A Brief Essay Concerning Uṣūl al-Fiqh

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  Imām ʿAbd al-Raḥmān ibn Nāṣir al-Saʿdī (d. AH 1376)

A complete translation of al-Risālah fī Uṣūl al-Fiqh of the exemplary Uṣūlī.

bismallah

  

  Uṣūl al-Fiqh: it is the science concerning the comprehensive evidences of fiqh. 


[Risālah Lateefah Jāmiʿah fī Uṣūlil-Fiqhil-Muhimmah, which is part of Manhajus-Saalikeen wa Tawdeehul-Fiqh bid-Dīn (pp.101-112)]

All praise belongs to Allāh. So we praise Him for what He possess from His beautiful Names and lofty and perfect Attributes; and for His Judgement and Decree which encompasses everything in existence; and for His Divinely Prescribed Laws which encompass every field of legislation; and His Judgement concerning rewards for the doers of good, and punishments for the criminals.

I testify that none has the right to be worshipped except Allāh alone, who has no partner in His Names. Attributes or Judgement. And I testify that Muḥammad is His Slave and Messenger; who clarified the Judgement and the rulings, made clear the ḥalāl (lawful) and the ḥarām (prohibited), and established the fundamentals and expounded upon them - until the Religion was completed and established firmly. O Allāh extol and send the blessings of peace upon Muḥammad, and upon his family, his Companions and those that follow them, particularly the Scholars.

To proceed: This is a brief essay concerning uṣūlul-fiqh (fundamentals of jurisprudence), uncomplicated in wording, clear in meaning, and useful in learning its rulings for whosoever contemplates its meanings. We ask Allāh that He benefits both its compiler and its reader. Indeed He is the Most Generous.

CHAPTER [ONE]

Uṣūl al-Fiqh: it is the science concerning the comprehensive evidences of fiqh. Since fiqh consist of either [i] masaa‘il (issues) concerning which the ruling by one of the five rulings is sought, or [ii] it is the dʿalá‘il (evidences) employed in extracting and determining these masaa‘il (issues). So fiqh is actually knowledge of the masaa‘il (issues) and the dʿalá‘il (evidences).

These dʿalá‘il (evidences) are of two types:-

[i]: Comprehensive evidences that encompass every ruling - from the beginning to the end of fiqh - of a single kind; such as our saying: "al-amr lil-wujoob (a command is indicative of an obligation)." Or: "an-nahee lit-tahreem (a forbiddance is indicative of a prohibition)." And other similar evidences. So these are part of uṣūlul-fiqh.

[ii]:Detailed evidences that are to be understood in the light of the comprehensive evidences. So when such is completed, then the aḥkām (rulings) can be resolved.

Thus, the aḥkām (rulings) are in need of their detailed evidences, and the detailed evidences are themselves in need of comprehensive evidences. So by this, we recognize the need and the necessity of knowing uṣūlul-fiqh, and that it aids in the understanding of fiqh itself, and that it is the foundations for deducing and making ijtihād in the aḥkām (rulings).

CHAPTER [TWO]

The aḥkām (rulings) upon which fiqh revolve are five:-

[1]: Waajib (obligation): that for which the one who performs it is rewarded, whilst the one who abandons it is punished.

[2]: Ḥarām (prohibition): this is the opposite of an obligation.

[3]: Masnoon (recommended): that for which the one who performs it is rewarded, whilst the one who leaves it is not punished.

[4]: Makrooh (detested): this is the opposite of a recommendation.

[5]: Mubaah (permissible): this is where both (its doing or leaving) are equivalent.

Those rulings which are wājib (obligatory) are divided into two categories: fard ’ayn (individual obligation), the doing of which is sought from every mukallaf (morally responsible), baaligh (mature) ’aaqil (sane) person. The majority of the Sharīʿah rulings enter into this category. The second is fard kifāyah (collective obligation), the performance of which is sought from the morally responsible collectively, but not from every individual specifically; such as the learning of the various branches of useful knowledge and useful industries; the aẓan; the commanding of good and forbidding of evil; and other similar matters.

These five rulings differ widely in accordance with its state, its levels and its effects.

Thus, whatever is of pure or of overwhelming maslah (benefit), then the Shaari’ (Lawgiver) has commanded its performance with either an obligation or a recommendation. Whatever is of pure, or of overwhelming mafṣadah (harm), then the Lawgiver has stopped its doing with either an absolute prohibition or dislike. So this asl (fundamental principle) encompasses all matters commanded of prohibited by the Lawgiver.

As for those matters which the Lawgiver has permitted and allowed, then at times they lead to that which is good, and so are joined to those matters which have been commanded; and at other times they lead to that which is evil, and so are joined to those matters which are prohibited. So this is a great asl that: "al-wasaa‘ilu lahaa aḥkāmul-maqaasid (the means take on the same ruling as their aims)."

From this we learn that: "maa yatimmul-wājib illā bihi fahuwa wājib (whatever is required to fulfill an obligation is itself an obligation)." Likewise, whatever is required to fufill a rmasnoon (recommendation) is itself recommended. Whatever leads to the establishment of a ḥarām (prohibition) is itself prohibited. And whatever leads to the establishment of a makrooh (detested act) is itself detested.

CHAPTER [THREE]

The adillah (evidences) that fiqh is derived from are four:-

The Book and the Sunnah, and these two are the foundation by which the mukallafoon (the morally responsible) are addressed, and upon which is built their Religion. Then ijmāʿ’ (consensus) and al-qiyaasus-ṣaḥīḥ (sound and correct analogy), these two are derived from the Book and the Sunnah. So fiqh - in its entirety - does not leave the realms of these four uṣūl (fundamentals).

The majority of the important aḥkām (rulings) are indicated to by these four adillah (evidences). They are indicated to by the nusoos (texts) from the Book and the Sunnah; and the Scholars have ijmāʿ’ (consensus) about them, and they are indicated to by qiyaasus-ṣaḥīḥ (sound and correct analogy); because of what they entail of benefit, if it is a command; or what they contain of harm, if it is a forbiddance. Very few of the aḥkām have been differed over by the Scholars. In such cases the closest of them to the truth is the one who correctly refers back to these four uṣūl.

CHAPTER [FOUR] CONCERNING THE BOOK AND THE SUNNAH

As for the Book: It is al-Qurʾānul-’Adheem (the Great Qurʾān), the Kʿalám (Speech) of the Lord of the worlds, which was sent down by the Trustworthy Spirit upon the heart of Muḥammad the Messenger of Allāh ṣallallāhu ʿalayhi wa-sallam, that he may be from the warners to the whole of mankind - in the clear arabic tongue - regarding all that they stand in need of with regards to what benefits them concerning their Religion and their world. The Book of Allāh is that which is recited by the tongues, written in the masaahif (copies), and preserved in the hearts; regarding which: "No falsehood can approach from before or from behind it, it was sent down from the All-Wise, the One deserving of all praise." [Sūrah Fuṣṣilat 41:42].

As for the Sunnah: It is the Prophet ṣallallāhu ʿalayhi wa-sallam’s aqwaal (sayings), af’aal (actions), and his taqreer (tacit approvals) of the sayings and actions of others.

The aḥkāmush-shar’iyyah (Sharīʿah rulings) are sometimes taken from a definite text of the Book and the Sunnah; which is defined as that text possessing a clear meaning, which may not have any other meaning, except that single meaning. Sometimes it is taken from the dhaahir (apparent) meaning; which is defined as that which is indicative of the meaning, in a general manner, both through wording and meaning. Sometimes it is taken from the mantooq (explicit meaning); which is defined as being that which is indicative of the ruling due to the wording of the text. Sometimes the aḥkāmush-shar’iyyah is taken from the mafhoom (implied meaning); which is defined as that which is indicative of the ruling due to being in agreement with the text; in cases where the mafhoom is equal to, or stronger than the mantooq. Or by divergent meaning if the mafhoom differs from the mantooq in its ruling; whereas the mantooq is linked to a wasf (attribute) or a shart (condition), in the absence of which the ruling differs.

The dʿalálah (indications) in the Book and the Sunnah are of three kinds:-

[i] Dʿalálah Mutaabiqah: this is where we apply the word to indicate all of its meanings. [ii] Dʿalálah Tadammun: when we employ the wording to indicate one of its meaning. [iii] Dʿalálah Iltizaam: where we employ the wording of the Book and the Sunnah to indicate the meaning which is a necessary consequence of it; and which follows on and completes it; and what the matter being judged with or being informed of cannot come about, except by it.

CHAPTER [FIVE]

The asl (fundamental principle) concerning commands in the Book and the Sunnah is that they are indicatie of a wujoob (obligation), except if there is an eviidence to indicate to it being mustahabb (recommended) of mubaah (permissible) The asl concerning prohibitions is that they are indicative of tahreem (forbidance), except if there is an evidence indicating it being makrooh (hated).

The asl governing kalām (speech) is that it is to be taken upon its hʿaqīqah (literal sense). So it is not to be turned away from it to its majaaz (figurative meaning) - if we accept this - except when it is impossible to employ its hʿaqīqah (literal meaning)

Al-Haqaa‘iq (literal meanings) are of three types: [i] shar’iyyah (that which is defined by the Sharīʿah), [ii] lughawiyyah (that which is defined by language) and [iii] ’urfiyyah (that which is defined by customary useage).

So whatever ruling the Shaari’ (Lawgiver) has defined, then it is obligatory to return it to the Sharīʿah definition. However, what the Lawgiver has ruled, but not defined, sufficing by its apparent linguistic meaning, then it is obligatory to return it to its linguistic meaning. But whatever has not been defined, neither in the Sharīʿah, nor in the language; then it is obligatory to refer it back to the habits of the people, and their customary useage. The Shaari’ (Lawgiver) may clearly specify to return these matters to ’urf (customary usage); such as commanding the good, living well with one’s wife, and other similar matters.

So memorize these uṣūl concerning which the faqīḥ stands in need of in all his dealings of fiqh.

CHAPTER [SIX]

From the texts of the Book and the Sunnah are those which are ’aam (general); which is defined as that word which is inclusive of many ajnaas (categories), anwaa’ (types) and afraad (individuals). This majority of the texts are of this nature. Other texts are khaass (specific), and are indicative of only some categories, types and individuals. Thus, if there does not exist any contraḍīction between the ’aam and the khaass texts, then each of them are independently acted upon. However, if a contraḍīction is presumed, then the ’aam is specified and delineated by the khaas.

From the texts are the mutlaq (absolute) and the muqayyad (restricted) ones. It is restricted by a description or a reliable restriction. Thus, the mutlaq is restricted and qualified by the muqayyad.

And from the texts are the mujmal (comprehensive) and mubayyan (explicit). Whatever the Lawgiver has made comprehensive in one place, yet made it explicit in another, then it is obligatory to return to what the Lawgiver made mubayyan (explicit). Many of the rulings in the Qurʾān are mujmal (comprehensive) in nature, but have been explicitly explained in the Sunnah. So it is obligatory to return to the bayān (explicit clarification) of the Messenger ṣallallāhu ʿalayhi wa-sallam, since he is the clear explainer from Allāh.

Similar to this are the texts that are muhkam (equivocal and singular in meaning) and those that are mutashaabih (unequivocal and open to more than one meaning). It is obligatory to understand the mutashaabih in the light of those texts that are muhkam.

Amongst the texts are the naasikh (abrogating) and the mansookh (abrogated) The abrogated texts in the Qurʾān and the Sunnah are few in number. Whenever there is the possibility of harmonising two texts, with the possibility of each one being acted upon in its own particular circumstance, then it is obligatory to do so. One may not turn to abrogation, except with a text from the Lawgiver, or an apparent contraḍīction between two authentic texts concerning which there is no possible way to resolve this contraḍīction such that each text is acted upon in its own particular circumstance. in this case, the later text abrogates the earlier one. However, if it is impossible to determine which is the earlier text and which is the later, we then turn to other means of tarjeeh (preferring one text over another). For example, when there is an (apparent) contraḍīction between the Prophet ṣallallāhu ʿalayhi wa-sallam’s statement and his action, then precedence is given to his saying. This is because his statement represents either a command or a prohibition to his Ummah, whereas his action is, in this case, interpreted to be something particular to him alone. So the khasaa‘is (particular and unique rulings) pertaining to the Prophet ṣallallāhu ʿalayhi wa-sallam are actually based upon this asl (fundamental principle).

Likewise, when the Prophet ṣallallāhu ʿalayhi wa-sallam does something as an act of ’ʿibādah (worship), but he does not command its performance, then what is correct is that this action of his is indicative of it being mustahabb (recommended). If he does something as an act of ’aadah (custom or habit), then it is indicative of it being mubaah (permissible).

Whatever the Prophet ṣallallāhu ʿalayhi wa-sallam acknowledges of statements and actions, then the ruling is one of ibaahah (permissibility), or other than it, according to the manner in which he acknowledged such statements and actions.

CHAPTER [SEVEN]

As for the ijmāʿ’ (consensus): it is the agreement of the mujtahid Scholars upon a new judgement. So, whenever we are certain about their ijmāʿ’, then it is obligatory to turn to it, and it is not lawful to oppose. It is necessary that any ijmāʿ’ be rooted in the evidences of the Book and the Sunnah.

As for qiyaasus-ṣaḥīḥ (correct and sound analogy): it is linking a subsiduary branch with its root, due to a commen Illah (effective cause) between them. So whenever the Lawgiver indicates a matter, or describes it with a particular wasf (characteristic); or the Scholars deduce that the ruling has been legislated because of that particular wasf (characteristic), then if that particular wasf (characteristic) is found to exist in another issue, which the Lawgiver has not legislated any particular ruling for - without their being a difference between it and the texts - then it is obligatory to link the two in their ruling. This is because the All-Wise Lawgiver does not differentiate between matters equivalent in their characteristics, just as He does not join between dissimilar and opposing matters.

This sound and correct qiyaas (analogy) is al-Meezaan (the Balance) which Allāh sent down. And it is inclusive of justice, and it is that by which justice is recognized.

Qiyaas is only resorted to when there exists no text. So this asl (fundamental principle) is turned to when there exists no other source.. And qiyaas supports the text. Thus, all that the texts that the Lawgiver has given rulings to, then they are in agreement with qiyaas, not in opposition to it.

CHAPTER [EIGHT]

The Scholars of uṣūl have deduced from the Book and the Sunnah many uṣūl (fundamental principles), upon which they have built many rulings; by which they have also benefited themselves and benefited others.

Amongst these uṣūl (fundamental principles):

[1] "Al-yaqīn lā yazoolu bish-shakk [certainty is not invalidated by doubt]."

Under this principle they have entered many ’ʿibādāt (acts of worship), mu’aamʿalát (social interactions) and huqooq (rights). So whosoever entertains a doubt regarding any of that, should return to the asl of certainty. They also deduce: "al-aslut-tahārah fī kulli shay [The basis concerning all things is that they are pure]." And: "al-aslul-ibaahah illā ma dallad-dalīlu ʿalá najaasatihi aw tahreemihi [The asl (basic principle) is permissibility of using anything, except when there exists an evidence indicative of its impurity or prohibition]." And: "The asl is freedom from accountability concerning obligations towards the creation, until a proof is established to the contrary." And: "The asl is the continuation of accountability concerning the obligations to the Creator, and to His servants, until there is certain proof of freedom and discharging."

[2] And from them is that: "Al-mashaqah tajlibut-tayseer [difficulty brings about ease]."

Based upon this are all the rukhas (concessions) allowed during a journey, and a lightening of ’Ibaadaat (acts of worship), mu’aamʿalát (social transactions), and other matters.

[3] And from it is their saying: "Lā wājib ma’al-’ajaz wa lā muharram ma’ad-daroorah [there is no obligation with inability, nor is there any prohibition with necessity]."

The Lawgiver has not made incumbent upon us what we are incapable of doing in totality. What the Lawgiver has made obligatory, from the obligations, but the servant is incapable of performing it, then that obligation is totally dropped. However, if he is capable of performing a part of it, then it is required for him to fulfill what he is capable of, whilst the part he is incapable of is dropped. There are many examples of this.

Likewise, whatever the creation are in need of, then it has not been made ḥarām (prohibited) to them. As for the khabaa‘ith (evil matters), which have been made ḥarām, then if the servant is in need of that (due to a necessity), then there is no sin in using it. This is because daroorah (necessity) allows those matters which are fixed and prohibited. And daroorah is measured by its need, in order to lessen the evil. Thus, daroorah permits the use of what is normally forbidden from food, drinks, clothing, and other than them.

[4] And from them: "Al-umooru bi maqaasidiha [matters are judged by their motives]."

Entering into this are the ’ʿibādāt and the mu’aamʿalát. Likewise, the prohibition of employing forbidden hiyaal (means and stratagems) is derived from this asl. Likewise, is directing those words which are kināyāt (not clear and unequivocal) to be sareeh (clear and equivocal) is based upon this asl. Its forms are very many indeed.

[5] And from them: "Yukhtaaru ’alal-maslahatayn wa yartakab akhafal-mufsadatayn ’indat-tazaahum [select the higher of the two benefits, or incur the lesser of the two harms when faced with them both]."

Upon this great principle many issues are built. So when the benefit and harm are both in equal proportion, then: "dar‘ul-mafāṣid uwla min jalbil-masaalih [repelling harm takes precedence over procuring benefits]."

[6] And from this is the principle: "Lā tutimmul-aḥkām illā bi wujoodi shurootiha wa intifaa‘ mawaani’iha [rulings are not complete except with the presence of their conditions and the negation of their impediments]."

This is a tremendous principle, upon which is built - from the issues, rulings and other matters - many things. So whenever a shart (condition) for ’ʿibādāt (acts of worship), or mu’aamaʿalát (social transactions), or establishment of rights is not present, then the ruling is not correct, nor is it established. Likewise, if its mawaani’ (impediments) are present, then it is nor correct, nor is it legally valid.

The shuroot (conditions) for ’ʿibādāt and mu’aamʿalát are: all those matters upon which the validity of such ’ʿibādāt and mu’aamʿalát rest. And these shuroot are known by a thorough and detailed study of the Sharīʿah. Due to this asl, the fuqahaa were able to enumerate the faraa‘id (obligations) of the various ’ʿibādāt, and its shuroot (conditions). Likewise, by it they were able to determine the various shuroot (conditions) and mawaani’ (impediments) for the mu’aamʿalát.

As regards al-hʿasr (collecting and enumerating): it is establishing a ruling for something, whilst negating it from something else. By it, the fuqahaa are able to determine the shuroot of various things and matters, and that what is other than it, then the ruling is not affirmed for it.

[7] And from it is their saying: "al-hukm yuduru ma’a ’illatihi thabootan wa ’adaman [the ruling revolves around its effective cause in both affirmation and negation]."

So when the ’illatut-taamah (complete effect cause) - which it is known theat the Shaari’ has linked the ruling to it - is present, then the ruling is present; and when it is absent, then the ruling is not established.

[8] And from them is their saying: "al-aslu fil-’ʿibādāt al-hadhru illā maa waradah ’anish-shaari’ tashree’ahu, wal-aslu fil-’aadaat al-ibaahaa illā maa waradah ’anish-shaari’ tahreemahu [the basic principle concerning acts of worship is prohibition, except what is related from the Lawgiver regarding its legislation, and the basic principle regarding customs and habits is permissibility, except what is related from the Lawgiver regarding its forbiddance]."

This is because al-’ʿibādah (worship) is what the Lawgiver has prescribed; either as an obligation, or a recommendation. Thus, whatever steps out of this is not considered to be an act of worship. And because Allāh created for us all that is upon the earth, so that we may benefit from all things and utilize them, except those things that the Lawgiver has made ḥarām (unlawful) to us.

[9] From them: "idhaa wajidat asbaabul-’ʿibādāt wal-huqooq thabatat wa wajibat illā idhaa qaaranahl-maani’ [if the cause for acts of worship are present, they are confirmed and obligatory, except if linked by a prevention]."

[10] And from them: "al-wājibaatu talzimul-mukallafīn [obligations obligate the morally responsible]."

So at-takleef is reached with: al-buloogh (attainment of maturity) and al-’aql (sanity). However, compensation for injury and harm is required from the makallafīn (morally responsible), and others. So whenever a person reaches maturity and is sane, those general obligation then become required from him to do. And those specific obligations also become required from him, providing he possess those qualities which necessitate that. The naasee (forgetful) and the jaahil (ignorant one) is not held responsible from the point of view of sinning, nor from the point of view of compensating what is harmed or injured.

CHAPTER [NINE]

The statement of a single Sahaabee (Companion) - who is defined as anyone who met the Prophet ṣallallāhu ʿalayhi wa-sallam, having īmān (certainty of faith) in him, and dying upon īmān - if it has become widespread and not objected to, but rather it has been affirmed by the Ṣaḥābah (Companions), then it is a form of ijmāʿ’ (consensus). If it is not known to have become widespread, nor is there known to be anything in opposition to it, then according to the most correct opinion, it is a hujjah (proof). However, if other Companions have disagreed or contraḍīcted it, then it is not a proof.

CHAPTER [TEN]

An amr (command) for something, entails a nahee (prohibition) for its opposite. And a prohibition of something, entails a command for its opposite. A prohibition of something necessitates that matter to be null and void, except if there is a dalīl (evidence) indicative of its validity. And a command which follows a prohibition, returns it to what it was prior to this. And both an amr and a nahee necessitate immediate compliance, but they do not require repitition, except when linked to a specific sabab (cause). So it becomes wājib (obligatory) or mustahabb (recommended) to comply whenever that sabab (cause) exists.

Matters in which a choice is given are of varying types. So if the choice was given with the aim of facilitating ease to the makallaf, then the choice is desirable and preferred. If the choice was given to achieve a particular maslahah (benefit), then choosing that which is a greater benefit is obligatory.

Words indicative of generality are: kull, jaami’, al-mufridul-mudaaf (the genetive form of a singular), the indefinite when attached to a nahee (prohibition), a nafī (negation), an istifhaam (interrogative), or a shart (condition).

And: "al-’ibrah bi ’umoomil-lafdh lā bi khusoosi-sabab [the lesson. or consideration is in the generality of the wording, not in its specific cause of legislation]."

The khaass (specific) can mean the ’aam (general); and visa versa, providing the existence of qarāʿin (signs) are indicative of this.

The Khitaab (address) of the Lawgiver to any one of the Ummah, or His Speech in any specific issue, actually includes all the Ummah, and all the specific issues, unless there is an evidence indicative of it being khaass (specific). Likewise, the asl (basic principle) concerning the actions of the Prophet ṣallallāhu ʿalayhi wa-sallam is that his Ummah is to take him as a model and an example to follow, except when there exists an evidence indicative of that being specific to him.

If the Lawgiver negates an act of worship or a social transaction, then this is indicative of it being invalid; or a negation of some necessary aspect of it. Hence, it does not become totally invalid because of the negation of some of its recommended aspects.

Contracts are bound or cancelled by all that which is indicative of this, from both statements and actions.

Masaa‘il (issues) are of two types:- [i]: Those that have been agreed upon by the Scholars. So here it is required to picture and to establish the evidence upon it, then to rule accordingly, after picturing and deducing. [ii]: That in which the Scholars have differed. So here it is required to reply to the evidence of the differing opinions. This is the right of the mujtahid (the one capable of employing ijtihād) and the mustadlil (the one able to employ inductive reasoning). As for the muqallid (blind follower), his duty is to ask the People of Knowledge.

And taqlīd is: the acceptance of a saying of someone, without a proof. So the one capable of inductive reasoning, then it is upon him to exercise ijtihād and istidlāl. as for the one who is incapable, the it is upon him to make taqlīd and ask; as Allāh has mentioned both matters in His Saying: "Ask the People of Knowledge if you do not know." [Sūrah al-Anbiyāʾ 21:7]. And Allāh knows best.

And may Allāh extol and send the blessings of peace upon Muḥammad, the Messenger of Allāh, and upon his Family, Companions and followers.

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