(Series of Answers by the Great Scholar Ata bin Khalil Abu al-Rashtah, Ameer of Hizb ut-Tahrir, to the questions of visitors to his Facebook page "Fiqhi")
To: Mohammed Ayyad
Questions:
Assalamu Alaikum wa Rahmatullahi wa Barakatuh,
Our honorable Sheikh, may Allah aid you and bring about good through your hands.
Subject: Questions regarding the Principles of Jurisprudence (Usul al-Fiqh)
To begin with, I hope I am not burdening you with these questions, especially since we know the scale of the burdens you carry and the responsibilities you have undertaken. May Allah help you, guide your steps, and delight our eyes and yours with the implementation of Allah's Shariah in the second Khilafah (Caliphate) State.
As for the questions, they are as follows:
I have read in various research papers that there are several methods used by the scholars of Usul (Usuliyyun), such as the method of the Mutakallimin (scholastic theologians), the method of the Fuqaha (jurists), comprehensive induction (al-istiqra' al-kulli), and the derivation of branch issues from principles (takhrij al-furu' 'ala al-usul)... What is the reality of these methods, and are we close to one of them, or do we have a unique color in our Usul?
It was mentioned in the book The Islamic Personality (Ash-Shakhsiya al-Islamiyyah), Volume III, page 11: "As for Fiqh, linguistically it means understanding, and from it is the saying of Allah the Exalted:
مَا نَفْقَهُ كَثِيرًا مِمَّا تَقُولُ
'We do not understand much of what you say.' (Quran 11:91)
In the terminology of the Shariah scholars, it is the knowledge of the practical Shariah rulings derived from detailed evidences. What is meant by the knowledge of rulings, regarding the one who knows them, is not mere acquaintance, but the acquisition of the aptitude (malakah) for Shariah rulings. That is, this knowledge and deep immersion in it reach a level where the person knowledgeable of these rulings possesses an aptitude for them. The mere acquisition of the aptitude is sufficient for the one who has acquired it to be considered a Faqih (jurist), even without encompassing all of them. However, it is necessary to have knowledge of a range of branch Shariah rulings through investigation and deduction." Does the term malakah (aptitude/faculty) have a linguistic or Shariah origin, or is it a term agreed upon by the Usuliyyun? Is it innate, born with the person, or acquired? Or does it have innate components but is attained through deep immersion and long practice, or something else?
In the same book, page 42, the maxim: "Whatever is necessary to complete a duty is itself a duty" was mentioned as a completion of the topic of the Wajib (obligatory). Then, on page 444, the topic of "Universal Maxims" (Al-Qawa'id al-Kulliyah) was mentioned, stating that they are not considered evidences but are Shariah rulings derived from detailed evidences. This confused me: are this maxim and the maxim "The means to the Haram (prohibited) is Haram" part of Usul (Principles) or part of Fiqh?
May Allah bless you and reward you with all good on behalf of us and the Muslims.
Answers:
Wa Alaikum Assalam wa Rahmatullahi wa Barakatuh,
Your message contains three questions, each independent of the other. We will answer them briefly, Allah willing:
Answer to the First Question:
It is well known that Imam ash-Shafi'i is the founder of the science of Usul al-Fiqh and was the first to dedicate a specific work to it. Thereafter, writings in the science of Usul followed... The scholars of Usul followed various patterns in writing their works, including the following:
The method of the Shafi’is or the method of the Mutakallimin: There were scholars who, in establishing the topics and rules of Usul, focused on the intellectual Usul aspect. That is, they did not look at the branch issues (furu') of the Madhab (school of thought) they followed; rather, they adopted the rules and parameters that they deemed correct based on the discussion of the evidences pointing to them. Therefore, their books were full of deductions and discussions regarding Usul topics but were scarce in branch issues...
This pattern of writing is characterized by the style of "if you say... we say" (al-fanqalah), following the method of the scholastic theologians (ulama al-kalam). It contains few branch issues. In reality, it is closer to the reality of establishing foundations, rules, and principles that serve as a basis upon which the branches follow. Thus, the principles (usul) govern the branches (furu'), and they are the pillar of Fiqh and deduction. This style kept people furthest away from fanaticism for a branch issue or a school-based ruling.
Among the books written in this method:
- Ar-Risala by Imam ash-Shafi'i was the first book in this method. Many books followed in its footsteps, the most important being:
- Al-Burhan by Imam al-Haramayn al-Juwayni (d. 478 AH).
- Al-Mustasfa by al-Ghazali (d. 505 AH).
- Al-Ihkam fi Usul al-Ahkam by al-Amidi (d. 631 AH).
The method of the Fuqaha or the Hanafis: There were scholars who, in establishing the topics and rules of Usul, observed what the branches of their school pointed toward. They did not research the rules and parameters in an abstract way to judge them after discussing the evidences; rather, they reached the rules and parameters by studying the branches of their school. They made the rules consistent with what the branches of the school said...
This method is influenced by the branches and aims to serve them and prove the validity of the Ijtihad (legal reasoning) within them. This method is distinguished by extracting the Usul rules from the branches and rulings established by the Imams of the Hanafi school, assuming that they observed these rules during their Ijtihad and deduction. The reason for resorting to this method was that the Hanafi scholars did not find books on Usul written by their Imams (unlike the Shafi'is who found Ar-Risala), so they searched for the Usul rules within the branch issues, considering that they must be based on a correct foundation.
Among the books written in this method:
- Kitab al-Usul by Imam al-Karkhi (d. 340 AH).
- Kitab al-Usul by al-Jassas (d. 370 AH).
- Kitab al-Usul by as-Sarakhsi (d. approx. 490 AH), who is also the author of Al-Mabsut in Fiqh.
The method of Synthesis between the Mutakallimin and the Fuqaha: In the seventh century AH, a third method began to appear that combined the two previous approaches. It mentions the Usul rule, establishes the evidence for it, compares what the Mutakallimin and the Fuqaha said while discussing and preferring one over the other, and then mentions some branch issues derived from it.
Among the most famous books written in this method:
- Jam' al-Jawami' by Taj ad-Din as-Subki (d. 771 AH).
- Al-Tahrir by Ibn al-Humam al-Hanafi (d. 861 AH).
The trend of Deriving Branches from Principles (Takhrij al-Furu' 'ala al-Usul): Alongside the previous trends, a fourth trend appeared. It mentions the Usul rule and the opinions of scholars regarding it without delving into the evidences of every school, then derives some branch issues from it, either based on a specific school or comparing two different schools—such as the Hanafis and Shafi’is, or the Shafi’is, Malikis, and Hanbalis, and so on.
Among the books written in this trend:
- Takhrij al-Furu' 'ala al-Usul by Imam az-Zanjani (d. 656 AH).
- Al-Tamheed fi Takhrij al-Furu' 'ala al-Usul by Imam al-Isnawi ash-Shafi'i (d. 772 AH).
The trend of building Usul rules upon the Objectives of the Shariah (Maqasid ash-Shariah): This method was adopted by Imam ash-Shatibi (d. 790 AH) in his famous book Al-Muwafaqat. Shatibi took a new path, mentioning Usul rules under specific chapters that include the objectives and various goals of Islamic Shariah, which involve preserving the necessities (daruriyyat), needs (hajiyyat), and embellishments (tahsiniyyat).
Imam ash-Shatibi relied heavily on comprehensive induction (al-istiqra' al-kulli). He stated in the introduction of Al-Muwafaqat that his book is: "relying on comprehensive inductions, not restricted to individual particulars." What is meant by comprehensive induction here is tracking the Shariah rulings on a single issue to arrive at a universal ruling for the issue being inducted.
As for the Party’s (Hizb) book on Usul al-Fiqh, "The Islamic Personality - Volume III," it focused on legislative Usul research as follows:
a) It was keen on attending to research related to the legislative aspects, away from purely theoretical aspects. It did not address issues that are not fundamental to Usul al-Fiqh or deduction, such as "Is thanking the Benefactor obligatory by Shariah or by intellect?" and the like. If it did address matters that do not belong to Usul in terms of deduction—such as the discussion on "Beauty and Ugliness" (Al-Hasan wal-Qubh) in the chapter of "The Legislator" (Al-Hakim)—it only did so because of the legislative benefit found in addressing such matters, as they illuminate the reality of things to facilitate ruling upon them. This is because the subject of this ruling is beauty and ugliness; the purpose of issuing a ruling is to determine a person's stance toward an action, and determining this stance depends on their view of the thing: is it beautiful or ugly? Therefore, it addressed this issue.
b) It did not dive deep into the logical analysis of the issues it addressed, nor did it branch out into useless sub-topics. Rather, it restricted itself to legislative research and disciplined legislative deductions.
c) It relied on clear and understandable legislative, linguistic, and rational deductions, away from polemics, in a style that is easy to understand and leads to a complete legislative grasp of the researched issue.
d) It mentioned a sufficient amount of branch Fiqh issues to provide examples for the topics it covered, unlike some other books that rarely mention branch issues. This was done to clarify the researched matters and explain their legislative reality. Nevertheless, it did not expand in the method of deriving branches from principles as in the method of the Fuqaha, because the primary purpose of Usul research is to establish the Usul rules and parameters, not to list branch issues. Thus, the Party's book on Usul al-Fiqh was a middle ground—a balanced approach in this matter.
For all the above, "The Islamic Personality - Volume III" is considered one of the finest books on Usul al-Fiqh. Whoever is granted success in studying and understanding it will have entered Ijtihad through its widest doors, Allah willing.
Answer to the Second Question:
Regarding what is meant by the word malakah (aptitude/faculty) mentioned in The Islamic Personality - Volume III:
"(... As for Fiqh, linguistically it means understanding, and from it is the saying of Allah the Exalted: 'We do not understand much of what you say.' In the terminology of the Shariah scholars, it is the knowledge of the practical Shariah rulings derived from detailed evidences. What is meant by the knowledge of rulings, regarding the one who knows them, is not mere acquaintance, but the acquisition of the aptitude (malakah) for Shariah rulings... The mere acquisition of the aptitude is sufficient for the one who has acquired it to be considered a Faqih... However, it is necessary to have knowledge of a range of branch Shariah rulings through investigation and deduction...)" [End quote].
The Al-Qamus al-Muhit states: (Malakah: Possession, having control over something to the point of being independent with it.)
The Al-Mu’jam al-Waseet states: ("The Malakah is a deeply rooted quality in the soul or a specific mental readiness to perform certain tasks with skill and proficiency, such as the numerical aptitude or linguistic aptitude.")
The book Al-Ta’rifat mentions: (Al-Malakah: It is a deeply rooted quality in the soul. Its realization is that the soul acquires a form due to an action from among actions. That form is called a 'psychological quality.' It is called a 'state' as long as it is quick to vanish. If it is repeated and the soul practices it until that quality becomes rooted and slow to vanish, it becomes a malakah.)
Accordingly, the word malakah has a linguistic origin, taken from the root m-l-k (to possess). It also has a technical meaning as explained above. This terminology is not exclusive to the Usuliyyun but is used in all sciences. This technical meaning is what is intended in The Islamic Personality. The explanation is as follows:
The text in The Islamic Personality defined Fiqh as the "knowledge of practical Shariah rulings," then explained that it is not enough for a person to simply know some Shariah rulings to be a Faqih, because in that case, they would be a Muqallid (follower), as a Muqallid is not void of knowing some rulings. Likewise, it is not required for them to know all rulings to be considered a Faqih, as that is not within the capacity of any human. Rather, they should be well-versed in a range of Shariah rulings, knowing them, their evidences, and the method of deduction. At the same time, through their study and deep immersion in Fiqh, they develop the ability to reach knowledge of rulings they do not yet know. This is the malakah; that is, they must reach a level of knowledge that makes them a master of Fiqh, its issues, and its keys, such that it becomes a deeply rooted quality in them.
The malakah in Fiqh does not refer to the innate aspect or the natural readiness that varies from one person to another. Rather, it refers to the malakah acquired through learning, study, deep immersion, and practice. While innate readiness can contribute to the generation and rapid development of the Fiqh aptitude, this innate readiness is not the malakah intended in the text mentioned above.
Answer to the Third Question:
The Universal Shariah Maxim (Al-Qa’idah ash-Shar’iyyah al-Kulliyah) is that in which the ruling is attributed to a universal matter that applies to many particulars. For example, the ruling of obligation in the maxim "Whatever is necessary to complete a duty is itself a duty" is related to a universal matter, which is "whatever is necessary to complete a duty." Similarly, the ruling of prohibition in the maxim "The means to the Haram is Haram" is related to a universal matter, which is "the means to the Haram." This universal matter applies to multiple particulars in various chapters of Fiqh.
The Universal Maxims are Shariah rulings in terms of deduction. They are derived from the Shariah text just like any other Shariah ruling, whether from a single evidence or several. However, the evidence for them contains a meaning that acts as a cause (al-illah). This is what makes it applicable to all its particulars. For example, the maxims "The means to the Haram is Haram" and "Whatever is necessary to complete a duty is itself a duty" are both universal maxims. If one looks at their evidences, it becomes clear that the evidence points to the ruling and also points to something else arranged upon it or resulting from it, thus appearing to act as a cause (illah).
For example, the saying of Allah the Exalted:
وَلَا تَسُبُّوا الَّذِينَ يَدْعُونَ مِن دُونِ اللَّهِ فَيَسُبُّوا اللَّهَ عَدْوًا بِغَيْرِ عِلْمٍ
"And do not insult those they invoke other than Allah, lest they insult Allah in enmity without knowledge." (Quran 6:108)
The letter Fa (so/then) in "lest they insult" (fa-yasubbu) indicates that your insulting of their idols leads to them insulting Allah, and this is Haram. Consequently, your insulting of their idols in this case is Haram, as if it were the cause (illah). The prohibition of insulting those who disbelieve is the evidence for the ruling. Along with its indication of the ruling, it indicated something else arranged upon it when He said: "lest they insult Allah." From this verse, the maxim "The means to the Haram is Haram" was derived.
Another example is the saying of Allah the Exalted:
فَاغْسِلُوا وُجُوهَكُمْ وَأَيْدِيَكُمْ إِلَى الْمَرَافِقِ
"wash your faces and your arms to the elbows" (Quran 5:6)
And:
ثُمَّ أَتِمُّوا الصِّيَامَ إِلَى اللَّيْلِ
"Then complete the fast until the night." (Quran 2:187)
The word "to/until" (ila) in "to the elbows" and "until the night" indicates that unless a part of the elbow is washed, the washing of the arm to the elbow is not complete. The goal must be realized. Unless a part of the night enters—even if only a minute—the completion of the fast is not realized. Thus, washing a part of the elbows (no matter how small) and fasting a part of the night (no matter how small) became obligatory by the indication of the two verses; because what He made obligatory—washing the arms and fasting the day—cannot be completed except by doing so. Thus, this objective made that which completes the washing of the arms and the fasting of the day—which is obligatory—itself obligatory, as if it were the cause (illah). The verse indicated the ruling and indicated something else completing it. From these two verses, the maxim "Whatever is necessary to complete a duty is itself a duty" was derived.
As you can see, the deduction of a universal maxim is accompanied by what resembles a cause or acts as a cause; therefore, it is as if it were an evidence. Because of this, these two maxims and their like are, as we mentioned earlier, Shariah rulings. However, these rulings are not detailed rulings; rather, they are rules used to deduce Shariah rulings. Because their method of deduction involves what resembles a cause or acts as a cause, deducing a ruling from the maxim takes the form of deducing from evidence due to its inclusion of what resembles a cause. This deduction differs from deducing a ruling from another Shariah ruling; the latter does not take the form of deducing from evidence, but rather the form of application, where the applicability of the ruling to the reality is observed.
Given this reality in the method of deduction, universal maxims are closer to being part of the research of Usul al-Fiqh than the research of detailed Fiqh. Therefore, they were discussed in the issues of Usul al-Fiqh and were researched in "The Islamic Personality - Volume III" in a special section under the title "Universal Maxims," just as some universal maxims were addressed in the book with explanation and clarification.
Your brother, Ata bin Khalil Abu al-Rashtah
16 Dhu al-Qi'dah 1438 AH Corresponding to 08/08/2017 CE
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