Chapter 9
ORIGINS AND DEVELOPMENT OF USUL AL FIQH
It is difficult to
attempt a study of Usul al Fiqh and its development without considering
the history of Fiqh, the practical precepts of Shari'ah that have been gleaned
from detailed source-evidence.
The lexical meaning of
Usul is foundation, or basis Asl; plural Usul or that upon which
something else is built. In the legal system of Islam, Fiqh is built upon and
stems from the bases Usul which constitute its source-evidence. Hence,
in order to understand the origins of Usul al Fiqh, we need to have a
general idea of the history of Islamic legislation Tashri'.
Establishing Shari'ah
legislation, prescribing law, laying down rules and regulations, and defining
systems is a function which is specific to Allah alone. Anyone who presumes to
ascribe these functions to any other than Allah commits the sin of al Shirk,
as, in doing so, he has effectively contradicted the belief in the Oneness of
Allah Tawhid.
Allah has provided
articulate proofs and clear source-evidence in order that the believers should
have no trouble in finding their way to the particulars of His legislation, or Ahkam.
with reference to some of this source-evidence, the Islamic Ummah has agreed on
its validity and its relevance to the Ahkam, and has accepted it as
such. However there are differences with regard to other source-evidence.
The source-evidence
upon which the whole Ummah fully agrees, and on the validity of which there is
general consensus, comprises the two sources that formed the basis of
legislation at the time of the Prophet (PBUH). These two sources of legislation
are:
1. The Qur'an: This may be defined as the words revealed to the
Prophet (PBUH) the recitation of which itself constitutes an act of worship,
the shortest Surah of which is a challenge to mankind to produce
anything the like thereof, every letter of which has been transmitted to us via
an indisputably authentic chain of authority Tawatur; which is written
between the two covers of the Holy Book Mushaf beginning with Surat
al Fatihah "The Opening Chapter" and ending with the Surat al
Nas.
2. The Sunnah: This includes everything, other than the Qur'an,
which has been transmitted from the Prophet(PBUH); what he said, did, and
agreed to.
Thus, every utterance
of the Prophet (PBUH), apart from the Qur'an, and his every deed, from the
beginning of his mission to the last moment of his life, constitute his Sunnah,
in the general sense of the word, whether these establish a ruling which is generally
applicable to all members of the Ummah, or a ruling which applies only to the
Prophet himself or to some of his Sahabah.
Regardless of whether
what the Prophet (PBUH) did was instinctive or otherwise, his every word, deed
and approval may be taken as the basis for evidence in a legal ruling. This is
so regardless of whether his utterances or actions related to matters of faith
or practice, or whether they were concerned with commanding or recommending,
prohibiting, disapproving, or allowing; and regardless of whether his word or
action was based on a ruling previously revealed in the Qur'an, or whether it
served independently to establish legislation.
During the lifetime of
the Prophet (PBUH), all the legal rulings Ahkam of the Shari'ah,
inclusive of all of its classifications, such as principal and derived rulings,
teachings on the fundaments of the faith, and regulations regarding personal
practice and legalities, were derived from these two sources, the Qur'an and
the Sunnah.
3. Ijtihad was practiced by the Prophet (PBUH) and by those of
his companions with legal proclivities Ahl al Nazar. The Prophet's
Ijtihad was sometimes confirmed by the Qur'an and sometimes not; in which case
it was explained that the better solution was other than that which he had
adopted.
The Ijtihad made by the
Companions was always in response to situations which actually occurred to
them. Later, when they met the Prophet (PBUH), they would explain what happened
and tell him what they had decided. Sometimes he (PBUH) approved of their
Ijtihad, and such decisions of theirs (having gained the approval of the
Prophet) became a part of the Sunnah. If he (PBUH) disapproved of their
Ijtihad, his explanation of the correct procedure would become the Sunnah.
Thus, we can say that
at that stage legislation depended on the two forms of Divine revelation Wahy:
Recited revelation Wahy Matlu; or
the Qur'an with its absolute inimitability I'jaz
Non-recited revelation Wahy Ghayr Matlu;
or the Sunnah of the Prophet (PBUH)
Indeed, the Ijtihad
made by the Prophet (PBUH) set a precedent for his Sahabah and later
Muslims, that clearly proved the legitimacy of Ijtihad, so that when they could
not find an express legal ruling in the Qur'an or Sunnah, they were to make use
of Ijtihad in order to arrive at a judgement on their own.
Moreover; probably to
reinforce and establish this concept, the Prophet (PBUH) used to order certain
of his Companions to make Ijtihad concerning certain matters in his presence.
Then he would tell them who was correct and who was mistaken.
