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Usul al-fiqh

Usul al-fiqh

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Uṣūl al-fiqh (literally: the origins/fundamentals of the law) is the study of the origins, sources, and principles upon which Islamic jurisprudence
Fiqh
Fiqh is Islamic jurisprudence. Fiqh is an expansion of the code of conduct expounded in the Quran, often supplemented by tradition and implemented by the rulings and interpretations of Islamic jurists....

 (or Fiqh) is based. In the narrow sense, it simply refers to the question of what are the sources of Islamic law
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...

. In an extended sense, it includes the study of the philosophical rationale of the law and the procedures by which the law applicable to particular cases is derived from the sources.

The four major sources


In classical Sunni Islam
Sunni Islam
Sunni Islam is the largest branch of Islam. Sunni Muslims are referred to in Arabic as ʾAhl ūs-Sunnah wa āl-Ǧamāʿah or ʾAhl ūs-Sunnah for short; in English, they are known as Sunni Muslims, Sunnis or Sunnites....

, there are four major sources of jurisprudence: the Qur'an
Qur'an
The Quran , also transliterated Qur'an, Koran, Alcoran, Qur’ān, Coran, Kuran, and al-Qur’ān, is the central religious text of Islam, which Muslims consider the verbatim word of God . It is regarded widely as the finest piece of literature in the Arabic language...

, the Sunnah
Sunnah
The word literally means a clear, well trodden, busy and plain surfaced road. In the discussion of the sources of religion, Sunnah denotes the practice of Prophet Muhammad that he taught and practically instituted as a teacher of the sharī‘ah and the best exemplar...

, ijma' (consensus), and qiyas
Qiyas
In Islamic jurisprudence, qiyās is the process of deductive analogy in which the teachings of the Hadith are compared and contrasted with those of the Qur'an, in order to apply a known injunction to a new circumstance and create a new injunction...

 (analogy).

There is some dispute amongst the Sunni jurists regarding ijma' and qiyas. The Zahirite
Zahiri
Ẓāhirī , is a school of thought in Islamic jurisprudence and Aqida. The school is named after one of its early prominent jurists, Dawud ibn Khalaf al-Zahiri Ẓāhirī , is a school of thought in Islamic jurisprudence and Aqida. The school is named after one of its early prominent jurists, Dawud ibn...

s in particular reject all forms of qiyas and only accept ijma' al-sahaba (consensus of the companions).

The contribution of al-Shafi'i


Abu 'Abd Allah al-Shafi'i (767-819) documented a systematized form of usul, developing a cohesive, systematic procedure for legal reasoning. 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
Sunnah
The word literally means a clear, well trodden, busy and plain surfaced road. In the discussion of the sources of religion, Sunnah denotes the practice of Prophet Muhammad that he taught and practically instituted as a teacher of the sharī‘ah and the best exemplar...

 to a place of prominence and restricted its legal use. According to al-Shafi'i, only practices directly passed down from Muhammad
Muhammad
Muhammad |ligature]] at U+FDF4 ;Arabic pronunciation varies regionally; the first vowel ranges from ~~; the second and the last vowel: ~~~. There are dialects which have no stress. In Egypt, it is pronounced not in religious contexts...

 were valid, eliminating the legitimacy of practices of Muhammad
Muhammad
Muhammad |ligature]] at U+FDF4 ;Arabic pronunciation varies regionally; the first vowel ranges from ~~; the second and the last vowel: ~~~. There are dialects which have no stress. In Egypt, it is pronounced not in religious contexts...

's followers. Prior to al-Shafi'i, legal reasoning included personal reasoning thus suffering from inconsistency. al-Shafi'i is probably best known for writing Al-Risala
Al-Risala (book)
Al-Risala is the best known work of al-Shafi'i, noted especially for its clear Islamic jurisprudence. In this work, al-Shafi'i outlines four different sources of Sacred Law and their relative importance in determining what God wills man to do. According to Al-Risala, the first source of Sacred...

, a prime example of applying logic and order to Islamic jurisprudence.

Shi'a law


In Shia Islam qiyas
Qiyas
In Islamic jurisprudence, qiyās is the process of deductive analogy in which the teachings of the Hadith are compared and contrasted with those of the Qur'an, in order to apply a known injunction to a new circumstance and create a new injunction...

 is not recognised as a source of law. There are two interpretations of what this entails.
  • According to the Akhbari
    Akhbari
    The Akhbārīs are Twelver Shī‘a Muslims who reject the use of reasoning in deriving verdicts, and believe only the Qur'an, aḥadīth, and consensus should be used as sources to derive verdicts . The term Akhbārī is used in contrast to Usūlī...

     view, the only sources of law are the Quran and the Hadith
    Hadith
    The term Hadīth is used to denote a saying or an act or tacit approval or criticism ascribed either validly or invalidly to the Islamic prophet Muhammad....

    , 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
    Ijtihad
    Ijtihad is the making of a decision in Islamic law by personal effort , independently of any school of jurisprudence . as opposed to taqlid, copying or obeying without question....

    , and 'Aql
    'Aql
    ‘Aql , is an Arabic language term used in Islamic theology or philosophy to the intellect the rational faculty of the soul or mind. It is the normal translation of the Greek term nous...

     (reason) is recognised as a source of law. It differs from the Sunni qiyas
    Qiyas
    In Islamic jurisprudence, qiyās is the process of deductive analogy in which the teachings of the Hadith are compared and contrasted with those of the Qur'an, in order to apply a known injunction to a new circumstance and create a new injunction...

     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.


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.

The analysis of probability forms a large part of the Shiite science of usul al-fiqh, and was developed by Muhammad Baqir Behbahani
Muhammad Baqir Behbahani
Muhammad Baqir ibn Muhammad Akmal al-Wahid Bihbahani, also Vahid Behbahani , was a Twelver Shia Islamic scholar. He is widely regarded as the founder or restorer of the Usuli school of Twelver Shi'a Islam and as playing a vital role in narrowing the field of orthodoxy in Twelver Shi'a Islam by...

 (1706-1792 C.E.) and Shaykh Murtada al-Ansari (d. 1864).

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