Principles of Islamic Jurisprudence I

(Higher National Diploma in Shariah Criminal Justice System & Bachelor of Laws and Bachelor of Shariah Law
(LLB & BSL)

1.0 Definition: What is Usul Al-Fiqh?

Usul al-fiqh, or the roots of Islamic law, expound the indications and
methods by which the rules of fiqh are deduced from their sources.

These indications are found mainly in the Qur'an and Sunnah, which are
the principal sources of the Shari’ah.

The rulings in fiqh (hukm) are thus derived from the Qur'an and Sunnah
in conformity with a body of principles and methods which are
collectively known as usul al-fiqh.

• Maliki scholar: the principles by which the mujtahid derives the legal rules of conduct
from the specific evidences.
• Examples of works in Usul Al-Fiqh by its modern & classical jurists/scholars:
• Works such as 'Abd al-Wahhab Khallaf's 'Ilm Usul al-Fiqh, Abu Zahrah's Usul al-Fiqh,
Muhammad al-Khudari's Usul al-Fiqh, and Badran's Usul al-Fiqh al-lslami are but some
of the well-known modern works in the field.
• al-Ghazali's Al- Principles of Islamic Jurisprudence, Kamali Mustasfa min 'llm al-usul, al-
Amidi's Al-Ihkam fi Usul al-Ahkam, al-Shatibi's Al-Muwafaqat fi Usul al-Ahkam and al-
Shawkani's Irshad al-Fuhul fi Tahqiq al-Haqq min 'llm al-Usul.

The Qur’an and Sunnah themselves, however, contain very little by way of methodology,
but rather provide the indications from which the rules of Shari’ah can be deduced.
The methodology of Usul Al-Fiqh really refers to methods of reasoning such as analogy
(qiyas), juristic preference (istihsan), presumption of continuity (istishab) and the rules of
interpretation and deduction. These are designed to serve as an aid to the correct
understanding of the sources and ijtihad.
QIYAS
• Definition: Applying a case which ruling is not found in the Islamic Legal Texts to case
which ruling is found in the latter, on condition of similar cause (‘illah).
• Examples of qiyas:
• - It is haram to consume the property of the orphans.
• By analogy this prohibition is extended to physically damaging the property of the
orphans.
• The ‘illah is because is it haram to destruct the orphan’s property in any way.
• It is prohibited to say “Uff” to your parents Qur’an 17:23
By analogy saying words more harsh than this or physically beating the parents is even
more prohibited.
The ‘illah is that it is prohibited to torment the parents in any way.

ISTIHSAN
• Definition: abandonement of one legal ruling for another which is better on the basis of
the Qur’an, Sunnah or Ijma’.
• Salam contract
1st Hadith does not permit salam contract:
“Sale not what is not with you”
2nd Hadith permits salam contract:
“Whoever concludes salam, let him do so over a specified measure, specified weight and
specified period of time”
• Hearsay testimony
• Originally, not permissible in trials in court.
• However, such strict ruling is exempted in certain cases such as case of death and
giving of birth. Since, it will cause hardship/hard to find ocular witness seeing the event
at times.

ISTISHAB
• Definition: continuing something positive/negative unless or until contrary is shown
that is has become negative/positive.
• Examples:
Where a person is missing he is presumed to be alive unless it is shown (proved)
that he is dead.
Where a person claims that another owes him a sum of money, the latter is
presumed not owing the former anything unless it is shown (proved) that he is in fact
indebted to the former.
2.0 Scope of Usul Al-Fiqh
• Usul al-fiqh provides standard criteria for the correct deduction of the rules of fiqh from
the sources of Shari’ah.
• Usul al-Fiqh involves in understanding and interpretation of any of the Islamic Legal
Texts (Quran and Sunnah).
• It does not involve study of Islamic Legal Maxims (Qawa’id Fiqhiyyah).
• It does not involve in using reason per se/only in producing laws (Usul Al-Qanun).
• It examines the methods of the Muslim jurists (scholars) in arriving at a certain hukm. In
other words, in concerns the process and not the product.
3.0 Roles of Usul Al-Fiqh
1. To equip oneself with the knowledge of exercising preference of one ruling over
the other.
2. To equip oneself with the between different methods and outcomes knowledge of
comparing as a result of using such method by the Muslim jurists in Usul Al-Fiqh.
3. The principal objective of Usul Al-Fiqh is to regulate ijtihad and to guide the jurist
in his effort at deducing the law from its sources.
4. To know and comprehend who is a qualified Mujtahid (person who derives the
rules). Thus the subject of usul fiqh consists of all principles and methodologies which
are necessary for the jurists (faqih) to rely upon in the derivation of the rules. (however
this is extensively dealt with more in Ijtihad & Fatwa module).
5. To help the jurist to obtain an adequate knowledge of the sources of Shari’ah and
of the methods of juristic deduction and inference.

4.0 Subject-Matter of Usul Al-Fiqh

• Proofs or Sources (al-adillah) of Islamic law e.g. al-Qur’an, Sunnah, Ijma’ Qiyas,
Masalih Mursalah etc.
• Rules of Islamic law (al-ahkam) and the components of the rules:
-Law Giver (Hakim),
-the act of the subject (Mahkum fihi),
-the subject (mahkum ‘alaih i.e. a person who is addressed by the law – mukallaf).
 • Conflicts of proofs and preference (al-Ta’arud wa al-Tarjih). For example:
-Qur’an is preferred over hadith
-Mutawatir hadith is preferred over hadith Ahad
• Rules of Interpretations. For example: Zahir, Nass, Muhkam, Khafi, Mujmal. Etc

Usul Al-Fiqh vs. Fiqh

The meaning of Usul Al-Fiqh:
• “Usul al-Fiqh technically means: Knowing fiqh dalils which are ijmali (kulliy), the method
to benefit from them, as well as studying the characteristics of a mustafid (mujtahid).”
Refer: Syarah al-Kaukab al-Munir (1/44)
The meaning of Fiqh:
• “Fiqh according to syarak means: A field of knowledge related to Shari’a rulings which
are amaliyyah (practical) extracted from the dalils which are tafsili (juzi’e).”
Refer: Mukhtasar Ibn al-Lahham (pg. 31), Syarah al-Kaukab al-Munir (1/41).

USUL AL-FIQH FIQH

Usul Al-Fiqh focuses on how the hukm for Fiqh enlists the hukm itself and the
a particular issue is extracted. Whilst references.
Usul Al-Fiqh is known as the root of law. Fiqh is the substantive law.

Usul Al-Fiqh includes in understanding the Fiqh involves in understanding the hukm
sources of hukm itself (for instance, Mazhab Syafi’i has
different understanding/view from Mazhab
Hanafi on a similar issue) by using those
sources.

Usul Al-Fiqh is the tool to generate the Fiqh is the product of Usul Al-Fiqh.
product which is Fiqh

Conclusion
Usul Al-Fiqh is the study of sources and methods/processes in obtaining a hukm. In order to
extract hukm properly from its sources, proper methods are imperative. Otherwise it could lead
to erroneous practice in society which will reflect on Islam as the ‘ad-deen’.