Welcome to the Class of

Islamic Jurisprudence
By:
Prof Madya Dr Md Anowar Zahid
Faculty of Law, UKM
Tel: (03) 8911-8443
Cell: 019-3668390
E-mail: anowar_zahid@ukm.my

1 Thursday, May 9, 2019

 Lecture 1:
Part I of Islamic Jurisprudence:
Preliminary Matters

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 Synopsis:

 Meaning and Definition of Usul al-fiqh

 Nature, Scope and Importance of Usul
al-fiqh
 Development of Usul al-fiqh
 Recapitulation and Conclusion

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 I. Meaning and Definition of Usul al-
Fiqh

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 I. Meaning and Definition of Usul
al-Fiqh (cont’d.)

General Meaning of Usul-al-Fiqh:

Principles of Lawmaking

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 I. Meaning and Definition of Usul al-
Fiqh (cont’d.)
Two constituents: Usul and Fiqh
1. Fiqh
• Literal Meaning: Understanding
• Technical Meaning: two meanings-
 Lawmaking/how the law is made: The Knowledge of Shar’i
ahkam (legal rules given by the Lawgiver, ALLAH), pertaining
to conduct (of the subjects of the hukm), that have been
derived from their specific evidences in texts (Qur’an and
Sunnah) or extended through reasoning from general
propositions of the Shari’ah in the light of its maqasid.
(See Nyazee, Islamic Jurisprudence (2000), at p. 31)
 Shar’ i ahkam (legal rules) themselves.

• 2. Usul:
Principles by the use of which the mujtahid (high ranking jurist)
derives the Shari’i ahkam from Shariah sources.

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 Dissection of the Definition
 The Knowledge of Shar’i ahkam (legal rules
given by Lawgiver, ALLAH), pertaining to
conduct (of the subjects of the hukm)
 Those rules are
o derived from their specific evidences in
texts (Qur’an and Sunnah), OR
o extended through reasoning from general
propositions of the Shari’ah in the light of
its maqasid (objectives of Shari’ah).

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 Component One:
 Rules related to human CONDCUCT
(actions/a’mal)
 Belief (Imaan) is not the concern of this
field of knowledge

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 Component Two:
 How the rules are made
In two ways rules are made:
o Directly received from the sources (Qur’an
and Sunnah) or by analogy (qiyas)
o If the first method is not helpful, rules are
made by applying general principles or
Islamic law or the maqasid (objectives) of
Shari’ah.

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 I. Meaning of Usul al-Fiqh
(contd.)
Lawmaking by the first
method (i.e., The Knowledge of
Shar’i ahkam …derived from
their specific evidences in
texts)
Methods:
1.Literal application of qat’i rulings,
2.Interpretation of zanni rulings, and
3.Analogical deductions (qiyas)

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  Lawmaking by the first method (continued):
 Methods 1 & 2: Lawmaking from qat’i/zanni
rulings:
Example-1:
 Is wine prohibited?
 “O ye who believe! Wine and Gambling… are filth- a
work of Satan’s (Devil); avoid such (abomination),
that ye may prosper.” [Al-Maida 5:90]
 Rule (hukm) derived from the source of
Qur’an: Wine is forbidden.
 Principle applied: “Everything is permissible
unless prohibited”

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 I. Meaning and Definition of Usul al-
Fiqh (cont’d.)
Lawmaking by the first method
(continued):
Example-2:
Methods 1 & 2: Lawmaking from
qat’i/zanni rulings:
 Is misappropriation of trust property
allowed?
“A” is an orphan
“B” is the trustee of his trust property
“B” misappropriated the property
Is “B” liable under Islamic Law?

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 I. Meaning and Definition of Usul al-
Fiqh (cont’d.)
A rule (hukm) is found in the Qur’an:
 “Devour not each other’s property unlawfully”
(Qur’an, 2:188)
 “Give unto orphans their wealth. Exchange not the
good for the bad (in your management thereof)
nor absorb their wealth into your own wealth. Lo!
that would be a great sin.” (Qur’an, 4:2)

 Hukm (rule) derived: Misappropriating trust

property is haram (prohibited)
 Principle applied: “Everything is permissible
unless prohibited”

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 Lawmaking by the first method (continued):
 Lawmaking Method 3: Analogical deduction
(qiyas):
Example:
1. Specific Qur’anic rule: Wine is prohibited (as seen above)
2. How about narcotic drugs/products like marijuana? Are
they prohibited? Can we extend this rule to them? What is
the reasoning behind the rule?
We can extend the rule of prohibition by qiyas
(analogy/comparison) as both (wine and narcotic
drugs) have the same effective cause (‘illah),
namely intoxication.

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  Lawmaking by the second method (i.e., The
Knowledge of Shar’i ahkam (legal rules)…
extended through reasoning from general
propositions of the Shari’ah in the light of its
maqasid):
Example:
 How about smoking, which is not intoxicating, but
harmful for human health?

We cannot apply qiyas, but still can extend the rule by maqasid
Shari’ah, which is to do good to mankind and to remove their
harms with respect to five main things- religion, life, family,
intellect and property. Here smoking is harmful to health (life).
So, a rule should be made (haram/makruh) to remove this harm.

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 Components of the Definition, which are
subjects for Discussion in this Course:
 Law (Hukm) and its three elements, namely
Lawgiver (Hakim), Object of the Law (mahkum
fih) and Subject of the Law (mahkum ‘alayh)
 Sources of law (Hukm), e.g., Qur’an, Sunnah
 Methodologies and methods by which law
(hukm) is made from the sources, namely
verbatim adoption and interpretation,
analogical deduction (qiyas), general principles
and objectives of Shariah (maqasid al-Shari’ah)

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 II. Nature, Scope and
Importance of Usul al-Fiqh

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 Nature: Of Divine origin and stable nature
unlike Western jurisprudence which is “a
chaos of approaches to a chaos of topics,
chaotically determined” (Curzon,
Jurisprudence, p. 13)
Scope: Concerned with sources and the
procedure of deriving rules from those
sources
Importance: Regulation of Ijtihad
(interpretation and making law)
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 III. Development of Usul al-Fiqh

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 Prophet’s Time (610-632 AD)
 Methodology of the Prophet’s Lawmaking, such as
direct revelation (wahy), qiyas, custom, etc.
 Prophet’s Approval of his Companions’ Practice of
Ijtihad (Hadith Muadh bin Jabal )
Time of the orthodox Caliphs (632-661 AD)
 Caliphs’ Methodology- Qur’an, Sunnah, Ijma’, Qiyas
and maqasid
Examples:
Punishment for drinking alcohol (qiyas with qadhf)
Suspension of hadd punishment for theft (maqasid)

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 III. Development of Usul al-Fiqh
(contd.)
Post-Orthodox Caliphs (661 AD-today)
• Umayyad Period (661-717 AD):
two divergent approaches of Prophet’s Companions
and their students to ijtihad (interpretation):
 Strict approach (Makkah-Madinah approach)
called Ahl al-Hadeeth
 Liberal approach (Bagdad approach) called Ahl al-
Ra’y.
Examples: use of qiyas, custom as a source of
law.
• Abbassids period (717-833 AD)
The Rise of Main Four Theories of Interpretation (Juristic
Schools) as Practiced today

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 III. Development of Usul al-Fiqh
(contd.)
Abbassids period (717-833 AD) (cont’d.)
A Brief Overview of the Juristic Schools
o Liberal Theory of Interpretation:
 Hanafi School
o Strict Theories of Interpretation:
 Maliki School
 Shafi’i School
 Hanbali School
Example: No marriage without a
guardian (Ahad Hadith)
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 Basic Divergent Features of the Schools:
Hanafi-
Qur’an is the supreme source and Sunnah next to it. In case of their
conflict, the Qur’an will be preferred. Qiyas (analogy) used to be made
very frequently.
Maliki-
Sunnah supported by Madina practice acceptable. Qiyas used as a means
of law but on the basis of the consensus of the people of Madinah.
Shafi-i-
Sunnah is the explanation of the Qur’an. So, Sunnah apparently
contradicting the Qur’an was equally acceptable. Though qiyas used to
be made, Sunnah was preferred to qiyas.
Hanbali-
All sunnahs are acceptable. Qiyas was the last resort.

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 IV. Recapitulation and Conclusion

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 Usul al-Fiqh: Principles of interpretation of
texts
Nature, Scope and Importance:
 Divine origin and stable
 Concerned with sources of law and procedure of
making rules from law
 Chain relation between social needs, lawmaking
and ijtihad
Development of Theories:
 Enrichment of the legal system and not a
disintegration/division of the Muslim World?

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