Lessons in Usool and Fiqh

[boriqee]

Taa'rud (conflict of evidences)

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.

 

[boriqee]

Ijtihaad

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.

 

[boriqee]

Ikhtilaaf (Difference of Opinion)

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.