1. INTRODUCTION TO USUL AL-FIQH
1. Definition and Scope
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 rules of fiqh 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. Some writers have described usul al-fiqh as the methodology of law, a description which is accurate but incomplete. Although the methods of interpretation and deduction are of primary concern to usul al- fiqh, the latter is not exclusively devoted to methodology. To say that usul al-fiqh is the science of the sources and methodology of the law is accurate in the sense that the Qur’an and Sunnah constitute the sources as well as the subject matter to which the methodology of usul al-fiqh is applied. 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.
To deduce the rules of fiqh from the indications that are provided in the sources is the expressed purpose of usul al-fiqh. Fiqh as such is the end product of usul al-fiqh; and yet the two are separate disciplines. The main difference between fiqh and usul al-fiqh is that the former is concerned with the knowledge of the detailed rules of Islamic law in its various branches, and the latter with the methods that are applied in the deduction of such rules from their sources. Fiqh, in other words, is the law itself whereas usul al-fiqh is the methodology of the law. The relationship between the two disciplines resembles that of the rules of grammar to a language, or of logic (mantiq) to philosophy. Usul al-fiqh in this sense provides standard criteria for the correct deduction of the rules of fiqh from the sources of Shari’ah. An adequate knowledge of fiqh necessitates close familiarity with its sources. This is borne out in the definition of fiqh, which is ‘knowledge of the practical rules of Shari’ah acquired from the detailed evidence in the sources’.The knowledge of the rules of fiqh, in other words, must be acquired directly from the sources, a requirement which implies that the faqih must be in contact with the sources of fiqh. Consequently a person who learns the fiqh in isolation from its sources is not a faqih. The faqih must know not only the rule that misappropriating the property of others is forbidden but also the detailed evidence for it in the source, that is, the Qur’anic ayah (2:188) which provides: ‘Devour not each other’s property in defiance of the law.’ This is the detailed evidence, as opposed to saying merely that ‘theft is forbidden in the Qur’an’.
Knowledge of the rules of interpretation is essential to the proper understanding of a legal text. Unless the text of the Qur’an or the Sunnah is correctly understood, no rules can be deduced from it, especially in cases where the text in question is not self-evident. Hence rules by which one is to distinguish a speculative text from the definitive, the manifest (zahir) from the explicit (nass), the general (‘aam) from the specific (khaas), the literal (haqiqi) from the metaphorical (majazi) etc., and how to understand the implications (dalalat) of a given text are among the subjects which warrant attention in the study of usul al-fiqh. An adequate grasp of the methodology and rules of interpretation also ensures the proper use of human reasoning in a system of law which originates in divine revelation. For instance, analogy (qiyas) is an approved method of reasoning for the deduction of new rules from the sources of Shari’ah. How analogy should be constructed, what are its limits, and what authority would it command in conjunction, or in conflict, with the other recognized proofs are questions which are of primary concern to usul al-fiqh. Juristic preference, or istihsan, is another rationalist doctrine and a recognized proof of Islamic law. It consists essentially of giving preference to one of the many conceivable solutions to a particular problem. The choice of one or the other of these solutions is mainly determined by the jurist in the light of considerations of equity and fairness. Which of these solutions is to be preferred and why, and what are the limits of personal preference and opinion in a particular case, is largely a question of methodology and interpretation and therefore form part of the subject matter of usul al-fiqh.
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. The need for the methodology of usul al-fiqh became prominent when unqualified persons attempted to carry out ijtihad, and the risk of error and confusion in the development of Shari’ah became a source of anxiety for the ulema. The purpose of usul al-fiqh is to help the jurist to obtain an adequate knowledge of the sources of Shari’ah and of the methods of juristic deduction and inference. Usul al-fiqh also regulates the application of qiyas, istihsan, istishab, istislah, etc., whose knowledge helps the jurist to distinguish as to which method of deduction is best suited to obtaining the hukm shar’i of a particular problem. Furthermore, usul al-fiqh enables the jurist to ascertain and compare strength and weakness in ijtihad and to give preference to that ruling of ijtihadwhich is in close harmony with the nusus.
It may be added here that knowledge of the rules of interpretation, the ‘Aam, the Khaas, the Mutlaq, the Muqayyad, etc., is equally relevant to modern statutory law. When the jurist and the judge, whether a specialist in the Shari’ah or in secular law, fails to find any guidance in the clear text of the statute on a particular issue, he is likely to resort to judicial construction or to analogy. The skill, therefore, to interpret a legal text and to render judicial decisions is indispensable for a jurist regardless as to whether he sits in a Shari’ah court or in a court of statutory jurisdiction. A specialist in usul al-fiqh will thus find his skill of considerable assistance to the understanding and interpretation of any legal text
To what extent is it justified to say that al-Shafi’i was the founder of usul al-fiqh? One theory has it that usul al-fiqh has existed for as long as the fiqh has been known to exist. For fiqh could not have come into being in the absence of its sources, and of methods with which to utilize the source materials. This would in turn, imply that usul al-fiqh had existed long before al-Shafi’i. Numerous examples could be cited to explain how in early Islam, the Companions deduced the rules of fiqh from their sources. Usul al-fiqh, in other words, had substantially existed before the period which saw the emergence of the leading imams of jurisprudence. But it was through the works of these imams, especially al-Shafi’i, that usul al-fiqh was articulated into a coherent body of knowledge. Even before al-Shafi’i, we know that Abu Hanifah resorted to the use of analogy and istihsan while lmam Malik is known for his doctrine of the Madinese ijma’, subjects to which we shall have occasion to return. When al-Shafi’i came on the scene, he found a wealth of juristic thought and advanced levels of argumentation on methodological issues. But the existing works were not entirely free of discordance and diversity which had to be sifted through by the standards which al-Shafi’i articulated in his legal theory of the usul. He devoted his Risalah exclusively to this subject, and this is widely acknowledged to be the first work of authority on usul al-fiqh.
It is nevertheless accurate to say that fiqh precedes the usul al-fiqh and that it was only during the second Islamic century that important developments took place in the field of usul al-fiqh For during the first century there was no pressing need for usul al-fiqh. When the Prophet was alive, the necessary guidance and solutions to problems were obtained either through divine revelation, or his direct ruling. Similarly, during the period following the demise of the Prophet, the Companions remained in close contact with the teachings of the Prophet and their decisions were mainly inspired by his precedent. Their proximity to the source and intimate knowledge of the events provided them with the authority to rule on practical problems without there being a pressing need for methodology. However, with the expansion of the territorial domain of Islam, the Companions were dispersed and direct access to them became increasingly difficult. With this, the possibility of confusion and error in the understanding of the textual sources became more prominent. Disputation and diversity of juristic thought in different quarters accentuated the need for clear guidelines, and the time was ripe for al-Shafi’i to articulate the methodology of usul al-fiqh. Al-Shafi’i came on the scene when juristic controversy had become prevalent between the jurists of Madinah and Iraq, respectively known as Ahl al-Hadith and Ahl al-Ra’y. This was also a time when the ulema of Hadith had succeeded in their efforts to collect and document the Hadith. Once the fuqaha were assured of the subject matter of the Sunnah, they began to elaborate the law, and hence the need for methodology to regulate ijtihad became increasingly apparent. The consolidation of usul al-fiqh as a Shari’ah discipline was, in other words, a logical conclusion of the compilation of the vast literature of Hadith.
And finally among the factors which prompted al-Shafi’i into refining the legal theory of usul al-fiqh was the extensive influx of non-Arabs into Islamic territories and the disconcerting influence that this brought on the legal and cultural traditions of Islam. Al-Shafi’i was anxious to preserve the purity of the Shari’ah and of the language of the Qur’an. In his Risalah, al-Shafi’i enacted guidelines for ijtihad and expounded the rules governing the Khaas and the ‘Aam, the nasikh and the mansukh, and articulated the principles governing ijma’ and qiyas. He expounded the rules of relying on the solitary Hadith (khabar al-wa’hid) and its value in the determination of the ahkam. Al-Shafi’i refuted the validity of istihsan and considered it to be no more than an arbitrary exercise in law-making. Admittedly al-Shafi’i was not the first to address these matters, but it is widely acknowledged that he brought a coherence to usul al- fiqh, which had hitherto remained scattered and unconsolidated
It will be noted in this connection that the Shi’i ulema have claimed that their fifth Imam, Muhammad al-Baqir, and his son and successor, Ja’far al-Sadiq, were the first to write on the subject of usul. According to Abu Zahrah, who has written extensively on the lives and works of the early Imams, the Shi’i Imams have written, like many others, on the subject, but neither of the two Imams have written anything of an equivalent order to that of the Risalah. Hence al-Shafi’i’s position and contribution to usul al-fiqh remains unique, and he is rightly regarded as the founder of usul at-fiqh
The basic outline of the four principal sources of the law that al-Shafi’i spelled out was subsequently accepted by the generality of ulema, although each of the various schools of jurisprudence has contributed towards its further development. The Hanafis, for example, added istihsan, and custom (‘urf) to the usul al-fiqh, and the Malikis reduced the concept of consensus (ijma’) to the Madinese consensus only, while the Hanbali approach to the subject closely resembled that of the Malikis. But even so, none departed significantly from the basic principles which al-Shafi’i had articulated.
Broadly speaking, the so-called closure of the gate of ijtihad at around the fourth Islamic century did not affect the usul al-fiqh in the same way as it might have affected the fiqh itself. The era of imitation (taqlid) which followed might even have added to the strength and prominence of usul al-fiqh in the sense that the imitators observed, and relied on, the methodology of the usul as a yardstick of validity for their arguments. Consequently, usul al-fiqh gained universal acceptance and was, in a way, utilised as a means with which to justify taqlid.
A brief word may be added here regarding the difference between the usul, and the maxims of fiqh (al- qawa’id al-fiqhiyyah), as the two are sometimes confused with one another. The maxims of fiqh refer to a body of abstract rules which are derived from the detailed study of the fiqh itself. They consist of theoretical guidelines in the different areas of fiqh such as evidence, transactions, matrimonial law’, etc. As such they are an integral part of fiqh and are totally separate from usul al-fiqh. Over 200 legal maxims have been collected and compiled in works known as al-ashbah wa al-naza’ir; one hundred of these,
have been adopted in the introductory section (i.e. the first 100 articles) of the Ottoman Majallah. The name ‘al-qawa’id al-fiqhiyyah’ may resemble the expression usul al-fiqh, but the former is not a part of the latter and the two are totally different from one another.
A comparison between usul al-fiqh and usul al-qanun will indicate that these two disciplines have much in common with one another, although they are different in other respects. They resemble one another in that both are concerned with the methodology of the law and the rules of deduction and interpretation; they are not concerned with the detailed rules of the law itself. In the case of the law of property, for example, both usul al-fiqh and usul al-qanun are concerned with the sources of the law of property and not with the detailed rules governing transfer of ownership or regulating the contract of sale. These are subjects which fall within the scope of the law of property, not the methodology of law.
Although the general objectives of usul al-fiqh and usul al-qanun are similar, the former is mainly concerned with the Qur’an, Sunnah, consensus, and analogy. The sources of Shari’ah are, on the whole, well-defined and almost exclusive in the sense that a rule of law or a hukm shar’i may not have originated outside the general scope of its authoritative sources on grounds, for example, of rationality (aql) alone. For ‘aql is not an independent source of law in Islam. Usul al-fiqh is thus founded in divine ordinances and the acknowledgement of God’s authority over the conduct of man.
Usul al-qanun, on the other hand, consists mainly of rationalist doctrines, and reason alone may constitute the source of many a secular law. Some of these are historical sources such as Roman Law or British Common Law whose principles are upheld or overruled in light of the prevailing socio- economic conditions of society. The sources of Shari’ah on the other hand, are permanent in character and may not be overruled on grounds of either rationality or the requirement of social conditions. There is, admittedly, a measure of flexibility in usul al-fiqh which allows for necessary adjustments in the law to accommodate social change. But in principle the Shari’ah and its sources can neither be abrogated nor subjected to limitations of time and circumstance. The role of the jurist and the mujtahid in usul al- fiqh is basically one of deduction and inference of rules which are already indicated on the sources, while this is not necessarily the case with regard to usul al-qanun. The Parliament or the legislative assembly of a Western state, being the sovereign authority, can abrogate an existing statute or introduce a new law as it may deem fit. The legislative organ of an Islamic state, on the other hand, cannot abrogate the Qur’an or the Sunnah, although it may abrogate a law which is based on maslahah or istihsan, etc. Abrogation is, on the whole, of a limited application to the definite rulings of divine revelation and has basically come to an end with the demise of the Prophet.
Sovereignty in Islam is the prerogative of Almighty God alone. He is the absolute arbiter of values and it is His will that determines good and evil, right and wrong. It is neither the will of the ruler nor of any assembly of men, not even the community as a whole, which determines the values and the laws which uphold those values. In its capacity as the vicegerent of God, the Muslim community is entrusted with the authority to implement the Shari’ah, to administer justice and to take all necessary measures in the interest of good government. The sovereignty of the people, if the use of the word ‘sovereignty’ is at all appropriate, is delegated, or executive sovereignty (sultan tanfidhi) only.Although the ,consensus or ijma’ of the community, or of its learned members, is a recognised source of law in Islam, in the final analysis, ijma’ is subservient to divine revelation and can never overrule the explicit injunctions of the Qur’an and Sunnah. The role of the ballot box and the sovereignty of the people are thus seen in a different light in Islamic law to that of Western jurisprudence.
And lastly, unlike its Western counterpart, Islamic jurisprudence is not confined to commands and prohibitions, and far less to commands which originate in a court of law. Its scope is much wider, as it is concerned not only with what a man must do or must not do, but also with what he ought to do or ought not to do, and the much larger area where his decision to do or to avoid doing something is his own prerogative. Usul al-fiqh provides guidance in all these areas, most of which remain outside the scope of Western jurisprudence.
2. Two Approaches to the Study of Usul al-fiqh
Following the establishment of the madhahib the ulema of the various schools adopted two different approaches to the study of usul al-fiqh, one of which is theoretical and the other deductive. The main difference between these approaches is one of orientation rather than substance whereas the former is primarily concerned with the exposition of theoretical doctrines, the latter is pragmatic in the sense that theory is formulated in light of its application to relevant issues. The difference between the two approaches resembles the work of a legal draftsman when it is compared to the work of a judge. The former is mainly concerned with the exposition of principles whereas the latter tends to develop a synthesis between the principle and the requirements of a particular case. The theoretical approach to the study of usul al-fiqh is adopted by the Shafi’i school and the Mutakallimun, that is the ulema of kalam and the Mu’tazilah. The deductive approach is, on the other hand, mainly attributed to the Hanafis. The former is known as usul al-Shafi’iyyah or tariqah al-Mutakallimin, whereas the latter is known as usul al-Hanafiyyah, or tariqah al-fuqaha’.
Al-Shafi’i was mainly concerned with articulating the theoretical principles of usul al-fiqh without necessarily attempting to relate these to the fiqh itself. As a methodologist par excellence, he enacted a set of standard criteria which he expected to be followed in the detailed formulation of the rules of fiqh. His theoretical exposition of usul al-fiqh, in other words, did not take into consideration their practical application in the area of the furu’. In addition, the Shafi’is and the Mutakallimun are inclined to engage in complex issues of a philosophical character which may or may not contribute to the development of the practical rules of fiqh. In this way subjects such as the ‘ismah of the prophets prior to their prophetic mission, and matters pertaining to the status of the individual or his duties prior to the revelation of the Shari’ah, and also logical and linguistic matters of remote relevance to the practical rules of fiqh tend to feature more prominently in the works of the Shafi’is and Mutakallimun than those of the Hanafis. The Hanafis have on the other hand attempted to expound the principles of usul al-fiqh in conjunction with the fiqh itself and tend to be more pragmatic in their approach to the subject. In short, the theoretical approach tends to envisage usul al-fiqh as an independent discipline to which the fiqh must conform, whereas the deductive approach attempts to relate the usul al-fiqh more closely to the detailed issues of the furu al-fiqh. When, for example, the Hanafis find a principle of usul to be in conflict with an established principle of fiqh, they are inclined to adjust the theory to the extent that the conflict in question is removed, or else they try to make the necessary exception so as to reach a compromise. Three of the most important works which adopt the theoretical approach to usul al-fiqh are Al- Mu’tamad fi Usul al-Fiqh by the Mu’tazili scholar, Abu al-Husayn al-Basri (d. 436), Kitab al-Burhan of the Shafi’i scholar, Imam al-Haramayn al-Juwayni (d. 487) and Al-Mustasfa of Imam Abu Hamid al- Ghazali (d. 505). These three works were later summarised by Fakhr al-Din al-Razi (d. 606) in his work entitled Al-Mahsul. Sayf A-Din al-Amidi’s larger work, Al-Ihkam fi usul al-Ahkam is an annotated summary of the three pioneering works referred to above.
The earliest Hanafi work on usul al-fiqh is Kitab fi al-Usul by Abu al-Hasan al-Karkhi (d. 340) which was followed by Usul al-Jassas of Abu Bakr al-Razi al-Jassas (d. 370). Fakhr al-Islam al-Bazdawi’s (d. 483) well-known work, Usul al-Bazdawi, is also written in conformity with the Hanafi approach to the study of this discipline. This was followed by an equally outstanding contribution by Shams al-Din al- Sarakhsi (d. 490) bearing the title, Usul al-Sarakhsi. A number of other ulema have contributed to the literature in both camps. But a difference of format which marked a new stage of development was the writing of handbooks in the form of mukhtasars with a view to summarise the existing works for didactic purposes.
The next phase in the development of literature on usul al-fiqh is marked by the attempt to combine the theoretical and deductive approaches into an integrated whole which is reflected in the works of both the Shafi’i and Hanafi ulema of later periods. One such work which attempted to combine al-Bazdawi’s Usul and al-Amidi’s Al-Ihkam was completed by Muzaffar al-Din al-Sa’ati (d. 694) whose title Badi’ al- Nizam al-Jami ‘Bayn Usul al-Bazdawi wa al-Ihkam is self-explanatory as to the approach the author has taken to the writing of this work. Another equally significant work which combined the two approaches was completed by Sadr al-Shari’ah, ‘Abd Allah b. Mas’ud al-Bukhari (d. 747) bearing the title Al- Tawdih, which is, in turn, a summary of Usul al-Bazdawi, Al-Mahsul, and the Mukhtasar al-Muntaha of the Maliki jurist. Abu Umar Uthman b. al-Hajib (d. 646). Three other well-known works which have combined the two approaches to usul al-fiqh are Jam’ al-Jawami of the Shafi’i jurist Taj al-Din al-Subki (d. 771), Al-Tahrir of Kamil al-Din b. al-Humam al-Hanafi (d. 860), and Musallam al-Thubut of the Hanafi jurist Muhibb al-Din b. ‘Abd al-Shakur (d. 1119). And finally, this list would be deficient without mentioning Abu Ishaq Ibrahim al-Shatibi’s Al-Muwafaqat, which is comprehensive and perhaps unique in its attention to the philosophy (hikmah) of tashri’ and the objectives that are pursued by the detailed rulings of the Shari’ah.
3. Proofs of Shari’ah (Al-Adillah Al-Shar’iyyah)
The adillah Shar’iyyah, and the ahkam, that is, laws or values that regulate the conduct of the mukallaf, are the two principal themes of usul al-fiqh. Of these two, however, the former is by far the more important as, according to some ulema, the ahkam are derived from the adillah and are therefore subsidiary to them. It is perhaps in view of the central importance of these two topics to usul al-fiqh that al-Amidi defines the latter as the science of the ‘Proofs of fiqh (adillah al-fiqh) and the indications that they provide in regard to the ahkam of the Shari’ah.
Literally, dalil means proof, indication or evidence. Technically it is an indication in the sources from which a practical rule of Shari’ah, or a hukm is deduced. The hukm so obtained may be definitive (qat’i’) or it may be speculative (zanni) depending on the nature of the subject, clarity of the text, and the value which it seeks to establish. In the terminology of usul al-fiqh, adillah Shar’iyyah refers to four principal proofs, or sources of the Shari’ah, namely the Qur’an, Sunnah, consensus and analogy. Dalil in this sense is synonymous with asl, hence the four sources of Shari’ah are known both as adillah and usul. There are a number of ayat in the Qur’an which identify the sources of Shari’ah and the order of priority between them. But one passage in which all the principal sources are indicated occurs in Sura al-Nisa’ (4: 58-59) which is as follows: ‘O you believers! Obey God and obey the Messenger and those of you who are in charge of affairs. If you have a dispute concerning any matter, refer it to God and to the Messenger,’ ‘Obey God’ in this ayah refers to the Qur’an, and ‘Obey the Messenger’ refers to the Sunnah. Obedience to ‘those who are in charge of affairs’ is held to be a reference to ijma’, and the last portion of the ayah which requires the referral of disputes to God and to the Messenger authorises qiyas. For qiyas is essentially an extension of the injunctions of the Qur’an and Sunnah. The rationale or the effective cause of qiyas may be clearly indicated in these sources or it may be identified by way of inference (istinbat). In either case, qiyas essentially consists of the discovery of a hukm which is already indicated in the divine sources.
Some fuqaha have drawn a distinction between dalil and amarah (lit. sign or allusion) and apply dalil to the kind of evidence which leads to a definitive ruling or that which leads to positive knowledge (‘ilm). Amarah on the other hand is reserved for evidence or indication which only leads to a speculative ruling. In this way, the ‘dalil’ would only apply to the definitive proofs, namely the Quran, Sunnah and ijma, and the remaining proofs which comprise a measure of speculation, such as qiyas and istihsan, etc, would fall under the category of amarat.
The proofs of Shari’ah have been further divided into transmitted proofs (adillah naqliyyah) and rational proofs (adillah ‘aqliyyah). The authority of the transmitted proofs is independent of their conformity or otherwise with the dictates of reason, although as we shall later elaborate, most of the transmitted proofs can also be rationally justified. However, the authority and the binding force of the Qur’an, Sunnah and ijma’ are independent of any rational justification that might exist in their favour. To these are added two other transmitted proofs, namely the ruling of the Companions, and the laws revealed prior to the advent of Islam (shara’i man qablana)
The rational proofs are, on the other hand, founded in reason and need to be rationally justified. They can only be accepted by virtue of their rationality. Qiyas, istihsan, istislah and istishab are basically all rationalist doctrines although they are in many ways dependent on the transmitted proofs. Rationality alone is not an independent proof in Islam, which is why the rational proofs cannot be totally separated from the transmitted proofs. Qiyas, for example, is a rational proof, but it also partakes in the transmitted proofs to the extent that qiyas in order to be valid must be founded on an established hukm of the Qur’an, Sunnah or ijma’. However the issue to which qiyas is applied (i.e. the far’) must have a ‘illah in common with the original hukm. To establish the commonality of the ‘illah in qiyas is largely a matter of opinion and ijtihad. Qiyas is therefore classified under the category of adillah aqliyyah.
As noted above, the adillah Shar’iyyah are on the whole in harmony with reason. This will be clear from the fact that the Shari’ah in all of its parts is addressed to the mukallaf, that is, the competent person who is in possession of his faculty of reasoning. The Shari’ah as a whole does not impose any obligation that would contradict the requirements of ‘aql. Since the criterion of obligation (taklif) is ‘aql, and without it all legal obligations fall to the ground, it would follow that a hukm shar’i which is abhorrent to ‘aql is of no consequence.
The adillah Shar’iyyah have been further classified into mustaqill and muqayyad, that is independent and dependent proofs respectively. The first three sources of the Shari’ah are each an independent asl, or dalil mustaqill, that is, a proof in its own right. Qiyas on the other hand is an asl or dalil muqayyad in the sense, as indicated above, that its authority is derived from one or the other of the three independent sources. The question may arise as to why ijma’ has been classified as an independent proof despite the fact that it is often in need of a basis (sanad) in the Qur’an or the Sunnah. The answer to this is that ijma’ is in need of a sanad in the divine sources for its formulation in the first place. However, once the ijma’ is concluded, it is no longer dependent on its sanad and it becomes an independent proof. Unlike qiyas, which continues to be in need of justification in the form of a ‘illah, a conclusive ijma’ is not in need of justification and is therefore an independent asl.
The only other classification or adillah which needs to be mentioned is their division into definitive (qat’i) and speculative (zanni) proofs. This division of dalil shar’i contemplates the proofs of Shari’ah not only in their entirety but also in respect of the detailed rules which they contain. In this way, the Qur’an, Sunnah and ijma are definitive proofs in the sense that they are decisive and binding. However Each of these sources contains speculative rules which are open to interpretation. A dalil in this sense is synonymous with hukm. A Dalil may be qat’i in regards to both transmission (riwayah) and meaning (dalalah). The clear injunctions of the Qur’an and Hadith Mutawatir are all qat’i in respect of both transmission and meaning. We shall have occasion later to elaborate on this subject in the context of the characteristic features of Qur’anic legislation. Suffice it here to say that the Qur’an is authentic in all of its parts, and therefore of proven authenticity (qat’i al-thubut). The solitary, or ahad, Hadith on the other hand is of speculative authenticity and therefore falls under the category of speculative proofs. Similarly, a ruling of ijma’ may have reached us by continuous testimony (tawatur) in which case it would be definitely proven (qat’i al-thubut). But when ijma’ is transmitted through solitary reports, its authenticity would be open to doubt and therefore zanni al-thubut.
The text of the Qur’an or the Hadith may convey a command or a prohibition. According to the general rule, a command (amr) conveys obligation (wujub), and prohibition (nahy) conveys tahrim unless there is evidence to suggest otherwise. It is in the light of the wording of the text, its subject-matter and other supportive evidence that the precise shar’i value of a textual ruling can be determined. A command may thus imply a recommendation (nadb) or a mere permissibility (ibahah) and not wujub. Likewise a prohibition (nahy) in the Qur’an or the Sunnah may be held to imply abomination (karahah) and not necessarily tahrim. Consequently, when the precise value of the qat’i and the zanni on the scale of five values is not self-evident, it is determined by supportive evidence that may be available in the sources or by ijtihad. The qat’i of the Qur’an and Sunnah is basically not open to interpretation. The scope of interpretation and ijtihad is consequently confined to the zanni proofs alone.
by M. H. Kamali
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