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Unformatted text preview: lication of qiyas, istihsan, istishab, istislah, etc., whose knowledge helps the jurist to distinguish as to which method of deduction is best suited to obtaining the hukm shar'i of a particular problem. Furthermore, usul al-fiqh enables the jurist to ascertain and compare strength and weakness in ijtihad and to give preference to that ruling of ijtihad which is in close harmony with the nusus. It may be added here that knowledge of the rules of interpretation, the 'Aam, the Khaas, the Mutlaq, the Muqayyad, etc., is equally relevant to modern statutory law. When the jurist and the judge, whether a spet in the Shariah or in secular law, fails to find any guidance in the clear text of the statute on a particular issue, he is likely to resort to judicial construction or to analogy. The skill, therefore, to interpret a legal text and to render judicial decisions is indispensable for a jurist regardless as to whether he sits in a Shariah court or in a court of statutory jurisdiction. A spet in usul al-fiqh will thus find his skill of considerable assistance to the understanding and interpretation of any legal text. pp. 37-38.] Principles of Islamic Jurisprudence ~ Kamali 13 [Cf. Badran, Usul, To what extent is it justified to say that al-Shafi'i was the founder of usul al-fiqh? One theory has it that usul al-fiqh has existed for as long as the fiqh has been known to exist. For fiqh could not have come into being in the absence of its sources, and of methods with which to utilize the source materials. Zahrah, Usul p. 8ff.] This would in turn, imply that usul al-fiqh had existed long before al-Shafi'i. Numerous examples could be cited to explain how in early Islam, the Companions deduced the rules of fiqh from their sources. Usul al-fiqh, in other words, had substantially existed before the period which saw the emergence of the leading imams of jurisprudence. But it was through the works of these imams, especially al-Shafi'i, that usul al-fiqh was articulated into a coherent body of knowledge. Even before al-Shafi'i, we know that Abu Hanifah resorted to the use of analogy and istihsan while lmam Malik is known for his doctrine of the Madinese ijma', subjects to which we shall have occasion to return. When al-Shafii came on the scene, he found a wealth of juristic thought and advanced levels of argumentation on methodological issues. But the existing works were not entirely free of discordance and diversity which had to be sifted through by the standards which al-Shafi'i articulated in his legal theory of the usul. He devoted his Risalah exclusively to this subject, and this is widely acknowledged to be the first work of authority on usul al-fiqh. It is nevertheless accurate to say that fiqh precedes the usul al-fiqh and that it was only during the second Islamic century that important developments took place in the field of usul al-fiqh. Abu Zahrah, Usul, p. 10.] For during the first century there was no pressing need for usul al-fiqh. When the Prophet was alive, the necessar...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.
- Spring '13