A Primer On Islamic Legal Theory (Uṣūl Al-Fiqh)

Getting The Ball Rolling 

At some point after the Prophet’s ﷺ death, the Companions were confronted by a controversial legal question: What is the waiting period (‘idda) for a woman that is widowed during her pregnancy?[1] This legal question that yielded divergent views arose as a result of two separate Quranic verses addressing the issue and which – on a literal reading – seem to offer two different answers. A verse in Surat Al-Baqarah stipulated that the waiting period for a widowed woman is four months and ten days.[2] This verse did not specify whether the widowed woman was pregnant or not; it simply stated a widowed woman is to observe a waiting period of four months and ten days. Another verse, in Surat Al-Ṭalāq, specifically stated that a pregnant woman is to observe a waiting period until she gives birth.[3] Some Companions, such Ibn ‘Abbās and ‘Alī Ibn Abī Ṭālib, in order to give effect to both verses, were of the view that the waiting period is the longer of the two timespans. Others, such as ‘Abdullah Ibn Mas‘ūd[4], ‘Umar Ibn Al-Khaṭṭāb, and Abu Hurayra, were of the view that a woman who is widowed during her pregnancy simply observes the waiting period stipulated in the second verse: i.e., the waiting period ends when she gives birth. 

Ibn Mas‘ūd, in support of his legal opinion, stated: “If anyone wishes [to challenge me], I will challenge him with the fact that the verse in [Surat Al-Ṭalāq] was revealed after the verse [in Surat Al-Baqara].“[5] In other words, Ibn Mas‘ūd built his opinion on the basis that the later verse created an exception or partially abrogated the earlier verse. This proposition – that a later verse may particularize or partially abrogate an earlier verse – is precisely the type of matter with which the field of Uṣūl Al-Fiqh is concerned. An Uṣūlī scholar is not concerned with the waiting period for a woman who is widowed during her pregnancy. Rather, he (or she) is concerned with determining the correct methodology and principles that he (or she) may use in order to discover the answer to a legal question, such as the question of the waiting period for a pregnant widowed woman. 

All of this may not make much sense at this point. This is natural. The point of the above is to get the ball rolling and to get you to start thinking about the types of questions that Uṣūl Al-Fiqh aims to answer, as opposed to Fiqh. Hopefully, the more detailed explanation below will offer more clarity. 

The Object of The Study of Uṣūl
  1. The Sources of the Law 

The best way to understand the object of the study of Uṣūl is to imagine yourself in the position of a scholar who is tasked with finding answers to legal questions. Before you embark on finding answers to legal questions, there are a number of preliminary matters you must determine. Firstly, you must determine the sources upon which you will rely to find answers to the legal questions. In other words, what is a legitimate source upon which a scholar may rely in order to discover God’s law on a question? This is a question that has been given significant attention by scholars. Imām Abū Ḥanīfah (d. 150 AH), for example, clearly stated that he relied on the Quran, Sunnah, the consensus of the Companions, any of the many opinions of the Companions if they differed, and on analogical reasoning (in that order).[6]

Imām Al-Shāfi‘ī (d. 204 AH), however, was the first to direct his mind and dedicate a written work to the question of what constitutes a legitimate source of law. He famously argued with strength that any legal ruling must be rooted in text (naṣṣ) – i.e., Quran or Sunnah – either directly or indirectly. He thus concluded that there are four sources of law: Quran, Sunnah, consensus (ijmā‘), and analogy (qiyās).[7] Imām Al-Shāfi‘ī also dedicated a good amount of ink to delegitimizing other sources used by other schools such as istiḥsān (juristic discretion).[8] Scholars of Uṣūl have since debated what constitutes a legitimate source of legal rulings with agreement being achieved on some sources (e.g., the aforementioned four sources) while disagreement persisted in relation to other sources such as istiḥsān, ‘amal ahl al-madīnah (the practice of the people of Madina), al-maṣlaḥah al-mursalah (the unattested benefit), sadd al-tharā’i‘ (blocking the means), and ‘urf (custom).[9]

All this is to say that one of the main questions an Uṣūlī scholar is concerned with is determining the legitimate sources of the law. As such, part of the definition of the field of Uṣūl Al-Fiqh is: “General knowledge of the indicants of Fiqh,” (ma‘rifat dalā’il al-fiqh ijmālan).[10] Notice that the definition states that the field of Uṣūl Al-Fiqh involves general knowledge of the indicants of Fiqh. In other words, the field is not concerned with specific knowledge. Put another way, it is not concerned with which verse or which ḥadīth establishes which legal ruling. That is the domain of Fiqh. Rather, Uṣūl Al-Fiqh is concerned, in the general sense, with what is a valid source of law. 

  1. How to Interact with These Sources 

Once again, imagine you are a scholar seeking to find answers to legal questions. You have already settled on the sources of the law. However, now you have to settle on a methodology for interacting with those sources. Let us go back to the example of the woman who is widowed during her pregnancy. We have seen that Ibn Mas‘ūd had a methodology that involved the principle that a later text may particularize or partially abrogate an earlier text. This principle is but one example of the many principles which, collectively, constitute the scholar’s methodology in interpreting the specific provisions found in the sources of the law. 

Each master jurist (mujtahid) has his own methodology for extracting legal rulings from the sources of the law. To the extent that such jurists differ in their methodology, they differ in the legal rulings that they reach. As mentioned above, the methodology of each scholar is essentially the set of principles that the jurist follows in extracting rulings from the sources of the law. The goal of Uṣūl Al-Fiqh, and of the uṣūlī scholar, is to lay down such principles and determine what are the correct and sound principles that can be used to extract rulings. Pay attention: The uṣūlī, in his capacity as an uṣūlī, does not engage in the activity of extracting legal rulings based on the accepted legal methodology. That is the mandate of the faqīh (jurist). The faqīh uses the legal methodology laid down by the scholar of Uṣūl in order to then extract legal rulings from the sources of the law (which are also determined by the scholar of Uṣūl). Of course, nothing prevents a learned scholar from wearing multiple hats and performing the work of an uṣūlī and a faqīh. In fact, that was precisely what the master jurists, such as Abū Ḥanīfa, Mālik (d. 179 AH), Al-Shāfi‘ī, and Ibn Ḥanbal (d. 241 AH) did. 

I have mentioned that a scholar of Uṣūl is concerned with laying down the principles which, collectively, constitute what that scholar believes to be the correct methodology for extracting rulings from the sources of the law. As the Usuli scholar is concerned with determining the correct methodology for extracting rulings, this not only dictates the relationship between the scholar and the sources of the law, but it also focuses on how these sources interact with one another.[11] For example, scholars have confronted the question of how to deal with a solitary ḥadīth (khabar al-wāḥid or khabar āḥād) that adds an element to a ruling found in the Quran. Most jurists accept, as part of their methodology, that a solitary ḥadith may add an element to a legal ruling found in the Quran. The Ḥanafī school, however, differs. It relies on a principle that essentially states that the addition of an element to a ruling found in the Quran is tantamount to abrogation (naskh), and abrogation of a Quranic ruling can only be performed by another Quranic verse or a massively transmitted ḥadith (mutawātir or mashhūr).[12]

How does this difference in methodology actually play out when it comes to extracting legal rulings? Well, consider the verse that deals with ablution (wuḍū’).[13] The verse simply states that when the believer intends on performing prayer, he or she must wash certain parts of his or her body. The verse does not require that the believer have the intention to perform ablution. However, the well-known ḥadīth of the Prophet Muhammed (peace be upon him) states: “Actions [are judged] in accordance with their intention.” This ḥadīth, however, is a solitary ḥadīth. All jurists, with the exception of Ḥanafīs, allow this ḥadīth to add an extra element to the Quranic ruling. In other words, and in accordance with their methodology, this ḥadīth is strong enough to place as a condition, for the validity of one’s ablution, that the person has the requisite intention (niyya). These jurists, according to their principles, do not consider such an addition to be tantamount to abrogation. The Ḥanafīs, on the other hand, do consider this additional requirement to be tantamount to an abrogation of the Quranic verse. Since the ḥadīth on intention is only solitary, and abrogation can only be performed by a massively transmitted ḥadīth (or another verse of the Quran), the Ḥanafī school renders the ḥadīth inoperable on this legal question.[14] As such, and as a result of their methodology, one can accidentally fall in a swimming pool and be considered to have performed ablution. 

The principle dealing with a solitary ḥadīth that adds an element to a Quranic ruling is but one example of the many principles that are the focus of the field of Uṣūl. Each school of law has its well-accepted principles which, to a great extent, represent the methodology adopted by the founding jurist of that school.

The books of Uṣūl Al-Fiqh are also concerned with stipulating the conditions in order for one to be considered qualified to extract legal rulings from the sources of the law, which for the sake of brevity we will not delve into in this article. With that, we have three elements to the field of Uṣūl Al-Fiqh

  1. Identifying the sources of the law; 
  2. Identifying the principles that may be used extract rulings from said sources; and 
  3. Identifying the conditions in order for one to be considered qualified to make use of said principles. 

We can now make sense of the definition of Uṣūl Al-Fiqh, which is: “General knowledge of the indicants of fiqh, the means through which one may benefit from those indicants, and the condition of the beneficiary,” (ma‘rifat dalā’il al-fiqh ijmālan, wa kayfiyyat al-istifāda minhā, wa ḥāl al-mustafīd).[15] Another definition states that it is: “Knowledge of the general principles that are taken as a means for the extraction of practical legal rulings from their specific indicants,” (al-‘ilm bi al-qawā‘id al-kulliyya allatī yutawasaṭu bihā ilā istinbāṭ al-aḥkām al-shar‘iyya al-‘amaliyya min adillatihā al-tafṣīliyya).[16]

Remaining Questions 
  1. What came first: Uṣūl Al-Fiqh or Fiqh

It is generally accepted that Imām Al-Shāfi‘ī is the founding father of Uṣūl Al-Fiqh. Although he discusses questions of Uṣūl in many of his works, his magnum opus in the area of Uṣūl Al-Fiqh is his Risāla. Imām Al-Shāfi‘ī, however, died in the year 204 of the Hijri calendar. He was preceded by many Imāms such as Imām Mālik, Imām Abū Yūsuf, Imām Muhammad Ibn Al-Hasan Al-Shaybānī, Imām Abū Ḥanīfa, Imām Al-Awzā‘ī, Imām Zayd Ibn ‘Alī, Imām Muhammad Al-Bāqir, Imām Ja‘far Al-Ṣādiq, and Imām Layth Ibn Sa‘d, in addition to many others. Not only did these scholars have a well-known fiqh during and after their lifetime, but fiqh was something that Muslims engaged in since the time of the Companions. One is therefore compelled to ask: Did Uṣūl Al-Fiqh come after Fiqh? If so, how does it make sense for the product (i.e., Fiqh) to predate the methodology (i.e. Uṣūl Al-Fiqh) which is the means to that product? 

In reality, Fiqh did not predate Uṣūl Al-Fiqh. Nor is it possible for Fiqh to predate Uṣūl Al-Fiqh. It is true that Uṣūl Al-Fiqh did not appear as a distinct field of study until Imām Al-Shāfi‘ī wrote his Risāla towards the end of his life. But this does not mean that jurists before Imām Al-Shāfi‘ī did not have or rely on a consistent methodology when they embarked on extracting legal rulings from the Quran and Sunnah. In fact, we have already seen a glimpse of Uṣūl being utilized by Abdullah Ibn Mas‘ūd when he argued in support of his opinion regarding the waiting period of a woman that is widowed during her pregnancy. Jurists before Imām Al-Shāfi‘ī certainly did have a methodology. However, the Uṣūl that existed prior to Al-Shāfi‘ī were different in two important ways. 

First, these Uṣūl may have been the product of the jurist’s intuition and educated common sense – so to speak – rather than the result of a deliberate and focused study of what constitutes a sound methodology and what does not. Ibn Mas‘ūd probably did not spend much time thinking about the nature and formal definitions of abrogation (naskh) or particularization (takhṣīs). His reliance on the fact that one verse came later in time and, therefore, partially abrogated the earlier verse probably stemmed out of the intuitive nature of this principle. It was Imām Al-Shāfi‘ī that treated legal methodology as a distinct area of study that should be systematized. Second, pre-Shāfi‘ī Uṣūl were never documented. Imām Al-Shāfi‘ī was the first to document, in writing, his methodology in extracting legal rulings. It is these two features that distinguish pre-Shāfi‘ī from post-Shafi‘ī Uṣūl Al-Fiqh. 

To offer more clarity: To say that Uṣūl Al-Fiqh did not exist before Imām Al-Shāfi‘ī is akin to saying that logic did not exist before Aristotle – which would be absurd. Logic, in substance, certainly predates Aristotle. However, it may have not been considered a distinct area of study and may have lacked systematization until Aristotle entered the scene. Otherwise, people have obviously used logic since the creation of humanity. The same may be said for Uṣūl Al-Fiqh and Imām Al-Shāfi‘ī.[17]

  1. The two main methods to writing in this field

Scholars of Uṣūl Al-Fiqh have employed two methods when authoring books in this field.[18] The first method is known as the way of the scholars of kalām (tarīqat al-mutakallimīn) and is based on pure logical reasoning, hence the association with scholars of kalām. The scholar will start with a blank slate, without any commitment to a legal school of law. They will then embark on a mission to determine what is the correct answer to each Uṣūli question, by identifying the sound principles that a jurist must rely upon when extracting legal rulings. When using this method, the scholar is not interested in proving the superiority of his legal school or the soundness of its legal methodology. In fact, the scholar will often reach conclusions that are contrary to the settled principles of his legal school. The scholar is simply interested in discovering what is a sound principle and distinguishing it from unsound principles. 

The benefit of this method is that it is not restricted by an a priori commitment to the doctrines of any school of law. As such, the scholar embarks on a free and impartial adventure to discover what are the most rational principles. One of the disadvantages of this method is that over time it has become a purely theoretical enterprise and has slowly become detached from the field it was originally designed to serve: Fiqh. Many books were authored using this method without any clear connection being made to Fiqh, where the authors did not demonstrate how the principles they affirmed ultimately translated into legal rulings. This was the case until scholars such as Maḥmūd Al-Zinjānī (d. 656 AH) bridged the gap between the theoretical Uṣūl and the practical Fiqh in works that are known collectively as kutub takhrīj al-furū‘ ‘alā al-uṣūl.[19]

The second method is known as the way of the scholars of fiqh (ṭarīqat al-fuqahā’). Unlike the method outlined above, this method of authoring books of Uṣūl does not aim to impartially discover what are the sound principles for extracting legal rulings. The scholars that employ this method start with an a priori commitment to a legal school – typically, the Ḥanafī school. Here, the scholar studies the authoritative legal rulings of the Ḥanafī school aiming to discover the principles (and, consequently, the methodology) that were used to reach those rulings. In other words, it is a reverse-engineering of the Uṣūl of the Ḥanafī school. It is similar to the case of one who aims to discover the ingredients and recipe used by a chef by examining the food he or she has cooked. 

The advantage of this method is that it maintains the intimate connection between Fiqh and Uṣūl Al-Fiqh. This is natural since the principles are only discoverable by an examination of the fiqh of the Ḥanafī school. As such, one who reads a book on Uṣūl Al-Fiqh using this method not only learns about the legal methodology of the Ḥanafī school, but also learns about how that methodology played out in terms of the legal rulings it generated. The disadvantage of this method, however, is that it simply tells the reader what the principles of that specific school are. It does not necessarily prove or demonstrate to the reader that these principles are the sound principles that should be followed when extracting legal rulings. For the individual that is seeking to discover – on a purely rational basis – which principles are worthy of adoption and which are not, this method may be of limited benefit. 

What is the Benefit of Uṣūl Al-Fiqh Today?

One may be tempted to believe that knowledge of Uṣūl Al-Fiqh in this day and age is of little benefit. That is because most legal rulings that pertain to the Muslim’s life have been extracted from the Quran and Sunnah and have already been settled. Such a belief is mistaken. 

Firstly, knowledge of Uṣūl allows one to discover and learn the means by which the jurists of the past reached the rulings that we live by today. Knowledge of their methods not only gives us confidence as to the soundness of their rulings, but it also gives us insight as to the reasons for disagreement between the various schools. As one becomes more aware of the various methodologies and the diverse legal rulings that were produced as a result, one becomes more tolerant and more appreciative of the difference of opinion that exists in the Islamic legal field. 

Second, knowledge of Uṣūl prevents one from falling into serious, yet avoidable, mistakes that have become prevalent in today’s world. I am referring to the anomalous and strange legal opinions that, in many cases, are declared by well-intentioned but unqualified individuals. These opinions will be strange in the sense that they contradict what the Muslim community has known to be true and settled for centuries. Yet, the person espousing this opinion will often point to a verse or ḥadīth that, on its face, supports his or her opinion. In most cases, the weakness of the opinion stems from the fact that the individual is unacquainted with Uṣūl Al-Fiqh. This person may have opened Saḥīh Al-Bukhārī and found a sound ḥadīth and rendered a ruling on that basis – and this ruling would be in contradiction, for example, to the authoritative opinion of all four Sunnī schools. That is not because the four Sunnī schools disregarded the ḥadīth or did not know of its existence. But it is because the principles of the schools necessitated that the ḥadīth not be acted upon. For example, it may be that all schools found evidence that the ḥadīth has been abrogated (mansūkh). Many of the opinions that have appeared in recent times – especially “reformist” opinions – are often the product of superficial and arbitrary interpretations of the Quran and Sunnah. One of the ways one can protect him or herself from falling into such mistakes is by being aware of the accepted legal principles and methodologies. One who has a grasp of Uṣūl Al-Fiqh can also quickly detect the weakness of such opinions and will thus be able to quickly brush them aside. 


Third, there is a need for scholars who have the ability to extract new legal rulings to the extent that emerging circumstances so necessitate. Such scholars, in order to reach sound and coherent legal opinions, must have knowledge of and rely on a set of principles that represent their legal methodology. In a quickly changing world where new problems and challenges are constantly arising, the need for such scholars is dire. It is simply not enough for scholars to simply have knowledge of Fiqh. In the words of Imām Al-Zarkāshī (d. 794 AH), a scholar who has knowledge of Fiqh without any knowledge of Uṣūl Al-Fiqh is like, “the one who possesses a weapon but does not know how to fix it if it malfunctions, nor does he know how to piece it back together if it breaks.”[20]

Endnotes:
  1.  The waiting period is the period that must be observed before a woman can remarry, either after the death of her husband or following divorce. 
  2. Verse 234 of Surat Al-Baqara states:  The wives of men who have died must observe a waiting period of four months and ten days.
  3.  Verse 4 of Surat Al-Ṭalāq states: As for those who are pregnant, their waiting period ends with delivery. And whoever is mindful of Allah, He will make their matters easy for them.
  4.  ‘Abdullah Ibn Mas‘ūd is an extremely important figure in early Islamic law. Not only was he one of the earliest individuals to accept Islam, but he is known as the one prominent legal scholars (fuqahā’) of the Companions. His legal opinions (fatāwā) are weighty and highly regarded, especially in the Iraqi legal school which inherited his knowledge and the knowledge of Imām ‘Alī Ibn Abī Tālib. 
  5.  ‘Abdullah Ibn ‘Umar Nāṣir Al-Dīn Al-Bayḍāwī, Minhāj Al-Wuṣūl Ilā ‘Ilm Al-Uṣūl, ed. Sha‘bān Muḥammad Ismā‘īl (Beirut: Dār Ibn Ḥazm, 2008), 10. 
  6.  Haytham ‘Abd Al-Ḥamīd ‘Alī Khazna, Taṭawwur Al-Fikr Al-Uṣūlī Al-Ḥanafī (Amman: Āl Al-Bayt University, 1998), 94. 
  7.  This is not entirely accurate as there is strong evidence that Imām Al-Shāfi‘ī considered the opinion of the Companions to be authoritative and, consequently, a legitimate source of law.
  8.  Imām Al-Shāfi‘ī’s main work on this topic is titled Ibṭāl Al-Istiḥsān (Delegitimizing Juristic Discretion).
  9.  In some cases, upon investigation, it appears that the disagreement is more over semantics rather than substance. For example, it is often stated that the Mālikī school relies on al-maṣlaḥa al-mursala while the Shāfi‘ī school rejects it. On a superficial reading of each school’s legal methodology, that may seem correct. However, upon deeper investigation it appears that the Shāfi‘ī school does rely on al-maṣlaḥa al-mursala, but it considers it a form of reasoning by analogy (qiyās). Consequently, its rejection of al-maṣlaḥa al-mursala is no more than a rejection of its characterization as a separate and distinct source of law. In substance, however, al-maṣlaḥa al-mursala is used in the Shāfi‘ī school, rendering the disagreement as one of semantics.
  10.  Al-Bayḍāwī, Minhāj Al-Wuṣūl, 51.
  11.  This is especially important since some textual indicants (i.e., Quranic verses and ḥadīths) may seem, on a superficial reading, to be in contradiction. Uṣūlī scholars have embarked on determining the soundest hierarchy between these sources and the methodology that allows them to reconcile these indicants when they, on their face, seem to contradict one another. This is based on the necessary Islamic belief that Allah, the Legislator, does not command two inconsistent things at once nor does He reveal knowledge that it is in contradiction. Imām Al-Shafi‘ī was the first to produce a written work on reconciling various ḥadīths that may give the impression of inconsistency. This field became known as mukhtalif al-ḥadīth or mushkil al-āthār.
  12.  Muṣṭafā Sa‘īd Al-Khan, Athar Al-Ikhtilāf Fī Al-Qawā‘id Al-Uṣūliyya Fī Ikhtilāf Al-Fuqahā’ (Beirut: Mu’assassat Al-Risāla, 1982), 269.
  13.  Quran 5:6, which states: “O believers! When you rise up for prayer, wash your faces and your hands up to the elbows, wipe your heads, and wash your feet to the ankles…[]” 
  14.  Al-Khan, Athar Al-Ikhtilāf, 270 – 271.
  15.  Al-Bayḍāwī, Minhāj Al-Wuṣūl, 51.
  16.  Muhammed Al-Zuḥaylī, Al-Wajīz Fī Uṣūl Al-Fiqh Al-Islāmī (Damascus: Dār Al-Khayr, 2006), 1:27. 
  17.  For the likening of Imām Al-Shāfi‘ī to Aristotle, see: Fakhr Al-Dīn Al-Rāzī, Manāqib Al-Imām Al-Shāfi‘ī, ed. Ahmed Ḥijāzī Al-Saqqa(Cairo: Maktabat Al-Kulliyyāt Al-Azhariyya, 1986), 156.
  18.  Muḥammed Abū Zahra, Uṣūl Al-Fiqh (Cairo: Dār Al-Fikr, 2008), 18 – 25. 
  19.  Maḥmūd Al-Zinjānī was one of, if not, the first Shāfi‘ī scholar to author a book kutub takhrīj al-furū‘ ‘alā al-uṣūl. Al-Zinjānī was martyred in Baghdad at the hands of the Mongol army led by Hulagu.
  20.  Badr Al-Dīn Al-Zarkashī, Al-Baḥr Al-Muḥīṭ, ed. ‘Abd Al-Qāder Al-‘Ānī(Kuwait: Ministry of Religious Endowments, 1992), 1:13.

About the author: Amir Aboguddah has a BA in Political Science and Certificate in Economics from the University of Regina and has a JD from the University of Toronto, Faculty of Law. He has also pursued traditional study in Turkey under scholars of hadith and fiqh. He has completed articles (legal training) at Blakes, Cassels, & Graydon and has clerked at the Saskatchewan Court of Appeal. He is beginning his career as a litigation lawyer in the Canadian province of Saskatchewan. His interests include Usul Al-Fiqh, Islamic judicial systems, and political thought.

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