Uṣūl Al-Fiqh

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UṢŪL AL-FIQH

UṢŪL AL-FIQH . The Arabic phrase uṣūl al-fiqh, which means literally "the roots of understanding," takes on a specialized sense in the classical literature of Islam; it may be rendered either as "sources of law" or as "principles of jurisprudence." The former rendering may be regarded as best expressing the primary sense of the phrase and the latter as conveying a broader, extended sense. It must be kept in mind that "law" in Islam is much more comprehensive than Western law: It includes not only civil and criminal law but also regulations pertaining to worship, hygiene, and other aspects of the private lives of individuals. It furthermore recommends and disapproves actions as much as it requires and forbids them, and while it specifies temporal penalties for certain offenses, its ultimate sanctions are otherworldly.

There are two Arabic terms that may be translated as "law"—sharīʿah and fiqh. The sharīʿah is the law of God, immutable, all-encompassing, and transcendent. Strictly speaking, fiqh is the understanding of the law of God that jurists acquire through pious scholarship. However, because it is this understanding of the law of God, as expressed in concrete rules formulated by the jurists themselves, which governs the daily lives of Muslims, it may be considered law in its own right. It is, in fact, the nearest thing to a positive law that the Islamic tradition affords. uṣūl al-fiqh thus designates, in its primary sense, the sources of this positive law, that is, the sources of a human prudentia juris conceived as a norm of human conduct. A source (aṣl) is that from which something else is derived. The law of God cannot, in its essence, be a derivative of anything; only human constructions of law can have that status.

The necessity for the distinction between the law of God and the positive law as the expression of the human understanding of that law becomes evident when reflecting on cases where the jurists differ among themselves in their construction of rules. Although some Muslim jurists subscribed to a kind of relativism, according to which any rules that emerged from the deliberations of a particular jurist constituted the law of God for him, the majority of Sunnī jurists insisted upon the absolute uniformity and prevenience of that law such that, where jurists propounded conflicting rules, they could not all be right and the possibility of error had necessarily to be admitted. But as the Sunnī jurists acknowledged no higher authority that might resolve differences among them, they were constrained to regard all rules propounded by duly qualified jurists on the basis of a diligent investigation of the sources of law as equally valid and normative, even if contradictory. What was required for a rule to be normative, therefore, was not that it be an infallible statement of the divine law but simply that it express a qualified jurist's genuine understanding of that law. It is the fallibility of that understanding that compels one to draw a clear line between it and the law of God, its object.

The derivation of positive law from its proper sources is governed by carefully formulated methodological principles so as to leave as little as possible to human ingenuity. These principles, which are partly hermeneutical, partly text-critical, and partly theological, are included in the extended meaning of uṣūl al-fiqh. They, together with the sources of law, constitute the "principles of jurisprudence."

The Theory of the Four Sources and Its Origin

Classical Sunnī Muslim legal thought enumerates four primary sources of positive law: the Qurʾān; the sunnah, or custom, of the prophet Muḥammad; consensus (ijmāʿ ); and analogical deduction (qiyā s). The first three of these sources consist of, or are embodied in, texts and as such may be described as the material sources of positive law. The Qurʾān and the sunnah of the Prophet (as recorded in the special literature called ḥadīth ) have, by virtue of their inspired character, a special status not accorded the consensus: They alone have been compiled into discrete textual corpora classified as nuṣūṣ. The consensus, though not ranked among the nuṣūṣ, is nevertheless necessarily expressed in relatively fixed verbal formulations that may be regarded as essentially textual, or at least quasi-textual, in character. These are preserved within the larger literature of Islamic jurisprudence. The fourth source of positive law, on the other hand, is, in contrast to the other three, a method of deriving from texts rules of law that are not contained within the meaning of the texts. It may accordingly be described as a formal source of law. To the extent that the principle of analogy is strictly applied, the exclusive authority of the texts as material sources of law is maintained, for although the derived rule may not be said to be contained within the meaning of the texts, it may quite definitely be said to have its ultimate basis in the texts, that basis being an analogous rule contained within the texts' meaning. To these four sources of law most theorists add further "supplementary" sources, to be considered shortly.

Joseph Schacht's monumental study of the early development of Islamic jurisprudence (Origins of Muhammadan Jurisprudence, Oxford, 1959) singled out the famous jurist Muḥammad ibn Idrīs al-Shāfiʿī (d. 820) as the real architect of the "four source" theory. As Schacht showed, Shāfiʿī formulated this theory in response to the interaction of two movements that had been contending for supremacy in the shaping of Islamic law before his time. The earliest of these was represented by what Schacht called the "ancient schools of law." These schools, which were located in the principal Muslim urban settlements of the Umayyad period (661–750), especially Kufa and Medina, despite certain differences shared a common acceptance of the consensus of legal scholars as constituting the ultimate criterion of correct legal doctrine. While in no way minimizing the preeminence of the prophet Muḥammad, which the passing of generations only enhanced, the representatives of these schools came to view the sunnah of the Prophet as most faithfully represented in the unanimously agreed-upon doctrine. Thus the ancient schools in effect identified the sunnah of the Prophet with the consensus of legal scholars. In reaction to this view, the second movement, namely that of the traditionists (ahl al-ḥadīth ), took the position that the consensus of the legists, far from adequately representing the sunnah of the Prophet, was in reality the product of human reasoning and was therefore of no value whatsoever and that the sunnah of the Prophet was properly represented only by formal traditions (aḥadīth ; literally, "narratives") reporting actual sayings or deeds of the Prophet and accompanied by lists (isnād s) of accredited transmitters. The sunnah of the Prophet was thus, in their view, categorically distinct from the consensus of the legists. Both the ancient schools and the traditionists recognized, as any Muslim must, the authority of the Qurʾān, but as the Qurʾān supplies relatively little material of a specifically legal nature, the question of whether the consensus of legists or formal traditions from the Prophet was to be the primary norm after the Qurʾān was of crucial importance for the development of Muslim legal thinking.

Shāfiʿī himself leaned decidedly toward the traditionist point of view. At the same time, being a lawyer by disposition, like the representatives of the ancient schools in whose circles he had studied (and unlike the traditionists, who though much preoccupied with piety had little instinct for legal matters), Shāfiʿī realized that some principle of legal construction beyond that of sheer adherence to texts was necessary if law was to develop in accordance with the ongoing needs of the community. He therefore affirmed the validity of analogical deduction, a technique of legal construction that had been developed to near perfection by the ancient schools. However, he distinguished analogical deduction sharply from the purely private judgments of the legists, which the ancient schools had permitted in certain cases. The latter he ruled out entirely, as he did likewise the consensus of the legists, which, like the traditionists, he believed to be the product of private judgment. In its place he did, however, accept the general consensus of the entire Muslim community on essentials. Thus did Shāfiʿī assemble as complementary principles of legal construction four items: the Qurʾān, the sunnah of the Prophet as represented by formal traditions, the consensus of the community as a whole, and analogical deduction from any of the foregoing. By insisting on adherence to formal traditions, which in Shāfiʿī's time were fast being fashioned into a textual corpus, Shāfiʿī secured for Islamic law a strong literary base, thus introducing into juristic activity a larger measure of stability and predictability than had previously existed.

The Classical Theory of the Four SunnĪ Madhhabs

During the third century of the Islamic era (roughly the ninth century ce), the ancient schools of law gave way to a new type of school called the madhhab. Whereas the ancient schools had been essentially regional in character, encompassing all legists in a particular locality such as Kufa or Medina, the madhhab s derived their identity (and their names) from particular authoritative teachers of law, whom they claimed as their founders and whose essential doctrine they claimed to uphold. Two such "personal schools" (Schacht's term)—the Ḥanafī and the Mālikī schools—emerged out of the ancient schools of Kufa and Medina, within which they had originated as circles of followers of two teachers of great prominence, Abū Ḥanīfah in Kufa and Mālik ibn Anas in Medina. The emergence, after Shāfiʿī's death, of another school claiming to uphold his doctrine gave added impetus to the development of the new type of school. By the early tenth century at least seven such schools were in existence within Sunnī Islam, although only four of these survived beyond the thirteenth century: the Ḥanafī, Mālikī, Shāfiʿī, and Ḥanbalī schools.

Despite certain differences that persisted between them and despite the diversity of their origins, the four madhhab s came eventually to agree upon a version of the theory of the four sources that is often described as the classical theory. This theory differed in one important respect from Shāfiʿī's version: It accepted the consensus of legal scholars as equal in weight to the consensus of the entire Muslim community, and because the latter was scarcely if at all ascertainable after the Muslim community had spread beyond its place of origin in Medina, it was the former alone that became the effective principle of legal construction (despite many difficulties in its application). Thus in effect the classical theory allowed the cardinal principle of the ancient schools, which Shāfiʿī had rejected, to creep back into Muslim legal thinking. Within the classical theory, it had, however, a position far less exalted than the one it had enjoyed in the thinking of the ancient schools, for it was now subordinated, not only to the Qurʾān, but also to the vast body of traditions. The classical theory, which inherited from Shāfiʿī the notion that the authority of the sunnah of the Prophet was grounded in the Qurʾān, went on to make the authority of the consensus dependent on both of these.

The differences between the four madhhab s in the realm of legal theory have to do with the so-called supplementary principles of legal construction alluded to above. Of these, two are predominant, namely those referred to by means of the terms istiḥsān ("preference") and istiṣlāḥ ("consideration of public utility"). The first, which is acknowledged by the Ḥanafī school, allows a jurist to set aside a rule deduced analogically from a text in favor of another rule, whose basis in the text is less obvious but that in the jurist's personal judgment provides a more equitable solution to the case at hand. The second, which originated within the Mālikī school but was also later accepted by some legists of the Shāfiʿī and Hanbali schools, allowed a jurist to formulate a rule on the basis of a perceived contribution to the common good (maṣlaḥah ). Discussions of what was entailed in the notion of the common good proceeded from the conviction that the essential guidelines were to be found in the texts and culminated in some very profound probings into the "ultimate purposes" (maqāṣid ) of the law of God. Because istiḥsān and istiṣlāḥ are kindred principles, and because neither in its classical formulation entailed a conscious turning away from the texts in favor of a totally independent use of human reason but looked to the texts for ultimate guidance, the differences between the madhhab s in regard to these principles may be assessed as relatively minor.

The large measure of agreement that the four madhhab s eventually arrived at in the theoretical realm helped to foster toleration of the differences between them in the realm of positive legal doctrine. The formulation of rules of law on the basis of the recognized sources was understood to be an arduous scholarly task, leading frequently to results of a quite tentative nature. A jurist who was qualified for this task was, in fact, called a mujtahid ("one who strives"), and the work of the mujtahid is accordingly called ijtihād ("striving"). The result of this work was classified as "opinion" (ẓann ). Thus the rules formulated by the mujtahid s represented at best their considered opinion, reached after much "striving," as to what the sources dictated with respect to specific cases presented to them. This recognition of the tentativeness of at least part of the positive law constructed by the jurists militated against a dogmatic attachment to any one madhhab as the sole valid expression of the law of God.

Alternatives to the Classical Theory

Although the espousal of the classical theory by the four Sunnī madhhab s assured it a position of undisputed predominance within the larger world of Islam, this theory by no means monopolized Muslim thinking completely.

The Ẓāhirī theory

Among the earlier Sunnī madhhab s that eventually disappeared, one—the Ẓāhirī madhhab —propounded a literalist theory of legal construction that, through the writings of the madhhab 's greatest representative, Ibn Ḥazm of Cordova (d. 1064), was to remain after the demise of the madhhab as a permanent challenge to the classical theory, to be considered whenever the works of Ibn Ḥazm were studied. The most distinctive feature of the Ẓāhirī theory was its decisive rejection of analogical deduction. Its literalism was of a radical sort requiring exclusive adherence to legal rules contained within the text's meaning as determined solely through the tools of the Arabic linguistic sciences. Analogical deduction was considered too speculative, as it seemed, in the Ẓāhirī view, to entail a purely human determination of a legal rule, even if the presumed basis (ʿillah ) were said to be inferred from the texts; and rules, according to the Ẓāhirīyah, were not for humans to determine in any degree. The presence of the Ẓāhirī legacy within the Islamic legal tradition promoted intensive reflection among the legists upon the fundamental question of what constitutes the meaning of a text. The Ẓāhirīyah, in the interests of legal development, tended to stretch the concept of meaning to include much of what the four principal madhhab s considered to be established by analogy, so that the dispute was, partly at least, over methodological

The Shīʿī theory

Even more potent than the Ẓāhirī theory as a challenge to the thinking of the four madhhab s were the theories developed within Shīʿī Islam and especially within that branch known as Imāmī, or Twelver, Shiism. Twelver theory, like the Ẓāhirī, rejects analogical deduction, but the prevailing school of thought among the Twelvers, that of the Ūṣūlīyah, posits in its place "reason" (ʿaql ) as the fourth source of law. Included under this rubric are a number of "rational" operations. Some of these are essentially interpretative activities and as such are considered to be "dependent" upon the texts, in the sense that they do not lead to any conclusion apart from the texts; others are completely autonomous. Of the latter operations, the most significant is the rational perception of good and evil, a notion derived from an early Muslim school of thought known as the Muʿtazilah but denied universally by later Sunnī thinkers. The three remaining sources posited by the Sunnī madhhab s are accepted in Twelver theory but with important modifications. The sunnah of the Prophet is expanded into the sunnah of the "infallible authority" (al-maʿṣūm ) so as to include also the sayings of the imams, or spiritual heads of the community, who are deemed no less infallible than the Prophet. As for the consensus, which Twelver theorists take to be the general consensus of the community as a whole, it is reduced to the role of disseminator of the doctrine of the infallible authority, and the notion of an infallible consensus coequal as a material source of law with the Qurʾān and the sunnah of the Prophet is regarded as a Sunnī aberration stemming from the treasonous election of Abū Bakr as the first caliph. During the long period intervening between the entry of the twelfth imam into a state of "occultation" (believed to have occurred in 876) and his anticipated return, the community depends on the spiritual guidance of mujtahid s, who, though not infallible—even when in agreement—are qualified by virtue of their superior knowledge of the Qurʾān and the sunnah of the "infallible authority" (as enshrined in Shīʿī ḥadīth collections) to carry on the task of developing the positive law in response to communal needs. Unlike the Sunnī legists, however, these mujtahid s are not divided into a plurality of madhhab s—a most reprehensible situation, to the Shīʿī way of thinking—but constitute one unified and exclusively valid madhhab, that of the imams and the Prophet themselves.

ʿIlm UṢŪl al-fiqh

Interest in the methods and principles governing the derivation of positive rules from the sources of law gave rise to a special Islamic science called ʿilm uṣūl al-fiqh, whose business it was to spell out these methods and principles in detail and to deal with every conceivable issue that might arise in connection with them. This science was distinguished from ʿilm al-fiqh, the science of positive law as such. Together, these two sciences constitute the two main branches of what may be called, in the broadest sense of the term, Islamic jurisprudence.

Although Shāfiʿī, described already as the architect of the theory of the four sources, may also be regarded as the founder of ʿilm uṣūl al-fiqh, especially by virtue of his treatise known generally as the Risālah, the primary agents in the development of this science in the century or so after Shāfiʿī were a number of prominent members of the Muʿtazilī school, mentioned above. There is, in fact, a close connection between the development of ʿilm uṣūl al-fiqh and that of speculative theology (ʿilm al-kalām ), in which the Muʿtazilah played a prominent role; and as the agents in the one were also the agents in the other, it is not surprising that the method of investigation that prevailed in speculative theology, namely that of dialectic, prevailed also in ʿilm uṣūl al-fiqh. After the eclipse of the Muʿtazilī school of theology by the "orthodox" Ashʿari and Māturidi schools, the further development of ʿilm uṣūl al-fiqh was carried on by theorists of all four madhhab s, many of whom adhered to these two later schools.

It should be noted, finally, that despite its great thoroughness and finesse ʿilm uṣūl al-fiqh was seldom put to practice for the purpose either of producing new law or of reforming existing law. The greater part of the legal doctrine of the four madhhab s was formulated long before ʿilm uṣūl al-fiqh reached maturity and is, in fact, in large measure a legacy of the ancient schools of law, as Schacht has shown. The methods and principles elaborated in ʿilm uṣūl al-fiqh were consequently viewed as identical with those presumed to have been employed by the great masters of an earlier period, especially the eponyms of the four madhhab s. ʿ Ilm uṣūl al-fiqh —at least in its later mature form—sought simply to articulate what was supposed to have been implicit in the work of the masters. At the same time it always stood as a potential resource for any daring mind that might wish to take a fresh and independent look at the inherited doctrine and embark on a new ijtihād in emulation of the masters themselves.