A very brief look at the Islamic Methodological approaches

Islamic Methodological approaches

USŪL AL-FIQH, AL-QAWĀ’ID AL-FIQHIYYAH, FIQH AL-AQALIYĀT AND MAQĀȘID AL-SHARĪ’AH

Usūl al-fiqh

Usūl al-fiqh is the methodology of deducing law pertaining to religious actions from its evidence. This is done via principles or a procedure adopted by the jurists (fuqahā) to deduce the sharī’ah ruling from their sources; the qur’ān, ḥadīth, Ijmā’ (consensus) and qiyās (analogical reasoning). Hence, usūl al-fiqh regulates the process of judgement and directs the jurist in his endeavour at deducing the rules from the sources. For example, Allah mentions in the qur’ān, “Establish prayer and give zakāt” (2:43). This verse is evidence because it states that prayer must be established and zakāt rendered. The words ‘establish’ and ‘give’ are imperative verbs and an imperative verb denotes compulsion in the Islamic law and also in the Arabic language[1]. Now, in usūl al-fiqh, the dictates of the language and extrapolating a dictum are two aspects when looking at verses and narrations. So the dictum extrapolated and usūl al-fiqh aspect in the above verse is that imperative words denote compulsion. In the above mentioned verse, the qur’ān is the source of the sharī’ah and the text in the verse is the specific provision which provides the law (ḥukm). (Hassan: 1994)(Hassan: 2003)(Kamali: 2003)

 

In usūl al-fiqh, there is a methodology of legal reasoning to extrapolate legal rulings from the direct primary sources of sharī’ah. The reading of the sources is done in an honest and impartial way to deduce the intentions of Allah, the law giver. Usūl al-fiqh helps understand the legality of a ruling in terms of it being compulsory, recommended, permitted etc. (Kamali: 2003)

 

Al-qawā’id al-fiqhiyyah

Al-qawā’id al-fiqhiyyah (legal maxims) deal with principles from which the rulings of new incidents are determined, due to a clear statement in the qur’ān, sunnah, or ijmānot being present. Al-qawā’id al-fiqhiyyah allow one to understand a great number of subsidiary rulings in a fairly small amount of time. The subject matter of the discipline is the method of construing fiqh rulings from the established legal maxims. Al-qawā’id al-fiqhiyyah came after usūl al-fiqh when it was noticed that many rulings were not directly present in the primary sources. Hence, legal maxims were created as short terms, based on the goals of sharī’ah. A maxim could be defined as a broad rule which relates to all of its particulars. In short, they are principles derived from consolidated reading on many rules of fiqh concerning several themes. The actual wordings of the maxims are infrequently taken from the qur’ān or ḥadīth, but are mostly the effort of leading jurists that have later been developed by others through the ages. (Az-Zarqa, 1993:151) (Mahmassani, 1961:151) (Kamali, n.d.)

 

The scholars of qawā’id fiqhiyyah have stated five core legal maxims (qawā’id fiqhiyyah); ‘acts are judged by their goals and purposes’, ‘harm must be eliminated’, ‘customary usage is the determining factor’, ‘certainty is not over ruled by doubt’ and ‘hardship begets facility’.

 

In light of the five core legal maxims many other subsidiary maxims have been extrapolated by the scholars of qawā’id fiqhiyyah.

 

Fiqh al-aqalliyāt

Fiqh al-aqalliyāt is the jurisprudence of Muslim minorities. It was presented as a new legal doctrine in the 1990s by Dr. Taha Jabir al-Alwani and Dr. Yusuf al-Qaradawi, two famous religious figures. This doctrine affirms to address the exclusive religious needs Muslims living as minorities’ face, particularly those living in the West, which varies from those of Muslims living in Islamic countries. The Muslims living as a minority should have a distinctive new legal discipline as the special circumstances and various dilemmas they face in many non-Muslim countries, such as issues relating to permitting food, wedding non-Muslim women etc., substantiates the formation of a distinctive structure of jurisprudence. Hence, the introduction of a distinctive branch of fiqh became indispensable in order to aid in the association amongst the Muslim minority and the non-Muslim majority. The term ‘fiqh al-aqalliyāt’ was coined by Dr. Taha Jabir al-Alwani and was first used in 1994 in the Fiqh Council of North America, who issued a fatwā permitting American Muslims to vote in America. Fiqh al-aqalliyāt specifically deals with the daily problems that arise for millions of Muslim individuals living in the West. It tries to resolve conflicts with the culture and values of the host societies from within the framework of Islamic jurisprudence. Its goal is to reshape and reinterpret Islamic concepts. (Fishman :2006)(Abd al-Rahim :1996)(Khalid:1998)

 

Fiqh al-aqalliyāt mainly takes into consideration public interest, custom and necessity. In light of this, conditions that are not in accordance to the sharī’ah but affect a lot of Muslims creates room for the allowance of certain things. Furthermore, although fiqh al-aqalliyāt contains several features of general fiqh, it endeavours to preserve the identity of Muslims. Fiqh al-aqalliyāt is a communal discipline and must not be exercised individually. It is complex, with multiple facets and any individual method could possibly be dangerous. (ibid)

 

In short, when a question arises for the Muslim minority and there is no answer in the established and agreed-upon opinions in light of the qur’ān, sunnah and fiqh, then singled out and rare opinions would be resorted to and sought for in light of qur’ān, sunnah and fiqh, in order to come up with a solution.

 

Maqāșid al-sharī’ah

Maqāșid al-sharī’ah (objectives of sharī’ah) is a branch of knowledge that responds to the thought-provoking question of ‘why’ on several levels. For example, why pray? Why give zakat? Why fast? Etc. In essence, maqāșid al-sharī’ah explains the underlying wisdoms of rulings; the divine intentions and ethical thoughts upon which the Islamic law is grounded, such as human dignity, justice, free will, etc. It is claimed that maqāșid al-sharī’ah was initially founded in the 9th century. However, very few scholars engaged with this topic over the centuries. It was not until Muhammad Tahir Ibn Ashur (d. 1973), a Tunisian scholar in modern times, brought this topic back to light, that Islamic scholars started showing a renewed interest towards this topic. Bear in mind that the qur’ān and sunnah pursue to establish justice, eliminate prejudice and alleviate hardship. Hence, the law of Allah is grounded upon the principles of mercy and mașlaḥa (public interest). This is the foundation of maqāșid al-sharī’ah. (Kamali 2008) (Auda:2007)

 

The questions arise that why did maqāșid al-sharī’ah all of a sudden come into development? And why the renewed interest in this topic? The answer to these questions is that Islamic scholars found that there was too much rigidity in usūl al-fiqh and al-Qawāi’d al-Fiqhiyyah. Hence, the development and the renewed interest towards this topic.

 

The scholars of maqāșid al-sharī’ah have classified maqāșid into three categories:

1) Necessities (those things and benefits that life depends on, without which would lead to complete disruption and chaos).

2) Needs (those things that without which would cause great hardship).

3) Luxuries/desirable (those things that embellish human life).
 

Furthermore, the first category, ‘necessities’ has been categorised in to five principles of preservation:

  • preservation of religion
  • preservation of life
  • preservation of intellect
  • preservation of lineage
  • preservation of property

 

Many scholars have added more principles of preservation under maqāșid. For example, some argue that there is a sixth principle of preservation which is ‘preservation of honour’. Though, many scholars agree to classify this under ‘preservation of lineage’. (ibid)

 

Maqāșid al-sharī’ah is a discipline that is not as simple as it may seem. It should be applied with extreme caution and not haphazardly or else it could be dangerous and lead to erroneous conclusions.
 

Bibliography

  • Abd al-Rahim, M. (1996). The development of Fiqh in the modern Muslim world. Malaysia: Institute of Islamic understanding Malaysia.
  • al-Hisni, T.(1997). Kitāb al-Qawā’id. Riyadh, Saudi Arabia: Maktabat al-Rushd.
  • al-Qaradhawi, Y. (2001). Fī Fiqh al-Aqalliyyāt al-Muslimah. Dar al-Shuruq.
  • al-Zarqa, M. (1993). Sharḥ al-Qawā‘id al-Fiqhiyyah. Damacus:Dar al-Qalam.
  • Auda, J. (2007). Maqāsid al-Sharī’ah as philosophy of Islamic law, a systems approach. London: IIIT.
  • Fishman, S. (2006). Fiqh al-Aqalliyyāt: A Legal Theory for Muslim Minorities. Washington: Hudson Institute.
  • Hassan, A. (1994). The principles of Islamic Jurisprudence. India, New Delhi : Adam Publishers.
  • Hassan, M. F.(2003). Introduction to Usūl al-Fiqh (Islamic jurisprudence).Harun M. Hashim Law Centre. International Islamic University Malaysia.
  • Kamali, M.H.(2003). Principles of Islamic Jurisprudence. Cambridge: The Islamic Text Society.
  • Kamali, M.H.(2008). Sharī’ah Law: An Introduction. Oxford: Oneworld Publications.
  • Kamali, M.H. (n.d.). Qawā‘id al-Fiqh: the legal maxims of Islamic law. The Association of Muslim Lawyers (UK).
  • http://www.sunnah.org/Fiqh/usul/Kamali_Qawaid_al-Fiqh.pdf (Accessed on 13/05/2016 12:00)
  • Khalid, A. (1998). Fiqh al-Aqalliyyāt al-Muslimah. Lebanon: Darul-Iman.1998.
  • Mahmassani, S. (1961). Falasafāt at-Tashrī‘i fil-Islām: The Philosophy of Jurisprudence in Islam, Eng. Trans. Farhat, I. Z., Brill,E.J., Lieden .

 

Internet source

Qur’ān sources retrieved from: http://quran.com (accessed on 01/05/16 14:06)
 

[1] This has just been cited as an example and does not relate to all cases.

 
 

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Tayyib HMC FInder

Munadil Islaam

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