1.
Mohammad Hashim Kamali
PRINCIPLES
of ISLAMIC
JURISPRUDENCE
Third Revised and Enlarged Edition

2.
ABOUT THE AUTHOR
Dr. Mohammad Hashim Kamali is currently Professor ofLaw at the
International Islamic University ofMalaysia, where he has been teach­
ing Islamic law andjurisprudence since 1985. Bom in Afghanistan in
1944. he studied law at Kabul University where he was later
appointed Assistant Professor. Following this he worked as Public
Attorney with the Ministry ofJustice in Afghanistan. He completed
his LL.M, and his doctoral studies at London University, where he
specialised m Islamic law and Middle Eastern Studies. Dr. Kamali
then held the post of Assistant Professor at the Institute of Islamic
Studies at McGill University in Montreal, and later worked as
Research Associate with the Social Science and Humanities Research
Council ofCanada. He is the author of Zatw in Afghanistan, A Study
ofthe Constitutions, Matrimonial Lawand theJudiciary (Leiden: E,J. Brill,
198$); Freedom ofExpression in Islam (Kuala Lumpur: Berita Publishing,
1994; new edition, The Islamic Texts Society, 1997); Punishment in
Islamic Law: An Enquiry into the Hudud HillofKelantan (Kuala Lumpur:
Institute for Policy Research, 1995); Isfahan {Juristic Preference] and its
Application to Contemporary Issues (Jeddah: Islamic Research and
Training Institute. Eminent Scholars Lecture Series No. 20. 1997);
Islamic Commercial Law: An Analysis ofFutures and Options. The Dignity
ofMan: An Islamic Perspective and Freedom, Equality andJustice in Islam (all
published by The Islamic Texts Society, Cambridge) and numerous
articles in reputable international journals. He is twice recipient of
the Isma'il al-Faruqi Award for Academic Excellence in 1995 and
•997.

3.
Foreword
Ufiil al-fiqh has always occupied a pronunent place in the teaching
curricula of Islamic institutions of legal learning. As a discipline of
Shan'ah. usul al-fiqh embodies the study ofthe sources ofIslamic law
and the methodology for its development. But even beyond its specific
frame of reference one might say that ustll al-fiqh provides a set of
criteria for the correct evaluation and understanding of almost any
branch ofIslamic learning. The teaching programmes ofIslamic law that
are conducted in English are in many ways hampered by a shortage
ofadequate reading materials in this language, and this is particularly
the case with regard to ufill al-fiqh. The need for a comprehensive
text on wjii/ al-fiqh has long been felt by students and readers in this
University. Professor Kamali's contribution is therefore well received
and appreciated by all those who are concerned with studying or
teaching u/fiZ al-fiqh. Since the initial publication ofthis book in 1989
in Kuala Lumpur, it has already become a well-acknowledged and
widely read work of reference on the subject. The style ofProfessor
Kamali's writing is refreshingly unconventional and yet his work
remains well-founded and in close contact with the Arabic sources
ofhis discipline. The author’s personal experience oftraining in both
Islamic and modem legal disciplines is reflected in his work, as he
makes frequent comparisons with the concepts and principles of
Western jurisprudence.
I take this opportunity to express my appreciation of Professor
Kamali's valuable contribution. 1 also welcome the decision of the
Islamic Texts Society of Cambridge, U.K., to bring out a new and
more refined edition of this book. Students and readers of Islamic
jurisprudence in English-speaking institutions ofhigher learning who
do not read Arabic will find this book a significant contribution in
the depth and detail of information it provides, reflecting both the
content and the spirit of the Arabic sources of its origin. In his

4.
viii PRINCIPLES OF ISLAMIC JURISPRUDENCE
Preface, the author himself has explained the approach he has taken
in writing this book, and he comments on how the existing literature
on uful al-fiqh in English tends to be generic and therefore insufficient
for the purposes ofundertaking a full course ofstudy in the subject.
I wish Professor Mohammad Hashim Kamali great success in his
continued efforts to write and add to our fond of knowledge and
understanding.
Prof Tan Sri Datuk Ahmad Ibrahim
Dean/Shaikh
Kulliyyah ofLaws
International Islamic University,
Malaysia
Contents
FOREWORD vii
PREFACE TO THE THIRD EDITION xi
PREFACE XV
CHAPTER one: Introduction to Uful al-Fiqh I
CHAPTER two: The First Source ofSharfah: The Qur'an 16
CHAPTER three: The Sunnah 58
CHAPTER four: Rules ofInterpretation I:
Deducing the Law from its Sources 117
CHAPTER five: Rules of Interpretation II:
al-Dalalat (Textual Implications) 167
CHAPTER six: Commands and Prohibitions 187
CHAPTER seven: Naskh (Abrogation) 202
CHAPTER eight: IjmS (Consensus ofOpinion) 228
CHAPTER nine: Qiyos (Analogical Reasoning) 264
CHAPTER ten: Revealed Laws Preceding
the Shan'ah of Islam 306
CHAPTER eleven: The Fatwa ofa Companion 3'3
CHAPTER twelve: Iitihian (Equity in Islamic Law) 3*3

5.
chapter thirteen: Maslaliah Mursalah
(Considerations of Public Interest)
chapter fourteen: 'Urf(Custom)
chapter fifteen: Istifhab (Presumption ofContinuity)
chapter sixteen: Sadd ai-Dhara'i' (Blocking the Means)
chapter seventeen: Hukm Shar'l
(Law or Value of Shortah)
CHAPTER eighteen: Conflict ofEvidences
chapter nineteen: Ijtihad (Personal Reasoning)
chapter twenty: A New Scheme for Usui al-Fiqh
CONCLUSION
GLOSSARY
BIBLIOGRAPHY
INDEX
351
369
384
397
410
455
468
500
513
522
527
536
Preface to the Third Edition
Following the initial publication ofthis work by Pelanduk Publications
ofKuala Lumpur in 1989, a revised edition was published in 1991 by
The Islamic Texts Society, Cambridge. U.K., for distribution in
Europe and North America. The book has, as a result, been widely
distributed, and many reputable universities and academic institutions
that specialise in Islamic disciplines have selected it as a required text
in their courses and teaching programmes. Several distinguished
scholars have, in the meantime, reviewed both the Kuala Lumpurand
the Cambridge editions, and have made encouraging and useful
observations. I take this opportunity to thank them for their interest
and their valuable suggestions, many of which I have taken into
consideration in the preparation ofthe present edition. I shall presently
refer to some of their comments but, before I do so, I shall briefly
explain the nature ofthe revision I undertook for this edition.
One ofthe more visible changes that the reader will notice in this
edition, and one which will prove useful for students and teachers
alike, is the appearance ofQur'Jnic ayai both in Arabic and in English
translation. In the first two editions, I included the Arabic versions
ofliadiili, but not ofQur’Snic passages for the obvious reason that the
standard text ofthe Qur'an is more easily accessible without variation,
and this is not the case with hadiih. Finding a particular hadith in the
various collections can be difficult and time-consuming, and the
wording of hadiih may also differ in different collections. But then
my experience ofusing this text in my own teaching showed that it
would be very convenient to have the Arabic text ofboth the Qur'an
and liaditli readily at hand.
The revision that I have undertaken for the present edition consists
mainly of enhancing the original text by the addition of relevant
information in different places throughout the book. The original
text remains virtually unchanged but the reader will find frequent

6.
Xii PRINCIPLES OF ISLAMIC JURISPRUDENCE Preface to the Third Edition xiii
additions in almost every chapter, plus a new chapter at the very
end, entided 'A New Scheme for Usill al-Fiqh', and a Conclusion. The
work lias, as a result, been generally upgraded and is hopefully more
responsive to the needs ofadvanced students ofuiiil al-jiqh. But even
so. 1 hasten to add that usill alJiqli is a vast discipline and any attempt
to treat the entire field in a single book is bound to have its draw­
backs. I have confined my additions to the minimum ofwhat could
reasonably be accommodated within the framework of the original
text. But the reader can still expect to find interesting additions to
the chapters on the Qur'in, the Sunnah, abrogation (naskh), commands
and prohibitions, the rules of interpretation, qiyas. istihsan and the
liukm shat11.
As mentioned above, several distinguished scholars have reviewed
thebook since its initial publication in Kuala Lumpurandin Cambridge.
Most ofthe reviewers' comments were positive and appreciative of
the style ofmy presentation in writing a book that was not burdened
with excessive detail and yet is substantial enough to appeal to the
discerning reader ofIslamic law. 1 was happy to have been congratu­
lated for having been remarkably successful in my presentation ofthe
subject-matter ofu$ul al-Jiqh in the manner and scyle that one would
expect to find in its recognised Arabic sources. The reviewers'
comments also noted that the book was nch in providing frequent
illustrations from the Qur'an and Sunnah in almost every part, some­
thing which students and non-specialist readers will find particularly
useful.
However, one ofniy distinguished reviewers questioned my decision
to place a chapter on ijlihad at the very end of the book. I should
have explained for the benefit ofthose who do not read Arabic that
this is not an unusual feature ofArabic textbooks on ufOl al-fiqh. The
reason for this is perhaps rather symbolic of the message that ijtihad
is the end-result of UfUl al-Jiqh, and the ability to conduct it is the
sum-total of the knowledge and acumen that this discipline can
convey. I have in fact said this in my Introduction when stating that
regulating ijtihad is one ofthe cardinal objectives ofuiiil al-Jiqh. I have
therefore not changed the previous arrangement of titles, but have
added a conclusion in which I have taken up die issues pertaining to
ijtihad and touched on questions such as the theoretical nature ofthe
methodology of Ufill al-Jiqh, and its relevance or otherwise to the
legislative processes ofmodem government. This I have done partly
in response to a reviewer's comment that the book ended rather
abruptly (with tile chapter on ijtihad) and suggested that a general
conclusion to the text would be desirable. Despite the awareness that
a textbook is not the best place in which to address contentious issues.
I still thought it worthwhile to convey a certain awareness of the
issues in the conclusion. I have consequently commented on the
nature ofthe challenge that Muslim scholars andjurists must take up
ifthe methodology ofujwl al-Jiqh and ijtihad are to be revitalised and
integrated into the processes oflaw and government in modem times.
Mohammad Hashim Kamali
International Islamic University, Malaysia

7.
Preface
I. Apart from che fact that existing works on Islamic jurisprudence
in the English language do not offer an exclusive treatment of
uful al-fiqh. there is also a need to pay greater attention to the source
materials, namely the Qur’an and Sunnah, in the study ofthis science.
In English works, the doctrines of MfiJI al-fiqh are often discussed in
relative isolation from the authorities on which they are founded.
Furthermore, these works tend to exhibit a certain difference ofstyle
and perspective when they are compared to Arabic works on the
subject. The ityitl al-fiqh as a wholeand all ofdie variousotherbranches
ofthe Shari1ah bear testimony to the recognition ofdivine revelation
(wahy) as the most authoritative influence and source, over and above
that of rationality and man-made legislation. This aspect of Islamic
law is generally acknowledged, and yet the relevance of wahy to the
detailed formulations of Islamic law is not highlighted in English
works in the same way as one would expect to find in works ofArabic
origin. I have, therefore, made an attempt to convey not only the
contents ofUfOl al-fiqh as I found them in the Arabic sources, but also
the tone and spirit ofthe source materials I consulted. I have given
frequent illustrations from the Qur'an, the Sunnah and well-recognised
works of authority to substantiate the theoretical exposition of
ideas and doctrines. The works ofthe madhdhih, in other words, are
treated with consideration for the authority on which they are
founded.
II. The idea ofwriting a book on uiill al-fiqh occurred to me in early
1980 when I was teaching this subject to postgraduate students at die
Institute of Islamic Studies at McGill University in Montreal. But it
was only after 1985, when I started a teaching post at the International
Islamic University. Selangor. Malaysia, that 1 was able to write the
work I had intended. I was prompted to this decision primarily by

8.
XVI PRINCIPLES OF ISLAMIC JURISPRUDENCE Preface xvii
theshortage ofEnglish textbookson Islamicjurisprudence forstudents
who seek to acquire an intermediate to advanced level ofproficiency
in this subject. Works that arc currently available in English on Islamic
law and jurisprudence are generic in that they tend to treat a whole
range of topics both on mH al-fiqh and the various branches offiqh
(i.e.fiiri‘ al-fiqh), and often within the scope ofa single volume. The
information that such works contain on mH al-fiqh is insufficient for
the purposes of pursuing a foil course of study on the subject. The
only exception to note here, perhaps, is the area ofpersonal law. that
is. the law of marriage, divorce, inheritance, etc., which has been
treated extensively, and on which there arc a number ofEnglish texts
currently available. Arabic works on mH al-fiqh are. on the whole,
exclusive in the treatment of the discipline. There is a selection of
textbooks in Arabic, both classical and modem, at present available-
on this subject, ranging from the fairly concise to the more elaborate
and advanced. Works such as Abd al-W.ihh.ib Khallafs ‘Um Usui
al-Fiqh, Abu Zahrah's Ufil al-Fiqh, Muhammad al-Khudari’s Usui
al-Fiqh. and Badran's Usui al-Fiqli al-islami arejust some ofthe well-
known modem works in the field. Classical works on mH al-fiqh, of
which there are many, are, broadly speaking, fairly elaborate, some­
times running into several volumes. 1 have rebed, in addition to the
foregoing, on al-Ghazali's al-Mustaffa min llm al-Usil, al-Amidi’s
al-Ilikamfl Usui al-Alikam, al-Shafibi’s al-Muwqfaqatft Ufil al-Ahkdm
and al-Shawkani's Irshad al-Fuhulfl Tahqiq al-biaqq min 'llm al-Uful.
These are all devoted, almost exclusively, to thejuridical subject-matter
of usil al-fiqh, and rarely, ifever, address the historical development
ofthis discipline beyond such introductory and incidental references
as the context may require. Arabic writers tend to treat the historical
development ofjurisprudence separately from the mul al-fiqh itself.
There are several Arabic works ofmodem origin currently available
on the history ofjurisprudcncc and its various phases ofdevelopment,
namely: the Prophetic period; the era of the Companions; the early
schools oflaw in the Hijiz and Iraq; the emergence ofthe madhaliib;
the era ofimitation (taqlid); and the call for a return to ijtihad. This
discipline is generally known as tdrikh al-tashrf which, as the title
suggests, is primarily concerned with the history ofjuristic thought
and institutions.' Arabic texts on mH al-fiqh itselfare devoted to the
treatment of the sources and methodology of the law, and tend to
leave out its historical development.
The reverse of this is true with regard to general works that arc
currendy available on the subject ofIslamicjurisprudence in the English
language. Works of Western authorship on this subject arc, broadly
speaking, primarily concerned with the history ofjurisprudence, while
the juridical subject-matter of mH al-fiqh does not receive the same
level ofattention. Bearing in mind the nature ofthis existing English
literature, and the fact that there is adequate information available on
the history ofIslamicjurisprudence in English, the present work does
not attempt to address the historical development, and instead focuses
on mil al-fiqh itself.
Another point to be noted regarding works on Islamicjurisprudence
in English by both Muslim and non-Mushm authors is that they are
somewhat selective in theirtreatment ofthe relevant topics, and certain
subjects tend to be ignored or treated only briefly. Consequently,
information on some topics, such as the rules of interpretation,
classification ofwords, commands and prohibitions, and textual impli­
cations (al-dalalat) is particularly briefand often non-existent in these
works. Even some of the more familiar topics such as qiyds, istislah.
istishab and sadd al-dhard’i' are treated superficially in most English
books that are currently in use. The reasons for such omissions are
not always clear. The authors might have considered some of these
topics to be somewhat technical and involved for English readers,
whose interest in mH al-fiqh has for a long time remained confined
to general and introductory information on the subject. Some ofthese
topics, such as the rules ofinterpretation, al-daldlat, and the techni­
calities ofqiyas. which draw somewhat heavily on the use ofArabic
terminology, might have been viewed in this light. The English-
speaking student of Islamic studies has been perceived as someone
who will have little use for technical detail on mHal-fiqh. This might
at best offer a plausible explanation, but it is one that carries little
weight, especially in view of the greater interest that Islamic legal
studies has recently attracted in the West, and in some ofthe English-
speaking institutions ofhigher learning in Islamic countries themselves/
Moreover, the fact that some Islamic countries have in recent decades
shown a fresh interest in developing greater harmony between the
SharTah and statutory laws has also meant that practising lawyers and
judges in these countries are increasingly encouraged to enhance their
expertise in the Sharfah disciplines.
Modem Arabic writings on mH al-fiqli tend to differ from the older
works on the subject in that the former take cognisance of recent
developments both in the Muslim communities and beyond. Thus the
reader of many a modem work often comes across comments and
comparisons which seek to explain the application and relevance of

9.
xviii PRINCIPLES OF ISLAMIC JURISPRUDENCE Preface xix
the Shari'ah doctrines to modem legislation, and to the principles of
Western jurisprudence. Much to their credit, some ulamd’ and
writers ofmodem works have attempted to relate the classical formu­
lations and doctrines of uju/ al-fiqh to the contemporary socio-iegai
conditions of their communities. There exists a level of concern
about the gap that has gradually developed between the Shari'ah and
modem law, and about the fact that the problem still remains to be
tackled. There have also been attempts, be they in the form of
individual reform proposals, a call for fresh ijtihdd about particular
issues, or formal resolutions adopted at national and international
gatherings ofscholars, to tap the resources ofUfill al-fiqh in order to
bridge the gap between the Shariah and modem social conditions. A
full account of such developments falls well beyond the scope and
objective of the present work.1 But in discussing certain doctnnes
such as ijtihdd. ijmd'. istihsan and mailahah, 1 have attempted to present
the modem current of opinion, and occasionally my own views, as
to how these principles could be utilised in contemporary legal and
judicial processes. I have taken this liberty despite the awareness that
it might fall beyond the briefofa work that seeks to be an exposition
of the existing doctrines and institutions as they are. 1 wish to add
here that 1 alone bear foil responsibility for the propriety or other­
wise ofmy views.
Furthermore, recent Arabic texts on hju/ al-fiqh tend to treat their
subject-matter in a more consolidated and simplified form that makes
it manageable for the modem student of law. These works are on
the whole more concise than earlier authorities on the subject. It is
primarily in matters offormat and style that they differ from the older
works. As for substantive matters, modem works are normally
expected to preserve the continuity ofthe earlier authorities, and the
two are basically indistinguishable in this regard. Having said this, one
might add further that modem works tend to differ from their prede­
cessors in one other respect, namely, that the former tend to offer a
more even-handed treatment of the views and doctrines of such
schools ofthought as the Mu'taziiah, the Shi'ah and the ^biriyyah,
etc., and tend to treat ideas on merit rather than their formal
acceptance and recognition by the established madhdhib. In addition
to the textbook materials on usill al-fiqh, a number oflegal encyclo­
pedias have emerged in recent decades in Egypt and elsewhere,
usually bearing the title 'al-Mawsilah al-Fiqhiyyah', with the express
purpose ofoffering a balanced treatment of the views and contribu­
tions of all the prominent schools of law. As a result, the relatively
stronger orientation toward particularschools that is noticeable in the
earlier works on u#u/ al-fiqh, especially those that were authored after
the crystallisation of the madhdhib. is not a prominent feature of the
modem works. A more open attitude has in fact emerged which seeks
to move away from the sectarian bias that can be found in some
earlier works, and it is no longer unusual for a Sunni scholar to write
on Shi i thought, scholars and institutions, with a view to highlight­
ing their contributions to Islamic law andjurisprudence. The present
writer welcomes this development, but ifhis own work fails to offer
adequate coverage of the doctnnes of the various schools, it is due
solely to considerations ofbrevity and space which may be expected
ofa book ofthis size.
Ill. It is perhaps mie to say that Islamicjurisprudence exhibits greater
stability and continuity of values, thought and institutions when
compared to Western junsprudencc. This could perhaps be partially
explained by reference to the respective sources of hw in the two
legal systems. Whereas rauonality, custom, judicial precedent, morality
and religion constitute the basic sources of Western hw, the last two
acquire greater prominence in Islamic law. The values that must be
upheld and defended by law and society in Islam are not always
validated on rationalist grounds alone. Notwithstanding the fact that
human reason has always played an important role in the develop­
ment ofShari'ah through the medium of ijtihad. the Shari"ah itselfis
primarily founded on divine revelation.
A certain measure of fluidity and overlap with other disciplines
such as philosophy and sociology is perhaps true ofboth Islamic and
Western jurisprudence. But it is the latter which exhibits the greater
measure ofuncertainty regarding its scope and content. Thus accord­
ing to one observer, books that bear the title 'jurisprudence’ vary
widely in subject-matter and treatment because 'the nature of the
subject is such that no distinction of its scope and content can be
clearly determined’,* and inJulius Stone’s somewhat dramatic phrase,
jurisprudence is described as ‘a chaos ofapproaches to a chaos oftopics,
chaotically delimited'.1
Ufiil al-fiqh, on the other hand, has a fairly well-defined structure,
and the 'ulamd' had little difficulty in treating it as a separate disci­
pline of Islamic learning. Textbooks on uful al-fiqh almost invariably
deal with a range of familiar topics, and their contents are fairly
predictable. This is perhaps reflective ofthe relative stability that the
Shari"ah in general and ufill al-fiqh in particular have exhibited

10.
XX PRINCIPIF.S OF ISLAMIC JURISPRUDENCE Preface xxi
through theirdevelopment, almost independently ofgovernment and
its legislative organs. This factor has also meant, however, that i/fii/
al-Jiqh has, for the most part, been developed by individualjurists who
exerted themselves in their private capacity away from government
machinery and involvement in the development ofjuristic thought.
Consequently, u;iil al-fiqh has to some extent remained a theoretical
discipline and has not been internalised by the legislative machinery
of government. The history of Islamic jurisprudence is marred by a
polarisation of interests and values between the government and the
'ulamd'. The disaffection ofthe nlamd' with the government, which
dates back to the beginning ofthe Umayyad rule, did not encourage
the latter's participation and involvement in the development ofjuris­
tic thought and institutions, and this has to some extent discouraged
flexibility' and pragmatism in Islamicjurisprudence. Note, for example,
the doctrinal requirements of ijmif, especially the universal consen­
sus of the entire body of the mujtahidun of the Muslim community
that is required for its conclusion, a condition which does not
concede to considerations of feasibility and convenience. There is
also no recognition whatsoever ofany role for the government in the
doctrine ofijmS as a whole. The government for its part also did not
encourage the involvement and participation of the ‘ulamd’ in its
hierarchy, and isolated itselffrom the currents ofjuristic thought and
the scholastic expositions ofthe ‘nlamd'. The schools ofjurisprudence
continued to grow, and succeeded in generating a body ofdoctrine,
which, however valuable, was by itself not enough to harness the
widening gap between the theory and practice oflaw in government.
One might, for example, know about qiyas and maslahah, etc., 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 recognised role or power to
apply it. One might also add here the point that no quick solutions
are expected to the problem about the application of the Shan'ah in
modem jurisdictions. The issue is a longstanding one and is likely to
continue over a period of time. It would appear that a combination
of factors would need to be simultaneously at work to facilitate the
necessary solutions to the problem under discussion. One such factor
is the realisation ofa degree ofconsensus and co-operation between
the various sectors ofsociety, including the 'ulama' and the govern­
ment, and the willingness of the latter to take the necessary steps to
bring internal harmony to its laws. To merge and to unify the Sliarfah
and modem law into an organic unity would hopefully mean that the
duality and the internal tension between the two divergent systems
oflaw could gradually be minimised and removed.
Bearing in mind the myriad and rapidly increasing influences to
which modem society is exposed, the possibility of consensus on
values becomes ever more difficult to achieve. To come to grips
with fluctuations in attitudes towards the basic values that the law
must seek to uphold is perhaps the most challenging task for the
science of jurisprudence in general. To provide a set of criteria
with which to determine the propriety or otherwise oflaw, and of
effective government under the rule oflaw, is the primary concern
ofjurisprudence.
The Muslim jurist is often criticised for having lost contact
with the changing conditions of contemporary life, in that he has
been unable to relate the resources of Shan'ah to modem govern­
ment processes in the fields oflegislation and judicial practice. A part
of die same criticism is also levelled against government in Islamic
countries in that it has failed to internalise ufiil al-fiqh in its legislative
practices. The alleged closure of the door of ijtihdd is one of the
factors diat are held accountable for the gap between the law and its
sources on the one hand, and the changing conditions ofsociety on
the other. The introduction ofstatutory legislation which has already
become a common practice in Islamic countries has also affected the
role and function ofijtihad. Apart from circumventing the traditional
role of the jurist/mujlahid. the self-contained statutory code and the
forma) procedures that are Laid down for its ratification have eroded
the incentive to the jurist's effective participation in legislative
construction. Furthermore, the wholesale importation of foreign
legal concepts and institutions into Islamic countries, and the uneasy
combinations that this has brought about in legal education and
judicial practice, are among the sources ofgeneral discontent. These
and many other factors are in turn accountable for the Islamic
revivalism/resurgence which many Muslim societies are currently
experiencing.
In view ofthe diverse influences and the rapid pace ofsocial change
visible in modem society, a measure of uncertainty in identifying
the correct balance of values is perhaps inevitable. But the quest
to minimise this uncertainty must remain the centra) concern of die
science ofjurisprudence. The quest for better solutions and more
refined alternatives lies at the very heart of ijtihdd, which must,
according to the classical formulations of uju/ al-fiqh, never be dis­
continued, for ijtihdd is wdjih kajd'l, a collective obligation of the

11.
xxii PRINCIPLES OP ISLAMIC JURISPRUDENCE Preface xxni
Muslim community and its scholars to exert themselves in order to
find solutions to new problems and to provide necessary guidance in
matters of law and religion. But even so, an error in ijtihdd is not
only tolerated but is rewarded according to the sincerity and earnest­
ness of the mujtahid who attempts it. And it is often through such
errors that the best solution can ultimately be reached. One can have
different solutions to a particular problem, and sometimes the best
solution may be known and yet unattainable due to practical con­
siderations that might limit one’s range of choice. In such situations
one must surely do that which is possible under the circumstances.
But it is imperative not to abandon ijlihddcompletely. It is a common
and grave error to say that ijtihdd is unattainable and that the con­
ditions for its exercise are too exacting to fulfil. To regulate ijtihdd
is indeed the primary objective of mill al-fiqli and of what this
science teaches regarding the sources of law and methods of inter­
pretation and deduction. A grasp ofthe concepts and doctrines ofw;ul
al-fiqh is not only helpful but necessary to ijtihdd in order to enable
the Muslim jurist and legislator to contribute to die ongoing search
for better solutions to social issues, and will hopefully also demon­
strate that the Shan'ah, as well as providing restraints, also possesses
considerable flexibility and resources for accommodating social
change.
IV. With regard to die transladon of technical Arabic terms, I have
to some extent followed existing works, especially Abdur Rahim's
Principles oj Muhammadan Jurispntdence. But in the absence of any
precedent, or when I was able to find a better altemadve, 1 have
improvised the equivalent English terms myself. Most of the Arabic
terms are easily translated into English without engaging in techni­
calities, but there are occasions where this is not the case, and at times
the choice ofterms is determined by consideration ofconsistency and
style rather than semantic accuracy. To give an example, one of
the chapters in this book is devoted to the discussion oftextual impli­
cations (al-dalaldt). The five varieties of textual impheations, namely
ibarat al-nasf, ishdrat al-naff, daldlat al-naff, iqtidd’ al-nass and ma/hum
al-mukhdlqfah. each signifya different concept forwhich an exact English
equivalent is difficult to find. I have always tried to give priority to
semantic accuracy, but as can be seen this is not the only factor that
lias determined my choice of ‘explicit meaning', 'alluded meaning',
'implied meaning', ‘required meaning' and 'divergent meaning' for
the foregoing terms respectively, for at times like this, it becomes
difficult to be semantically exact since the shades of meaning and
concepts tend to overlap somewhat. A measure of technicality and
arbitrariness in the choice ofterms is perhaps inevitable in dealing with
certain topics of Uftll al-fiqh, such as the classification of words and
the rules of interpretation. On such occasions, I thought it helpful
not to isolate the English terms from their Arabic originals. I have
therefore repeated the Arabic terms frequently enough to relate them
to their English equivalents in the text. But when the reader is not
sure of the meaning oftechnical terms, a look at the glossary at the
end ofthe text might prove useful.
The translation of the Qur’anic passages in the text is generally
based on Abdullah YusufAli's translation of the Holy Qur'an. On
occasion, however, I have replaced elements in this translation with
easier and more simplified alternatives. Whenever I have done so, it
is usually the result ofmy having checked more than one translation.
The reader will aiso notice that 1 have not given the original ofthe
Qur’anic passages in Arabic, as this is not difficult to find. Besides,
the Qur’anic text is uniform and there is no variation in the word­
ing of its text in all commonly used printing. But when it comes
to the liadith, although the main authorities on haditli arc inclined
to maintain consistency in both the concept and wording of die
liadith, it is nevertheless not unusual to come across inconsistency or
variation in the exact wording of a particular haditli in different
sources. Partly for this reason, but also for the sake of accuracy and
convenience, 1 have given both the Arabic original and the English
translation ofa liadith on its first occurrence m the text. The English
rendering of liadith consists for the most part ofmy own translation
ofthe Arabic original; otherwise. 1 have used the English translation
as and when it was available.
A word may also be in order here regarding the English rendering
ofthe terms fiqh and uful al-fiqh. The difference between them is fairly
obvious in their respective Arabic usages: «siJl al-fiqh is unequivocal
m its reference to the 'roots offiqlt’. This is. however, not so clear in
the equivalent English terms which arc currently in use. The terms
'Muhammadan law' and ‘Islamic law' have often been used in a
genenc sense and applied both tofiqh and iqiJl al-fiqli. The same is
true ofits familiar alternative, 'Islamicjurisprudence'. None of these
convey the clarity which is found in their Arabic equivalents. There
are, for example, books currently available in English bearing one or
the other of the these tides, although their contents do not seek to
distinguish the two disciplines from each another.

12.
xxiv PRINCIPLES OP ISLAMIC JURISPRUDENCE Preface xxv
The term ‘Muhammadan law’ seems to be already falling out of
use, and it has almost become an established practice to reserve
’Islamic law' forJiqh. and 'Islamicjurisprudence’ for usill al-Jiqh. This
use ofterminology should be retained. A similar distinction between
the terms '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.
My transliteration ofArabic words is essentially the same as that of
the Encyclopedia ofIslam (New Edition), with two exceptions which
have become standard practice: q for k andj for dj.
Finally, I would like to take this opportunity to thank most warmly
my colleagues and students at the Faculty of Law, international
Islamic University, with whom 1 have frequently raised and discussed
matters of mutual interest. 1 have often benefited from their views,
which have been taken into account in the present work. I would
also like to thank tiie secretarial staff of the Faculty for their unfail­
ing willingness to type for me whenever 1 approached them. And last
but not least, 1 wish to thank the library staffof the I.I.U. for their
assistance, and for being courteous and helpful.
V. Since the publication ofthe first edition ofthis book in April 1989,
the comments, observations and responses that I have received from
scholars, students, and readers have been very positive and encourag­
ing. The changes that I have carried out for the present edition of
the book relate to both its content and format, although the overall
approach to these changes was to leave the bulk ofthe original work
intact. The changes that I have made are confined to particular parts
and they do not entail a recomposition of the original text. I have
thus added fresh information and elaborated pans ofthe chapters on
abrogation (naskh). analogical reasoning (qiyas), and presumption of
continuity (istifhab). The new information consists either of the
elaboration ofconcepts, or the insertion ofadditional illustrations for
the purposes of clarity and relevance to contemporary concerns in
themes ofIslamicjurisprudence. The addition to the chapter on naslch
thus reflects the results of a discussion on a paper entitled 'The
Nature, Sources and Objective of the SharTah' which I presented
to a symposium organised by the International Islamic University
in Kuala Lumpur in September 1989. The additions to some of the
other chapters consist mainly of fresh research and expert opinion
on the potential contribution of some of die neglected principles
of «ful al-fiqh. such as istiflidb. to modem jurisprudence. I have
also refined minor portions of the text in the interest of clarity and
precision.
As for the changes offormat, these were carried out as a result of
my consultation with the editorial staffofthe Islamic Texts Society,
particularly Mohsen al-Najjar and T.J. Winter. It was thus agreed
at the outset to re-set the whole of the original text so as to imple­
ment the standard practice of the Islamic Texts Society concerning
transliteration, footnotes and minor editorial changes in the text.
It is thus hoped that these changes have assured the production
of a smoother and more familiar text for readers in Europe and
America.
Professor Ahmad Ibrahim. Professor Emeritus and Dean of the
Faculty ofLaw, International Islamic University, Malaysia, lias con­
tributed a new' Foreword for the second edition. He was kind enough
to do so despite his numerous other commitments, and preoccupa­
tion with his own writings. I take this opportunity to thank him most
warmly for his valuable contribution, and the fact that he wrote a
Foreword to both the first and the present editions ofthis book. He
has taken a keen interest in my research and has been most helpful
and understanding in relieving me from other commitments so as to
enable me to concentrate on writing and research.
Students and colleagues at the International Islamic University
have been generous and supportive of my endeavours. I take this
opportunity to thank them once again for their thoughtful apprecia­
tion. A tangible result of all this is that this book has now become
a recommended text in a number ofcourses not only in the Faculty
of Law but also in other faculties and departments of this
University.
Mohammad Hashim Kamali
International Islamic University. Malaysia
March 1991
NOTES
I. Note for example Khudaris, TIM al-Taihri1 ol-bUml; SlbOnl « al.. al-MMal
al-Fa/ht uv TIM al-TasInf al-bUml; QaRln's al-TadnT al-hqbfl al-lilam: T3MJ’’
u« MaMjin, and al-NabhSn's al-MMul h al-TiuhtT al-UUml: Nish'ttnh, AduJiuh al-
T3M<yyah. MuiuqbM. Foe lull publication data tee my Btbhography
J. Note for example the International Islamic University ofMalaysia, and that of

13.
XXVi PRINCIPLES OF ISLAMIC JURISPRUDENCE
Islamabad. Pakwun, where wlal-fiqh h offered as a core subject both in the LL.B and
the masters degree programmes.
j. For an account ofthe recent trends and developments in scholarly publications,
conference resolutions, and the various periodicals and encyclopedias whicharedesigned
to promote such tendencies, the reader is referred to Nabhin, al-Madkhal h al-Taihri' al-
btiml, pp. 342-407 *nd Qanln, dl-Tatfaf u<a al-Fiqh ft al-btim, pp. 3JI-J.
4. Dias.Jurispmdence, p. 1.
5, See this and other statements by Bentham. Dicey and Arnold in Curzon.
Jurispfuitena. p. !J. CHAPTER ONE
Introduction to Usui al-Fiqh
I. Definition and Scope
Ufiil al-fiqh is concerned with the sources ofIslamic law. their order
of priority, and the methods by which legal rules may be deduced
from the source materials of the SharTah. It is also concerned with
regulating the exercise of ijtihad. The sources of the Sha/Tah are of
two kinds: revealed and non-revealed. Whereas the former provide
the basic evidence and indications from which detailed rules may be
derived, the latter provide the methodology and procedural guidelines
to ensure correct utilisation ofthe source evidence. Ufitl al-fiqh. or the
roots of Islamic law. thus expound the indications and methodology
by which the rules offiqh arc deduced from their source evidence.
The rules ofJitjh arc thereby derived from the Qur’an and Sunnah
in conformity with a body of principles and methods which are
collectively known as ufiil al-fiqh.
Some writers have described ftfiilal-fiqh as the methodologyoflaw.
a description which is accurate but incomplete. Although methods of
interpretation and deduction are of primary concern to uju/ al-fiqh,
the latter is not exclusively devoted to methodology. To say that ufill
al-fiqh is the science of the sources and methodology of the law is
accurate in the sense that the Qur'an and Sunnah constitute the sources
as well xs the subject-matter to which the methodology ofusill al-fiqh
is applied. The Qur’an and Sunnah contain both specific injunctions
and general guidelines on law and religion, but it is the broad and
general directives which occupy the larger part ofthe legal content
ofthese sources. The general directives that are found in the Qur'an

14.
2 PRINCIPLES Of ISLAMIC JURISPRUDENCE Introduction to Usill al-Fiqh 3
and Sunnah are concerned not so much with methodology as with
substantive law and they provide indications which can be used as
raw material in the development oflaw. The methodology ofusul al-
fiqh refers mainly to methods of reasoning such as analogy (.qiyas).
juristic preference (islihsdn). presumption of continuity (istishdb) and
the rules ofinterpretation and deduction. These are all designed to serve
as an aid to the correct understanding ofthe sources ofShariah and
ijtihad. While the clear directives ofdie Qur’an and the Sunnah com­
mand permanent validity, the methodology ofusiil docs not. for it was
developed after the revelation ofthe Qur'an and Sunnah came to an
end, and most ofit consists ofjuristic propositions and ijlihad advanced
by scholars and ‘ulamd’ ofdifferent periods. As an instrument oflegal
construction and ijtihad. the methodology ofusul al-fiqh must there­
fore remain open to further adaptation and refinement in order to
respond to the changing needs ofsociety and civilisation.
To deduce the rules offiqh from the indications that arc provided
in the sources is die expressed purpose of usiil al-fiqh. Fiqh as such is
the end product ofusul al-fiqh; andyet the two arc separate disciplines.
The main difference betweenfiqh and usul al-fiqh is that the former
is concerned with the knowledge ofthe detailed rules ofIslamic law
in its various branches, and the latter with the methods that are
applied in the deduction of such rules from their sources. Fiqh. in
other words, is the law itself, whereas usul al-fiqh is the methodology
of the law. The relationship between the two disciplines resembles
that ofthe rules ofgrammar to the language. Usill al-fiqh in this sense
provides standard criteria for the correct deduction of the rules of
fiqh from the sources of Shariah. An adequate knowledge offiqh
necessitates close familiarity with its sources. This is borne out in the
definition offiqh. which is 'knowledge ofthe practical rules ofShari"ah
acquired from the detailed evidence in the sources'.1 The knowledge
of die rules offiqh, in oilier words, must be acquired directly from
the sources, a requirement which implies that the faqih must be in
contact with the sources offiqh. Consequently, a person who learns
fiqh in isolation from its sources is not a faqih.1 Thefaqih must know
not only the rule that misappropriating the property of others is
forbidden, but also the detailed evidence for it in the source, that is,
the Qur’inic ayah (2:188) which states: 'Devour not each other's
property in defiance ofthe law.'
Jtuu /3>/ 1/t- 'JJ
This is the detailed evidence, as opposed to saying merely that
'theft is forbidden in the Qur'an'. Fiqh is acquired knowledge which
is obtained by study and self-application and is therefore different
from inherent knowledge, for example that of God, who is All­
Knowing; it is also different from the knowledge ofthe Prophet, and
that of the angel Gabriel, as theirs was given or transmitted to them
essentially through revelation.
The word asl has several meanings, including proof root, origin
and source, such as in saying that the asl (proof) ofthis or that rule is
lima'; or in the expression, usul al-fiqli, which means the roots offiqh
or its underlying evidence. It is also used in the sense ofthe original
rule or norm as in the legal maxim that 'the asl in all things is permis­
sibility', or when it is said that al-asl bard"ah al-dhimmah. the norm is
absence of liability. Asl also means the foundation on which some­
thing is constructed. When it is said, for example, that qiyds or analogy
must have an asl. this may be the Qur'an or the Sunnah. Asl also
means that which is preferable (al-rdfih), such as in the saying that
al-asl JTI kaldm al-haqlqah (the literal meaning is preferable to the
metaphoncal one). And lastly, asl and usiil denote rules or principles
on which a branch of knowledge may be founded, such as in usill
al-hadith. which is equivalent to qawa'id al-liadith. that is, the rules
governing the science ofhadith.
Knowledge ofthe rules of interpretation is essential to the proper
understanding of a legal text. Unless the texts ofthe Qur'an or the
Sunnah are correctly understood, no rules can be deduced from them,
especially in cases where the text in question is not self-evident.
Hence, the rules by which one is to distinguish a speculative text from
a definitive one. the manifest (?dhir) from die explicit (nass), the
general ("drum) from the specific (khass), the literal (haqiqi) from the
metaphorical (majazi), etc., and how to understand the implications
(dalalal) of a given text, are among the subjects which warrant the
attention in usul ai-fiqh. An adequate grasp ofthe methodology and
rules ofinterpretation also ensures the proper use ofhuman reasoning
in a system oflaw which originates in divine revelation. For instance,
analogy (qiyds) is an approved method ofreasoning for the deduction
of new rules from the sources of Shariah. How analogy should be
constructed, what its limits are, and what authority it would command
in conjunction, or in conflict, with other recognised proofs are ques­
tions which are ofprimary concern to usul al-fiqli. Juristic preference,
or islihsdn. is another rationalist doctrine and a recognised proof of
Islamic law. It consists essentially ofgiving preference to one ofthe

15.
4 PRINCIPLES OF ISLAMIC JURISPRUDENCE Introduction to U;ill al-Fiqh $
many conceivable solutions to a particular problem. The choice of
one or the other ofthese solutions is mainly determined by the jurist
in the light ofconsiderations ofequity and fairness. Which ofthese
solutions is to be preferred and why, and svhat the limits are ofpersonal
preference and opinion in a particular case, is largely a question of
methodology and interpretation and therefore forms part of the
subject-matter of ufiil al-fiqli.
The principal objective of mju/ al-fiqh is to regulate ijtihdd and to
guide thejurist in his effort at deducing the law from its sources. The
need for die methodology of al-fiqh became apparent when
unqualified persons attempted to carry out ijtihdd. and the risk oferror
and confusion in the development of Shari'ah became a source of
anxiety for the ulamd'. The purpose ofujii/ al-fiqh is to help thejurist
obtain an adequate knowledge of the sources of Shari'ah and of the
methods ofjuristic deduction and inference. Ufiil al-fiqh also regulates
the application of qiyas. istihsdn. istijhab. istifldh, etc., whose know­
ledge helps thejurist to distinguish which method ofdeduction is best
suited to obtaining the hukm shar'i ofa particular problem. Further­
more, ufill al-fiqh enables thejurist to ascertain and compare strength
and weakness in ijtihdd and to give preference to that ruling ofijlihdd
which is in close harmony with the m<w.
It may be added here that knowledge ofthe rules ofinterpretation,
the dmm, the khan. the mullaq, the muqayyad, etc., is equally relevant
to modem statutory law. When the jurist and the judge, whether a
specialist in the Shariah or in secular law, fails to find any guidance
in the clear text of the statute on a particular issue, he is likely to
resort to judicial construction or to analogy. The skill, therefore, to
interpret a legal text and to renderjudicial decisions is indispensable
for a jurist regardless of whether he sits in a .Shari'ah court or in a
court ofstatutory jurisdiction. A specialist in i«uf al-fiqh will thus find
his skill of considerable use in the understanding and interpretation
ofany legal text?
To what extent is it true to say that al-Shafi'i was the founder of
will al-fiqh? One theory has it that uiill al-fiqh has existed for as long
asfiqli has been known to exist. Forfiqh could not have come into
being in the absence of its sources, and of methods with which to
utilise these source materials? This would, in turn, imply that ujii/ al-
fiqh existed long before al-Shafi'i. Numerous examples could be cited
to explain how. in early Islam, the Companions deduced the rules of
fiqh from their sources. Ugiil al-fiqh, in other words, had existed well
before the period that saw the emergence of the leading imams of
jurisprudence. But it was through the works of these imams, especi­
ally al-Shafi'I, tliat tisul al-fiqh was articulated into a coherent body of
knowledge. Even before al- Shafi I, we know that Abu Hanifah resorted
to the use ofanalogy and istihsdn, while Imam Malik is known for
his doctrine of the Medinan ijmd, subjects we shall have occasion to
return to. When al-Shafi i came on the scene, he found a wealth of
juristic thought and advanced levels of argumentation on method­
ological issues. But the existing works were not entirely tree of
discordance and diversity, which had to be sifted through by the
standards which al-Shafri articulated in his legal theory of the ufiil.
l ie devoted his Risdlah exclusively to this subject, and this is widely
acknowledged to be the first work of authority on ufiil al-fiqh.
It is nevertheless accurate to say thatfiqh precedes Ufiil al-fiqh and
that it was only during the second Islamic century that important
developments took place in the field ofu$ul al-fiqh,* since during die
first century there was no pressing need for ujfil al-fiqh. When the
Prophet was alive, the necessary guidance and solutions to problems
were obtained either through divine revelation, or his direct ruling.
Similarly, during the period following the demise ofthe Prophet, the
Companions remained in close contact with the teachings of the
Prophet, and their decisions were mainly inspired by his precedent.
Their proxinuty to the sources and intimate knowledge of events,
provided them with the authority to rule on practical problems with­
out there being a pressing need for methodology.0 However, with
the expansion ofthe temtonal domain ofIslam, the Companions were
dispersed and direct access to them became increasingly difficult.
With this, the possibility ofconfusion and error in the understand­
ing ofthe textual sources became more prominent. Disputation and
diversity ofjuristic thought in different quarters accentuated the need
for dear guidelines, and the time was ripe for al-Shafi'i to articulate
the methodology of Ufiil al-fiqh. Al-Shafi'i came on die scene when
juristic controversy had become prevalent between the jurists of
Medina and Iraq, respectively known as ahi al-hadith and ahi al-ra'y.
This was also a time when the 1ulamd' ofhadith had succeeded in their
efforts to collect and document the hadith. Once the fiuqahd1 were
assured ofthe subject-matter ofthe Sunnah. they began to elaborate
the law. and thus the need for a methodology to regulate ijtihdd
became increasingly apparent. The consolidation of ujii/ al-fiqh as a
Shari'ah discipline was, in other words, a logical conclusion of the
compilation of the vast literature ofhadith'
Finally, among the factors which prompted al-Shafi'i into refining

16.
6 PRINCIPLES OF ISLAMIC JURISPRUDENCE Introduction to Usul al-Fiqh 7
the legal theory ofuju/ al-fiqh was the extensive influx of non-Arabs
into Islamic territories and the disconcerting influence that tins
brought about on the legal and cultural traditions ofIslam. Al-Sh5fi'l
was anxious to preserve the purity ofthe Shan'all and ofthe language
ofthe Qur’an. In his Risalah, al-Sh5fi‘I enacted guidelines for ijtihad
and expounded rules governing the khass and the 'amm, the nasikh
and the mansukh, and articulated the principles governing ijma' and
qiyas. He set out the rules for relying on the solitary hadith (khabar al-
wahid) and its value in the determination of the ahkam. Al-Shafi'i
refuted the validity ofistihsan and considered it to be no more than
an arbitrary exercise in law-making. Admittedly. al-Shafi'i was not
the first to address these matters, but it is widely acknowledged that
he brought coherence to usul al-fiqh, which had hitherto remained
scattered and unconsolidated.8
It will be noted in this connection that the Shi'I ‘ultima1 have
claimed that their fifth Imam, Muhammad al-Baqir, and his son and
successor. Ja far al-Sadiq. were the first to write on the subject ofusul.
According to Aba Zahrah, who has written extensively on the lives
and works ofthe early imams, the Shi‘i imams have, like manyothers,
written on the subject, but neither of the two imams have written
anything equivalent to the Risalah. Hence al-ShSfi‘Is position and
contribution to usiil al-fiqh remains unique, and he is rightly regarded
as the founder of usul al-fiqh.9
The basic outline ofthe four principal sources ofthe law that al-
ShSfi'i spelt out was subsequently accepted by the generality of
ulama’. although each of the various schools ofjurisprudence has
contributed to its further development. The Hanafls, for example,
added istihsan and custom furf) to the usul al-fiqh, and the Malikis
limited the concept of consensus (i/W) to the Mcdinan consensus
only, while the Hanbali approach to the subject closely resembled
that of the Malikis. Even so, none departed significantly from the
basic principles al-Shlfi‘i articulated.10
Broadly speaking, the so-called closure of the gate of ijtihad at
around the fourth Islamic century did not affect usul al-fiqh in the same
way that it might have affected /i<j/i itself The era ofimitation (taqlid)
which followed might even have added to the strength and prom­
inence of ujiil al-fiqh in the sense that the imitators observed, and
relied on. the methodology of the ujirl as a yardstick for the validity
for their arguments. Consequently, usill al-fiqli gained universal
acceptance and was, in a way, utilised as a means with which tojustify
taqlrd."
A briefword may be added here regarding the difference between
the usul and the maxims ofJiqh (al-qau-a'id al-fiqhiyyali), as the two are
sometimes confused. The maxims ofJiqh refer to a body ofabstract
rules which arc derived from the detailed study ofJiqh itself. They
consist of theoretical guidelines in the different areas ofJiqh such as
evidence, transactions, matrimonial law. etc. As such they arc an
integral part offiqh and arc totally separate from usul al-fiqh. A large
number of legal maxims have been collected and compiled in works
known as al-ashbah iva al-nafa'ir,'9 one hundred ofthese have been
adopted in the introductory section (i.e. the first 100 articles) of the
Ottoman Majallah. The name 'al-qatva'id al-fiqhiyyah' may resemble
the expression usul al-fiqh, but the former is not a part of the latter
and the two are totally distinct.
A comparison between usul al-Jiqh and usul al-qaniln. on the other
hand, will indicate that these two disciplines have much in common,
although they are different in some respects. They resemble one
another in that both arc concerned with the methodology ofthe law
and the rules ofdeduction and interpretation; they are not concerned
with the detailed rules ofthe law itself. In the case ofthe law ofprop­
erty. for example, both usul al-fiqli and usiil al-qaniln are concerned
with the sources ofthe law ofproperty and not with the detailed rules
governing transfer of ownership or regulating the contract of sale.
These arc subjects which fall within the scope ofthe law ofproperty,
not the methodology oflaw.
Although the general objectives ofusill al-fiqh and usul al-qaniln arc
similar, the former is mainly concerned with the Qur’in. Sunnah, con­
sensus and analogy. The sources of Shan'ah arc, on the whole, well-
defined and almost exclusive in the sense that a rule oflaw or a hukm
shaft may not originate outside the general scope ofits authoritative
sources on grounds, for example, ofrationality (aql) alone, for aql is
not an independent source oflaw in Islam. Usiil al-Jiqh is thus founded
in divine ordinances and the acknowledgement of God’s authority
over the conduct ofman.
Usiil al-qanun, on the other hand, consist mainly of rationalist
doctrines, and reason alone may constitute the source of many a
secular law. Some ofthese are historical sources such as Roman Law
or British Common Law whose principles are upheld or overruled
in light ofthe prevailing socio-economic conditions ofsociety. The
sources of Sharfah, on the other hand, arc permanent in character
and may not be overruled on grounds of either rationality or the
requirements ofsocial conditions. There is, admittedly, a measure of

17.
8 PRINCIPLES OF ISLAMIC JURISPRUDENCE Introduction to Ufiil al-Fiqli 9
flexibility in uful al-fiqh which allows for necessary adjustments in the
law to accommodate social change. But in principle the Shari'alt and
its sources can neither be abrogated nor subjected to the limitations
of time and circumstance. The role of the jurist and the mujlahid in
ufiil al-fiqh is basically to deduce and infer rules that arc already indi­
cated in the sources, while this is not necessarily the case with regard
to uful al-qdnun. The Parliament or the legislative assembly of a
Western state, being the sovereign authority, can abrogate an exist­
ing statute or introduce a new law as it may deem fit. The legislative
organ of an Islamic state, on the other hand, cannot abrogate the
Qur'an or the Sunnah, although it may abrogate a law which is based
on maflahah or istihsdn, etc. Abrogation is, on the whole, oflimited
application to the definite rulings of divine revelation, and basically
came to an end with the demise ofthe Prophet'1
Sovereignty in Islam is the prerogative ofAlmighty God alone. He
is the absolute arbiter of values and it is His will that determines
good and evil, right and wrong. It is neither the will ofthe ruler nor
of any assembly of men, nor even the community as a whole, that
determines the values and the laws which uphold those values. In its
capacity as the vicegerent ofGod, the Muslim community is entrusted
with the authority to implement the Sharfah, to administer justice
and to take all necessary measures in the interest ofgood government.
The sovereignty ofthe people, ifthe use ofthe word 'sovereignty' is
appropriate at all, is a delegated, or executive, sovereignty (sul/dn
tanfidhi) only.'4 Although the consensus or ijma ofthe community,
or ofits learned members, is a recognised source of law in Islam, in
the final analysis, ijma is subservient to divine revelation and can
never overrule the explicit injunctions of the Qur’an and Sunnah.
The role ofthe ballot box and the sovereignty ofthe people arc thus
seen in a different light in Islamic law than they are in Western
jurisprudence.
And lastly, unlike its Western counterpart, Islamicjurisprudence is
not confined to commands and prohibitions, and tar less to commands
which originate in a court oflaw. Its scope is much wider, as it is not
only concerned with what a man must do or must not do. but also
with what he ought to do or ought not to do, and the much larger
area of permissibilities (mubdfidt) where his decision to do or to avoid
doing something is his own prerogative. Ufiil al-fiqh provides guidance
in all these areas, most ofwhich remain outside the scope ofWestern
jurisprudence.
II. Two Approaches to the Study of UfCil al-Fiqh
Following the establishment of the madhdhib. the 'ulamd' of the
various schools adopted two different approaches to the study ofnpil
al-fiqh. one of which was theoretical and the other deductive. The
main difference between these approaches is one oforientation rather
than substance. Whereas the former is primarily concerned with the
exposition oftheoretical doctrines, the latter is pragmatic in the sense
that theory is formulated in the light of its application to relevant
issues. The difference between the two approaches resembles the
work of a legal draftsman as compared to the work of a judge. The
former is mainly concerned with the exposition ofprinciples whereas
the latter tends to develop a synthesis between the principle and the
requirements ofa particular case. The theoretical approach to the study
ot ufiil al-fiqh is adopted by the ShJfi'i school and the Mutakallimun,
that is the 'ulamd’ of kaldm and the Mu'tazilah. The deductive
approach is, on the other hand, mainly attributed to the Hanafis. The
former is known as ufiil al-shafi'iyyah or lariqali al-mutakallimin,
whereas the latter is known as ufiJl al-hanafiyyah, or lariqah al-firqahd’.
Al-Shlfi'i was mainly concerned with articulating the theoretical
principles ofujiil al-fiqh without necessarily attempting to relate these
tofiqh itself. As a methodologist par excellence, he established a set of
standard criteria which he expected to be followed in the detailed
formulation of the rules offiqh. His theoretical exposition ofusul al-
fiqh, in other words, did not take into consideration their practical
application in the area of the furilIn addition, the Shlfi'Is and the
MutakallimOn are inclined to engage in complex issues of a philo­
sophical character which may or may not contribute to the develop­
ment of the practical rules offiqh. In this way, subjects such as the
‘iftnah (infallibility, innocence) ofthe prophets prior to their prophetic
mission, and matters pertaining to the status ofthe individual or his
duties prior to the revelation of the Sharfah, and also logical and
linguistic matters of remote relevance to the practical rules of fiqh.
tend to feature more prominently in the works of the Shafi'is and
MuukallimQn than in those ofthe Hanafis. The Hanafis have, on the
other hand, attempted to expound the principles of Hjiil al-fiqh in
conjunction with fiqh itself and tend to be more pragmatic in their
approach to the subject. In short, the theoretical approach tends to
envisage uful al-fiqh as an independent discipline to whichfiqh must
conform, whereas the deductive approach attempts to relate hjh/ al-
fiqh more closely to the detailed issues ofthe furii' al-fiqh. When, for

18.
10 PRINCIPLES OF ISLAMIC JURISPRUDENCE Introducnon to Usul al-Fiqh I
example, the Hanafls find a principle of to be in conflict with an
established principle offiqh. they are inclined to adjust the theory to
the extent that the conflict in question is removed, or they try to
make the necessary exception tn order to reach a compromise.
Three of the most important works that adopt the theoretical
approach to uju/ al-fiqh are al-Afu tamadfi Usui al-tiqh by the Mu tazili
scholar, AbO al-Husayn al-BJsri (d. 43* ah). Kitab al-Burhdn of the
Shift i scholar Imam al-Haramayn al-Juwayni (d. 487 ah) and al-
Musiatfd of Imam Abu Hamid al-Ghazali (d. 505 ah). These three
works were later summarised by Fakhr al-Din al-RJzi (d. 000 ah) in
his work entitled al-Mahsul. Sayfal-Din al-Amidi's larger work, al-
llikdm ft Usul al-Ahkam. is an annotated summary of the three
pioneering works referred to above.
The earliest Hanafl work on usdl is Kitab fi al-l'sul by AbO
al-Hasan al-Karkhi (d. 340 ah), which was followed by Usul al-Jassas
ofAbu Bakr al-Razi al-Ja$$as (d. 370 ah). Fakhr al-lsllm al-Bazdawi's
(d- 483 AH) well-known work. Usul al-Baadau-i. is also written in
conformity with the Hanafl approach to the study ofthis discipline.
This was followed by an equally outstanding contribution by Shams
al-Dln al-Sarakhsi (d. 490 ah) bearing the title. Usui al-Sarakhsi. A
number of other 'ulama' have contributed to the literature in
both camps. But a difference of format which marked a new stage
of development was the writing of handbooks in the form of
mukhiasars with a view to summarising the existing works for
didactic purposes.
The next phase in the development ofliterature on usul al-fiqh was
marked by the attempt to combine the theoretical and deductive
approaches into an integrated whole, which is reflected in the works
ofboth the Shlfi‘1 and Hanafl ulamd' oflater periods. One such work
which attempted to combine al-Bazdawi's Usui and al-Amidl's al-
lhkam was completed by Mujathr al-Din al-Sa id (d. 694 ah), whose
title liadt al-Ni;dm al-jdmi bayn Usul al-Baadaui uu al-lhkam is self-
explanatory as to the approach the author has taken. Another equally
significant work combining the two approaches was completedby $adr
al-Shariah Abd Allah ibn Mas ud al-Bukhari (d. 747 ah) bearing the
title al-Tawdili. which is. in tum. a summary of Usui al-Bazdawi, al-
Mahsul and the Mukhtasaral-Muntahd ofthe Malikijurist. Abu Umar
UthmAn ibn al-Hajib (d. 640 ah). Three other well-known works that
have combined the two approaches to usul al-fiqh areJam al-Jaudmi
ofthe Shafi ijunst Taj al-Din al-Subki (d. 771 ah). al-TahrirofKamal
al-Dln ibn al-HumAm al-Hanafl (d. 800 ah), and Musallam al-Thubur
ofthe Hanafljurist Muljibb al-Dln ibn Abd al-Shukur (d. 1119 ah).
And finally, this list would be deficient without mentioning Abu
Isluq IbrAhim al-ShAtibi's al-Muu-dfaqdt. which is comprehensive and
perhaps unique in its attention to the philosophy (hikmah) of tashri
and the objectives that are pursued by the detailed rulings of the
Shan'ah.'1
III. Proofs ofShan'ah (al-AdiUah al-Shafiyyah)
The adillah sliafiyyah and the ahkdm. that is, the laws or values that
regulate the conduct ofthe mukallqf, are the two principal themes of
“sill al-fiqh. Of these two. however, the former is by far the more
important as. according to some ulamd'. the ahkdm are derived from
the adillah and are therefore subsidiary to them. It is perhaps in view
of the central importance of these two topics to usul al-Jiqh that al-
Amidl defines the latter as the science of the proofs of fiqh (adillah
al-fiqh) and the indications that they provide in regard to the ahkdm
of the Shan"ah'.'6
A hukm (pL afikam) means proving or establishing one thing in
respect ofanother, which may either be affirmative or negative. Thus
when we say that the water is or is not cold, or that the sun has or has
not risen, we have issued a hukm in each case. A hukm in its juridical
sense is used mainly to establish a certain value, such as an obligation
(wujub), recommendation (nadb). or a command or prohibinon in
respect of the act oflegally competent person.”
Literally, dalil means guide, and it is used interchangeably with
proof, indication or evidence. Techmcally, it is an indication in the
sources from which a practical rule ofShan"ah. or a hukm, is deduced.
The hukm so obtained may be definitive (qal'i) or it may be specula­
tive (tanni) depending on the nature ofthe subject, the clarity ofthe
text, and the value which it seeks to establish.1' In the terminology
ofusul al-fiqh. adillah shafiyyah refer to four principal proofs or sources
of the Shari"ah, namely the Qur'an. Sunnah, consensus and analogy.
Dalil in this sense is synonymous with asl, hence the four sources of
Shariah are known both as adillah and usul. There are a number of
dyai in the Qur’in which identify the sources of Shariah and their
order of priority. But one passage in which all the principal sources
are indicated occurs m sura al-Nisi' (4:58-59): 'O you believers! Obey
God and obey the Messenger and those ofyou who are in charge of
aflairs. Ifyou have a dispuce concerning any matter, refer it to God
and to the Messenger.'

19.
12 PRINCIPLES OF ISLAMIC JURISPRUDENCE Introduction to IJsill al-fiqh 13
J JJ— 1 lj>T jjAJl WJk
<J! °jJ> s? r^j^'
‘Obey God’ in this ayah refers to the Qur’an, and ’Obey the
Messenger’ refers to the Sunnah. Obedience to ‘those who are in
charge ofaffairs’ is held to be a reference to ijmd1, and the last portion
ofthe ayah which requires the referral ofdisputes to God and to the
Messenger authorises qiyds. as qiyds is essentially an extension of the
injunctions ofthe Qur'an and Sunnah. The rationale or the effective
cause ofqiyds may be clearly indicated in these sources or it may be
identified by way of inference (istinbdt). In either case, qiyds essen­
tially consists of the discovery ofa hukm which is already indicated
in the divine sources.111
Some J'uqahd’ have drawn a distinction between dalil and ainarali
(lit. sign or allusion) and apply dalil to the kind ofevidence that leads
to a definitive ruling or that which leads to positive knowledge film).
Amarali, on the other hand, is reserved for evidence or indications that
only lead to a speculative ruling.'0 In this way. the term ‘dalir would
only apply to definitive proofs, namely the Qur'an, Sunnah and i/mS",
and the remaining proofs, which comprise a measure ofspeculation,
such as qiyds, istihsan, etc., would fall under the category of amdrdt.
The proofi of Sharfali have been further divided into transmitted
proofs (adillah naqliyyah) and rational proofs (adillah ‘aqliyyah). The
authority ofthe transmitted proofs is independent oftheir conformity
or otherwise to the dictates ofreason, although, as we shall elaborate
later, most of the transmitted proofs can also be justified rationally.
However, the authority and the binding force ofthe Qur'an, Sunnah
and ijmd1 are independent ofany rationaljustification that might exist
in their favour. To these arc added two other transmitted proofs,
namely the rulings of the Companions, and the laws revealed prior
to the advent of Islam (sharff man qabland)."
The rational proofs are, on the other hand, founded in reason and
need to be rationally justified. They can only be accepted by virtue
oftheir rationality. Qiyds, istilfsdn. istisldh and istisbdb are basically all
rationalist doctrines although they are in many ways dependent on
the transmitted proofs. Rationality alone is not an independent proof
in Islam, which is why the rational proofi cannot be totally separated
from the transmitted proofi. Qiyds. for example, is a rational proof,
but it also relies on the transmitted proofs to the extent that qiyds, in
order to be valid, must be founded on an established /iiil-m of the
Qur’an. Sunnah or ijmS. However, the issue to which qiyds is applied
(i.e. the far1) must have an 'illah (effective cause) in common with the
original hukm. To establish the commonality of the ‘illah in qiyds is
largely a matterofopinion and ijtihdd. Qiyds is therefore classified under
the category ofadillah 'aqliyyah. As already indicated, the division of
proofs into the transmitted and rational categories is not mutually
exclusive as neither ofthem can function in total isolation: utilising
the transmitted proofi for or against something necessarily relies on
reason, which is the human tool for comprehension. Similarly, an
opinion or ra‘y can be utilised as the basis for a hukm when it is
supported by a transmitted proof.
As noted above, the adillah shar'iyyali are on the whole in harmony
with reason. This will be clear from the fact that the SharTah in all
its parts is addressed to the mukallaf, that is. the competent person
who is in possession ofhis faculty of reason. The Shan'ah as a whole
does not impose any obligation that contradicts the requirements of
'aql. Since the criterion ofobligation (taklij) is 'aql. and without it all
legal obligations tall to the ground, it follows that a hukm shar"i which
is abhorrent to ‘aql is ofno consequence."
The adillah shaftyyali have been further classified into mustaqillah and
muqayyadali, that is. independent and dependent proofs respectively.
Each of the first three sources of the Shari1ah is an independent asl.
or dalil mustaqil, that is, a proofin its own right. Qiyds. on the other
hand, is an asl or dalil muqayyad in the sense, as indicated above, that
its authority is derived from one or other of the three independent
sources. The question may arise as to why ijmd' has been classified as
an independent proofdespite the fact that it is often in need ofa basis
(sanad) in the Qur'an or the Sunnah. The answer to this is that ijmS
is in need ofa sanad in the divine sources for its formulation in the
first place. However, once the ijmS is concluded, it is no longer
dependent on its sanad and it becomes an independent proof. Unlike
qiyds. which continues to be in need ofjustification in the form ofa
‘illah, a conclusive ijmS is not in need ofjustification and is therefore
an independent asl.“
Another classification of adillah is their division into definitive
(qaf't) and speculative (ranni) proofi. This division ofdalilshaft takes
consideration ofthe proofi ofShari'ah not only in their entirety but
also in respect ofthe detailed rules which they contain. In this way.
the Qur'Jn, Sunnah and ijmd are definitive proofs in the sense that
they are decisive and binding. However, each ofthese sources contains

20.
14 PRINCIPLES OF ISLAMIC JURISPRUDENCE Introduction to Usui al-Fiqh 15
speculative rules which are open to interpretation. A dalil in this sense
is synonymous with a hukni. A dalil may be qafi in respects ofboth
transmission (riwdyah) and meaning (dalalali). The clear injunctions of
the Qur'an and liadlth mutawdtir arc all qafi in respect ofboth trans­
mission and meaning. We shall have occasion later to elaborate on
this subject in the context of the characteristic features of QurTnic
legislation. Suffice it here to say that the Qur'an is authentic in all its
parts, and therefore ofproven authenticity (qafi al-thubiit). The soli­
tary, or ahdd. Iiadith on the other hand is ofspeculative authenticity
and therefore falls into the category ofspeculative proofs.1* Similarly,
a ruling of ijmif may have reached us by continuous testimony
(tawatur). in which case it will be definitely proven (qafi al-lhubut).
But when ijmif is transmitted through solitary reports, its authenticity
will be open to doubt and therefore zanni al-thubut.
And lastly, the adillah are classified under the following three
categories: proofs about which there is unanimous agreement, and
these include the Qur'in and Sunnah. Secondly, proofs about which
the vast majority (jumhur) are in agreement, and these include general
consensus (ymd'j and analogy (qiyds). The Na??5m faction of the
Mu'tazilah and some Khanjites have rejected ijmS, whereas the Zahiris
and the ja'fari Shi'ah have disputed the authority of qiyds. Thirdly,
proofs about which the ulama’ have generally disagreed, and this
category includes virtually all the remaining varieties of rational
proofs, such asjunstic preference (istilisdn). the consideration ofpublic
interest (isti/ldh). the presumption ofcontinuity (istifhab), custom fur/),
revealed laws prior to the Shariah ofIslam, and the verdict (fatwa) of
the Companions. Some 'ulamd’ have recognised these as valid proofs
and others have not. Even among those who accept the validity of
these proofs in principle, there are differences in the degree ofprom­
inence they have given them, and in the range of conditions they
might have proposed in each case in order to verify the validity and
proper application of a particular proof.1’
The text of the Qur’an or the liadiih may convey a command or
a prohibition. According to the general rule, a command (amr) conveys
obligation (wujub), and prohibition (nahy) conveys tahrim unless there
is evidence to suggest otherwise, it is in the light of the wording of
the text, its subject-matter and other supportive evidence that the
precise shaftvalue ofa textual ruling can be determined. A command
may thus imply a recommendation (nadb) or mere permissibility
(ibdliah) and not wujub. Likewise, a prohibition (nahy) in the Qur'an
or the Sunnah may be held to imply abomination (karaliah) and not
necessarily tahrim. Consequently, when the precise value of the qafi
and the zanni on the scale offive values is not self-evident, it is deter­
mined by supportive evidence that may be available in the sources,
or by ijtihdd. The qal'I ofthe Qur'an and Sunnah is basically not open
to interpretation. The scope of interpretation and ijtihdd is conse­
quently confined to the fanni proofs alone.16
NOTES
1. Amidl. fliEJ/n. 1, 6; Shawklnl. Inhad. p. 3.
1. Cf. AbO Zahnh. LWl p. 6.
3. Cf. Badrln. LWI. pp. 37-8.
4- Cf. Abu Zahnh. UM. pp. 8ff.
5. Khallif. Itm. p. 16; AbO Zahrah. UM p. 10.
6. Ibid., pp. 16-17.
7. Cf. Badran. UM P- iz.
8. Ibid., p. 14.
9. AbO Zahrah. UM. p. 13- Badran, UM p. 14-
to. Badrln. UM. p- ra­
il. Ibid., p. 14.
Ia. Two well-known works both bearing die tide at-AMM uu al-Natfu are
authored byJalal al-l>ln al-Suyfiti and Ibn Nujaym al-Hniafl respectively.
13. Cf Badrln. UM. pp 4«—3-
14. Ct Zaydln. al-FMMil-DuM, p. 36.
15. Abo Zahrah, UM. pp. 14-20: HltO. pp. 13-14: Zuhayr, UM. I. 4-
16. Amide ftWm. I. 7. Badrln. M p. 36.
17. Zaydln. MWtjts, P- 9-
18. Ibid., p. 9: Badrln, UM. P-46; HltO. Wqjli. P- W
19. Cf. Badrln, U»0L pp. 31-2.
10. Anudi. Dfkim, I, 9.
31. Cf Badrln, UM. pp. 54-J-
33. AmidL Win, HI. 1Bo: Badrln. UM. P SO.
23. Amide I. 360.
34, Shawklnl, MM p. 47: Badrln. IM P- S3: HM. Wajtz, p. 305
45. Zaydln, Hitjlr, p. 148.
36. KhalUf. IM p 35. Abd Zahrah. UM p. 71; Shallot, al-bIMl. p. 498.

21.
The First Source ofSliari'ah: the Qur'an 17
CHAPTER TWO
The First Source of Sharfah:
the Qur’an
Being the verbal noun of the root word qara'a (to read), 'Qur'an'
literally means 'reading' or 'recitation'. It may be defined as ‘the book
containing the speech of God revealed to the Prophet Muhammad
in Arabic and transmitted to us by continuous testimony, or tau’aiuf.1
It is a proofofthe prophecy of Muhammad, the most authoritative
guide for Muslims, and the first source of the Shan'ah. The 'ulama'
are unanimous on this, and some even say that it is the only source
and that all other sources are explanatory to the Qur'an. The salient
attributes of the Qur’an that are indicated in this definition may
be summarised as five: it svas revealed exclusively to the Prophet
Muhammad; it was put into writing; it is all mutaivatir, it is the
inimitable speech ofGod; and it is recited in salali. The revelation of
the Qur'an began with sura al-'Alaq (96:1) starting with the words.
'Read in the name ofyour Lord'
and ending with the 3yah in sQra al-Mi’idah (5:3): 'Today I have
perfected your religion for you and completed my favour toward
you. and chosen Islam as your religion.'
Learning and religious guidance, being the first and the last themes
ofthe Quranic revelation, arc thus the favour ofGod upon mankind.
The Qur’an itself indicates that it was sent down and revealed in
three successive stages. The first descent was to Lau4> al-Maliju; (the
■guarded tablet') in a manner and time that is not known: 'Nay it is
a glorious Qur'an in a guarded tablet' (al-Buruj, 85:21-22).
jTy
The second descent was to the lowest heaven, described as hayl al-
'izzah ('the abode ofhonour') and this occurred in the night which
the Qur'in names Laylah al-Qadr: ‘Truly We revealed it on the
Night ofMajesty' (al-Qadr. 97:1).
jJiJl klJ Q q
And then we read in another place ‘Truly We revealed it on a blessed
night' (al-Dukhan, 44:3).
aTjU. 4 .(J>l q
Both these passages suggest that the second stage of the revelation
occurred in a single night, which is further specified as one ofrhe last
ten nights in the month ofRamadan. Thus it was only in the last of
the three stages that the Qur'in was revealed to mankind gradually,
in about twenty-three years, through the mediation ofthe archangel
Gabriel: 'The Faithful spirit brought it down on your heart that you
may be a wamer' (al-Shu'ari, 26: 193-194).
jj&l slU» jjl* uyty *» J>
There are 114 silras and 6235 ayai ofunequal length in the Qur'an.
The shortest ofthe suras consist of four and the longest of286 3y3l.
Each chapter has a separate title. The longest suras appear first and
the suras become shorter as the text proceeds. Both the order ofthe
ayai within each sOra, and the sequence ofthe suras, were re-arranged
and finally determined by the Prophet in the year of his demise.
According to this arrangement, the Qur'Jn begins with sura al-Fatihah
and ends with sura al-Najz
The contents ofthe Qur'an arc not classified subject-wise. The ayai
on various topics appear in unexpected places, and no particularorder

22.
l8 PRINCIPLES OF ISLAMIC JURISPRUDENCE The First Source of Shan'ah: the Qur'an 19
can be ascertained in the sequence of its text. To give just a few
examples, the command concerning saldh appears in the second sQra,
in the midst ofother dydt which relate to the subject ofdivorce (al-
Baqarah, 2:228-248). In the same sOra, we find rules which relate to
wine-drinking, apostasy and war, followed by passages concerning
the treatment oforphans and the marriage ofunbelieving women (al-
Baqarah, 2:216-221). Similarly, the dydt relating to the pilgrimage of
hajj occur both in sura al-Baqarah (2:196-203) and sura al-Hajj
(22:26-27). Rules on marriage, divorce and revocation (rij ah) arc
found in sOras al-Baqarah, al-T'alJq, and al-Nisa'. From this a conclu­
sion has been drawn that the Qur’an is an indivisible whole, and a
guide for beliefand action that must be accepted and followed m its
entirety. Hence any attempt to follow some parts ofthe Qur’an and
abandon others will be totally invalid. This is in fact the purport of
the Qur’imc cext (al-Ma'idah. 5:49) where the Prophet has been
warned: 'Beware of them (i.e. the unbelievers] lest they take you
away from a part ofthat which God has sent down to you.’J
dJJ] Jfl J>l U Q* J
The Qur'an consists of manifest revelation (ust/iy ?dhir), which is
defined as communication from God to the Prophet Muhammad,
conveyed by the angel Gabriel, in the very words of God. This the
Prophet received in a state of wakefulness, and thus no part of the
Qur'Jn originated in internal inspiration or dreams. Manifest revela­
tion differs from internal revelation (uu/iybdfin) in that the latterconsists
ofthe inspiration (ilhdm) ofconcepts only: God inspired the Prophet
and the latter conveyed the concepts in his own words. All the
sayings, or liadith. of the Prophet fall into the category of internal
revelation and. as such, arc not included in the Qur'an. A briefword
may be added here concerning hadith qudsi. In this variety of hadith.
the Prophet narrates a concept directly from God which may consist
cither ofwahy %dhir or wahy bafin, but die latter is more likely. Hadith
qudsi differs from the other varieties of hadith in form only. The
Prophet himselfhas not distinguished hadith qudsi from other hadith:
it was in fret introduced as a separate category by the ‘ulamd’ ofhadith
at around the fifth century Hijrah. Hadith in all ofits varieties consists
of divine inspiration which is communicated in the words of the
Prophet. No hadith may be ranked on equal footing with the Qur'Jn.
Thus saldh cannot be performed by reciting the liadith, nor is the
recitation of hadith considered of the same spiritual merit as reciting
the Qur’an.* The Qur'an may not be read nor touched by anyone
who is not in state ofpurity (fahdrali), but this is not a requirement
with regard to hadith qudsi.
The Qur'Jn explicitly states that all of it is communicated in pure
and clear Arabic (al-Naljl. 16:30). Although the 1 ulamd' are in agree­
ment that words ofnon-Arabic origin occur in the Qur'an, these arc,
nevertheless, words which were admitted and integrated into the
language ofthe Arabs before the revelation of the Qur'an. To give
just a few examples, words such as qisfds (scales - occurring in the sura
al-IsrJ, 17:35). ghassdq (intensely cold - in sQra al-Naba' (78:25) and
sijjil (baked clay - in al-Hijr. 15:74) are ofGreek. Turkish and Persian
origins respectively? But this usage is confined to odd words; a phrase
or a sentence of non-Arabic origin does not occur in the Qur'Jn.
Since the Qur'Jn consists ofmanifest revelation in Arabic, translations
ofthe Qur’an into another language, or its commentaries whether in
Arabic or in other languages, are not a part ofthe Qur'Jn. However,
Imam AbO Hanifah has held the view that the Qur’an is the name
for a meaning only and. as such, saldh may be performed in its Persian
translation. But the disciples ofAbO Hanifah have disagreed with this
view and it is reported tliat Abu Hanifah himself reversed his initial
ruling, and this is now considered to be the correct view ofthe Hanafl
school.6
The Prophet himself memorised the Qur'an, and so did his
Companions. TIils was, to a large extent, facilitated by the fact that the
Qur'Jn was revealed piecemeal over a period of twenty-three years
in relation to particular events. The Qur’an itselfexplains the rationale
ofgradually (tanjim) in its revelation as follows: 'The unbelievers say,
why has not the Qur’an been sent down to him [Muhammad] all at
once. Thus (it is revealed] that your hearts may be strengthened, and
We rehearse it to you gradually, and well-arranged' (al-FurqJn. 25:32).
iu- 0^ sU J> V IjX Ji-U' J»j
■jUy oUUjj iJalji A? diJAS'
Elsewhere we read in the text: 'It is a Qur'Jn We have divided into
parts in order that you may recite it to people at intervals: We have
revealed it by stages’ (al-Isra', 17:106).

23.
20 PRINCIPLES OF ISLAMIC JURISPRUDENCE The First Source ofShan ali: the Qur'an 21
In yet another passage, God Almighty addresses the Prophet: ‘By
degrees shall We teach you to declare (the message) so that you do
not forget' (al-Ala, 87:6).
•
Gradually in the revelation of Qur'an afforded the believers an
opportunity to reflect on it and to retain it in their memories.
Revelation over a period of time also facilitated continuous contact
between the believers and a renewal ofspiritual strength, so that the
hostility ofthe unbelievers toward the new faith did not weaken the
hearts of the Muslims. Furthermore, in view of the widespread
illiteracy of the Arabs at the time, had the Qur’in been revealed all
at once, they would have found it difficult to understand. Attention
was thus initially focused on the rejection offalse beliefs and super­
stitions. This was a preparatory stage for the next phase ofteaching,
which was concerned with the basic dogma and value structure of
Islam; this was followed by the rules of ihadai leading in tum to a fuller
exposition ofthe rules of mu'amalat. But this is only a broad descrip­
tion of the thematic aspect of lanjlrti (also known as ladamij) as we
should note that a considerable portion of the Qur’an was revealed
in response to questions that the Prophet was being asked from time
to time, and also the events that were experienced throughout the
years ofthe revelation. Graduality provided die opportunity to rectify
any errors that the Muslims, or even the Prophet himself, might have
committed and lessons that could be learned from them. Lasdy. the
phenomenon of naskh (abrogation), that is abrogation of an earlier
ruling at a later stage owing to change of circumstance, is also con­
nected with the gradual unfolding of the Qur'an, but we shall have
more to say on this subject later. Qur'inic legislation concerning
matters which touched the lives of the people was therefore not
imposed all at once. It was revealed piecemeal so as to avoid hardship
to the believers.’ The ban on the consumption ofalcohol affords an
interesting example of the Qur'Jnic method of graduality in legisla­
tion. and throws light on the attitude ofthe Qur'ln to the nature and
function oflegislation itself. Consumption ofalcohol was, apparendy,
subject to no restriction in theearly years. Later, the following Qur'inic
passage was revealed in the form of a moral advice: 'They ask you
about alcohol and gambling. Say: in these there is great harm and
also benefit for the people, but their harm far outweighs their benefit'
(al-Baqarah; 2:219).
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Then otfenng prayers while under the influence of alcohol was
prohibited (al-Nisi', 4:43). Finally, a total ban on wine-drinking was
imposed (al-Ma'idah, 5:90-91) and both alcohol and gambling were
declared to be "works of the devil...The devil wants to sow enmity
and rancour among you’.
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This shows the gradual tackling of problems as and when they arose.
The 'ulama' are in agreement that the enure text of the Qur'in is
mutawatir, that is, its authenticity is proven by universally accepted
testimony. It has been retained both in memory and as a written
record throughout the generations. Hence nothing less than tawaiur
is accepted as evidence in establishing the authenticity ofthe variant
readings ofthe Qur’an. Thus the variant reading ofsome words in a
few ayat, attributed to ‘Abd Allah ibn Mas ud, for example, which is
not established by tawatur. is not a part ofthe Qur'an. In the context
of the penance (ka_ffarah) for a false oath, for example, the standard
text provides this to be three days offisting. But Ibn Mas'Od's version
has it as three consecutive days offisting. Since the additional element
(i.e. consecutive) in the relevant &yah in sQra al-M3'idah (5:92) is not
established by tawatur. it is not a part ofthe Qur’in and is, therefore,
ofno effect." Similarly. ‘Abd Allah ibn Zubayr added the phrase ‘wa-
yasta'iniina hi-Allah ‘<i/4 ma a^aba/ium' to the ayah in sQra Al Imrin
(3:104) which accordingly read: ‘Let there arise from among you
a group that invite others to do good work, enjoining what is
right and forbidding what is wrong [and seek help from God when
they are afflicted with sufferings). They shall indeed be granted
success.'
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24.
22 PRINCIPLES OF ISLAMIC JURISPRUDENCE The First Source of SharTali: the Qur'in 23
This is not established by conclusive testimony (tawatur) either, and
it is therefore not part of the Qur'an. When ‘Umar ibn al-Khanab
heard this, he asked: ‘Is it his [Ibn Zubayr’s] recitation ofthe text or
his interpretation?’ Some commentators maintain that it was an inter­
pretation. There were many other instances of vanant readings in
different Arabic dialects. Seven such dialects are commonly known
to have existed and words were often read with different vowelling.
or declensions, that affected the grammatical position and sometimes
also the meaning of the text. The variant readings are sometimes
adopted as a basis ofinterpretation. Note, for example, the last word
in the ayu/i on the punishment of theft (al-Ma’idah, 5:38) which
is ‘aydiyahumd1 (their hands) in the standard reading, but which
Abd Allah ibn Mas ud read to be ‘aymanahumd' (their right hands).
The ulamd’ and commentators have generally retained the first but
adopted the second only within the meaning ofthe first.'1 The Hanafls
maintain that the unproven text may be acted upon and used as
speculative evidence in the interpretation ofthe Qur'an because the
Companions are deemed to be upright and their readings should be
given credit. The Shafi ls and Malikis have held that since these
portions are claimed to be parts ofthe Qur'an and remain unproven,
they are rejected altogether.
During the lifetime of the Prophet, the text of the Qur'in was
preserved not only in memories, but also in inscriptions on such
available materials as flat stones, svood and bones, which would
explain why it could not have been compiled in a bound volume.
Initially, the first Caliph. Abu Bakr, collected the Qur'an soon after
the battle ofYamamah. which led to the death ofat least seventy of
die memorisers of the Qur’an. Zayd ibn Thabit, the scribe of the
Prophet, was employed in the task of compiling the text, which he
accomplished between 11 and 14 ali. But several versions and readings
ofthis edition soon crept into use. Hence the third Caliph, 'Uthmln,
once again utilised the services ofZayd to verify die accuracy ofthe
text and compiled it in a single volume. All the remaining variations
were then destroyed. As a result, only one authentic text hi remained
in use to this day.10
The Qur'an was revealed in two distinct periods of the Prophet's
mission in Mecca and Medina respectively. The larger part of the
Qur'an, that is nineteen out ofthe total ofthirty parts, was received
during the first twelve and a halfyears ofthe Prophet’s residence in
Mecca. The remainder ofthe Qur’in was received after the Prophet’s
migration to Medina over a period ofjust over nine and a halfyears.'‘
The Meccan part ofthe Qur'an laid down the basic principles oflaw
and religion that were elaborated in Medina. This is the conclusion
al-Shafibi reached in al-Muwdfaqdi (111. 104) saying that a closer exam­
ination of the Medinan portions of the Qur'in reveals that they
generally supplement the basic guidelines that were revealed earlier
in Mecca.
With reference to the five essential values ofIslam, that is. religion,
life, intellect, family and property, al-Sha;ibi wrote tliat all these were
in principle enunciated in the Meccan portions of the Qur'an. In
addition to the essentials ofbeliefand monotheism, matters ofworship,
and disputauon with the unbelievers etc., the Meccan Qur'an also
contained legal rulings on the permitted and forbidden varieties of
food, the prohibition of murder and infanticide, safeguarding the
property of orphans, the prevention of injustice (?u/»i), giving due
measurement and weight in commercial transactions and a variety of
other rulings. Most ofthe references to bygone nations and prophets,
their experiences and the lessons they taught occur in the Meccan
part of the Qur'an, with the obvious purpose of strengthening the
resolve ofthe Prophet and his early Companions in the propagation
ofthe new faith. But the Medinan part ofthe Qur'an also comprised
legal rules and regulated the various aspects of life in the new
environment of Medina. Since the Medinan period signified the
formation of the ummah and the nascent Islamic state, the Qur'anic
emphasis shifted to principles regulating the political, legal, social and
economic life of the new community. During this period, Islam
expanded to other parts ofArabia, and the Qur’inic response to the
need for rules to regulate nutters ofwar and peace, the status and rights
ofthe conquered people, the organisation ofthe family and principles
of government feature prominently in the Medinan part of the
Qur’an,,J The knowledge of the Meccan and the Medinan contents
ofthe Qur'an gives one an insight into the context and circumstances
in which the dydi were revealed; it is particularly relevant to the
understanding ofthe incidence ofabrogation (naskh) in the Qur'an.
Distinguishing between the abrogating (al-ndsikli) and the abrogated
(al-mansukh) portions ofthe text depends on determining the chrono­
logical order in the revelation ofthe relevant dyat. Similarly, most of
the general (‘4mm) rulings of the text have been qualified either by
the text itselfor by liadilh. Thus the knowledge of the Meccan and
Medinan parts of the revelation facilitates a better understanding of
some ofthe characteristic features ofthe Qur'Jnic legislation.
A sQra is considered to be Meccan ifits revelation began in Mecca,