History of the �Ilm of Usool ul-Fiqh

 

1) Allah (swt) sent the Messenger Muhammad (saw) with Islam to mankind in its entirety. So he began with the Arabs whilst the Qur�an Al-Kareem had been revealed in their language. Its revelation came in the age when the Arabic language was at is ripest and indeed in the golden age of this language. This was at a time when the Arab tribes had established special arts markets so that they could present their poetry and compete with one another in respect to their skills and prowess.

The Arabs understood the Qur�an and the Hadith because the language which the Ayaatand Ahadith came in represented a natural talent, trait and inborn disposition which they were endowed with. They could fully take in the meanings of its worded expressions and understood its styles. Consequently, each of them would take the Hukm Shar�i that he required without difficulty.

The situation of the Muslims then continued like that in the era of the Sahabah (ra) and the Taabi�een until the beginning of the second Hijri century.

2) After that, the Islamic State had expanded and many other nations had entered into Islam like the Romans, the Persians, Hindus and Berbers. The Arabs then mixed with them in terms of where they resided and in respect to their speech. As a result, the Arabic tongue weakened due to the insertion of expressions, colloquialisms and styles of a non-Arabic origin. This led to the weakening of the understanding of the Shari�ah texts amongst the majority of the Arabs. As a result, they became in need of linguistic controls and principles in order to understand the Ayaat and the Ahadith as the first Muslims had understood them. The scholars responded and made efforts to put down and provide a Minhaaj (methodology) to explain the manner of how to deduce the practical Ahkam Shari�ah through the Kitab and the Sunnah.

3) From the host of these linguistic and Shar�i principles and controls (Dawaabit) the �Ilm of Usool ul-Fiqh was formed and the beginning of this �Ilmwas in the second Hijri century.

4) The first to gather together some of the principles of this �Ilm within a book was Al-Imaam Abu Yusuf (rh) the companion of Al-Imaan Abu Haneefah (rh) as was mentioned by Ibn un-Nadeem in his book �Al-Fihrist�. However, this book written by Abu Yousuf did not reach us.

The Shee�ahhave said that the first to put the subject of Usool ul-Fiqh into writing was Al-Imaam Ja�far Muhammad Al-Baaqir however this statement has not been supported by evidence.

The �Ulamabefore Shafi� used to speak about the issues of Usool ul-Fiqh, make deductions and objections however they did not have a complete methodology that was put down on paper that could be referred back to.

5) The first book that reached us in the subject area of Usool ul-Fiqh was �Ar-Risaalah� of Al-Imaam Muhammad Bin Idrees Shafi� (rh) who passed away in the year 204 after Hijrah. He discussed the Adillah Al-Ijmaaliyyah in an ordered and organised manner; the Kitab, the Sunnah, Qiyas and Ijmaa�. And he also dealt with the linguistic principles and how to use them to deduce the Ahkam Shari�ah

Therefore, the �Ilm of Usool ul-Fiqh that Shafi� provided represented a disciplined yardstick to know the correct opinions from the incorrect ones and a precise measure to know what is from the Shar�a and what is not from the Shar�a.

Shafi� restricted himself to this Minhaaj (methodology) in his Istinbat(deduction) of the Ahkam Shari�ah and based his Madh�hab, known as the Shaafi�iy Madh�hab in Fiqh, upon it which was recorded in his book �Al-Umm�.

In his �Muqaddamah� when discussing the �Ilm of Usool ul-Fiqh Ibn Khaldoon said: �The first who wrote in it was Shafi�, may Allah be pleased with him. He dictated in it (the subject area) in his famous �Risaalah� and in this he spoke about the commands and forbiddances, the Bayaan, the Khabar, An-Naskh(abrogation) and the Hukm of the �Illah that has come in the text in respect to Qiyas...� (Al-Muqaddamah p455).

In his �Risaalah� Shafi� ordered (graded) the levels of the Adillah Al-Ijmaaliyyah and placed them in their positions: �We judge (or pass verdict) in accordance to the Kitab and the Sunnah upon which a consensus has been formed, in which there is no difference and its position is essential, because it is not Halaal to resort to Qiyas whilst the Khabar (i.e. Sunnah) is present�  (Historical study of Fiqh and its Usool� Dr. Mustafa Sa�eed p181 Vol 1)

The �Ilm of Usool ul-Fiqhafter Shafi�

Shafi� founded the �Ilm of Usool ul-Fiqh and this was received (well) by the �Ulama and Fuqahaa, who followed him, through examination and study. So they added to it and revised a number of issues within it until it became an �Ilm that was coherent, clear and distinguished in its features, due to the firm foundation that Al-Imaam Shafi� laid down solidly for this noble knowledge.

Shafi� did not reach the point of completion in respect to Usool ul-Fiqh and so others came to complete the building that he had begun. There were from amongst them those who followed him providing explanation and elaboration, there were also those who came adding new principles whilst others came critiquing and disagreeing with him in respect to some of the Qawa�id (principles).

These areas of study after Ash-Shafi�iy were restricted to specific subjects in Usool ul-Fiqh and they did not deal with Usool ul-Fiqh as a whole. They were restricted to subjects in respect to explanation, addition and disagreement.

The most prominent explanations (Shurooh) of Shafi��s Risaalah in Usool ul-Fiqhwere:

1) The Sharh(explanation) of Abu Bakr Muhammad As-Seerfiy who passed away in the year 330 AH and it was called: �Dalaa�il Al-I�laam�.

2) The Sharhof Muhammad Al-Qaffaal Ash-Shaashii who passed away in the year 365 AH.

3) The Sharhof Abu Muhammad Abdullah ibn Yousuf Al-Juwainiy who passed away in the year 438 AH.

From the earliest of those who wrote in Masaa�il (issues) of Usool ul-Fiqh after Shafi� were:

1) Al-Imaam Ahmad Bin Hanbal in his book: �Taa�at Ar-Rasool�, the book: �An-NaasikhWa-l-Mansookh� and the book: �Al-�Ilal�.

2) Daawud Azh-Zhaahiriy in the book: �Ibtaal Al-Qiyas� and the book: �Al-Khusoos Wa-l-�Umoom� amongst others. Most of what he wrote was a critique of the Usool of Shafi�.

3) Muhammad At-Tirmidhi who passed away in the year 255 in the book: �Ithbaat Al-�Ilal Ash-Shari�ah�.

Most of these books were lost and it is clear to us from their headings and titles that they were restricted to dealing with issues of disagreement or difference; either in support of Shafi� and as a rebuttal to those who disagreed with him, or they were to establish the Madh�hab of the writer and as a rebuttal in opposition to the Madh�hab of Shafi�.

The difference between Usool ul-Fiqh and Fiqh

1) Usool ul-Fiqh, as we have mentioned, represents the principles (Qawa�id) that the Mujtahid follows in the Istinbat (extraction) of the practical Shari�ah rulings from their detailed evidences like the Qaa�idah(principle):

�Working with two evidences is better (more proper) than neglecting one of them�.

This is whilst Fiqh is the �Ilm (knowledge) of the practical Ahkam Shari�ah taken from its detailed evidences like: Khamr is Haraam, Al-Jihaadis Fard. Tahaarah is a Shart (condition) from the conditions of the validity of the Salaah and like Haid (menses) is A Maani�(prevention) for the performance of the Salaah.

2) Usool ul-Fiqh includes studies in relation to the language and its principles because these principles are necessary for Ijtihad. This is like: The studies about the Haqeeqah (literal) and Majaaz (metaphorical), the meanings of the Huroof Al-Jarr (prepositions), the Huroof Ash-Shart, and the general Alfaazh (expressions) amongst other matters.

This is whilst Fiqh is restricted to the explanation of the Hukm Shar�ithat is a requirement of the Mukallaf like: The Salaah is Fard, �Umrah is Sunnah (Mandoob) and Riba is Haraam.

3) Usool ul-Fiqh examines the Ijmaaliy Shar�i Daleel like the Qur�an, Sunnah, Qiyas and Ijmaa� in respect to establishing that it has come from Allah and then it examines what came within it in terms of principles and forms like: The Khusoos and the �Umoom (specific and general), the Mutlaq and the Muqayyad (unrestricted and restricted), Al-Mujmal (general/un-detailed) and Al-Bayaan(explanation) and An-Naskh (abrogation).

This is whilst Fiqh examines the Daleel Al-Juz�iy (partial evidence) that guides to or indicates a specific Hukm for a matter or an action for the purpose of the Mukallaf abiding by it. So for example it will examine the Ayah:

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�And fight against the disbelievers collectively as they fight against you collectively�

  [TMQ At-Taubah 36]

And the Ayah:

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�And Allah has made trade Halaal and made Riba (usury) Haraam�  [TMQ Al-Baqarah 275]

And the Hadith:

�If two Khalifahs are given the Bai�ah then kill the latter of the two�  [Muslim]

And the Ijmaa As-Sahabah (ra) in respect to delaying the burial of the Messenger of Allah (saw) until after they had pledged allegiance to a Khalifah from amongst them.

That is done in order for the Hukm As-Shar�i to be taken from each Daleel(evidence).

4) The aim of Usool ul-Fiqh is the application of its principles upon the detailed evidences to arrive to the manner of how the practical Ahkam Shari�ah are extracted.

This is whilst the aim of Fiqh is to explain and apply the Ahkam Shari�ahupon the actions of the people and their speech and it is to make every Mukallafaware of the commands of Allah (swt) and what He has forbidden, so that the Mukallafcan adhere to it in his actions. 

The Objective of Usool ul-Fiqh

Usool ul-Fiqh has two main objectives:

1) To verify that the Adillah Al-Ijmaaliyah are definitely (Qat�an) from the Wahi(divinely inspired revelation). This means that is essential for these Adillah(evidences) like the Qur�an, Ijmaa� and others to be definitely proven to be from Allah. This is because Allah (swt) says:

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�And do not pursue that of which you have no knowledge�      [TMQ Al-Israa 36]

And He (swt) says:

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�Verily speculation does not avail anything against the truth�   [TMQ Younus 36]

Therefore, the (Asl) (foundation) which is built upon must be definite in respect to proving that it is from Allah. This is because if it is not definite (Zhanni) then the possibility of difference can occur in respect to whether it is from Allah or not? And for the Masdar (source) to be considered as a Hujjah(valid proof) then it is necessary for the Daleel Al-Qat�iy (definite evidence) which is the �Burhaan Al-Qaat�i� (decisive proof) to establish its consideration as a Hujjah. This is so that the Muslim is convinced and assured that what he is undertaking in terms of actions are in line with the commands of Allah and what He (swt) has forbidden.

2) The application of the Qawa�id of Usool ul-Fiqh upon the detailed Shari�ahevidences like the Ayaat, the Ahadith and others is for the purpose of arriving at the practical Ahkam Shari�ah that bind the Muslims in their lives so that they adhere to them when undertaking actions. This objective is of the most noble of objectives and that is because Allah (swt) created the human and revealed the Shari�ah to him so that he abides by its Ahkam in his life of the Dunyaa. He will then be held to account upon that on the Day of Judgement where it will either be Jannah(paradise) or the Naar (fire).

Allah (swt) said:

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�And I did not create the Jinn and the human being except to worship Me�                           [TMQ Adh-Dhaariyaat 56]

And He (swt) said:

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�So whoever does an atom�s weight of good will see it and whoever does an atom�s weight of bad (evil) shall see it�   [TMQ Az-Zalzalah 7-8]

The following is a practical example in respect to the manner of how to apply the Qawa�id(principles) of Usool ul-Fiqh upon the detailed Shari�ahevidences, in order to deduce or extract a practical Shar�i Hukm(ruling):

Allah (swt) states:

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�And those who are taken in death among you and leave wives behind - they, [the wives, shall] wait four months and ten [days]�   [TMQ Al-Baqarah 234]

And Allah (swt) said:

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�And for those who are pregnant, their term is until they give birth� [TMQ At-Talaaq 6]

1) If we were to take the Qaa�idah (principle) from the Qawa�id of Usool: �The later Nass (text) abrogates the former Nass (text)� then the Ayah from Surah At-Talaaq would be abrogating the Ayah from Surah Al-Baqarah because it was revealed after it. The period of waiting (�Iddah) of the pregnant woman whose husband had died would be completed by her giving birth in accordance to the Qawl of Allah (swt):

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�And for those who are pregnant, their term is until they give birth�  [TMQ At-Talaaq 6]

2) There are scholars of Usool who say that the Naskh (abrogation) requires another Daleel that indicates the abrogation of an Ayahby another, in addition to the issue of one being advanced and the other being delayed (i.e. in terms of the time of revelation). These scholars combined these two Daleels that appeared to be contradictory and said:

The one whose husband dies whilst she is pregnant could perceive a contradiction in respect to the length of time of her �Iddah (waiting period) and particularly if she was to give birth after her husband�s passing in less than four months and ten days. As such they presented the following solution:

It is possible to reconcile between the two evidences in the following way. The pregnant woman whose husband has passed away waits for the longer of the two time periods. If she gives birth before four months and ten days from the date of his death, then she waits until the four months and ten days is completed. And if that time comes to an end before she has given birth then she waits until she has given birth.

And this Tawfeeq (reconciliation) between the two evidences represents an application of the Qaa�idah (principle) in Usool ul-Fiqh that states: �Working with the two evidences is better (or more appropriate) than neglecting one of them�.

Adapted from the Book AlWaadih Fee Usul Al Fiqh by Shekh Muhammad Hussein