Fıkıh Usulü - İngilizce

Chapter 6

From the texts of the Book and the Sunnah are those which are ’aam (general); which is defined as that word which is inclusive of many ajnaas (categories), anwaa’ (types) and afraad (individuals) This majority of the texts are of this nature Other texts are khaass (specific), and are indicative of only some categories, types and individuals Thus, if there does not exist any contradiction between the ’aam and the khaass texts, then each of them are independently acted upon However, if a contradiction is presumed, then the ’aam is specified and delineated by the khaas

From the texts are the mutlaq (absolute) and the muqayyad (restricted) ones It is restricted by a description or a reliable restriction Thus, the mutlaq is restricted and qualified by the muqayyad

And from the texts are the mujmal (comprehensive) and mubayyan (explicit) Whatever the Lawgiver has made comprehensive in one place, yet made it explicit in another, then it is obligatory to return to what the Lawgiver made mubayyan (explicit) Many of the rulings in the Qur‘aan are mujmal (comprehensive) in nature, but have been explicitly explained in the Sunnah So it is obligatory to return to the bayaan (explicit clarification) of the Messenger sallallaahu ’alayhi wa sallam, since he is the clear explainer from Allaah

Similar to this are the texts that are muhkam (equivocal and singular in meaning) and those that are mutashaabih (unequivocal and open to more than one meaning) It is obligatory to understand the mutashaabih in the light of those texts that are muhkam

Amongst the texts are the naasikh (abrogating) and the mansookh (abrogated) The abrogated texts in the Qur‘aan and the Sunnah are few in number Whenever there is the possibility of harmonising two texts, with the possibility of each one being acted upon in its own particular circumstance, then it is obligatory to do so One may not turn to abrogation, except with a text from the Lawgiver, or an apparent contradiction between two authentic texts concerning which there is no possible way to resolve this contradiction such that each text is acted upon in its own particular circumstance In this case, the later text abrogates the earlier one However, if it is impossible to determine which is the earlier text and which is the later, we then turn to other means of tarjeeh (prefering one text over another) For example, when there is an (apparent) contradiction between the Prophet sallallaahu ’alayhi wa sallam’s statement and his action, then precedence is given to his saying This is because his statement represents either a command or a prohibition to his Ummah, whereas his action is, in this case, interpreted to be something particular to him alone So the khasaa‘is (particular and unique rulings) pertaining to the Prophet sallallaahu ’alayhi wa sallam are actually based upon this asl (fundamental principle)

Likewise, when the Prophet sallallaahu ’alayhi wa sallam does something as an act of ’ibaadah (worship), but he does not command its performance, then what is correct is that this action of his is indicative of it being mustahabb (recommended) If he does something as an act of ’aadah (custom or habit), then it is indicative of it being mubaah (permissible)

Whatever the Prophet sallallaahu ’alayhi wa sallam acknowledges of statements and actions, then the ruling is one of ibaahah (permissibility), or other than it, according to the manner in which he acknowledged such statements and actions

Chapter 7

As for the ijmaa’ (consensus): it is the agreement of the mujtahid Scholars upon a new judgement So, whenever we are certain about their ijmaa’, then it is obligatory to turn to it, and it is not lawful to oppose It is necessary that any ijmaa’ be rooted in the evidences of the Book and the Sunnah As for qiyaasus-saheeh (correct and sound analogy): it is linking a subsidiary branch with its root, due to a common Illah (effective cause) between them So whenever the Lawgiver indicates a matter, or describes it with a particular wasf (characteristic); or the Scholars deduce that the ruling has been legislated because of that particular wasf (characteristic), then if that particular wasf (characteristic) is found to exist in another issue, which the Lawgiver has not legislated any particular ruling for - without their being a difference between it and the texts - then it is obligatory to link the two in their ruling This is because the All-Wise Lawgiver does not differentiate between matters equivalent in their characteristics, just as He does not join between dissimilar and opposing matters This sound and correct qiyaas (analogy) is al-Meezaan (the Balance) which Allaah sent down And it is inclusive of justice, and it is that by which justice is recognised

Qiyaas is only resorted to when there exists no text So this asl (fundamental principle) is turned to when there exists no other source And qiyaas supports the text Thus, all that the texts that the Lawgiver has given rulings to, then they are in agreement with qiyaas, not in opposition to it

Chapter 8

The Scholars of usool have deduced from the Book and the Sunnah many usool (fundamental principles), upon which they have built many rulings; by which they have also benefited themselves and benefited others

Amongst these usool (fundamental principles):

“Al-yaqeen laa yazoolu bish-shakk [certainty is not invalidated by doubt]”

Under this principle they have entered many ’ibaadaat (acts of worship), mu’aamalaat (social interactions) and huqooq (rights) So whosoever entertains a doubt regarding any of that, should return to the asl of certainty They also deduce: “al-aslut-tahaarah fee kulli shay [The basis concerning all things is that they are pure]” And: “al-aslul-ibaahah illaa ma dallad-daleelu ’alaa najaasatihi aw tahreemihi [The asl (basic principle) is permissibility of using anything, except when there exists an evidence indicative of its impurity or prohibition]” And: “The asl is freedom from accountability concerning obligations towards the creation, until a proof is established to the contrary” And: “The asl is the continuation of accountability concerning the obligations to the Creator, and to His servants, until there is certain proof of freedom and discharging”

And from them is that: “Al-mashaqah tajlibut-tayseer [difficulty brings about ease]”

Based upon this are all the rukhas (concessions) allowed during a journey, and a lightening of ’Ibaadaat (acts of worship), mu’aamalaat (social transactions), and other matters

And from it is their saying: “Laa waajib ma’al-’ajaz wa laa muharram ma’ad-daroorah [there is no obligation with inability, nor is there any prohibition with necessity]”

The Lawgiver has not made incumbent upon us what we are incapable of doing in totality What the Lawgiver has made obligatory, from the obligations, but the servant is incapable of performing it, then that obligation is totally dropped However, if he is capable of performing a part of it, then it is required for him to fulfil what he is capable of, whilst the part he is incapable of is dropped There are many many examples of this

Likewise, whatever the creation are in need of, then it has not been made haraam (prohibited) to them As for the khabaa‘ith (evil matters), which have been made haraam, then if the servant is in need of that (due to a necessity), then there is no sin in using it This is because daroorah (necessity) allows those matters which are fixed and prohibited And daroorah is measured by its need, in order to lessen the evil Thus, daroorah permits the use of what is normally forbidden from food, drinks, clothing, and other than them

And from them: “Al-umooru bi maqaasidiha [matters are judged by their motives]”

Entering into this are the ’ibaadaat and the mu’aamalaat Likewise, the prohibition of employing forbidden hiyaal (means and stratagems) is derived from this asl Likewise, is directing those words which are kinaayaat (not clear and unequivocal) to be sareeh (clear and equivocal) is based upon this asl Its forms are very many indeed

And from them: “Yukhtaaru ’alal-maslahatayn wa yartakab akhafal-mufsadatayn ’indat-tazaahum [select the higher of the two benefits, or incur the lesser of the two harms when faced with them both]”

Upon this great principle many issues are built So when the benefit and harm are both in equal proportion, then: “dar‘ul-mafaasid uwla min jalbil-masaalih [repelling harm takes precedence over procuring benefits]”

And from this is the principle: “Laa tutimmul-ahkaam illaa bi wujoodi shurootiha wa intifaa‘ mawaani’iha [rulings are not complete except with the presence of their conditions and the negation of their impediments]”

This is a tremendous principle, upon which is built - from the issues, rulings and other matters - many things So whenever a shart (condition) for ’ibaadaat (acts of worship), or mu’aamaalaat (social transactions), or establishment of rights is not present, then the ruling is not correct, nor is it established Likewise, if its mawaani’ (impediments) are present, then it is nor correct, nor is it legally valid

The shuroot (conditions) for ’ibaadaat and mu’aamalaat are: all those matters upon which the validity of such ’ibaadaat and mu’aamalaat rest And these shuroot are known by a thorough and detailed study of the Sharee’ah Due to this asl, the fuqahaa were able to enumerate the faraa‘id (obligations) of the various ’ibaadaat, and its shuroot (conditions) Likewise, by it they were able to determine the various shuroot (conditions) and mawaani’ (impediments) for the mu’aamalaat

As regards al-hasr (collecting and enumerating): it is establishing a ruling for something, whilst negating it from something else By it, the fuqahaa are able to determine the shuroot of various things and matters, and that what is other than it, then the ruling is not affirmed for it

And from it is their saying: “al-hukm yuduru ma’a ’illatihi thabootan wa ’adaman [the ruling revolves around its effective cause in both affirmation and negation]”

So when the ’illatut-taamah (complete effect cause) - which it is known theat the Shaari’ has linked the ruling to it - is present, then the ruling is present; and when it is absent, then the ruling is not established

And from them is their saying: “al-aslu fil-’ibaadaat al-hadhru illaa maa waradah ’anish-shaari’ tashree’ahu, wal-aslu fil-’aadaat al-ibaahaa illaa maa waradah ’anish-shaari’ tahreemahu [the basic principle concerning acts of worship is prohibition, except what is related from the Lawgiver regarding its legislation, and the basic principle regarding customs and habits is permissibility, except what is related from the Lawgiver regarding its forbiddance]”

This is because al-’ibaadah (worship) is what the Lawgiver has prescribed; either as an obligation, or a recommendation Thus, whatever steps out of this is not considered to be an act of worship And because Allaah created for us all that is upon the earth, so that we may benefit from all things and utilise them, except those things that the Lawgiver has made haraam (unlawful) to us

From them: “idhaa wajidat asbaabul-’ibaadaat wal-huqooq thabatat wa wajibat illaa idhaa qaaranahl-maani’ [if the cause for acts of worship are present, they are confirmed and oblugatory, except if linked by a prevention]”

And from them: “al-waajibaatu talzimul-mukallafeen [obligations obligate the morally responsible]”

So at-takleef is reached with: al-buloogh (attainment of maturity) and al-’aql (sanity) However, compensation for injury and harm is required from the makallafeen (morally responsible), and others So whenever a person reaches maturity and is sane, those general obligations then become required from him to do And those specific obligations also become required from him, providing he possesses those qualities which necessitate that The naasee (forgetful) and the jaahil (ignorant one) is not held responsible from the point of view of sinning, nor from the point of view of compensating what is harmed or injured