Principles of Islamic Jurisprudence by MH kamali

According to abu zahrah who has written extensively

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Unformatted text preview: ensively on the lives and works of the early Imams, the Shii Imams have written, like many others, on the subject, but neither of the two Imams have written anything of an equivalent order to that of the Risalah. Hence al-Shafi'i's position and contribution to usul al-fiqh remains unique, and he is rightly regarded as the founder of usul at-fiqh. Badran, Usul, P. 14.] The basic outline of the four principal sources of the law that al-Shafii spelled out was subsequently accepted by the generality of ulema, although each of the various schools of jurisprudence has contributed towards its further development. The Hanafis, for example, added istihsan, and custom ('urf) to the usul al-fiqh, and the Malikis reduced the concept of consensus (ijma') to the Madinese consensus only, while the Hanbali approach to the subject closely resembled that of the Malikis. But even so, none departed significantly from the basic principles which al-Shafi'i had articulated. P. 14.] Broadly speaking, the so-called closure of the gate of ijtihad at around the fourth Islamic century did not affect the usul al-fiqh in the same way as it might have affected the fiqh itself. The era of imitation (taqlid) which followed might even have added to the strength and prominence of usul al-fiqh in the sense that the imitators observed, and relied on, the methodology of the usul as a yardstick of validity for their arguments. Consequently usul al-fiqh gained universal acceptance and was, in a way, utilised as a means with which to justify taqlid. [Badran, Usul, P. 14.] A brief word may be added here regarding the difference between the usul, and the maxims of fiqh (alqawa'id al-fiqhiyyah), as the two are sometimes confused with one another. The maxims of fiqh refer to a body of abstract rules which are derived from the detailed study of the fiqh itself. They consist of theoretical guidelines in the different areas of fiqh such as evidence, transactions, matrimonial law', etc. As such they are an integral part of fiqh and are totally separate from usul al-fiqh. Over 200 legal Principles of Islamic Jurisprudence ~ Kamali 15 [Abu Zahrah, Usul, p. 113. [Badran, Usul, maxims have been collected and compiled in works known as al-ashbah wa al-naza'ir; both bearing the title Al-Ashbah wa al-Naza'ir are authored by Jalal al-Din al-Suyuti and Ibn Nujaym al-Hanafi respectively.] one hundred of these, have been adopted in the introductory section (i.e. the first 100 articles) of the Ottoman Majallah. The name 'al-qawa'id al-fiqhiyyah' may resemble the expression usul al-fiqh, but the former is not a part of the latter and the two are totally different from one another. A comparison between usul al-fiqh and usul al-qanun will indicate that these two disciplines have much in common with one another, although they are different in other respects. They resemble one another in that both are concerned with the methodology of the law and the rules of deduction and interpretation; they are not concerned with the detailed rules of the law itself. In the case of the law of property, for example, b...
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