Philosophy
Of Islamic Law (Part 2)
2. Usul al-fiqh
The literary tradition of usul al-fiqh (roots of jurisprudence) is
usually thought to begin with the Risala of Muhammad ibn Idris
al-Shafi'i in the third century ah (ninth century ad).
However, there is then a hiatus between this work and the emergence, some two
centuries later, of other works of the same kind. Modern scholars have put this
down to pseudepigraphy, or to the community's engagement with theological and
intellectual problems. Once established, this tradition, although it developed
in a variety of ways, showed remarkable structural and conceptual unity over
the centuries, with individual books always including a presentation of
hermeneutical principles and an elaboration of the theory of ijtihad
(independent judgment).
Since revelation was constituted by written texts, a primary bundle of
hermeneutical techniques related to linguistic and rhetorical structures. These
were usually presented under simple antithetical headings (the general and the
particular, commands and prohibitions, the clear and the ambiguous, the
absolute and the qualified, truth and metaphor and so on), which might or might
not be integrated into a general theory of language and rhetoric. Consideration
was given to the principle of abrogation (naskh), a result of diachronic
revelation, and (with reference to hadith only) to the mode of
transmission, which was either general report (tawatur, giving rise to
certain knowledge) or isolated report (ahad, giving rise to uncertain
knowledge or opinion). Consensus (ijma'), whether of the community or of
scholars, on the meanings of revelation was discussed, as was the operation of
analogy (qiyas) as a means (variously qualified) to permit extrapolation
of rules from a finite body of revealed texts. These, together with a limited
number of extra items, either of substance (such as the opinions of the
Prophet's companions) or of judgment (such as the relevance of maslaha,
or social welfare) represented the major focuses of analysis and discussion
within a single and more or less unified literary tradition for about a
thousand years. The hermeneutical loyalties of the mainstream Sunni community
were summarized by reference to the four principles (usul) of Qur'an, sunna,
consensus and analogy.
The whole bundle of interpretative devices and principles of judgment was
acknowledged to lead to conflicting possibilities (ta'arud) and to the
necessity for rational and justified preference (tarjih). The context
and the significance of juristic preference depended on the theory of ijtihad,
the expression of which was a culmination and a kind of resolution for all
other arguments in a work of usul. Ijtihad literally means
effort; technically, it means the exertion of the utmost possible effort by a
trained jurist, taking into account all the relevant texts of revelation and
principles of interpretation, in order to discover, for a particular human
situation, a rule of law. Underlying this definition there is an important
epistemological principle. It concedes that most of the details of the law are
not known (not certain) but are a matter of skilled (and preferably pious)
deduction on the basis of principles that are themselves subject to debate and
incapable of providing certainty.
Within this area, the jurists were committed to acknowledging the views of
other jurists, if adequately defended, and to the elaboration of systematic
arguments to defend their own views. Committed in this respect to debate and
uncertainty, the jurists (in this context mujtahids, those who undertake
ijtihad) also acknowledged a need for final decisions in particular
cases. This was provided by asserting that the result of an act of ijtihad
was binding both on the mujtahid himself and, where relevant, on those
who were not experts in the law and could not participate in juristic debate (muqallids).
These, by an exercise of choice (which was itself an act of ijtihad),
were required to commit themselves to a particular mujtahid and to
accept his rulings. The theory of ijtihad thus provides both an
epistemology (permitting and encouraging debate and intellectual play) and a
structure of authority. In its former aspect it accounts (in part) for the
vitality of the tradition of furu' al-fiqh, and in its latter aspect it
justifies the participation of the jurists in positions of authority, notably
as judges (qadis) and the jurisconsults (muftis).
The structures set out above, which were capable of considerable and
diverse development, represent the main features of usul literature for
both the Sunni community and for the Shi'is. The latter differed from the
Sunnis in rejecting most forms of analogical argument. Summarizing their usul,
they substituted for the Sunni principle of analogy that of intellect ('aql)
deemed by them (but not by the Sunnis) to be capable of independent moral
judgment. The Shi'i community was initially suspicious of the theory of ijtihad
(perhaps because it too easily acknowledged plurality and uncertainty in the
law), but it was integrated into their works of usul from the time of
'Allamah al-Hili in the eighth century ah (fourteenth century ad).
Amongst the standard classics of the Sunni tradition are the Mustasfa of
al-ghazali and the Muwafaqat of Shatibi (d. ah 790/ad 1388), showing an original foregrounding of the principle of maslaha.
One of the outstanding usul writers of the Shi'i tradition after
'Allamah is the nineteenth-century Shaykh Murtada ibn Muhammad Ansari.
