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Principles of IslamicJurisprudencebyM. H. KamaliPrinciples of Islamic Jurisprudence Kamali1

Table of Contents Foreword Preface Chapter One: Introduction to Usul al-Fiqh Chapter Two: The First Source of Shari'ah: The Qur'an Chapter Three: The Sunnah Chapter Four: Rules of Interpretation I: Deducing the Law from Its Sources Chapter Five: Rules of Interpretation II: Al-Dalalat (Textual Implications) Chapter Six: Commands and Prohibitions Chapter Seven: Naskh (Abrogation) Chapter Eight: Ijma' or Consensus of Opinion Chapter Nine: Qiyas (Analogical Deduction) Chapter Ten: Revealed Laws Preceding the Shari'ah of Islam Chapter Eleven: The Fatwa of a Companion Chapter Twelve: Istihsan, or Equity in Islamic Law Chapter Thirteen: Maslahah Mursalah (Considerations of Public Interest) Chapter Fourteen: 'Urf (Custom) Chapter Fifteen: Istishab (Presumption of Continuity) Chapter Sixteen: Sadd al-Dhara'i (Blocking the Means) Chapter Seventeen: Hukm Shar'i (Law or Value of Shari'ah) Chapter Eighteen: Conflict of Evidences Chapter Nineteen: Ijtihad, or Personal ReasoningPrinciples of Islamic Jurisprudence Kamali2

PrefaceI. Apart from the fact that the existing works on Islamic Jurisprudence in the English language do notoffer an exclusive treatment of usul al-fiqh, there is also a need to pay greater attention to the sourcematerials, namely the Qur'an and sunnah, in the study of this science. In the English works, thedoctrines of usul al-fiqh are often discussed in relative isolation from the authorities in which they arefounded. Furthermore, these works tend to exhibit a certain difference of style and perspective whenthey are compared to the Arabic works on the subject. The usul al-fiqh as a whole and all of the variousother branches of the Shari’ah bear testimony to the recognition, as the most authoritative influence andsource, of divine revelation (wahy) over and above that of rationality and man-made legislation. Thisaspect of Islamic law is generally acknowledged, and yet the relevance of wahy to the detailedformulations of Islamic law is not highlighted in the English works in the same way as one wouldexpect to find in the works of Arabic origin. I have therefore made an attempt to convey not only thecontents of usul al-fiqh as I found them in Arabic sources but also the tone and spirit of the sourcematerials which I have consulted. I have given frequent illustrations from the Qur’an, the Sunnah andthe well-recognised works of authority to substantiate the theoretical exposition of ideas and doctrines.The works of the madhahib, in other words, are treated in conjunction with the authority in which theyare founded.II. The idea to write this book occurred to me in early 1980 when I was teaching this subject topostgraduate students at the Institute of Islamic Studies at McGill University in Montreal. But it wasonly after 1985 when I started a teaching post at the International Islamic University, Selangor,Malaysia, that I was able to write the work I had intended. I was prompted to this decision primarily bythe shortage of English textbooks on Islamic jurisprudence for students who seek to acquire anintermediate to advanced level of proficiency in this subject. Works that are currently available inEnglish on Islamic law and jurisprudence are on the whole generic in that they tend to treat a wholerange of topics both on usul al-fiqh and the various branches of fiqh (i.e. furu 'al-fiqh), often within thescope of a single volume. The information that such works contain on usul al-fiqh is on the wholeinsufficient for purposes of pursuing a full course of study on this subject. The only exception to notehere, perhaps, is the area of personal law, that is, the law of marriage, divorce, inheritance, etc., whichhas been treated exclusively, and there are a number of English texts currently available on the subject.Works of Arabic origin on usul al-fiqh are, on the whole, exclusive in the treatment of this discipline.There is a selection of textbooks in Arabic, both classical and modern, at present available on thissubject, ranging from the fairly concise to the more elaborate and advanced. Works such as 'Abd alWahhab 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.Classical works on usul al-fiqh, of which there are many, are, broadly speaking, all fairly elaborate,sometimes running into several volumes. I have relied, in addition to the foregoing, on al-Ghazali's AlPrinciples of Islamic Jurisprudence Kamali3

Mustasfa min 'llm al-usul, al-Amidi's Al-Ihkam fi Usul al-Ahkam, al-Shatibi's Al-Muwafaqat fi Usul alAhkam and al-Shawkani's Irshad al-Fuhul fi Tahqiq al-Haqq min 'llm al-Usul. These are all devoted,almost exclusively, to the juridical subject matter of usul al-fiqh, and rarely, if ever, address thehistorical development of this discipline beyond such introductory and incidental references as thecontext may require. Arabic writers tend to treat the historical development of jurisprudence separatelyfrom the usul al-fiqh itself. There are several Arabic works of modern origin currently available on thehistory of jurisprudence and its various phases of development, namely the Prophetic period, the era ofthe Companions, the early schools of law in the Hijaz and Iraq, the emergence of the madhahib, the eraof imitation (taqlid), and the call for a return to ijtihad. This discipline is generally known as 'tarikh altashri' which, as the title suggests, is primarily concerned with the history of juristic thought andinstitutions. [Note for example al-Khudari's, Tarikh al-Tashri' al-lslami; al-Sabuni et al., Al- Madkhal al-Fiqhi wa Tarikh al-Tashri al-Islami; al-Qattan'sAl-Tashri' wa al-Fiqh fi al-Islam: Tarikhan wa Manhajan, and al-Nabhan's Al-Madkhal li al-Tashri' al-islami. Nish'atuh, Adwaruh al-Tarikhiyyah, Mustaqbalub.For full publication data see my Bibliography.]The Arabic texts on usul al-fiqh itself are on the whole devoted to atreatment of the sources, and methodology of the law, and tend to leave out its history of development.The reverse of this is true with regard to works that are currently available on the general subject ofIslamic jurisprudence in the English language. Works of Western authorship on this subject are, broadlyspeaking, primarily concerned with the history of jurisprudence, whereas the juridical subject matter ofusul al-fiqh does not receive the same level of attention as is given to its historical development.Bearing in mind the nature of the existing English literature on the subject, and the fact that there isadequate information available on the history of Islamic jurisprudence in English, the present work doesnot attempt to address the historical developments and instead focuses on usul al-fiqh itself.Another point to be noted regarding works on Islamic jurisprudence in English by both Muslim andnon-Muslim authors is that they are somewhat selective in their treatment of the relevant topics, andcertain subjects tend to be ignored or treated only briefly. Consequently, information on some topics,such as the rules of interpretation, classification of words, commands and prohibitions, and textualimplications (al-dalalat) is particularly brief and often non-existent in these works. Even some of themore familiar topics such as qiyas, istihsan, istislah, istishab and saad al-dhara'i are treatedsuperficially in most of the English books that are currently in use. The reasons for such omissions arenot always clear. The authors might have considered some of these topics to be somewhat technical andinvolved for English readers whose interest in usul al-fiqh has for a long time remained confined togeneral and introductory information on the subject. Some of these topics, such as the rules ofinterpretation, al-dalalat and the technicalities of qiyas which draw somewhat heavily on the use ofArabic terminology, might have been viewed in this light. The English-speaking student of Islamicstudies has been perceived as someone who would have little use for technical detail on usul al-fiqh.This might at best offer a plausible explanation, but it is one which carries little weight, especially inview of the greater interest that has been more recently taken in Islamic legal studies in the West, aswell as some of the English speaking institutions of higher learning that have emerged in IslamicPrinciples of Islamic Jurisprudence Kamali4

countries themselves. [Note for example the International Islamic University of Malaysia, and that of Islamabad, Pakistan, where usul al-fiqh isoffered as a core subject both in the LL.B and the masters degree programmes.]Moreover, the fact that Islamic countries have inrecent decades shown a fresh interest in developing greater harmony between the Shari’ah and statutorylaws has also meant that practicing lawyers and judges in these countries are increasingly encouraged toenhance their expertise in the Shari’ah disciplines.Modern Arabic writings on usul al-fiqh tend to differ from the older works on the subject in that theformer take cognizance of recent developments both in the Muslim communities and beyond. Thus, thereader of many a modern work often comes across comments and comparisons which seek to explainthe application and relevance of the Shari’ah doctrines to modern legislation, and to the principles ofWestern jurisprudence. Much to their credit, some ulema and writers of modern works have attemptedto relate the classical formulations and doctrines of usul al-fiqh to the contemporary socio-legalconditions of their communities. There exists a level of concern over the gap that has graduallydeveloped between the Shari’ah and modern law and over the fact that the problem still remains to betackled.There have also been attempts, be they in the form of individual reform proposals, a call for freshijtihad over particular issues, or formal resolutions adopted at national and international gatherings ofscholars, which seek to tap the resources of usul al-fiqh in bridging the gap between the Shari’ah andmodern conditions of society. A full account of such developments would fall well beyond the scopeand objective of the present work. [For an account of the recent trends and developments in scholarly publications, conference resolutions, andthe various periodicals and encyclopedias which are designed to promote such tendencies, the reader is referred to Muhammad Faruq al-Nabhan, Al- Madkhal li alTashri al-Islami, pp 342-407 and Manna al-Qattan, Al-Tashri’ wa al-Fiqh fi al-lslam, pp. 311-355.]But in discussing certain doctrines suchas ijtihad, ijma', istihsan and maslahah, I have attempted to present the modern current of opinion, andoccasionally my own views, as to how these principles could be utilised in contemporary legal andjudicial processes. I have taken this liberty despite the awareness that it might fall beyond the brief of awork which seeks to be an exposition of the existing doctrines and institutions as they are. I wish to addhere that I alone bear full responsibility for the propriety or otherwise of my views.Furthermore, the recent Arabic texts on usul al-fiqh tend to treat their subject matter in a moreconsolidated and simplified form which makes it manageable to the modern student of law. Theseworks are on the whole more concise by comparison with the earlier authorities on the subject. It isprimarily in matters of format and style in which they differ from the older works. As for substantivematters, the modern works are normally expected to preserve the continuity of the earlier authorities,and the two are basically indistinguishable in this regard. Having said this, one might add further thatthe modern works tend to differ from their predecessors in one other respect, namely that the formertend to offer a more even-handed treatment of the views and doctrines of such schools of thought as theMu'tazilah, the Shi'ah and the Zahiriyyah, etc., and tend to treat ideas on merit rather than their formalacceptance and recognition by the established madhahib. In addition to the textbook materials on usulPrinciples of Islamic Jurisprudence Kamali5

al-fiqh, a number of legal encyclopedias have emerged in recent decades in Egypt and elsewhere,usually bearing the title al-Mawsu'ah al-Fiqhiyyah' with the express purpose of offering a balancedtreatment of the views and contributions of all the prominent schools of law. As a result, the relativelystronger orientation toward particular schools that is noticeable in the earlier works on usul al-fiqh,especially those that were authored after the crystallisation of the madhahib, is not a prominent featureof the modern works. A more open attitude has in fact emerged which seeks to move away from thesectarian bias that can be found in some earlier works, and it is no longer unusual for a Sunni scholar towrite on Shi’i thought, scholars and institutions, with a view to highlighting their contributions toIslamic law and jurisprudence. The present writer welcomes this development, but if his own work failsto offer adequate coverage of the doctrines of the various schools, it is due solely to considerations ofbrevity and space which may be expected of a handbook of this size.III. It is perhaps true to say that Islamic jurisprudence exhibits greater stability and continuity of values,thought and institutions when compared to Western jurisprudence. This could perhaps be partiallyexplained by reference to the respective sources of law in the two legal systems. Whereas rationality,custom, judicial precedent, morality and religion constitute the basic sources of Western law, the lasttwo acquire greater prominence in Islamic Law. The values that must be upheld and defended by lawand society in Islam are not always validated on rationalist grounds alone. Notwithstanding the fact thathuman reason always played an important role in the development of Shari'ah through the medium ofijtihad, the Shari’ah itself is primarily founded in divine revelation.A certain measure of fluidity and overlap with other disciplines such as philosophy and sociology isperhaps true of both Islamic and Western jurisprudence. But it is the latter which exhibits the greatermeasure of uncertainty over its scope and content. Thus according to one observer, books that bear thetitle 'jurisprudence' vary widely in subject matter and treatment, because the nature of the subject issuch that no distinction of its scope and content can be clearly determined, [Dias, Jurisprudence, p. I.] and inJulius Stone's somewhat dramatic phrase, jurisprudence is described as 'a chaos of approaches to achaos of topics, chaotically delimited'. [See this and other statements by Bentham, Dicey and Arnold in Curzon, Jurisprudence, p. 13.]Usul al-fiqh, on the other hand, has a fairly well defined structure, and the ulema had little difficulty intreating it as a separate discipline of Islamic learning. Textbooks on usul al-fiqh almost invariably dealwith a range of familiar topics and their contents are on the whole fairly predictable. This is perhapsreflective of the relative stability that the Shari’ah in general and the usul al-fiqh in particular hasexhibited through its history of development, almost independently of government and its legislativeorgans. This factor has, however, also meant that usul al-fiqh has for the most part been developed byindividual jurists who exerted themselves in their private capacity away from the governmentmachinery and involvement in the development of juristic thought. Consequently, usul al-fiqh has tosome extent remained a theoretical discipline and has not been internalised by the legislative machineryof government. The history of Islamic jurisprudence is marred by a polarisation of interests and valuesPrinciples of Islamic Jurisprudence Kamali6

between the government and the ulema. The ulema's disaffection with the government did notencourage the latter's participation and involvement in the development of juristic thought andinstitutions, and this has to some extent discouraged flexibility and pragmatism in Islamicjurisprudence. Note, for example, the doctrinal requirements of ijma', especially the universal consensusof the entire body of the mujtahidun of the Muslim community that is required for its conclusion, acondition which does not concede to considerations of feasibility and convenience. There is also norecognition whatsoever of any role for the government in the doctrine of ijma' as a whole. Thegovernment for its part also did not encourage the ulema's involvement and participation in itshierarchy, and isolated itself from the currents of juristic thought and the scholastic expositions of theulema. The schools of jurisprudence continued to grow, and succeeded in generating a body of doctrine,which, however valuable, was by itself not enough to harness the widening gap between the theory andpractice of law in government. One might, for example, know about qiyas and maslahah, etc., and theconditions which must be fulfilled for their valid operation. But the benefit of having such knowledgewould be severely limited if neither the jurist nor the judge had a recognised role or power to apply it.One might add here also the point that no quick solutions are expected to the problem over theapplication of the Shari’ah in modern jurisdictions. The issue is a long- standing one and is likely tocontinue over a period of time. It would appear that a combination of factors would need to besimultaneously at work to facilitate the necessary solutions to the problem under discussion. One suchfactor is the realisation of a degree of consensus and cooperation between the various sectors of society,including the ulema and the government, and the willingness of the latter, to take the necessary steps tobring internal harmony to its laws. To merge and to unify the Shari’ah and modern law into an organicunity would hopefully mean that the duality and the internal tension between the two divergent systemsof law could gradually be minimised and removed.Bearing in mind the myriad and rapidly increasing influences to which modern society is exposed, thepossibility of consensus over values becomes ever more difficult to obtain. To come to grips with thefluctuation of attitude and outlook on basic values that the law must seek to uphold has perhaps becomethe most challenging task of the science of jurisprudence in general. To provide a set of criteria withwhich to determine the propriety or otherwise of law and of effective government under the rule of law,is the primary concern of jurisprudence.The Muslim jurist is being criticised for having lost contact with the changing conditions ofcontemporary life in that he has been unable to relate the resources of Shari’ah to modern governmentprocesses in the fields of legislation and judicial practice. A part of the same criticism is also leveledagainst the government in Islamic countries in that it has failed to internalise the usul al-fiqh in itslegislative practices. The alleged closure of the door of ijtihad is one of the factors which is heldaccountable for the gap that has developed between the law and its sources on the one hand and thechanging conditions of society on the other. The introduction of statutory legislation which has alreadybecome a common practice in Islamic countries has also affected the role and function of ijtihad. ApartPrinciples of Islamic Jurisprudence Kamali7

from circumventing the traditional role of the jurist/mujtahid, the self-contained statutory code and theformal procedures that are laid down for its ratification have eroded the incentive to his effectiveparticipation in legislative construction. Furthermore, the wholesale importation of foreign legalconcepts and institutions to Islamic countries and the uneasy combinations that this has brought aboutin legal education and judicial practice are among the sources of general discontent. These and manyother factors are in turn accountable for the Islamic revivalism/resurgence which many Muslimsocieties are currently experiencing.In view of the diverse influences and the rapid pace of social change visible in modern society it isperhaps inevitable to encounter a measure of uncertainty in identifying the correct balance of values.But the quest to minimise this uncertainty must remain the central concern of the science ofjurisprudence. The quest for better solutions and more refined alternatives lies at the very heart ofijtihad, which must, according to the classical formulations of usul al-fiqh, never be allowed todiscontinue. For ijtihad is wajib kafa’i, a collective obligation of the Muslim community and itsscholars to exert themselves in order to find solutions to new problems and to provide the necessaryguidance in matters of law and religion. But even so, to make an error in ijtihad is not only tolerated butis worthy of reward given the sincerity and earnestness of the mujtahid who attempts it. And it is oftenthrough such errors that the best solution can ultimately be reached. One can have different solutions toa particular problem, and sometimes the best solution may be known and yet unattainable given thefeasibility and practical considerations that might limit one's range of choice. In such situations onemust surely do that which is possible under the circumstances. But it is imperative not to abandonijtihad completely. It is a common and grave error to say that ijtihad is unattainable and that theconditions for its exercise are too exacting to fulfill. To regulate ijtihad is indeed the primary objectiveof usul al-fiqh and of whatever it has to teach regarding the sources of law and the methods ofinterpretation and deduction. A grasp of the concepts and doctrines of usul al-fiqh is not only helpfulbut necessary to ijtihad so as to enable the Muslim jurist and legislator to contribute to the on-goingsearch for better solutions to social issues, and hopefully also toward the development of the outlookthat the Shari’ah, despite its restraints, also possesses considerable flexibility and resources toaccommodate social change.IV. With regard to the translation of technical Arabic terms, I have to some extent followed the existingworks, especially Abdur Rahim's Principles of Muhammadan Jurisprudence. But in the absence of anyprecedent, or when I was able to find a better alternative, I have improvised the equivalent Englishterms myself. Most of the Arabic terms are easily convertible into English without engaging intechnicalities, but there are occasions where this is not the case, and at times the choice of terms isdetermined on grounds of consistency and style rather than semantic accuracy. To give an example, oneof the chapters in this book is devoted to the discussion of textual implications (al-dalalat). The fivevarieties of textual implications, namely 'ibarah al-nass, isharah al-nass, dalalah al-nass, iqtida al-nassand mafhum al-mukhalafah, each signify a different concept for which an exact English equivalent isPrinciples of Islamic Jurisprudence Kamali8

difficult to find. I have always tried to give priority to semantic accuracy, but as can be seen this is notthe only factor which has determined my choice of 'explicit meaning', 'alluded meaning', 'impliedmeaning', 'required meaning' and 'divergent meaning' for the foregoing terms respectively. For at timeslike this, it becomes difficult to be semantically exact as the shades of meaning and concepts tend to besomewhat overlapping. A measure of technicality and arbitrariness in the choice of terms is perhapsinevitable in dealing with certain topics of usul al-fiqh such as the classification of words and the rulesof interpretation. On such occasions, I thought it helpful not to isolate the English terms from theirArabic originals. I have therefore repeated the Arabic terms frequently enough to relate them to theirEnglish equivalents in the text. But when the reader is not sure of the meaning of technical terms a lookat the glossary, which appears at the end of the text might prove useful.The translation of the Qur'anic passages which occur in the text is generally based on Abdullah YusufAli's translation of the Holy Qur'an. On occasion, however, I have substituted elements in thistranslation for easier and more simplified alternatives. But whenever I have done so, it is usually theresult of my having checked more than one translation. The reader will also notice that I have not giventhe original of the Qur’anic passages in Arabic, as this is not difficult to find. Besides, the Qur’anic textis uniform and there is no variation in the wording of its text in all of its numerous printings that arecommonly used. But when it comes to the Hadith, although the main authorities on Hadith are inclinedto maintain consistency in both the concept and wording of the Hadith, it is nevertheless not unusual tocome across inconsistency or variation in the exact wording of a particular Hadith in various sources.Partly for this reason, but also for the sake of accuracy and convenience, I have given both the Arabicoriginal and the English translation of the Hadith on first occurrence in the text. The English renderingof the Hadith consists for the most part of my own translation of the Arabic original, otherwise I haveused the English translation as and when it was available.A word may also be in order here regarding the English rendering of the terms fiqh and usul al-fiqh.The difference between them is fairly obvious in their respective Arabic usages: usul al-fiqh isunequivocal in its reference to the 'roots of fiqh'. This is, however, not so clear in the equivalent Englishterms, which are currently in use. The terms 'Muhammadan Law' and 'Islamic Law' have often beenused in a generic sense and applied both to fiqh and usul al-fiqh. The same is true of its familiaralternative, 'Islamic jurisprudence'. None of these convey the clarity, which is found in their Arabicequivalents. There are, for example, books currently available in English bearing one or the other of thethese titles, although their contents do not seek to distinguish the two disciplines from one another.The term 'Muhammadan Law' seems to be already falling out of use, and it has almost become anestablished practice to reserve 'Islamic Law' for fiqh, and 'Islamic jurisprudence' for usul al-fiqh. Thisuse of terminology should be retained. A similar distinction between the term’s 'source' and 'proof'would seem advisable. The former should, as far as possible, be reserved for the Qur’an and Sunnah,and the latter for other proofs.Principles of Islamic Jurisprudence Kamali9

My transliteration of Arabic words is essentially the same as that of the Encyclopedia of Islam (NewEdition), with two exceptions, which have become standard practice: q for k and j for dj.And finally, I would like to take this opportunity to thank most warmly my colleagues and students atthe Faculty of Law, International Islamic University, with whom I have frequently raised and discussedmatters of mutual interest. I have often benefited from their views, which I have taken into account inwriting the present work. I would also like to thank the secretarial staff of the faculty for their unfailingwillingness to type for me whenever I have approached them. And last but not least, I wish to thank thelibrary staff of the I.I.U. for their assistance, and for being courteous and helpful.V. Since the publication of the first edition of this book in April 1989, the comments, observations andresponses that I have received from scholars, students, and readers have been very positive andencouraging. The changes that I have carried out for the present edition of the book relate to both itscontent and format, although the overall approach to these changes was to leave the bulk of the originalwork intact. The changes that I have made are on the whole confined to particular parts and they do notentail a recomposition of the original text. I have thus added fresh information and elaborated parts ofthe chapters on abrogation (naskh), analogical reasoning (qiyas), and presumption of continuity(istishab). The new information either consists of the elaboration of concepts or insertion of additionalillustrations for purposes of clarity and relevance to contemporary concerns over the themes of Islamicjurisprudence. The addition to the chapter on naskh thus reflects the results of a discussion over a paperentitled 'The Nature, Sources and Objective of the Shari’ah' which I presented to a symposiumorganised by the International Islamic University in Kuala Lumpur in September 1989. The additions tosome of the other chapters consist mainly of fresh research and expert opinion on the potentialcontribution of some of the neglected principles of usul al-fiqh such as istishab to modernjurisprudence. I have also refined minor portions of the text in the interest of clarity and precision.As for the changes of format these were carried out as a result of my consultation with the editorial staffof the Islamic Texts Society, particularly Mohsen al-Najjar and T. J. Winter. It was thus agreed at theoutset to re-set the whole of the original text so as to implement the standard practice of the IslamicTexts Society concerning transliteration, footnotes and minor editorial changes in the text. It is thushoped that these changes have assured the production of a smoother and more familiar text for itsreaders in Europe and America.Professor Ahmad Ibrahim, Professor Emeritus and Dean of the Faculty of Law, International IslamicUniversity, Malaysia, has contributed a new Foreword for the second edition. He was kind enough to doso despite his numerous other commitments, and preoccupation with his own writings. I take thisopportunity to thank him most warmly

Principles of Islamic Jurisprudence Kamali 3 Preface I. Apart from the fact that the existing works on Islamic Jurisprudence in the English language do not offer an exclusive treatment of usul al-fiqh, there is also a need to pay greater attention to the source materials, namely the Qur'an and sunnah, in the study of this science. In the .File Size: 1MBPage Count: 338

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