarding the role they should play in Islamic law 15 17 Some jurists viewed them as auxiliary rationales constrained by scriptural sources and analogical reasoning 15 19 Others regarded them as an independent source of law whose general principles could override specific inferences based on the letter of scripture 15 20 While the latter view was held by a minority of classical jurists in modern times it came to be championed in different forms by prominent scholars who sought to adapt Islamic law to changing social conditions by drawing on the intellectual heritage of traditional jurisprudence 15 3 16 These scholars expanded the inventory of maqasid to include such aims of sharia as reform and women s rights Rashid Rida justice and freedom Mohammed al Ghazali and human dignity and rights Yusuf al Qaradawi 15 Schools of law EditMain article Madhhab Distribution of Sunni Shia Quranist Ibadi and Nondenominational Muslim branches The main Sunni schools of law madhhabs are the Hanafi Maliki Shafi i and Hanbali madhhabs 12 They grew out of differences of opinion and methodology between the sahaba and each generation of students after them Initially there were hundreds of schools of thought which eventually contracted into the prominent four 21 These four schools recognize each other s validity and they have interacted in legal debate over the centuries 21 12 Rulings of these schools are followed across the Muslim world without exclusive regional restrictions but they each came to dominate in different parts of the world 21 12 For example the Maliki school is predominant in North and West Africa the Hanafi school in South and Central Asia the Shafi i school in Lower Egypt East Africa and Southeast Asia and the Hanbali school in North and Central Arabia 21 12 7 The first centuries of Islam also witnessed a number of short lived Sunni madhhabs 2 The Zahiri school which is commonly identified as extinct continues to exert influence over legal thought 2 12 21 The development of Shia legal schools occurred along the lines of theological differences and resulted in formation of the Twelver Zaidi and Ismaili madhhabs whose differences from Sunni legal schools are roughly of the same order as the differences among Sunni schools 2 7 The Ibadi legal school distinct from Sunni and Shia madhhabs is predominant in Oman 12 The transformations of Islamic legal institutions in the modern era have had profound implications for the madhhab system 21 Legal practice in most of the Muslim world has come to be controlled by government policy and state law so that the influence of the madhhabs beyond personal ritual practice depends on the status accorded to them within the national legal system 21 State law codification commonly utilized the methods of takhayyur selection of rulings without restriction to a particular madhhab and talfiq combining parts of different rulings on the same question 21 Legal professionals trained in modern law schools have largely replaced traditional ulema as interpreters of the resulting laws 21 Global Islamic movements have at times drawn on different madhhabs and at other times placed greater focus on the scriptural sources rather than classical jurisprudence 21 The Hanbali school with its particularly strict adherence to the Quran and hadith has inspired conservative currents of direct scriptural interpretation by the Salafi and Wahhabi movements 21 Other currents such as networks of Indonesian ulema and Islamic scholars residing in Muslim minority countries have advanced liberal interpretations of Islamic law without focusing on traditions of a particular madhhab 21 Principles within Sunni Islam EditIslamic scholar Sayyid Rashid Rida 1865 1935 C E lists the four basic principles of Islamic law agreed upon by all Sunni Muslims the well known sources of legislation in Islam are four the Qur an the Sunnah the consensus of the ummah and ijtihad undertaken by competent jurists 22 The contribution of al Shafi i Edit Al Shafi i documented a systematized set of principles developing a cohesive procedure for legal derivation of verdicts His approach contrasted with the Hanafite methodology that determined the sources from the sayings and rulings of the companions and successors Furthermore he raised the Sunnah to a place of prominence and restricted its legal use According to Shafi i only practices directly passed down from Muhammad were valid eliminating the legitimacy of practices of Muhammad s followers Prior to Shafi i legal reasoning included personal reasoning thus suffering from inconsistency Shafi i is probably best known for writing Risala a prime example of applying logic and order to Islamic jurisprudence 23 While Risala is considered a seminal work in the field of principles it has been noted that the term usul is neither found in the title of the book nor is it used as such within the text 24 Evolution of methods Edit Between Shafi i s Al Risala and the next attested works of Usul al Fiqh is a gap of several hundred years These later works were significantly different from Shafi is book likely due to the insertion of Mu tazilite and Ash arite theology into works of jurisprudence 25 The difference between Shafi i s work and these later works in terms of both content and the large chronological gap between which they were all composed is so great that modern scholarship has questioned the status of Shafi i as the founder of Islamic jurisprudence 26 27 28 Indeed even the division of the sources of Sunni law into four Qur an prophetic tradition consensus and analogical reason was not present in Shafi is books at all despite Muslim scholarship generally attributing this division to him 29 According to Qadi al Nu man one of the earliest jurists to write about usul after Shafi i did perhaps during Shafi is lifetime was Abu Ubaid al Qasim b Sallam who actually considered the sources of law to consist of only three the Qur an the prophetic tradition and consensus consisting of either scholarly consensus or consensus of the early generations 24 This division into four sources is most often attributed to later jurists upon whose work most Sunni jurisprudence has been modeled such as Baqillani and Abd al Jabbar ibn Ahmad 30 of the Ash arite and Mu tazilite schools respectively Thus the four main sources often attributed to Shafi i evolved into popular usage long after his death Application of sources Edit Even after this evolution there are still some disputes among Sunni jurists regarding these four sources and their application Malik ibn Anas Ahmad ibn Hanbal and in particular Dawud al Zahiri rejected all forms of analogical reason in authentic narrations from them 31 32 33 yet the later Malikites and Hanbalites and in some cases even Zahirites gravitated toward the acceptance of varying levels of analogical reason already accepted by Shafi ites and Hanafites 32 Malik and Abu Hanifa both accepted pure reason as a source of law Ahmad and Shafi i did not and Shafi i was especially hostile to juristic preference as implemented by Abu Hanifa yet pure reason later found its way into all Sunni schools of law The question of consensus has evolved considerably Abu Hanifa Ahmad and Zahiri only accepted the consensus of the first generation of Muslims 34 35 while Malik was willing to accept the consensus of the first generation in general or the consensus of later generations within the community of Medina 32 36 Shafi i insinuated that consensus was not practically possible to confirm 37 Later scholars of all schools eventually followed the views of Al Ghazali and Ibn Taymiyyah in expanding the definition of accepted consensus to include scholarly consensus and silent consensus as well 35 38 Principles within Shia Islam EditIn Shi a legal theory analogical reason isn t recognised as a source of law pure reason is however 1 39 Shi ites may differ in the exact application of principles depending on whether they follow the Ja fari Ismaili or Zaidi subdivisions of Shi ism Ja fari principles Edit Main article Usul Fiqh in Ja fari school There are two interpretations of what constitutes sources of law among jurists of the Ja fari school According to the Akhbari view the only sources of law are the Quran and the Hadith and any case not explicitly covered by one of these must be regarded as not having been provided for According to the majority Usuli view it is legitimate to seek general principles by induction in order to provide for cases not expressly provided for This process is known as ijtihad and the intellect is recognised as a source of law It differs from the Sunni qiyas in that it does not simply extend existing laws on a test of factual resemblance it is necessary to formulate a general principle that can be rationally supported Javadi Amoli wrote about source of revelation in Shiism The most important source in Shiite law is the Quran itself which interprets itself The other source is the tradition of the infallibles the family of Muhammad according to the successive tradition Saqalain passed down by the family of the Muhammad as well as according to the Quran itself to accept one without the other is equivalent to rejecting both of them A third source is theoretical wisdom where it is impossible to conceive the contrary which proves the existence of God and the necessity of his unity eternity pre existence power will and other exalted attributes this cannot be denied with any verse Although we cannot impose science upon the Quran we can use verified scientific experimental historical artistic logical and other evidence to interpret the subject addressed in a given passage rather than through another verse 40 In doubtful cases the law is often derived not from substantive principles induced from existing rules but from procedural presumptions usul amaliyyah concerning factual probability An example is the presumption of continuity if one knows that a given state of affairs such as ritual purity existed at some point in the past but one has no evidence one way or the other whether it exists now one can presume that the situation has not changed 41 The analysis of probability forms a large part of the Shiite science of usul al fiqh and was developed by Muhammad Baqir Behbahani 1706 1792 and Shaykh Murtada al Ansari died 1864 The only primary text on Shi ite principles of jurisprudence in English is the translation of Muhammad Baqir as Sadr s Durus fi Ilm al Usul Parts of the Shiite Usul al Fiqh Edit Discussions of this science are presented in various parts in the works of usul al fiqh However the best division is presented by al Muhaqqiq al Isfahani d 1940 in his last course of teaching as narrated by his great student Muhammad Rida al Muzaffar in his Usul al Fiqh p 11 according to which all usuli topics are discussed in the four following parts Discussions of terms of intellectual implications of the authority and of practical principles Discussions of terms deal with denotations and appearances of terms from a general aspect such as appearance of the imperative in the obligation that of the prohibition in the unlawfulness and the like Discussions of intellectual implications survey implications of precepts even though such precepts may not be inferred from terms such as discussing truthfulness of mutual implication of intellectual judgments and juristic precepts of obligation of something necessitating obligation of its preliminaries known as the problem of preliminary of the mandatory act of obligation of something necessitating unlawfulness of its opposite known as the problem of the opposite of possibility of conjunction of the command and the prohibition and so on Discussions of the authority investigate whether some specific thing is juristically treated as a proof for instance whether report of a single transmitter appearances appearances of the Quran Sunna consensus intellect and the like are authoritative proofs Discussions of practical principles deal with what the jurist refers to when he cannot find a persuasive proof such as the principle of clearance from obligation that of precaution and so forth For more on this science see An Introduction to Methodology of Islamic Jurisprudence A Shiite Approach Ismaili principles Edit Most early Ismaili works within the field of the principles of jurisprudence were actually responses to Sunni works on the topic 42 Qadi al Nu man s Differences Among the Schools of Law is most likely the first of such written responses Famous classical Muslim jurists usoolis EditJa far al Sadiq Abu Hanifa Mohammed Idris al Shafii Malik ibn Anas Ahmad ibn Hanbal Amidi Al Ghazali Sarkhasi Asnawi Abu Yusuf Shaybani Imam Qurtibi Layth bin Sa ad Sufian bin Uyayna Abdullah ibn Mubarak Sufyan AlthawriyFamous contemporary Muslim jurists usoolis EditSheikh Abdur Rahman Nasir as sathi Sheikh Adam Al ethiyopieSee also EditSources of Islamic law FiqhReferences EditCitations Edit a b c Dahlen 2003 chpt 4c a b c d e f g Calder 2009 a b c d e f g Ziadeh 2009 Kamali 1999 pp 121 22 a b Hallaq 2009 p 15 a b c d e f g h Hallaq 2009 pp 16 18 a b c d e f g h i j k l m n o Vikor 2014 a b c d e Hallaq 2009 pp 21 22 Kamali 1999 p 146 Hallaq 2009 pp 23 24 a b Schneider 2014 a b c d e f g h i Rabb 2009b a b Rabb 2009c a b Hallaq 2009 p 20 a b c d e f Duderija 2014 pp 2 6 a b Brown 2009 a b Gleave 2012 Opwis 2007 p 65 Opwis 2007 pp 66 68 Opwis 2007 pp 68 69 a b c d e f g h i j k l Hussin 2014 Rashid Riḍa Muhammad 1996 The Muhammadan Revelation Alexandria VA Al Saadawi Publications p 127 ISBN 1 881963 55 1 Usul Al Fiqh After Al Imam Al Shafi i Archived from the original on 2010 12 16 Retrieved 2011 02 15 a b Stewart pg 105 Devin J Stewart Muhammad b Dawud al Zahiri s Manual of Jurisprudence Taken from Studies in Islamic Law and Society Volume 15 Studies in Islamic Legal Theory Edited by Bernard G Weiss Pg 102 Leiden 2002 Brill Publishers Wael Hallaq Was al Shafi i the Master Architect of Islamic Jurisprudence International Journal of Middle East Studies 4 November 1993 pg 587 605 George Makdisi Juridical Theology pg 16 Stewart pg 103 Does Shafi i Have a Theory of Four Sources of Law taken from the PhD dissertation of Joseph E Lowry The Legal Theoretical Content of the Risala of Muhammad B Idris al Shafi i University of Pennsylvania 1999 Hallaq A history of Islamic legal theories an introduction to Sunni uṣul al fiqh Pg 30 35 New York Cambridge University Press 1997 Chiragh Ali The Proposed Political Legal and Social Reforms Taken from Modernist Islam 1840 1940 A Sourcebook pg 280 Edited by Charles Kurzman New York City Oxford University Press 2002 a b c Mansoor Moaddel Islamic Modernism Nationalism and Fundamentalism Episode and Discourse pg 32 Chicago University of Chicago Press 2005 Reuben Levy Introduction to the Sociology of Islam pg 237 239 and 245 London Williams and Norgate 1931 1933 Muhammad Muslehuddin Philosophy of Islamic Law and Orientalists Kazi Publications 1985 p 81 a b Dr Mohammad Omar Farooq The Doctrine of Ijma Is there a consensus June 2006 Muslehuddin p 81 Majid Khadduri Introduction to Al Shafi i s al Risala pg 33 Khadduri pg 38 39 Moaddel pg 33 Tasnim tafsir Vol 1 Page 57 One can compare in Western legal systems the presumption of innocence and the presumption in favour of possession Similarly Catholic moral theology distinguishes between direct principles and reflex principles the latter being the equivalent of Murtada al Ansari s usul amaliyyah Stewart pg 116 Sources Edit Brown Jonathan A C 2009 Maṣlaḥah In John L Esposito ed The Oxford Encyclopedia of the Islamic World Oxford Oxford University Press Calder Norman 2009 Law Legal Thought and Jurisprudence In John L Esposito ed The Oxford Encyclopedia of the Islamic World Oxford Oxford University Press Dahlen Ashk 2003 Islamic Law Epistemology and Modernity Legal Philosophy in Contemporary Iran New York Routledge ISBN 9780415945295 Duderija Adis 2014 Adis Duderija ed Contemporary Muslim Reformist Thought and Maqaṣid cum Maṣlaḥa Approaches to Islamic Law An Introduction Vol Maqasid al Shari a and Contemporary Reformist Muslim Thought An Examination Springer Gleave R M 2012 Maḳaṣid al Shariʿa In P Bearman Th Bianquis C E Bosworth E van Donzel W P Heinrichs eds Encyclopaedia of Islam 2nd ed Brill doi 10 1163 1573 3912 islam SIM 8809 Glenn H Patrick 2014 Legal Traditions of the World Sustainable Diversity in Law 5th edition Oxford University Press ISBN 978 0199669837 Hallaq Wael B 2009 An Introduction to Islamic Law Cambridge University Press Hussin Iza 2014 Sunni Schools of Jurisprudence In Emad El Din Shahin ed The Oxford Encyclopedia of Islam and Politics Oxford University Press doi 10 1093 acref oiso 9780199739356 001 0001 ISBN 9780199739356 Kamali Mohammad Hashim 1999 John Esposito ed Law and Society Vol The Oxford History of Islam Oxford University Press Kindle edition Opwis Felicitas 2007 Abbas Amanat Frank Griffel eds Islamic Law and Legal Change The Concept of Maslaha in Classical and Contemporary Legal Theory Vol Shari a Islamic Law in the Contemporary Context Kindle ed Stanford University Press Rabb Intisar A 2009 Law Civil Law amp Courts In John L Esposito ed The Oxford Encyclopedia of the Islamic World Oxford Oxford University Press Rabb Intisar A 2009b Fiqh In John L Esposito ed The Oxford Encyclopedia of the Islamic World Oxford Oxford University Press doi 10 1093 acref 9780195305135 001 0001 ISBN 9780195305135 Rabb Intisar A 2009c Ijtihad In John L Esposito ed The Oxford Encyclopedia of the Islamic World Oxford Oxford University Press doi 10 1093 acref 9780195305135 001 0001 ISBN 9780195305135 Schneider Irene 2014 Fiqh In Emad El Din Shahin ed The Oxford Encyclopedia of Islam and Politics Oxford University Press doi 10 1093 acref oiso 9780199739356 001 0001 ISBN 9780199739356 Vikor Knut S 2014 Shariʿah In Emad El Din Shahin ed The Oxford Encyclopedia of Islam and Politics Oxford University Press Archived from the original on 2 February 2017 Retrieved 3 September 2014 Ziadeh Farhat J 2009 Uṣul al fiqh In John L Esposito ed The Oxford Encyclopedia of the Islamic World Oxford Oxford University Press doi 10 1093 acref 9780195305135 001 0001 ISBN 9780195305135 Ziadeh Farhat J 2009b Law Sunni Schools of Law In John L Esposito ed The Oxford Encyclopedia of the Islamic World Oxford Oxford University Press External links EditUsul al Fiqh byShah Abdul Hannan Usul al Fiqh Source Methodology in Islamic Jurisprudence Retrieved from https en wikipedia org w index php title Principles of Islamic jurisprudence amp oldid 1112201857, wikipedia, wiki, book, books, library,

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