Class Two:- The Sources + History of Development of أصول الفقه

بِسْم الله الرحمن الرحيم

The Sources of أصول الفقه

The purpose this science is to guide people to make correct Ijtihad. You cannot just come out with something from your own head when you deliver a judgement on a matter related to something part of Allahs Religion; It has to be on the basis of evidence. This is true for both Fiqh and Usool Al-Fiqh.

What are the sources for reasoning in أصول الفقه? 

1) The Qur'an

There are a number of verses in the Qur'an which have relevance to issues of أصول الفقه.

E.g. In [4:59]: 

"O you who believe! Obey Allah and obey the Messenger (Muhammad ﷺ), and those of you (Muslims) who are in authority. (And) if you differ in anything amongst yourselves, refer it to Allah and His Messenger (ﷺ), if you believe in Allah and in the Last Day. That is better and more suitable for final determination."

This verse was used as evidence in particular by some Shafi'i Scholars of أصول الفقه, to say that the classes of evidence in Fiqh are four and only four:

- The Qur'an - "أَطِيعُوا الله"

- The Sunnah - "أَطِيعُوا الرسول'

- The Ijmaa (Consensus of the Scholars) - "و أولي الأمر منكم"

- Qiyas (Legal Analogy) - "فَرُدّوه إلى الله و رسوله" 

This whole line of argument is open to discussion and debate, but is an example of how a Quranic verse was used for evidence in an issue of أصول الفقه.

2) The Sunnah

E.g. Abu Hurayrah (may Allaah be pleased with him)  reported that the Prophet ﷺ said: 

"لولا أن أشق على أمتي لأمرتهم بالسواك عند كل صلاة "

“Were it not for the fact that I did not want to make things too hard for my ummah, I would have commanded them to use the siwaak at every time of prayer.” [Reported by al-Bukhaari, 2/299 and Muslim, 1/151].

How could this be used for reasoning in a point on أصول الفقه? The argument would be that the default setting for a command is that it indicates obligation. If the command did not indicate obligation, then the Prophet ﷺ would not have not refrained from commanding, out of fear of imposing hardship. People would have a choice of using the Siwaak if they wanted to or not.

3) The Arabic Language

E.g. The Command Form

Some Scholars argue that the command form is ambiguous, and brought examples from the language where the command indicated a recommendation. There are about 10 or 15 different connotations or values for the command form when used in different contexts. You will find the Scholars of أصول الفقه  referring to the rules of the Arabic Language again and again to settle disputes.

4) Logic

E.g. There is a debate whether every Mujtahid is correct. Logic would dictate that if one Mujtahid says something is Halal and another says it is Haraam then they cannot be both correct, because something cannot be Halal and Haraam at the same time. 

5) Fiqh Itself

This is a characteristic of the Hanafi approach to Usool Al-Fiqh

The History of the Development of أصول الفقه

- The Main Features of Ijtihad during the Era of the Companions after the death of the Prophet ﷺ / The Rightly Guided Caliphs

The early generations had an intuitive understanding of Fiqh, the way a child understands how to speak his native language just by growing up in an environment where people speak it. The companions observed how the Prophet ﷺ dealt with and approached issues and had an understanding of the Shari'ah, and thus applied this in their reasoning.

After the death of the Prophet ﷺ, the methodology of the companions became clear as a model which was then referred to by the later generations.

E.g. A woman came to Abu Bakr seeking inheritance, and she was the grandmother of the deceased. He did not find anything from the Book of Allah or the Sunnah, so he told her to wait, and then he asked around. Someone from amongst the Companions testified that he was witness to a case where the Prophet ﷺ gave 1/6th share to the grandmother, when the mother had passed away before.

The Khalifah would usually be sitting with a group of his advisors when cases would come. He would start by asking his immediate advisers; if they did not know he would make a general announcement or convene a meeting. This was done particularly for major issues concerning the Muslims as a whole. 

E.g. Umar for instance convened a meeting regarding the invasions of the lands that had been conquered around Iraq and Syria.

He also went through an elaborate consultation process when he was going to Palestine and the news reached him that an epidemic had broken out. He first consulted the companions who accepted Islam in the early days, then sent them away and consulted the Ansar, then he sent them away and consulted people who had accepted Islam after the conquest of Makkah. While they were still deliberating, Abdur-Rahman Ibn Auf had arrived, and had information about the issue from the statement of the Prophet ﷺ. Umar based his judgement upon that evidence from the Sunnah.

When there was no clear cut evidence from the Qur'an and Sunnah they would look for consensus. If there was no consensus, the Khalifah would make Ijtihad and choose what he decided was best.

Qiyas was used repeatedly by the Companions and there was no objection about using that as a methodology by any of the other companions. This became one of the most powerful evidences that supported Qiyas amongst the later generations.

They frequently used Maslahah (Public Benefit) as a basis for their Ijtihad to the point that some Scholars said it was their primary consideration after the Qur'an and Sunnah. 

Umar رضي الله عنه changed some of the decisions Abu Bakr رضي الله عنه made based on his Ijtihad. A famous example of that is the stipend that was given to the Muslims after wealth began to pour in from the conquests. Abu Bakr gave every Muslim an equal share. Umar gave people shares based on how early they accepted Islam. It was clear that he did not consider himself to be bound by Abu Bakrs decisions.

When Umar died he appointed a council to decide who would be appointed the next Khalifa. When it came down to Uthman and Ali the vote was evenly tied. The tie breaker vote developed on the basis of a question that was put to them: Will you consider yourself bound by the Qur'an and Sunnah and the decisions of Abu Bakr and Umar? Uthman said yes, Ali said - Qur'an and Sunnah yes, but Abu Bakr and Umar made Ijtihad, and I am also capable of Ijtihad.

- The Main Features of Ijtihad during the Era of the Tabi'een

When you look at Fiqh at the era of the Umayyads, you would see that the Companions had spread throughout the Muslim World. Major centers of learning were in Makkah, Madinah, Kufa, and Basra. Tremendous focus was on the Qur'an. Umar رضي الله عنه had instructed someone saying, "When you go to Kufa and Basra you will find people whose recitation of the Qur'an is like the buzzing of bees, do not distract them from that with other types of knowledge". So during Umars time there was a discouragement for people freely quoting Hadiths; They were brought forward on a need basis. You had people like Abu Hurayrah who sat in the Masjid and taught people Hadiths, but this process only began to develop in a formal way during the early Umayyad era. So at the time of the Tabi'een:

1) The Qur'an was the primary source of law.

2) The Sunnah was a very close second. 

3) They considered the consensus of the Companions to be binding.

4) They also used رأي (opinion), and this did not have a negative connotation. If a person during that time was called ذوا الرأي it meant that he was a person who had strong judgement. And this would operate on an intuitive basis. Qiyas was used, Maslahah was used - although the use of Maslahah was starting to decrease.

One of the main features of the Fiqh of the Tabi'een was the great emphasis placed on the legal decisions of the companions. Their legal rulings were preserved, taught, and used as a precedent for others to deliver judgements. 

You start to see a differentiation between knowledge and opinion in this era. Umar Ibn AbdulAziz, who reigned at around 100AH, ordered Scholars in each of the major urban areas to compile and record the Sunnah of the Prophet ﷺ. He also ordered judges to consult the People of Knowledge if they were unsure about a matter. 
People exercised independent judgement and there was a reaction setting in against it, because there was a fear that this would be unregulated and peoples whims and caprices would enter in to making statements about the Deen of Allah. 

One of the important developments in this era was the entry of the موالي into the field of Islamic Knowledge. Umar bin Abdulaziz appointed three judges in Egypt, and two of them were Mawlas, and some of the Arabs complained. Mawlas were basically non-Arab by birth and had learnt Arabic by contact with the Arabs. Mistakes in the use of language then crept into it, and this made it a major matter of concern for Scholars to preserve the Arabic Language, so you found people going out to the bedouins and collecting their poetry.

With regards to the Sunnah, you see widespread use of Mursal Hadiths. You also start to see fabrications of Hadith especially during the political disputes that grew out of the civil war between Ali and Mua'wiyah, then Abdullah Ibn Zubayr and Abdul-Malik Ibn Marwan. As a result, Scholars began scrutinizing the narrators and demanding that people present their Isnad when they quoted a Hadith.

The two main centers of Islamic learning in Hijaz and Iraq became known as The Two Schools of Thought in Fiqh. The people of Hijaz became known as أهل الحديث and the people of Iraq became known as أهل الرأي. The people of Hijaz also used opinion, but there was a greater need for judgement and reasoning in Iraq because there were a lot of new cases. The Muslims were a minority in a sieve of non-Muslims, and these people had their own culture, a very long heritage before Islam came to them, and had lots of different ideas, commercial forms of business, etc and there was no specific text to cover that. The people of Iraq developed fundamental by looking into the Qur'an and Sunnah and applied it to the situations in a systematic ways. 

- The Main Features of Ijtihad during the Era of the Tabi'i Tabi'een (The Four Imams)

Abu Hanifa

Abu Hanifa was technically a Tabi'i; there are reports which indicate that he met Anas Ibn Malik. But if you look at his teacher, Hammad Ibn Abu Sulayman, who was one of the Tabi'een, you will see that he studied under another Tabi'i', who studied under another Tabi'i, who studied under Ibn Masoud. So you have three layers of Tab'ieen between Abdullah Ibn Masoud and Abu Hanifa.

Abu Hanifa did not leave behind any writing; his Fiqh decisions were transmitted by his students. They were recorded most famously by Abu Hasan Ash-Shaybani. There are some statements he made regarding his methodology in Fiqh which have been transmitted in books of biography:

1) The Qur'an

2) The Sunnah

3) The statements of the Companions, if they agreed. 

4) If the Companions disagreed, he chose that which he thought was the strongest.

5) Qiyas

6) Istihsan 

By his time there was the feeling that the rulings of the Tabi'een also had legal weight, but he explicitly stated that although they should be looked at, he did not consider himself bound by them. He said, "They are men and we are men". The companions were men too but they had a special place because they witnessed revelation.

Imam Malik

There is one written work - a letter on an Usool issue - part of correspondence between Imam Malik and Imam Layth, in which Al-Layth asked Imam Malik to clarify why he considered the practice of the people of Madinah to be a binding proof. 

But there is no book by Imam Malik on Usool AlFiqh. We have Al-Mudawwana (his legal opinions recorded by one of his students) and Al-Muwwata (comprising of Hadiths and legal opinions of the companions and Tabi'een). 

Ash-Shafi'i

The same year that Abu Hanifa died [150AH] was the same year that Ash-Shafi'i was born. He studied under the Scholars of Makkah, memorized the Muwatta, then went to Madinah to study under Imam Malik. The he went to Baghdad which had become the centre of learning in Iraq, and met the students of Abu Hanifa.

He wrote Ar-Risaalah, which was apparently composed in a response to a request by a Hadith Scholar in Baghdad to explain the issues related to the general and specific and other matters that could be used as a guide. So the primary focus of this book is establishing the classes of evidence that should be admissible for legal reasoning:

1) He starts with the Qur'an 

2) He talks at very great length about the role between the Qur'an and Sunnah, and the main focus of his book is establishing the precedence of the Sunnah, especially in the form of isolated narrations (أخبار أحد).

3) He mentions that Fiqh rulings are not conclusive in general, unlike Aqeedah issues. In Fiqh issues there is an element of uncertainty and therefore the element of uncertainty in Qiyas should not disqualify its use. 

4) He also dealt with linguistic issues.

5) Abrogation

6) Consensus

7) He rejected Istihsan, which is one of the hallmarks of the Hanafi and Maliki Schools of Thought

8) He also rejected the use of Mursal Hadith, which was widespread amongst both the Hanafis and Shafi'is.

* Ash-Shafi'i approached Usool Al-Fiqh from a theoretical point of view - He develops principles then applies it to Fiqh - and the other Imams did that as well - except for the Hanafis, who took an opposite approach - they looked at the body of rulings that had been transmitted from their Imams, and deduced their legal methodology from that.