Maslahah literally means benefit or interest. When qualified as Maslahah Mursalah it refers to unrestricted public interest. Maslahah Mursalah is synonymous with Istislah which is also called Maslahah Mutlaqah.

Al Ghazali thinks Maslahah consists of considerations which secure a benefit or prevent a harm. Protection of life, religion, intellect, lineage and property is Maslahah.

On the basis of Maslahah, the companions decided to issue currency, to establish prisons and impose Kharaj (agricultural land tax). The Ulama of Usul are in agreement that Istislah is not a proof in respect of devotional matters (Ibadah) and in respect of specific Shariah injunctions like shares of inheritance. The majority of Ulama maintain that Istislah is a proper ground for legislation.

Al-Shatibi points out that this is the purpose of Quranic Ayat No. 107 of sura Al Anbiya that "We have not sent you but as a mercy for all creatures". There is support for Maslahah in the Quran in Sura Younus (10:7), in Sura Hajj (22:78) and in Sura Al-Maidah (5:6).

The Ulama have quoted a number of Hadith in support, such as the following :

"The Prophet only chose the easier of two alternatives so long as it did not amount to a sin".

"Allah loves to see that His concessions (rukksah) are observed, just as He loves to see that His strict laws (azaa-im) are observed".

The above would confirm that no unnecessary rigour is recommended in the enforcement of Ahkam and that the Muslims should avail of the flexibility and concessions of Shariah.

All the Khulafa-I-Rashidun acted in pursuance of Maslahah. Abu Bakr compiled the Quran. Umar held his officials responsible for abuse of public office. Uthman distributed the authenticated copy of the Quran and destroyed the copies of variant texts. Ali held the craftsmen and traders responsible for the loss of goods that were placed in their custody.

Maslahah has been upheld by the majority of Ulama. However, strong support for it comes from Imam Malik. Maslahah has been divided into three types by Shatibi and some other scholars -

essentials [daruriyyat],
the complementary [hajjiyat] and
beautifications [tahsiniyaat].

From the point of view of availability or otherwise of textual authority, Maslahah has been further sub-divided into the following :

al-Maslahah al-Mutabarah [accredited Maslahah] which has been upheld in the Shariah such as defending the right ownership by penalizing the thief.

Maslahah Mursalah is that which has neither been upheld nor nullified by the Shariah such as provision in law in many Muslim countries for documentary evidence to prove marriage or ownership of property.

Maslahah Mulgha which has been nullified either explicitly or by indications in Shariah.
To validate Maslahah the following conditions have to be met :

Maslahah must be genuine,
Maslahah must be general (Kulliyah) - that is it secures Maslahah for all.
it must not be in conflict with clear Nass.

As regards relation among Qiyas,- Istihsan and Istislah, - it may be stated that Qiyas and Istihsan are essentially based on Illah in the Nasus (hidden or obvious).

Law is expanded by Qiyas or Istihsan on the basis of Illah of Nasus. But when law can not be made on the basis of Nasus or through Qiyas and Istihsan, law is made on the basis of Maslahah or public interest.

Urf (custom) is defined in Usul as "recurring practices which are acceptable to people of sound nature. Urf and its derivative Ma'ruf both occur in the Quran, mostly in the sense of "good" (as opposed to "bad or evil") adehrence to Allah's injunctions, (The Quran - 3:110; 7:199).

However, "Urf" has been used in the sense of custom also in some places in the Quran (Ref. 2:233 with regard to maintenance of children).

The Shariah, therefore, has in principle approved custom in determination of rules regarding 'halal' and 'haram'. Fuqaha also adopted Urf in the determination of the Ahkam of Shariah. The rules of Fiqh which are based on juristic opinion (raay) or Ijtihad have often been formulated in the light of prevailing custom. It is therefore permissible to depart from them if the custom on which they were founded changes in the course of time.

A rule propounded by some Fuqaha (Suyuti and Sarakhsi) is that "what is proven by Urf is alike that proven by Shariah." This was adopted by Turkish Khilafat in Al-Majallah. However, this rule is applicable in the case of Urf of the Muslim nations and when the Urf is not in conflict with the rules, essence and spirit of Shariah. Urf of non-Muslim societies must be very carefully examined.

Customs which were prevalent in Arabia in the lifetime of the Prophet (SM) and which were not over-ruled by the Prophet (SM) are treated to have received his tacit approval and considered as a part of Sunnah taqririyyah. An example of this is payment of Diat (compensation for murder) to the family of murdered by "Aqilah" (male kinsmen of the murderer - female relations have no obligatory liability in this regard, they can, however pay, if they want), where payment of Diat has been agreed upon.

The following are the conditions of Urf :

- It must be common and recurrent.
- Urf must be in practice at the time of transaction, i.e. past Urf is no basis.
- Custom or Urf must not violate the nass or clear stipulation of the Quran and the Sunnah.
- Custom must not contravene the terms of a valid agreement (valid according to Shariah)


There is difference between Urf and Ijma. Urf is essentially a local or national practice whereas Ijma is on agreement of Ulama across places and countries. There are other differences which are not substantial in character.

Urf has been sub-divided into Qawli (verbal) and Fili (actual). Verbal Urf consists of agreement of people on the meaning of words. As a result the customary meaning becomes dominant meaning and literal meaning is reduced to the status of an exception. Actual Urf is the practiced the people.

Urf Qawli and Urf Fi'li are both sub-divided into two further types :

Al-Urf-al amm or practice of all people everywhere (such Urf is almost non-existent).
Al-Urf-al Khass is the practice of a particular country or locality or some places.

This is the Urf with which Usul is mostly concerned.
Urf has also been classified as Urf al Sahih (valid Urf - valid according to the Quran and the Sunnah) and Urf-al-Fasid (disapproved Urf, not valid according to the Quran and the Sunnah).

Istishab: Istishab literary means courtship or companionship. In Usul-al-Fiqh, Istishab means presumption of existence or non-existence of facts. It can be used in the absence of other proofs (dalil).

It has been validated by a large member of scholars, though not all. In its positive sense, Istishab presumes continuation of a fact (marriage or a transfer of ownership) till the contrary is proved. However, the continuation of a fact would not be proved, if the contract is of temporary nature (for instance, Ijara or lease). Istishab also presumes continuation of negative.

Because of its basis in probability, Istishab is not a strong ground for deduction of the rules of Shariah. Hence when it comes in conflict with another proof (dalil) the latter takes priority.

Istishab is of four types :

Presumption of original absence (Istishab al-adam al-asli) which means that a fact or rule which had not existed in the past is presumed to be non-existent.

Presumption of original presence (Istishab al-wujud al-asli). This means that the presence of that which is indicated by law or reason is taken for granted. For instance, a husband is liable to pay "Mohr" by virtue of existence of a valid marriage.

Istishab al-hukm which presumes the continuity of general rules and principles of law. For instance when there is a ruling in the law (whether prohibitory or permissive), it willl be presumed to continue.

Istishab al-wasf (continuity of attribute) means to presume continuity of an attribute until the contrary is established (for instance, clean water will be continued, to be treated as clean water).

The Ulama of Usul are in general agreement on the first three types of Istishab. There is more disagreement on the fourth.

Some important legal maxims (QAWA'ID) have been founded on Istishab, such as :

Certainty can not be disproved by doubt (Al-Yaqin la Yazul bil Shakk)

Presumption of original freedom from liability (bara'ah al-dhimmah al-asliyyah).

Soon we shall discuss the Qawa'id insha Allah.

Dharai (means) is the plural of Dhariah which signify means. Sadd means to block. In Usul, it means blocking the means to evil.

Sadd al Dharai is often used when a lawful means is expected to produce an unlawful result.

The concept of Sadd al-Dharai is founded on the idea of prevention of evil before it materializes. There are examples of Sadd al-Dharai in the Quran (for instance, 6:108; 2:104).

The means must conform to the ends (objectives of Shariah) and ends must prevail over the means. If the means violate the purpose of Shariah, these must be blocked. The purpose (Maqasid) of Shariah are identifiable from the texts.

A general principle has been adopted by jurists that 'preventing harm takes priority over securing a benefit'.

As such means, if they lead to evil, these must be rejected. Authority for Sadd al-Darai is also found in Sunnah. Prophet forbade a creditor to take a gift from debtor (as it could lead to taking of interest). He also forbade killing of hypocrites (as it could lead to dissention within community, also lead to wrongful killing on suspicion).

Imam Shatibi is of the opinion that most Ulama have accepted it in principle, they differ only in application.

Dharai have been divided into the following four types from the point of view of their probability of leading to evil ends :

- Means which definitely lead to evil. Such means are totally forbidden.

- Means which most likely to lead to evil and rarely leads to benefit. Examples of this are selling weapons during war time and selling grapes to a wine-maker. Most Ulama have invalidated such means.

- Means which frequently lead to evil, but there is no certainty or even dominant probability. Ulama differ widely on the illegality of such means.

- Means which rarely lead to evil. Examples are digging well in a place which is not likely to cause harm or speaking a word of truth to a tyrannical ruler. Ulama have ruled in favour of permissibility of these means.

"Hukm Sharii is the communication from the lawgiver (Allah and the Prophet on the authority of Allah) concerning the conduct of the Mukallaf (on whom law is applicable, that is, a sane and adult person) which may be in the form of a demand or an option or only as an enactment. "

When the communication is made in the form of a demand or option, the Hukm is called "Al-Hukm al-taklifi (defining law).

If the communication is made in the form of an enactment only, it is called al-Hukm al Wadi (declaratory law)

The pillars of Hukm Shari are

- Hakim or lawgiver,
- Mahkum Fih or subject matter,
- Mahkum Alayh, i.e. on whom law is applied.

The source of all law in Islam is ultimately Allah (6:57; 5:45). Mahkum Fih denotes the acts, obligations of the Mukallaf which may be in the form of Wajib, Mandub or Mubah. Mahkum Alaih deals with the legal capacity of the individuals or bear the rights and obligations imposed by Shariah.

A person acquires active legal capacity when he attains a certain level of intellectual maturity and competence. Active legal capacity is only partial in case of a child (because of age) and in case of a person in death bed.

Hukm Sharii has also been classified into:

haqq-al-Allah and Haqq-al-Ibad

Haqq-al-Allah or the rights of Allah is so called not because Allah benefits from them but because these are beneficial for the community at large.

In other words these are public rights. Worship, Hadud, Uqubah (minor punishments), Kaffarah, Jihad,etc. are within rights of Allah.

Al-Hukm at- taklifi (defining law)

Al-Hukm at- taklifi (defining law) may be in the form of Fard, Wajib, Mandub, Mubah, Makruh and Haram.

According to majority, Fard and wajib are synonymous. If there is a binding demand from the lawgiver to do something, it is wajib.

However, the Hanafi's consider the demand Fard when both text and the meaning are definitive (qati) and wajib when either the text or meaning is speculative (Dhanni - because liable to interpretation of meaning or investigation of authenticity).

Difference between Fard and Wajib has important consequences. Denial in practice and belief of binding nature of a command established by definitive proof (Fard by Qati evidence) leads to unbelief. However, denial of Wajib (according to Hanafi's) or 2nd category of Fard (according to the majority) lead to transgression (Fisq).

The Hanafi's also hold that the omission of a Fard results in the negation of any action that is built upon it. While omitting a wajib will cause the built upon action to remain valid. For example: If you miss standing at Araafah during Hajj then your hajj is invalid completely and totally even if you did all the other rituals since the standing of Arafaah is Fard. On the other hand, according to the Hanafi scholars, if you miss the Sa'y (running between Safa and Marwa) - which is wajib - then your hajj may still be accepted.

As well the Shafi scholars declare that a persons prayer is invalid if they do not recite the Fatiha. The Hanafis believe that the prayer would still be acceptec since it is only wajib.

There are many other examples.

Wajib has (and Fard) been classified into the following :

Wajib ayni (personal obligation of all Mukallaf) and

Wajib Kafai (collective obligation, performance of some of the community would suffice).

Wazjb Muwaqqat (Wazib contingent on time-limit such as Salah and Siam) and

Wajib Mutlaq (absolute wajib which is free from time limit - such as Hajj).
Wajib Muhaddad (quantified Wajib, such as Zakah and Salah)

and Wajib Ghair Muhaddad (unquantified Wajib such as charity to poor, paying Mahr to wife).

A consequence of distinction between quantified wajib and unquantified wajib is that quantified wajib becomes a liability on the person who has not paid it in proper time.

Mandub (recommended)

Denotes a demand not binding on the Mukallaf. Compliance earns spiritual reward but no punishment is inflicted for failure. This is the difference between Wajib and Mandub.

Examples of Mandub are creation of charitable endowment (Waqf) giving alms to the poor and attending to sick. Mandub is also called Sunnah, Nafl and Mustahab.

Sunnah (Mandub) has been clasified into:

(a) emphatic sunnah (Sunnah-al Muakkadah (examples are adhan, attending congregational prayer) and

(b) Supererogatory Sunnah (Sunnah Ghair al-Muakkadah).

Examples are Nafl prayers and non-obligatory charity. Neglect of sunnah al-Muakkadah is blameworthy but not punishable. Neglect of Sunnah Gair al-Muakkadah is neither blameworthy nor punishable. Examples of Mandub in the Quran can be seen in verses 2:282, 24:3.

Haram (also known Mahzur) is a binding demand of lawgiver to abandon something. The level of proof required to establish prohibition is the same as Fard (as explained by early Hanafi Ulama) and of Wajib (as explained by the majority Ulama of Usul).

The texual evidence for Haram may occur in various forms such as :

It may start with "Hurrimat alaykum" (forbidden to you). [Quran - 5:3].
It may be conveyed in negative terms such as "la taqtulu" (do not kill), "la takulu (do not eat or take). [Quran - 5:90; 2:188].

It may be in the form of a command to avoid (Quran - 5:90, to avoid wine-drinking and gambling).

It may be stated that it is not permissible (La yahilla lakum, Quran - 4:19)

Prohibition may be proved by punishment provided for a conduct (Quran - verses on hadd penalties and also verses mentioning punishment of fire in the hereafter.

Prohibition has also been classified into :

a) haram li-dhatih (which is forbidden for its own sake such as wine, gambling) and

b) haram li Ghayrih (which is forbidden for an external reason such as, marrying a woman only to make her legal for another man. (tahlil).

Makruh is opposite of Mandub. It is preferable to omit it than to commit it. Committing Makruh is not liable to punishment or moral blame. This is the majority view. Hanafi's divide Makruh into :

Tanzihi and Tahrimi

According to Hanafis the commitment of Makruh Tahrimi entails moral blame but not punishment. There are traditions (Hadith) in which the word Kariha or its derivative has occurred. These are the textual basis for Makruh.

Mubah (also termed halal and Jaiz) is a communication of the lawgiver which gives option to the Mukallaf (The Quran - 5:6; 2:235, 2:173). The Ulama of Usul include "Mubah" under Hukm Shari although including it under al-Hukm al-Taklifi is on the basis of probability as there is basically no liability.

Al-Hukm al-wadi (declaratory law)

Al-Hukm al-wadi (declaratory law) enacts something as a cause (sabab), a condition (shart) or a hindrance (Mani') to the defining law.

An explicit example is the hadith which says "there is no "nikah" without two witnesses. Thus the presence of witnesses has been made a condition of a valid marriage.

Another example is the hadith, "there shall be no bequest to an heir" which enacts a hindrance (ma'ni) to bequest (wasiah).

Declaratory law is divided into

cause,
condition,
hindrance,
Azimah, and
Rukhsha.

Azimah is the law as the lawgiver had intended in the first place without any softening for any reason (example : all Ibadah in normal circumstances). A law is a Rukhsah when the law embodies the exception to take care of difficulties (example is granting concession to traveller to break fast).

Rukhsah may occur:

- in the form of permitting a prohibited thing on the ground of necessity,

- omitting a Wazib when conformity to wazib causes hardship (example is the provision for traveller to shorten salah or not to observe fast during Ramadan)

- and in the form of validating contracts which would normally be disallowed (for example, advance sale [salam] and order for the manufacture of goods [Istisnah], though the goods are non-existent).

There is another kind of Shariah values called Sahih (valid), Fasid (irregular) and Batil (void).

The classification is made on the basis of compliance with essential requirements (ahkam) and conditions (shurut) of Ahkam. When all these are fulfilled, the act is valid or sahih. If these are not fulfilled, the act is void or Batil.

The Ulama are in agreement that Ibadah can only be sahih or batil. In the matter of transactions also, the majority hold the same view. However, the Hanafis have validated an intermediate category in transactions called Fasid (irregular, not Batil) when there is some deficiency in the Shart (condition). If the deficiency is made up, it becomes Sahih.

Taa'rud means conflict. In Usul al Fiqh, Taarud means that two evidence of Shariah are of equal strength and they seem in opposion of each other. A conflict is thus not expected to occur if the two evidences are of unequal strength, because the stronger evidence will prevail. For this reason, there will be no conflict between a Qati and Zanni proof.

If, however, the opposite is required by 2 Quranic Ayat or by a Quranic Ayat and a Mutawatir Hadith (these two are considered equal in authenticity as explained earlier in the discussion) or by two Ahad Hadith (difference of opinion in this), then, there is a conflict.

Conflict can only arise, if the rulings of the two evidence can not be reconciled. This means that the subject matter of one can not be distinguished from the other or the time sequence of them can not be distinguished (that is it can not be ascertained which one is the latter).

A genuine conflict can hardly arise between Qati proofs. All such conflicts are apparent rather then real. Such apparent conflicts can be resolved by

reconciliation,
by specification or
by giving preference of one over the other.

A conflict between Nasus (texts of the Quran and the Sunnah) and Ijma is inconceivable as Ijma can not violate Nass.

A Mujtahid must therefore, try to reconcile the apparent conflict in which case both the evidence will be applicable in different sets of circumstances. If this is not possible, he will try to prefer one over the other, thus at least one evidence will be kept. If this is not possible, then, he would see the time sequence and apply the principle of abrogation.

In this way the later evidence will be retained and the earlier one in time will stand abrogated.

(However such cases are very few. Please see Naskh discussed earlier).

If this is also not possible, both the evidences will be abandoned. When two evidence in conflict are Amm (general), one may try to distinguish the subject matter of application (for instance one may be applicable to adult and the other to the minor or one may be applicable to married people and the other to unmarried people.) If one evidence is Amm and the other Khass, the solution is Takhsis al Amm (specification of a part of Amm).

As regards, cases where both the rulings can not be retained because of apparent conflict, the following rules of preference should be applied :

Clear texts will be preferred over unclear texts
Sarih will be preferred over Kinayah, Haqiqi over Majaji and so on.

Mutawatir Hadith will be preferred over Mashhur and Mashhur will be preferred over Ahad.

Hadith transmitted by Faqih or leading companions are preferred over others.

Another rule of preference is that affirmative rule takes priority over negative.

Similarly prohibition takes priority over permissibility.

If attempts at reconciliation or preference fail, then resort should be taken to abrogation (Naskh).

Rules or view points on Naskh may be seen in earlier discussion.

In the case of conflict of two Qiyas, if the two can not be reconciled, one may be given preference.

Ijtihad has been derived from the root word Jahada. Ijtihad literally means striving or self-exertion. Ijtihad consists of intellectual exertion. Ijtihad is a very broad source of Islamic law and comes after the Quran and the Sunnah.

The Quran and the Sunnah were completed at the time of death of the Prophet. Ijtihad, however, continues and this is the source or methodology which gives Islamic law, its adaptability to new situations and capacity to tackle all new issues and problems. Propriety or justification of Ijtihad is measured by its harmony with the Quran and the Sunnah.

The sources of Islamic law other than the Quran and the Sunnah are essentially manifestations of Ijtihad. When clear rule is available in the text (Nass) of the Quran and the Sunnah, Ijtihad is not applicable. The findings of Ijtihad are essentially Zanni in character. The subject matter of Ijtihad is the practical rules of Shariah not covered by Nasus. Ijtihad is a duty of the scholars. If the issue is urgent, Ijtihad is compulsory on each competent scholar. (Fard al Ayn or Wajib al Ayn). If the issue is not urgent, it is a collective obligation (Fard al Kafai or Wajib al Kafai).

A scholar is supposed to avoid Taqlid (blind following of another scholar). Taqlid is permissible only for a layman. Ibn Hazm believes Taqlid is not permissible for any one.

Ijtihad is validated by the Quran and the Sunnah and the practice of the Sahabas. The Quran - 59:2; 9:122; 29:69; 4:59 have been quoted in support of Ijtihad. These Ayats are Zahir in nature ( i.e. liable to interpretation and as such only give rise to probability).

Several hadith are quoted in support of Ijtihad. Of them, is the Hadith in which the Prophet (SM) said that the Mujtahid will get two rewards if he is corrrect and one reward if he commits a mistake (Abu Dawood).

Requirements of Ijtihad have been laid down by some scholars. Nothing has been mentioned in this regard in the Quran and the Sunnah. Abul Hasan al Basri, laid down for the first time the qualifications of a Mujtahid in the 5th century Hijra which was later accepted by Gazali and Amidi. It is true that Ijtihad is the function of the competent schoars. The following are the requirements :

(a) mastery of the Arabic language, to minimise the possibility of misinterpreting Revelation on purely linguistic grounds;
(b) a profound knowledge of the Quran and Sunnah and the circumstances surrounding the revelation of each verse and hadith, together with a full knowledge of the Quranic and hadith commentaries, and a control of all the interpretative techniques discussed above;

(c) knowledge of the specialised disciplines of hadith, such as the assessment of narrators and of the matn [text];

(d) knowledge of the views of the Companions, Followers and the great imams, and of the positions and reasoning expounded in the textbooks of fiqh, combined with the knowledge of cases where a consensus (ijma) has been reached;

(e) knowledge of the science of juridical analogy (qiyas), its types and conditions;

(f) knowledge of ones own society and of public interest (maslahah);

(g) knowing the general objectives (maqasid) of the Shariah;

(h) a high degree of intelligence and personal piety, combined with the Islamic virtues of compassion, courtesy, and modesty.


Procedure of Ijtihad is that the Mujtahid must first look at the Quran and the Sunnah. Only if solution is not found there, he may resort to Ijtihad. Rules of Ijtihad by way of Qiyas, Istihsan, Istislah have already been discussed previously.

The majority hold that Ijtihad is liable to error. The minority hold that each of the several verdicts may be regarded as truth on their merit. (Shawkani, Irshad).

Mujtahids have been classified in various ways by some scholars according to their understanding.

The basic classification can be as follows :

1) Mujtahidun fil-Shar' - Mujtahid in issues of Shari'ah is the one who fulfilled in entirety all of the previously mentioned conditions as is attested to by the people of knowledge of his or her time. Such an individual is NOT permitted to follow a madh-hab.
Examples are: Ibrahim al-Nakha'i, Sufyan ath-Thawri, Al-Awza'i, al-Layth bin Sa'd, Ibn Rahawayah and others.

2) Mujtahidun fil-Madh-hab - Scholar who is qualified to differ with the opinions put forward within his madh-hab of study. Examples are Ibn 'Abdul Barr for the Malikis, Nawawi for Shafiis, Ibn Abdin for Hanafis, and Ibn Qudama for Hanbalis. These scholars are followers of the usul of their Madh-hab but have used their knowledge and understanding and judgment in deriving new verdicts within the madh-hab.

3) Mujtahidun fil-Masaail - Mujtahid in Particular issues. They remain within their madh-hab of study but are able to make ijtihad on certain aspects within the madh-hab that they are knowing of.

Some scholars were against Ijtihad after the first few centuries. This view has now been rejected. Shawkani said that this view is to be utterly rejected.

Difference of Opinion is of two types:

1- Differing in the Usool (Roots and Principles of Faith and Belief)

2- Differing in the Furoo' (Subsidiary branches of Jurisprudence)

To Disagree in matters of Usool is unacceptable and haram. As such you see the importance of the refutations of those who oppose the Aqeedah of Ahlis-Sunnah.

To disagree in matters of Furoo' is acceptable and there is no blame upon the scholar.

Disagreeing in matters of interpretation is common and was common even with the Sahaabah due to many reasons...some of which are:

1- Not knowing the daleel.
2- Not understanding the daleel
3- The daleel can be interpreted in more than one way
4- Forgetfulness
5- Applying the daleel in an improper context

many many more.

The reason I collected the numerous articles and chapters on USOOL of FIQH was to show the methodology employed in deriving rulings.

It is important to note that each of the main schools of thought have their own set of principles that govern their extraction and derivation of rulings from the daleel.

The KEY is knowing that the root principles are extracted all from the SAME daleel.

As such the positions are all correct if in accordance to the usool and are extracted from the Quran, Sunnah, Ijma' and Qiyas.

At times there is a Rajih (most correct) position within a school or outside the school of thought.