Preface Usul Al-Fiqh

1

Preface
English and Arabic Works on Islamic Jurisprudence
Existing works on Islamic Jurisprudence in the English language do not
offer an exclusive treatment on the subject. There is also a shortage of English
textbooks on Islamic Jurisprudence for students who seek to acquire an
intermediate to advanced level of proficiency. The information that such works
contain on Usul Al-Fiqh is on the whole insufficient for those pursuing a full
course of study on the subject.
The only exception here is probably a few works that have been recently
translated. However, they do little to help the novice as they are written with
juristic and Arabic terms that a beginner will find difficulty benefiting from.
Arabic texts on Usul Al-Fiqh are generally devoted to a treatment of the
sources and methodology of the law and tend to leave out its history of
development. The opposite is true with their English counterparts. English works
on this subject are, broadly speaking, primarily concerned with the history of
jurisprudence whereas the jurisprudential matter of Usul Al-Fiqh does not receive
the same level of attention.
Another point regarding works on Islamic Jurisprudence in English is that
they are somewhat selective in their treatment of the relevant topics and certain
subjects tend to be ignored or treated very briefly. Consequently, information on
some topics such as the rules of interpretation, classification of words, commands
and prohibitions, and textual implications is particularly brief and sometimes
non-existent. Even some of the more familiar topics such as Qiyas (Analogical
Deduction), Istishan (Juristic Preference), Istislah (Consideration of Public Interest),
Istishab (Presumption of Continuity) and Saad Adh-Dharai (Blocking the Means)
are treated superficially in most of the English books.
Authors may have considered these topics to be somewhat technical and
involved for English readers whose interest in Usul Al-Fiqh has for a long time
remained confined to general and introductory information on the subject. Some
of these topics such as the rules of interpretation, textual implications and the
technicalities of Qiyas draw somewhat heavily on the use of Arabic terminology.
Preface Usul Al-Fiqh

2

Recently, greater interest has been taken in Islamic legal studies in the
West, as well as some of the English speaking institutions of higher learning that
have emerged in Islamic countries where Usul Al-Fiqh is offered as a core subject.
Historical Works on Islamic Jurisprudence
Arabic writers tend to treat the historical development of jurisprudence
separately from Usul. The History of Jurisprudence and its various phases of
development include:
The Prophetic period
The Era of the Companions
The Early Schools of Law in the Hijaz and Iraq
The Emergence of the Medhahib (Schools of Islamic Jurisprudence)
The Era of Taqlid (Imitation and Blind-Following)
and more recently, The Call to Return to Ijtihad (Juristic Reasoning).
This discipline is commonly known as Tariq At-Tashri which, as the title suggests,
is primarily concerned with the history of juristic thought and institutions. Works
in this regard include:
Al-Khudaris Tarikh At-Tashri Al-lslami
As-Sabunis Al-Madkhal Al-Fiqhi Wat-Tarikh At-Tashri Al-Islami
Manna Al-Qattans At-Tashri Wal-Fiqh Fil-Islam: Tarikhan Wa Manhajan
and
Muhammad Faruq An-Nabhan;s Al-Madkhal Lil-Tashri Al-Islami
Modern and Classical Works on Islamic Jurisprudence
Modern Arabic works on Islamic Jurisprudence tend to differ from
classical works in that the recent Arabic texts on Usul Al-Fiqh tend to treat their
subject matter in a more consolidated and simplified form which makes it
manageable for the modern student. These works are on the whole more concise
by comparison with the earlier authorities on the subject. It is primarily in matters
of format and style in which they differ from the older works.
Today, Usul Al-Fiqh has a fairly well defined structure and it is treated as
a separate discipline from Fiqh. Textbooks on Usul Al-Fiqh almost invariably deal
Preface Usul Al-Fiqh

3

with a familiar range of topics and their contents are on the whole fairly
predictable.
Legal Encyclopedias
A number of Legal Encyclopedias have emerged in recent decades
bearing the title Al-Mawsuah Al-Fiqhiyyah with the express purpose of offering a
balanced treatment of the views and contributions of all the prominent schools.
Government and Islamic Jurisprudence
Usul Al-Fiqh has for the most part been developed by individual jurists
who exerted themselves in their private capacities away from the government.
The Schools of Islamic Jurisprudence succeeded in generating a body of doctrine,
which was by itself not enough to harness the widening gap between the theory
and practice of law in government.
One might, for example know about Qiyas (Analogical Deduction),
Maslahah Mursalah (Considerations of Public Interest) and the conditions which
must be fulfilled for their valid operation but the benefit of having such
knowledge would be severely limited if neither the jurist nor the judge had a
recognized role or power to apply it.
Today the Faqih (Islamic Jurist) is being criticized for having lost contact
with the changing conditions of contemporary life in that he has been unable to
relate the resources of Shariah to modern government processes in the fields of
legislation (like women driving) and judicial practice (like stoning the fornicator or
cutting the hand of the thief). Similarly, the same criticism is also leveled against
the governments of Islamic countries.
Introducing Western statutory legislation, which is becoming a regular
practice in Islamic countries, has highly affected the role and function of Ijtihad.
The wholesale importation of foreign legal concepts and institutions to Islamic
countries (along with other factors) are accountable for the Islamic deterioration
which Muslim societies are currently experiencing.
The Need for Ijtihad
The quest for better solutions and more refined alternatives lies at the
very heart of Ijtihad, which must never be allowed to discontinue. Ijtihad is Wajib
Preface Usul Al-Fiqh

4

Kafai (a collective obligation of the Muslim community) and its scholars exert
themselves in order to find solutions to new problems.
To err in Ijtihad (for those who qualify) is both tolerated and worthy of
reward. Abu Hurairah and Amr bin Al-As said the Messenger of Allah (peace be
upon him) said:
If a judge passes judgement and strives to reach the right
conclusion and gets it right he will have two rewards; if he strives
to reach the right conclusion but gets it wrong he will still have
one reward.
This Hadith is reported by Bukhari (7352), Muslim (1716), An-
Nasai (5383), Abu Dawud (3574), At-Tirmidhi (1326) and Ibn
Majah (2314).
One could have several solutions to a particular problem and sometimes
the best solution may be known but unattainable given the feasibility and
practical considerations that may limit ones range of choice. Therefore, it is
imperative not to abandon Ijtihad. It is a common and grave error to say that
Ijtihad is unattainable and that the conditions to exercise it are too exacting to
fulfill.
Primary Objective of Islamic Jurisprudence
To regulate Ijtihad is without doubt the primary objective of Usul Al-Fiqh.
The Terms: Fiqh and Usul Al-Fiqh
The difference between Fiqh and Usul Al-Fiqh are quite obvious. Usul Al-
Fiqh is the Roots of Fiqh, however, this is not clear in the English terms currently
in use. The terms: Muhammadan Law and Islamic Law have often been used in a
generic sense and applied to both Fiqh and Usul Al-Fiqh. The same is true for its
new term: Islamic Jurisprudence. None of which convey with clarity what is found
in their Arabic equivalents. There are currently books with one or the other of
these titles, although their contents do not seek to distinguish the two disciplines
from one another.
The term: Muhammadan Law seems to be falling out of use and it has
become an established customary practice to use the terms Islamic Law for Fiqh
Preface Usul Al-Fiqh

5

and Islamic Jurisprudence for Usul except probably with regard to a recent work
entitled: A Summary of Islamic Jurisprudence by Shaykh Salih Al-Fawzan which is
on Fiqh.
A similar distinction between the terms: Source and Proof should be
made. The former should be reserved for the Quran and Sunnah while the latter
for other proofs.