Books

Islamic Jurisprudence made easy

Original_mg317-usul-al-fiqh
Book: Usul al Fiqh: Principles of Islamic Jurisprudence
Author: Syed Iqbal Zaheer
Publisher: East West Education Tools, Bangalore
Year: 2012
Pages: 109
Price: Not mentioned
ISBN: 978-81-9153-0-4

 

 

“Poetry,” wrote John Keats, an English poet, “pleases by a fine excess.” So does Syed Iqbal Zaheer. His scholarship pleases by a fine excess. With already a 14-volume Tafsir of the Qur’an, Ishraq al-Ma’ani and An Educational Encyclopaedia of Islam (two volumes in 1300 pages) and An Introduction to the Arabic Language Through Islamic Texts (two volumes) and several booklets on different aspects of Islam to his credit and a monthly he has been editing for the past three decades (The Young Muslim Digest) are testimony to his uninterrupted commitment to Islam. He is endowed with the academic excellence to enlighten on so subtle and highly sensitive a topic as Islamic Jurisprudence. In a brief text of 100 pages, he has demonstrated not only the unique character of Islamic Law vis-à-vis all man-made legal systems which go on evolving but also tried to give an (reply) answer to the various controversies.

Divided into 21 brief chapters, the book first establishes why Islamic Jurisprudence is the need of the Ummah and how laboriously, with a sense of dedication, the Imams, so meticulously codified every aspect of a Muslim’s life in precise and fine details, which no legal system on earth can accomplish, what they finalised in the earlier two / three centuries remains final and unsurpassed. As long as the Prophet was there to guide the destiny of mankind there was no need for codification. The companions with their robust faith imbibed every deed and injunction and knowledge and practised it in their lives. However, when Islam began to reach distant places and with the demise of the Followers (Tabe’iyyun) and the Successors (Taba’ Tabe’iyyun) the need for codification arose because later generations lacked the insight needed for subtle discriminations. It was at this juncture the Imams began codifying.

At the time of Abu Hanifah’s death (150 H), an academy of Fiqh at Kufa had begun functioning with 40 specialists having acquired the necessary competence. He was immediately followed by Imam Shafe’i (d. 204 H). Imam Hanifah and his disciples had finalised about 50, 000 masa’il (issues). What was the line of action? The Imam said:

“I follow the Book of Allah, and if I find no solution there, I follow the Sunnah of the Prophet, peace be upon him. If I find no solution in either …I follow which ever of the pronouncements of the Sahabah I prefer, and leave whichever I wish. If there is a pronouncement on a particular matter by any of the Sahabah, I would not adopt any other opinion made by any other scholar. But, if I found a solution only in the opinion of Ibrahim (Nakha’i), Sh’abi, Ibn Sirin, Hasan al Basri, ‘Ata (ibn abi Rabah) or Sa’id b. al-Musayyib, I would make Ijtihad as they did.”

In Chapter 6, eleven sources of Islamic Law have been enumerated: Qur’an, Sunnah (Sayings and deeds of the Prophet), Al-Ijma’ (Consensus), Al-Qiyas (analogical reasoning), Fatawa al-Sahaba (Companions’ opinions), Al-Istihsan (approbation), Al-Masalih al-mursalah (ruling in a matter of public interest where there is no religious rule), Al Dharai’ (means), Al Istishab (affirmation of a standing rule), Shar’u man qablana (laws of previous religious communities) and Al-’Urf (custom). The first four are considered as the main sources while the remaining are chosen by some and preferred over other.

 
Al-Qur’an:
It is the uncreated word of God, no passage of which, however short, can be proven untrue. It is a linguistic, psychological, scientific and legal miracle, although its literary qualities stand out most. It is guidance for mankind, music to the ear, contemplation material for the mind, Sakinah to the heart, and tranquillity to the soul. (p. 40). No part of it, down to its vowel marks, can be ignored or disregarded during the extraction of laws or wisdom from its texts (p. 40)
 
The Sunnah:
Those of the misguided ones who reject the Sunnah, on the ground that the Qur’an is enough for guidance, may note that the above verse [Al Anfal - 24] declares that the Prophetic words and practices quicken the spiritually dead, and give life and meaning to culture and civilization. (p42) …The Sunnah is an addendum and explanation of the Qur’an. While fastidious Shafe’i divide the Sunnah into three kinds - Tawatur, Mash-hur, Ahad (p 44), the Hanifiyyah are a little bit more prudential (45).
 
Al Ijma: (consensus)
Ijma is the consensus of the majority of Mujtahidin over an issue of law. It was commonly resorted to during the time of the Companions. Abu Bakr came to power through ijma. Consensus of opinion was also obtained over war against (a) renegades (Riddah) (b) and those who refused to pay Zakah to the state. And if there is a single objection the matter was dropped e.g. when ‘Umar (R.A.) expressed his opinion about restraint on the ever-rising Mahr (bridal gift) amount, an old woman reproached him strongly by quoting a verse of the Qur’an (4:20) and ‘Umar had to hastily retreat (p. 48). The Consensus of Companions has a binding Legal value in Islam.
 
Al-Qiyas:
This refers to the analogical reasoning of the Fuqaha. It can not be the reasoning of the common men but only of Fuqaha (Mujtahidin) that can be accepted. Qiyas differs from ijtihad which means to do research and arrive at such a conclusion which none would dispute (or anyone else would too arrive at the same conclusion). Qiyas cannot be based on the ijma of the Sahabah.
 

Usul al-Shasienumerate 16 divisions for deriving meanings which a faqih has to take cognisance of while arriving at a conclusion: e.g. Quru stands for “period of purity” (before or after the monthly period) it also stands for “the state of uncleanliness”. Hence period of iddah would differ in one sense from the other.

Answering the question why are there differences among the fuqaha the author points out that human beings are not identical as robots. Since they differ so would there opinions. Even the Salaf used to differ. Yet he points out that the differences are of a minor nature. They do not disagree over Tawhid, Nubuwwah or Halal and Haram. It is the hotheaded zealots of this or that school who cause divisions among the people over major issues (p. 67). The differences are due to:

 
(a) Language
Complexity and richness of Arabic enables one to discern subtleties. “The richness comes from the variety of meanings, connotations and nuances that many of its words conceal” (p 70) ‘al-hayat’ and ‘al maut’ have been used by pre and post Islamic poets in 13 different meanings; the word “al-ayn’ has 40 meanings. In addition, while one scholar goes by the literal meaning others may opt for its metaphorical meaning.
 
(b) differences between fiqh rules:
While Hanafiyah prefer haqiqah (literal); the Shafi’i choose majaz (metaphor). Talking about the controversy whether fiqh schools cause division among Muslims he considers such kind of arguments are best ignored - a kind of literature successfully marketed among the naïve of the youthful class today. It is likely to increase their distance from the Salaf, and plant such divisions which do not exist (p. 75) “… little is realized that they are not because of the Muslims following one of the four Madh-habs, but because of not following any of theMadh-habs…” (p 76) … the schools of fiqh have kept the Ummah al-Muslimah united. The disunity is because, as the distance between the Muslims and the Qur’an and Sunnah grows, ignorance spreads….

He further points out that the schools do not strictly adhere to their Imams…. they follow their respective schools and not their founders Imam Abu Hanifah’s three prominent disciples - Imam Zufar, Hasan al-Shaybani or Abu Yusuf differed with him over several issues and delivered different rulings from him (p. 81) and the school adopted their research as official.

Another important issue pertains to, whetherTaqlid is unnecessary. This he regards as flawed understanding. “The schools of Fiqh were not created by the scholars with the aim of taking the people off the Qur’an and Sunnah and gathering the Muqallidin around them” (p 83). Lack of knowledge of the Qur’an, Sunnah, language subtleties etc. forces millions upon millions to look for sources from which they can obtain just as much instruction as will suffice, for them to conduct daily activities of life without violating Islam (p. 83). He warns, to abandon the Schools ofFiqh would lead to general chaos ending with the abandonment of Islam itself. Taqlid is a need and necessity, and is mandated by the Qur’an (al-nahl: 43; Yusuf: 38) Taqlid, however, is disallowed to him who is at such a level of knowledge as to be able to weigh, the proofs, evidences and evaluations…” Taqlid is haram unto him” (p. 86). If one cannot do so he must follow one of the four schools.

How about being electic? Choosing to follow the Maliki in some matters and Hanafis in another and Shafei in the remaining ones? For example, Madinan scholars have allowed Sima’ (music) the Kufans Nabidh (a light intoxicant); the Makkans Mut’a (temporary marriages). Such a person will be referred as a Fasiq (a libertine). He cites a scholar who reported to Caliph Mu’tadid Billah: “…there is no scholar who did not commit an error. But if someone collected together all the errors in his behaviour, then he is a Zindiq”. (p. 90).

In brief, this brief introduction makes one aware of the pitfalls which one must avoid and at the same time creates an interest to develop one’s insight and knowledge to delve deep into the matter. One must always remember the adage: a little knowledge is the most dangerous thing.

This article appeared in The Milli Gazette print issue of 1-15 April 2013 on page no. 21

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