Idea Transcript
USUL AL-FIQH MIN AL-WARAQAT Lesson 1 [1.0] Definition Usul al Fiqh or the roots of legal science. The word Asl is singular for root, while Usul is plural for roots. The word Fiqh means the branches of shariah or legal science. The branches are firmly established in the roots (Aslouha Thaabit, wa furuha fis-Sama’ [EMQ]) [1.1] The Divisions of Takleef Takleef (legal responsibility) falls upon the one who is known is Muslim, mature (baligh), has developed intelligence (aql). They are known as al-mukallaf. The nonmature and underaged child is not legally responsible in the eyes of the shariah e.g. we don’t command them to pray or fast ramadhan. There are two types of Hukm (or rulings): Type 1 – Al Hukm Al Takleefi (the Defining law) is the communication from the lawgiver addressed to the mukallaf (i.e. the one who is legally responsible in the eyes of the shariah) which consists of a demand or an option. It occurs in the five varieties: (i) Wajib (obligation); (ii) Haram (prohibition); (iii) Mubah (permissible); (iv) Mandoub (recommended); (v) Makrouh (disliked) Type 2 – Al Hukm Al Wadi’ (declaratory law) is the communication from the Lawgiver which enacts something into a cause (sabab), a condition (shart) or a hindrance (Maani’) to something else. Al Hukm Al Takleefi is linked directly to the person performing the act and His actions. [1.2] Al Hukm Al Takleefi 1. Obligation - there are 18 types of words which show obligation e.g. “Oh young boy, eat by your right hand and from nearer side” [EMQ] ((kull bi-yaminik…)). Just on a side note, the command (amr) is a recommendation in this hadith and not an obligation (wajib). 2. Permissibility (ibaha) - the area of permissibility is a large field in our life. Words which show permissibility e.g. “No harm on you…” (Laa Junahan…)) 3. Prohibition (not good to do) 4. Disliked 5. Recommended [1.3] Sources of Law (Al-Adillah) Main sources of law – Qur’an, Sunnah, Ijma and Qiyas Subsidiary sources of law – Opinion of Sahabi (qowl al-Sahabi), previous shariah (shara man qablana) mentioned in the Qur’an (this does not include the isra’eeliyaat). [1.4] Interpretation of the Text
Dalalah Al-Faaz (the meanings of words) – very important subject within usul al-Fiqh e.g Al-Saarik (the thief). Sometimes the opposite meanings are not applicable. [1.5] Al-Ijtihad (diligent inquiry) Al Ijtihad is how the mujtahid or scholar extracts the hukm from the source texts by means of diligent inquiry and exertion. [1.6] The definition of AsL Asl has four meanings in the shariah. Meaning 1 – Asl can be called the general rule (al-qaidah) e.g. Al-Asl fil Ashya AlIbaaha (The original rule for the things is permissibility) Meaning 2 – Asl is equal to the source (daleel) e.g. Al asl fi tahreem al-khamr alqur’an (the original thing that makes intoxicants prohibited is the Qur’an). The four manin sources are the Qur’an, sunnah, Ijma (consensus of the sahabah) and Qiyas (analogical reasoning). Meaning 3 – Asl can mean preference or the best opinion (al-rajih) e.g. al-asl fil qalam al-haqeeqah (the preference in the words is the reality, not the metaphorical meaning). Describing someone to be as brave as a Lion is metaphorical. In general, its not permissible to use the metaphorical meaning unless there is an indication towards this (qarinah). As an example, the Qur’an mentions that Hiraabah (gangs) should be ‘exiled’ – however is this exile metaphorical or literal? The majority of the ulema are of the opinion that it means exile them in reality (haqeeqah lughawiyyah), however Imam Abu Hanifa (rh) said that the word Hiraabah has a metaphorical usage (so instead of exiling them, we can imprison them). So we can see that the understanding of the word changes its ruling (hukm). Meaning 4 – Asl can mean al-istishab (continuity of the hukm from the past to the present) i.e. no one is obligated to Do or probihibited not to Do unless there is a text which obligates or prohibits. For example, breaking almond shells to weigh what we are selling – however there is no evidence from the Prophet (s) that he did this action – hence we carry on selling almonds without having to break the shells. Another example, Rafi ibnou’ Khadij used to hire land for a percentage of production costs. It was a practise of the sahaba to do like this for the past 40-years. Rafi’ came to them and said that the Prophet (s) told him to stop – so the ruling of continuity (al-istishab) stops in the face of the evidence. [1.7] The Command (al Amr) When a command comes in a ‘binding way’ (mulzim) this command is then considered to be an obligation, otherwise it is simply a recommendation (nonbinding). [1.8] The Difference Between an Obligation and a Recommendation A command (amr) with no indication of an option, normally this command is considered an obligation. At times, the command can be subject to ijtihad and can become confusing to decipher. The confusion arises when you have to study the indicators (qara’in). The better a faqih knows the shariah, the more likely he/she is to know if the command (al amr) is an obligation or a recommendation. As an example, we can use the verse in the Qur’an which states: ((If you know goodness in them (i.e. your slaves), then do accept payment in instalments (from them for their freedom)). Is the command fa qatibouhum ((do accept payments…)) binding or not? The majority of the ulema said it was only a recommendation to accept the payments from
your slaves. However, ibnul Hazm al-zahiri said it is an obligation to accept instalments to allow the slave to buy their freedom. His arhument was that the cmmand (al amr) is very apparent and there are no options given. For the majority of the ulema, they argue that a slave is considered a form of wealth (or property), and there is a general rule which says that you can dispose of your wealth as you please i.e. there is no obligation to sell your wealth. Hence, the command in the above quranic verse is just a recommendation. From this brief discussion, we can see that it is very important to know about the qara’in (the indicators). The indicators could be within the verse or without the verse. On a side note, some usuliyeen have said that the amr (or command) dosnt necessitate an obligation in the first instance but rather permissibility. But this is a very weak position and no good thing arrives from this opinion e.g. when Allah says: Aqimou salah – their argument is that this is simply a recommendation. But, other evidences indicate that if an individual muslim male or female dosnt pray – the courts will punish the said individual. At the same time, prayer being one of the pillars of the religion also indicate prayer is obligation and not simply a recommendation. [1.9] Recommendation (al-Mandoub) Sometimes called al-Mandoub (i.e. the one called for) or al-Naafilah (something extra) or al-Mustahabb (the liked or loved one) or al-Sunnah [2.0] Permissibility (al-Mubah) Obligation – Recommendation – Permissible – Disapproved – Prohibited Permissibility (al-mubah) is the middle hukm or ruling e.g. eating giraffe meat comes under the general rule of permissibility (al-aslou fil ashya al-ibaha). Imam Malik (rh) permitted eating the body of the snake (not the head) – in times of hardships/war. For the Sufi, the permissible actions are considered either prohibited or obligated. They negate this middle area within the Fiqh. [2.1] The Prohibited or Proscribed (al-Haram) Should we first avoid Haram or do the obligations? The original rule is to make the obligations e.g. do your salah – the salah will act against the Haram actions and pull you out of them. The protection for the believer is the obligations. The more an individual gets involved in the obligations/recommendations, the more prohibited actions he/She will tend to avoid. [2.2] Disapproved (al-Makrouh) Disapproved is a negation with non-bindingness (ghayr mulzim), whereas a prohibition is a negation with bindingness (mulzim). Once again, a study of alqara’in is needed in order to know what is makrouh and what is haram in the same way we need to study al-qara’in in order to know what is obligated and what is recommended. Amongst the Salaf, they would say: ‘Akrahou’ Zaalika’ (this is disapproved) instead of saying this is Haram for fear of lieing upon Allah (swt). [2.3] Different Methodologies in writing the Usul (foundational principles) 1 – The Mutakallimoon methodology: this methodology tended to issue general rules and looked at specifics in the light of those rules) 2 – The Hanafiyyah methodology: this methodology tended to look at the specifics, then used those to derive the general rules.
Taken from a lecture given by: Sheikh Abdul Rahman Al-Zaidi written15.10.11