ISL431 Principles of Islamic Jurisprudence 100713

NATIONAL OPEN UNIVERSITY OF NIGERIA
FACULTY OF ARTS
COURSE CODE: ISL431
COURSE TITLE: PRINCIPLES OF ISLAMIC JURISRUDENCE
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COURSE
GUIDE
ISL431: Principles of Islamic Jurisprudence
Course Team Prof. Asif Folarin Ahmed

(Course Developer/Writer &Programme Leader) NOUN
Dr. Adejoro Raheem Mustapha

(Course Coordinator, NOUN)
Dr. Kahar. Wahab.Sarumi

(Course Coordinator, NOUN)
REVIEWED BY: Prof. Mustapha, Raheem Adejoro

Faculty of Arts
National Open University,
Plot 91, Cadastral Zone,
Nnamdi Azikiwe Expressway
University village, Jabi-Abuja
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National Open University of Nigeria
First Printed 2013
Latest date of review: May 2022
ISBN: 978-978-058-617-7
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For
National Open University of Nigeria
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Table of Contents
Page
Title Page
Publisher
Table of Contents
Introduction……………………………………….
The Aims and Objectives……………………..
Working through this Course……………………...
Study Units………………………………………..
References and other Resources………………..
Assignment File…………………………………..
Assessment……………………………………….
Tutor – Marked Assignments……………………..
Presentation Schedule…………………………….
Course Overview/Presentation Schedule….………
Final Examination and Grading…………………..
Course Marking Scheme………………………….
How to Get the Most from this Course…………..
Tutor and Tutorials ………………………………
Conclusion………………………………………..
Summary …………………………………………
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INTRODUCTION
ISL431: Principles of Islamic Jurisprudence – is a two-credit unit

compulsory course in the B.A. Degree, Islamic Studies programme of the
National Opeen University of Nigeria. The course which is usually taught
in the final year gives the reader a clear picture of Uşulu `l-Fiqh (Principles
of Islamic Jurisprudence). The topics covered are as listed under the Study
Units section of this Guide in the next page to be specific.
The Aims and Objecives of this Course.
The course has fourteen units each of which has its instructional objectives.
You are expected to read the objectives of each unit and bear them in mind
as you go through the unit. Nevertheless, the following are overall
objectives of the course. After readers have gone through the whole course
he/she should be able to expatiate and analyze the following:
 Uṣūlu `l-Fiqh and its relationship with Fiqh.

 Al-Ḥukmu `s-Shar-‘ī: the Rules of Law set forth by the lawgiver for the
actions of the
Mukallafīn
 Jurists‟ divisions of the Sharī‘ah rules into wājib, ħarām, mandūb,
makrūh and mubāħ.
 Al-Hukmu `l-wađ’ī (situational rule of law); the speech of the lawgiver
which enacts something as sabab (cause) shart (condition) māni‘
(preventive) or hindrance, şaħīħ (valid) or bāṭil (invalid).
 Principles of deriving rules from primary and secondary sources
 Al-„azīmah wa `r-rukhşah (strict law and consession).
 Principles governing derivation of rules from the main sources of
Islamic Jurisprudence.
 Principles governing some miscellaneous sources
 Iftā, Taqlīd and Talfīq
 Al-qawā ‘id al-fiqhiyyah (Juristic maxims) and
 Naskh (Abrogation) A`d-da‘āwā wa `sh-Shuhūd (Procedure and
evidence).
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Working through this Course
The Components of this Course which you are expected to work through
without leaving one on touched are:
1. This Course Guide

2. Study Units
3. Textbooks
4. Assignments File
5. Presentation Schedule
Study Units
There are fourteen units (of three modules) in this course. These are listed
thus:
MODULE 1
Unit 1: Concept, Scope and Brief Historical Background of of Uṣūlu `l-
fiqh.
Unit 2: Al-Ḥukmu `s-Shar-‘ī (Sharī‘ah Rules of Law) and its Divisions.
Unit 3: Al-Wājib al.Muhaddad and al-Wājib ghayr Muhaddad
Unit 4: Al-Ḥarām, (the Prohibited), al-Makrūh (the Repulsive) and al-
mubāh (the Permissible)
Unit 5: Al-Hukmu `l-Wađ‘ī (Situational Rule of Law)
Unit 6: a`l-‘Azīmah (Strict Law), a’r-Rukhṣah (Concession).
MODULE 2: SOURCES OF SHARĪ„AH

Unit 1: The Manqūlāt (The Revelation)- Qur’ān and Hadīth
Unit 2: The ‘Aqliyyāt (Reason): 1. Ij-māu.(Concensus)
Unit 3: The ‘Aqliyyāt (Reason): 2. Qiyās (Analogy)
Unit 4 : The ‘Aqliyyāt (Reason): 3. Al-Ijtihād (Exercise of Reasoning)
MODULE 3: MISCELLANEOUS
Unit 1: Istiftā, Taqlīd and Talfīq
Unit 2: The Miscellaneous Sources
Unit 3: Al-Qawā‘id al-Fiqhiyyah (Juristic Maxims)
Unit4:Naskh (Abrogation), Da‘āwā wa`sh-Shuhūd (Procedure and
Evidence)
References and Other Resources
Every unit has a list of references and further reading designed to enhance
and deepen learner‟s knowledge on the course. These are some of them, try
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as much as possible to lay your hands on the materials (some are in soft and
hard copies).
 Maṭlūb, M. M. 2005. ’Uṣūl al- Fiqh al-Islāmī. Cairo. Mu‟assasat al-

Mukhtār.
 Sha„bān, Z. 1988. ’Uṣūl al-Fiqh al-Islāmī. Al-Kuwait. Mu‟assat Al

Al-Ṣabāḥ.
 Al-„Uthaymīn M. S. 2003. Sharḥ Naẓm al-Waraqāt fi-’Uṣūl al-Fiqh.
 Al-Shanqīṭī M. A. 1999. Mudhakkirat al-’Uṣūl al-Fiqh.
 Libson, Steward F.H. 2008. “Urf” Encylopedia of Islam. ed. P.

Bearman, et al.. Sources of Islamic Jurisprudence; Wikipedia: Free
Encyclopedia. www.wikipedia.com
 Phillips, A.A.B. 1990 The Evolution of Fiqh: International Islamic
Publishing House; Riyadh.
 Hallaq, Wael B. „Was the Gate of Ijtihad Closed‟, International
Journal of
Middle East Studies. Vol. 16 No. 1 (Mar., 1984).
 Schacht, J.; MacDonald, D.B.; Schacht, J. 2008. “Idjithād”
Encylopedia of
Islam. Edited by : P. Bearman, et al..
 Ajetunmobi, M.A. (2000): “Intellectual Perspective on the Practices
of
Islamic Law among the Yoruba Muslims of Nigeria”. In Journal of
the
Nigerian Association of Teachers of Arabic And Islamic Studies
(NATAIS),
Ijebu – Ode, Shebiotimo Publications, Vol 5 No. 1
 Doi, A.R.I. (1984); Sharī‘ah: The Islamic Law, United Kingdom, Ta-
Ha
Publishers
 Kamali, M.H. (1991), Principles of Islamic Jurisprudence,
Cambridge,
Islamic Texts Society.
 Hasan, A. (1970). The Early Development of Islamic Jurisprudence,
Islamabad, Islamic Research Institute.
 Farūqi, K. A. (1962). Islamic Jurisprudence, Karachi, Pakistan. .
 Khan, M.Z. (1962). Islam: Its Meaning to Modern Man, London,
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Routledge and Kegan Paul Ltd.
 Bernand, M. 2008. « Idjmā». Encylopedia of Islam. Ed. by : P.
Bearman, et
al.
 Al-„Uthaymīn, M. S. 1993. al-’Uṣūl min ‘ilm al-’Uṣūl. Al-Qāhirah.
 „Ali, M. M. (1973). The Religion of Islam, Lahore.
 Al-Khaṭīb, A. M. 2003. ’Uṣūl al-Ḥadīth, ‘Ulūmuhu wa Musṭalaḥuhu.
Beirut.
 Al-Sibāī, Musṭapha. 1949. Al- Sunnah wa Makānatuha fī-Al-Tashrī‘
al-
Islāmī.Cairo.
 Al-Ghazālī, M. M. n.d. al-Mustaṣfa min ‘Ilm al-’Uṣūl. Beirut.
 Kamāli, M.H. 1991. The Principles of Islamic Jurispudence.
Cambridge.
 A. Raḥīm, M. A. 1994. The Principles of Islamic Juristprudence.
New
Delhi.
 Al-Zāhidī, H.T. 1994. Talkhīṣ al-’Uṣūl. Kuwait.
 Zubair A. Q. 1994. The Rules of Law in the Sharī‘ah. Lagos..
 Schacht, Joseph. 1969. The Origin of Muhammadan Jurisprudence.
Oxford.
 Al-Tahanawi, M.A. 1862. Dictionary of Technical Terms (ed.) „Abd
al-
Haqq and Gulam Kadir, Turkey.
 Al-Fiqh wa Uşūluh (1422H -2001CE.), Ministry of Education ;
catalogue
no 22/0603; Saudi Arabia
 Dr. Salahu `d-Dīn Abdu`l-Hamīd (2012): An Enquiry into Khulāşatu
`l-
Uşūl of Abdullah b. Fūdī; an Unpublished PhD Thesis, University of
Ibadan.
Assignment File
Here, there are details of work you must do and submit to your tutor for
making. Your scores from these assignments shall be used as part of
your final marks in the course. Detail of this shall be found in
ASSIGNMENT FILE and in Course Guide in the assignment section.
Note that ASSIGNMENT will be marked based on tutor-marked
assignment (TMAs) and a final written examination at the end of the
course.
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Assessment
Your assessment will be based on tutor-marked assignments (TMAs)

30% and a final
examination which you will write at end of the course 70%.
Tutor Marked Assignment
Each unit has at least three or four assignments. You are expected to work
through all the assignments and submit them for assessment. Your tutor will
assess the assignments and select four, which will constitute the 30% of
your final grade. The tutor-marked assignments may be presented to you in
a separate file. Note that there are tutor-marked assignments for you. It
important you do them and submit for assessment.
Presentation Schedule
The Presentation Schedule included in your course materials gives you the
important dates for the completion of tutor-marked assignments and
attending tutorials. Remember, you are required to submit all your
assignment by the due date. You should guard against falling behind in your
work.
Course Overview and Presentation Schedule
Unit Title of Work Weeks Assessment Activity
Module 1:
Unit 1 Concept, Scope and Brief Historical Week 1

Background of Uṣūlu `l-fiqh.
Unit 2 Al-Ḥukmu `s-Shar-‘ī (Sharī‘ah Rules Week 2
of Law) and its Divisions Assignment 1
Unit 3 Al-Wājib al.Muhaddad and al-Wājib Week 3
ghayr Muhaddad
Unit 4 Al-Ḥarām, (the Prohibited), al-Makrūh Week 4 Assignment 2
(the Repulsive) and al-mubāh (the
Permissible)
Unit 5 Al-Hukmu `l-Wađ‘ī (Situational Rule Week 5
of Law)
Unit 6 a`l-‘Azīmah (Strict Law), a’r-Rukhṣah Week 6
(Concession)
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Unit 1 The Manqūlāt (The Week 7
Revelation)- Qur’ān and
Hadīth
Unit 2 The ‘Aqliyyāt (Reason): 1. Week 8 Assignment 3

Ij-māu.(Concensus)
Unit 3 The ‘Aqliyyāt (Reason): 2. Week 9

Qiyās (Analogy)
Unit 4 The ‘Aqliyyāt (Reason): 3. Week 10 Assignment 4

Al-Ijtihād (Exercise of
Reasoning)
Module 3: MISCELLANEOUS
Unit 1 Istiftā, Taqlīd and Talfīq

Research Week 11
Unit 2 The Miscellaneous Sources Week 12
Unit 3 Al-Qawā‘id al-Fiqhiyyah Week 13

(Juristic Maxims)
Unit 4 Naskh (Abrogation), Da‘āwā Week 14
wa`sh-Shuhūd (Procedure
and Evidence)
Revision
Examination
Final Examination and Grading
At the end of this course, you will write a final examination, which shall
constitute 70% of your grade. In the examination, you will be required to
answer three (3) questions out of at least five (5) questions.
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Course Marking Scheme
This table shows the actual marks allocations
Assessment Marks
Four Best three marks of the four assignments count as

Assignments 30%
Final 70% of overall marks

Examination
Total 100% of course marks
How to Get the Most from this Course
In distance learning, the study units replace the university lecture. This is
one of its great advantages. You can read and work through specially
designed study materials at your own pace, and at a time and place that suits
you best. Think of it as reading the lecture instead of listening to the
lecturer. In the same way a lecturer might give you some reading to do, the
study units tell you when to read, and which are your text materials or set
books. 'You are provided exercises to do at appropriate points, just as a
lecturer might give you an in-class exercise. Each of the study units follows
a common format. The first item is an introduction to the subject matter of
the unit, and how a particular unit is integrated with the other units and the
course as a whole. Next to this is a set of learning objectives. These
objectives let you know what you should be able to do by the time you have
completed the unit. These learning objectives are meant to guide your
study. The moment a unit is finished, you must go back and check whether
you have achieved the objectives. If this is made a habit, then you will
significantly improve your chances of passing the course. The main body of
the unit guides you through the required reading from other sources. This
will usually be either from your set books or from a Reading section. The
following is a practical strategy for working through the course. If you run
into any trouble, telephone your tutor. Remember that your tutor's job is to
help you. When you need assistance, do not hesitate to call and ask your
tutor to provide it.
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1. Read this Course Guide thoroughly, it is your first assignment.
2. Organize a Study Schedule. Design a „Course Overview‟ to guide

you through the Course. Note the time you are expected to spend on
each unit and how the assignments relate to the units. Important
information, e.g. details of your tutorials, and the date of the first day
of the Semester is available from the study centre. You need to gather
all the information into one place, such as your diary or a wall
calendar. Whatever method you choose to use, you should decide on
and write in your own dales and schedule of work for each unit.
3. Once you have created your own study schedule, do everything to

stay faithful to it. The major reason that students fail is that they get
behind with their course work. If you get into difficulties with your
schedule, please, let your tutor know before it is too late for help.
4. Turn to Unit 1, and read the introduction and the objectives for the
unit.
5. Assemble the study materials. You will need your set books and the
unit you arc studying at any point in time.
6. Work through the unit. As you work through the unit, you will know
what sources to consult for further information.
7. Keep in touch with your Study Centre. Up-to-date course information

will be continuously available there.
8. Well before the relevant due dates (about 4 weeks before the dates),
keep in mind that you will learn a lot by doing the assignment
carefully. They have been designed to help you meet the objectives of
the course and, therefore, will help you pass the examination. Submit
all assignments not later than the due date.
9. Review the objectives for each study unit to confirm that you have
achieved them. If you feel unsure about any of the objectives, review
the study materials or consult your tutor.
10. When you are confident that you have achieved a unit's objectives,
you can start on the next unit. Proceed unit by unit through the course
and try to pace your study so that you keep yourself on schedule.
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11. When you have submitted an assignment to your tutor for marking,
do not wait for its return before starting on the next unit. Keep to your
schedule. When the Assignment is returned, pay particular attention
to your tutor‟s comments, both on the Tutor-Marked Assignment
form and also the written comments on the ordinary assignments.
12. After completing the last unit, review the course and prepare yourself
for the final examination. Check that you have achieved the unit
objectives (listed at the beginning of each unit) and the course
objectives (listed in the Course Guide).
Tutors and Tutorials
The dates, times and locations of these tutorials will be made available to
you, together with the name, telephone number and address of your tutor.
Your tutor will mark each assignment. Pay close attention to the comments
your tutor might make on your assignments as these will help in your
progress. Make sure that assignments reach your tutor on or before the due
date. Your tutorials are important, therefore try not to skip any. It is an
opportunity to meet your tutor and your fellow students. It is also an
opportunity to get the help of your tutor and discuss any difficulties
encountered on your reading.
Summary
In this Course Guide, we have provided you a general overview of ISL 431:
The Principles of Islamic Jurisprudence. in which students pursuing Degree
in Arabic and Islamic Studies programme must earn two credit Units. The
Course Aims and Objectives and what learners will gain working through
the Course Material and its Study Units are stated clearly at the onset. We
have also provided you a list of textbooks and references for your further
reading. As an inference in the Guide, to develop an active interest in the
Course is a prerequisite for its successful completion. Assess yourself
through the Self Assessment Exercises (SAEs). You will equally be
assessed for grading purposes through the Tutor-Marked Assignments
(TMAs). Thus to do well- in the course, you must get yourself organized
and try to conform to the presentation schedule.
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Conclusion
Much as I cannot promise you a too-easy ride on this course, I equally do

not envisage much difficulty as long as you play the roles assigned to you
in the whole exercise.
We wish you best of luck and success in the course.
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TABLE OF CONTENTS
MODULE 1
Unit 1: Concept, Scope and Brief Historical Background of of Uṣūlu `l-
fiqh.
Unit 2: Al-Ḥukmu `s-Shar-‘ī (Sharī‘ah Rules of Law) and its Divisions.
Unit 3: Al-Wājib al.Muhaddad and al-Wājib ghayr Muhaddad
mubāh (the
Permissible)

Unit 2: The ‘Aqliyyāt (Reason): 1. Ij-māu.(Concensus)
Unit 3. The ‘Aqliyyāt (Reason): 2. Qiyās (Analogy)
Unit 4 : The ‘Aqliyyāt (Reason): 3. Al-Ijtihād (Exercise of Reasoning)
MODULE 3: MISCELLANEOUS
Unit 1: Istiftā, Taqlīd and Talfīq
Unit 2: The Miscellaneous Sources
Unit 4: Naskh (Abrogation), Da‘āwā wa`sh-Shuhūd (Procedure and
Evidence)
MODULE 1
Unit 1: Background of Uṣūlu `l-fiqh.
Unit 2: Al-Ḥukmu `s-Shar-‘ī ( Sharī‘ah Rules of Law) and its Divisions
Unit 3: Al-Wajib al-Muhaddad and al-Wājib ghayr Muhaddad
mubāh (the
Permissible)
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UNIT 1: CONCEPT AND SCOPE OF UṢŪLU `L-FIQH
Unit Structure
1.1 Introduction
1.2 Learning Outcomes
1.3 Uşūlu `l-Fiqh
1.3.1 Definition of Uşūlu `l-Fiqh; Its Two Components and their
differences.
1.3.2 Scope of ‘Uşūl al–Fiqh.
1.3.3 Difference between Fiqh and ‘Uşūl al – Fiqh.
1.3.4 Early Phases of Uṣūl al-Fiqh.
1.3.5 Role of Imam Shafii as founder of Uṣūl al-Fiqh.
1.3.6 Approaches to the Study of ’Uṣūl al-Fiqh: the theoretical and
the
deductive.
1.3.7 Main Characteristics of the approaches to the study of ’Uṣūl al-Fiqh.
1.4 Conclusion
1.5 Summary
1.6 References/Further Readings
1.7 Possible Answers to Self-Assessment Exercises (SAEs)
1.1 INTRODUCTION
It is my pleasure to welcome you to this class for discussion on ISL431
which is titled PRINCIPLES OF ISLAMIC JURISPRUDENCE. This is
Unit 1 of the course and our discussion now will be on Uṣūl al-fiqh. Al-
Fiqh and the Uṣūl are, since early days of their development, two
separate though related disciplines. Their common basis is the Islamic
injunction. Knowledge of Uṣūl al-fiqh often entails knowledge of al-
fiqh, but the opposite is not necessarily the case. In fact, there are many
Muslim scholars who have good knowledge of al-fiqh or „Ilmu`l-
furū„(science of the detailed branches of laws) but have little or no
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knowledge of Uṣūl al-fiqh. This has often resulted into misleading
references and even wrong practices at times. The confusion arises from
the fact that the two subjects have different functions.
Our focus in this unit is to take you through the definition of Uṣūl al-
Fiqh, its significance, scope and differences between the two
components of the term. You shall also be taken through the historical
development of the science. Welcome. .
1.2 LEARNING OUTCOMES

By the end of the unit, you will be able to:
 define ‘Uşūl al – Fiqh
 analyze the two components of the terminology.
 define ‘Uşūl proper
 define Fiqh proper
 highlight the Scope of the Science
 differentiate between Fiqh and ‘Uşūl al – Fiqh
 trace the origin and development of Uṣūl al-Fiqh
 expatiate upon the role of Shafii
 highlight the emergent approaches to the study of Uṣūl al-Fiqh by
various schools
 discuss the characteristics of the various approaches adopted by
various schools.
1.3 Uşūlu `l-Fiqh
1.3.1 Definition of Uşūlu `l-Fiqh and Its two Components

Orientalists such as Joseph Schach simply define Uṣūl al-fiqh as the science
of the principles underlying the branches of Islamic law. This definition is
purely technical and it neither reflects the literal meaning of the expression
nor take into account that the words Uṣūl al-fiqh are two separate nouns
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with separate literary and technical meanings. As a result, it has not
enjoyed much recognition among Muslim scholars. Therefore, most of
them appear to prefer a definition which will reflect both aspects of the
terminology.
The word Uṣūl is plural of ’asl. which has a variety of technical

meanings. It is used for:
(i) evidence (dalīl) for root or origin;
(ii) preference (al-rājiḥ); and
(iii) principle (al-qā‘idah)
The last meaning is the one which later became part of the technical
expression “Uṣūl al-fiqh”, and thus Uṣūl al-fiqh, Uṣūl al-Ḥadīth are
synonymous with qawā‘id al-fiqh and qawā‘id al-Ḥadīth.5
As for al-fiqh, it literally means knowledge and understanding (al-‘Ilm
wa al-fahm). Technically, it has been confined to the knowledge of the
branches of Islamic law.
However, out of this breakdown, the Uṣūliyūn (legal theorists) formed a
more plausible definition which reflects both literary and technical
meanings of the term. They first defined aṣl on it‟s own as “what
another thing is built upon” (Ma yubtana ‘alayhi ghayruhu); then, they
combined this definition directly with al-fiqh and defined it as follows:
(Ma yubtana al-fiqh ‘alayhi wa yustanad ilayhi) meaning “what al-fiqh
is built upon and depends on”. This definition seems to have become
popular among the Uṣūliyūn since the third and fourth centuries. In fact,
Abu al-Husayn al-Basri (d. 436A.H) mentioned this definition in his
book Kitāb al-mu‘tamada fi Usūl al-fiqh. Most Uṣūliyūn regard this
definition as a most comprehensive one because the term Uṣūl al-fiqh
includes every aspect of the science, such as amr (direct command) al-
qiyās (analogical deduction), ijtihād (individual reasoning or discretion).
Istihsan (preference) and other aspects of Uṣūl al-fiqh.
However, some scholars, while not discarding this definition of ’Uṣūl al-
fiqh, consider other definitions formed by the Orientalists. Muhammad
b. „Ali al-Tahanawī, the author of the Dictionary of Technical Terms,
defined it as the science of the principle which leads to law by way of
investigation‟ (al-‘ilm bi-al-qawā‘id allati yutawassulu biha ‘ila al fiqh
‘ala wajh al-tahqiq). This one seems to be more precise and those who
put it forward call it “a popular definition” (al-ta-‘rīf bi`l-laqab).
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Definition of ‟Uṣūl al-Fiqh Proper
’Uṣūl al-fiqh or the roots of Islamic law is defined as the knowledge or
science of the juristic procedures with which jurists derive juristic or
legal conclusions or rulings from certain general legal precepts on
specific issues - or phenomena.
Thus, ’uṣūl al-fiqh provides the basis upon which the faqīh builds
universal prepositions or qawā’idu‘āmmah to be used in deriving the
propositions of the law applicable to particular cases10.
This can be explained better by saying that, a general principle of ’uṣūl
al-fiqh is that every positive imperative statement of the Qur’ān or
prophetic tradition implies an obligatory duty (wujūb), while negative
imperative requires prohibition (taḥrīm). For example, the Qur’an says:
“observe the obligatory prayer and give legal alms”. The imperatives
here require wujūb or obligation. While the saying of Allah: “do not
come near adultery” requires taḥrīm or prohibition. Al-wujūb and al-
taḥrīm are general propositions to be used by the Uşūlīs (the Legal
Theorist).
’Uṣūl al-fiqh is constituted by several authoritative (proofs) namely the
Qur’ān, the Sunnah, the consensus (ijmā‘), al-qiyās (analogical
reasoning) al-Istiṣhāb (presumption) and the like.
In-text question: Explain the terms ’uṣūl and al-fiqh
Definition of Fiqh proper
Fiqh according to legal theorists (Uşūlīs) is defined as a knowledge
subsidiary to the sources of Islamic law. In other words, Fiqh is “the
science of deducing Islamic Laws from evidence found in the sources of
Islamic law” by extension; it also means the body of Islamic laws so
deduced.
Fiqh is also defined as the: knowledge of the practical rules of sharī„ah
acquired from the detailed evidence in the sources.11
The knowledge of the rules of fiqh, in other words, must be acquired
directly from the sources, a requirement which implies that the faqīh (the
jurist) must be in contact with the sources of fiqh. Therefore, fiqh is the
deduction of the sharī‘ah value relating to a particular evidence.
The above definition of fiqh conveys a sense of leaving out the
intellectual and perceptual values (such as the obligation of belief in
Allah and the Prophets (al-‘aqīdah). This type of knowledge belongs to
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the abstract theological study and not concrete devotions like the act of
ṣalāt and ḥajj.
According to jurists, a person is not a faqīh when he knows only the
sharī‘ah values or aḥkām. He is called a faqīh only if he has himself, by
personal inquiry and thought, deduced those values from their primary
sources. 12
Difference between Fiqh and Uṣūl al-Fiqh.
The main differences between fiqh and ’uṣūl al-fiqh is that the former is
concerned with the knowledge of the detailed rules of Islamic law in its
various branches, and the latter with the methods that are applied in the
deduction of such rules from their sources. Fiqh, in other words, is the
law itself whereas ’uṣūl al-fiqh is the methodology of the law. The
relationship between the two disciplines resembles that of the rules of
grammar to a language, or of logic (manṭiq) to philosophy.
1.3.2 Scope of Uṣūl al-fiqh
Some of the branches of knowledge or basic areas of discussions upon
which ‘ilm al-’uṣūl is built include:
a. Basic principles of logic (muqaddimat manṭiqiyyah)
b. Linguistic discourse (Mabāḥith al-lughah)
c. Injunctions and prohibitions (al-awāmir wa `l –nawāhi)
d. Generalized and specific ruling (Al-‘āmm wa al–khāṣ)
e. The concised and the detailed (al-mujmal wa al-mubayyan)
f. The imports of the Prophet‟s Actions (Af‘āl al-rasūl wa dilālatiha)
g. Consensus (al-Ijmā‘)
h. Analogy (al-qiyās)
i. Textual conflicts and Juristic preference (al-ta‘āruḍ wa al-tarjīḥ)
j. Exertion of Juristic Effort and Blind imitation (al-Ijtihād and
Taqlīd)
k. Proofs upon which Scholars differed (Al-’adillah al-mukhtalaf). 17
In-text question: Mention some of the scopes of ‘usul-al-fuqh.

Self-Assessment Exercises 1 (SAEs)
1. Define ‘Uşūl al – Fiqh and its various components.
2. Enumerate the specific areas that could be covered in
the
science of ‘Uşūl al – Fiqh.
20
1.3.3 Early Phases of Uṣūl al-Fiqh
Uṣūl al-fiqh, as previously indicated, is among the Islamic scientific
knowledge that developed in the later part of the second century of
Hijrah, or after the period of the Prophet, his Companions and their
Successors. But, it remained without any proper definition for some time
though its actual subject matter seemed to be well established. Only in
the third and fourth centuries when definition became more necessary
did some scholars try to give it a definition in order to distinguish it from
other Islamic sciences. Even al-Shāfi„ī who many people have
described as the originator of this science did not give it the title Uṣūl al-
fiqh.
It is nevertheless accurate to say that fiqh preceeded the ’uṣūl al-fiqh and
that it was only during the second Islamic century that important
development took place and led to the emergence of ‟uṣūl al-fiqh. For
when the Prophet was alive, the necessary guidance and solutions to
problems were obtained either through divine revelation or his direct
rulings. Similarly, during the period following the demise of the Prophet,
the Companions remained in close contact with the teachings of the
Prophet and their decisions were mainly inspired by his precedents.
Their proximity to the source and intimate knowledge of the events
provided them with the authority to rule, on practical problems without
there being a pressing need for methodology. However, with the
expansion of the territorial domain of Islam, the companions were
dispersed and direct access to them became increasingly difficult. With
this, the possibility of confusion and error in the understanding of the
textual sources became more prominent. Disputation and diversity of
juristic thought in different quarters heightened the need for clear
guidelines, and thus time was ripe for methodology of legal theorization
which al-Shāfi„ī was to articulate, for ’uṣūl al-fiqh. Al-Shāfi„ī came on
the scene when juristic controversy had become prevalent between the
jurists of Madina and Iraq, respectively known as ahl al-ḥadīth and ahl
al-ra’y.
This was also the time when the ‘ulamā‟ of Ḥadīth had succeeded in
their efforts to collect and document the Ḥadīth. Once fuqahā’ were
assured of the subject matter of the Sunnah, they began to elaborate the
law and hence the need for methodology to regulate Ijtihād became
increasingly apparent. The consolidation of ’uṣūl al-fiqh as a sharī‘ah
discipline was, in other words, a logical conclusion of the compilation of
the vast literature of Ḥadīth5 Other factors that prompted the Uṣūlīs
(Legal theorists) into refining the legal theory of ’uṣūl al-fiqh was the
extensive influx of non-Arabs into Islamic territories and the
21
disconcerting influence they brought to bear on legal and cultural
traditions of Islam.
1.3.4 The Role of Imam al-Shāfi„ī and „Uṣūl al-Fiqh
In his work entitled Risālah, Shāfi„ī enacted guidelines for ijtihād and
expounded the rules governing the Khāṣṣ and the ‘Āmm, the nāsikh and
mansūkh and articulated the principles governing ijmā‘and qiyās. He
expounded the rules by relying on the solitary ḥadīth (khabar al-wāḥid)
and its value in the determination of aḥkām (judgment).
Muḥammad Abū Zahrah considers al-Shāfi„ī to be the founder of ‘Ilm
al-’Uṣūl. He preceded others in laying down the foundation of ‘Ilm al-
’Uṣūl. On the other hand a statement is credited to Fakhr al-Dīn al-Rāzi
to the effect that “Al-Shāfi„ī stood in relation to ‘Ilm al-’Uṣūl in a
position similar to that of Aristotle with respect to logic and al-Khalīl bn
Aḥmad with respect to prosody”.
However, in this connection the Shi„ite ‘ulamā’ have claimed that their
fifth Imām Muḥammad al-Bāqir, and his son and successor, Ja„far aş-
Şādiq, were the first to write on the subject of ’uṣūl. According to Abū
Zahrah, who has written extensively on the -lives of and the works of the
early Imams, the Shi‟ite Imams have written, like many others on the
subject, but neither of the two Imams have written anything of an
equivalent to that of Risālah. Hence al-Shafi„ī‟s position and
contribution to ’uṣūl al-fiqh remains unique and he is rightly regarded as
the founder of ’uṣūl al-fiqh.
Admittedly, al-Shāfi„ī was not the first to address these matters, but it is
widely acknowledged that he brought a coherence to’uṣūl al-fiqh, which
had hitherto remained scattered and unconsolidated.
1.3.5 Approaches to the Study of ‟Uṣūl al-Fiqh

Following the establishment of the Madhāhib (schools of thought), the
‘ulamā’ of various Schools adopted two different approaches to the
study of ’uṣūl al-fiqh one of which is theoretical and the other deductive.
The theoretical approach is known as ’Uṣūl al-Shāfi‘iyyah or Tarīq al-
Mutakallimīn whereas the latter is known as ’Uṣūl al-Ḥanafiyyah or
Tariqat al-Fuqahā’.
The theoretical approach to the study of ’uṣūl al-fiqh is adopted by the
jurists of the Māliki and Shāfi„ī and the Mu‘tazilah. It is known as ’Uṣūl
al-Shāfi‘iyyah while its followers are known as al-Mutakallimun,
because some problems of kalām and philosophy found their way into
22
‘ilm al-’uṣūl, such as taḥsīn wa taqbīḥ ’ aqlī (the rational basis of ethical
judgments), the necessity of the correlation between reason (‘aql) and
divine law (Sharī‘āh), wujūb shukr al-mun‘im (Obligation of the duty of
gratitude to the Benefactor), taklīf bi al-muḥāl (imposition of a duty
exceeding capacity), taklīf bi al-ma‘dūm (imposition of a duty which
includes something non-existent) the infallibility (iṣmah) of the
Prophets and whether their infallibility precedes their appointment to
Prophethood or only accompanies it, and so on.
Main Characteristics of the theoretical Approach
1. The main purpose of ‘ilm al-’uṣūl was deduction of aḥkām (legal

rulings) in the approach of the shāfi‘iyyah and the Mutakallimūn. ‘Ilm
al-’uṣūl thus lost its practical relevance, as it is becoming more and
more abstract and theoretical.
2. This theoretical approach became permeated with discursive
arguments, being not merely concerned with ẓawāhir al-Kitāb,
Sunnah and Ijmā‘. As a result, some problems of logic also entered
‘ilm al-’uṣūl.13
3. Al-Shāfi„ī was mainly concerned with articulating the theoretical
principles of ’uṣūl al-fiqh without necessarily attempting to relate
these
principles to the fiqh itself.
4. Al-Shāfi„ī enacted a set of criteria, which he expected to be followed
in the detailed formulation of the rules of fiqh.
5. His theoretical exposition of ’uṣūl-fiqh in other words, did not take into
consideration their practical application in the area of the furū‘(branches of
fiqh).
6. In addition, the Shāfi‘īyyah and the Mutakallimūm are inclined to
engage in complex issues of a philosophical character which may or
may not contribute to the development of the practical rules of fiqh.
In-text question: Briefly explain the theoretical and the deductive

approaches of „usul-fiqh.
23
Main Characteristics of the Deductive Approach
1. The Ḥanafīs have on the other hand attempted to expound the

principles of ’uṣūl al- fiqh in conjunction with the fiqh itself and tend
to be more pragmatic in their approach to the subject.
2. While the theoretical approach of the Shafiiyyah and the
Mutakallimun tends to envisage ’uṣūl al-fiqh as an independent discipline
to which the fiqh must conform, the deductive approach attempts to relate
the ’uṣūl al-fiqh more closely to the detailed issues of the furū‘ al-fiqh.
3. When for example, the Ḥanafis find a principle of ’uṣūl to be in
conflict with an established principle of fiqh, they are inclined to adjust the
theory to the extent that the conflict in question is removed, or else they try
to make the necessary exception so as to reach a compromise.
4. So, Imām Abū Ḥanīfah and his disciples adopting the guide
provided by the Prophet and his Companions as basis of his scientific
theory developed subtle rules of legal and juristic scholarship and judgment.
5. They deduced sharī‘ah values from the sources of sharī‘ah
without going into theoretical aspects.
6. Scholars were later to write books to chart clear cut pattern of
classification on the development of ’uṣūl al-fiqh.
Self-Assessment Exercises 2 SAEs)

3. Discuss the early phases of „Uṣūl al-Fiqh
4. Explain the role of Shafi„ī in the emergence of Uṣūl
al-
Fiqh as a science.
5. Discuss the main approaches to the study of ’Uṣūl al-
Fiqh
and enumerate the main characteristics of each of
them.
1.4 CONCLUSION
To deduce the rules of Fiqh from the evidences that are provided in the
sources is the expressed purpose of ’uṣūl al-fiqh. Fiqh as such is the end
product of ’uṣūl al-fiqh, and yet the two are separate disciplines. „Uṣūl al-
Fiqh in this sense provides standard criteria for the correct deduction of the
rules of Fiqh from the sources of sharī‘ah.
An adequate knowledge of fiqh necessitates close familiarity with its
sources. This is borne out in the definition of fiqh, which is Knowledge of
the practical rules of sharī‘ah acquired from the detailed evidence in the
sources.
24
The knowledge of the rules of fiqh, in other words must be acquired directly
from the sources, a requirement which implies that the faqīh must be in
contact with the sources of fiqh.
During the last phase of development, „ilm al-‟uṣūl attained its maturity and
achieved a relative independence from ‘ilm al-kalām. This independence
however does not contradict the great influence of ‘ilm al-kalām on „ilm al-
‟uṣūl, an influence which has clearly sustained down till these today when
the books written nowadays are free from ‘Ilm al-Kalām.
1.5 SUMMARY
This Unit elucidates the definition of „Uṣūl al-Fiqh in detail using both the
classical and modern approaches. The two parts of the terminology are
analyzed and the significance of the science shown. The difference between
the two components of the term is also briefly stated. A section highlighting
the scope of the science constituted the discussion before the Units
conclusion.
1.6 REFERENCES & FURTHER READINGS

 Salahu `d-Dīn Abdu`l-Hamīd (2012): An Enquiry into Khulāşatu `l-Uşūl of
Abdullah b. Fūdī; an Unpublished PhD Thesis, University of Ibadan.
 Khallāf, Abd al-Wahhab. 1977. ‘Ilm ’Uṣūl al-Fiqh (11th Edition). Kuwait.
 Al-Tahanawi, M.A. 1862. Dictionary of Technical Terms (ed.) „Abd al-Haqq and
Gulam Kadir, Turkey. Vol. 1.
 Abū Zahrah, M. 1958. ‟Uṣūl al-Fiqh. Cairo.
 Qadri, A. A. 1973. Islamic Jurisprudence in Modern World. Lahore.
1.7 Possible Answers to SAEs
Answers to SAEs 1
1. Definition of Uṣūl al-fiqh:
’Uṣūl al-fiqh or the roots of Islamic law is defined as the knowledge

or science of the juristic procedures with which jurists derive juristic
or legal conclusions or rulings from certain general legal precepts on
specific issues - or phenomena.
2. Areas covered by ’Uṣūl al-fiqh:
 Basic principles of logic (muqaddimat manṭiqiyyah)
25
 Linguistic discourse (Mabāḥith al-lughah)
 Injunctions and prohibitions (al-awāmir wa `l –nawāhi)
 Generalized and specific ruling (Al-‘āmm wa al–khāṣ)
 The concised and the detailed (al-mujmal wa al-mubayyan)
 The imports of the Prophet‟s Actions (Af‘āl al-rasūl wa
dilālatiha)
 Consensus (al-Ijmā‘)
 Analogy (al-qiyās)
 Textual conflicts and Juristic preference (al-ta‘āruḍ wa al-
tarjīḥ)
 Exertion of Juristic Effort and Blind imitation (al-Ijtihād
and Taqlīd)
 Proofs upon which Scholars differed (Al-’adillah al-
mukhtalaf).
Answers to SAEs 2
3. The early phases of „Uṣūl al-Fiqh
 Uṣūl al-fiqh developed in the later part of the second century of
Hijrah.
 It remained without any proper definition for some time though its
actual subject matter seemed to be well established.
 It became well defined in the third and fourth centuries by some
scholars in order to distinguish it from other Islamic sciences.
 It was believed to have been originated by al-Shāfi„ī who however
did not give it the title Uṣūl al-fiqh.
4. The role of Shafi„ī in the emergence of Uṣūl al- Fiqh as a science.
 Al-Shāfi„ī was considered to be the founder of ‘Ilm al-’Uṣūl as he
preceded others in laying down its foundation.
 “Al-Shāfi„ī stood in relation to ‘Ilm al-’Uṣūl in a position similar
to that of Aristotle with respect to logic and al-Khalīl bn Aḥmad
with respect to prosody”.
 Admittedly, al-Shāfi„ī was not the first to address these matters,
but it is widely acknowledged that he brought a coherence to’uṣūl
al-fiqh, which had hitherto remained scattered and unconsolidated
5. Main approaches to the study of ’Uṣūl al-Fiqh.
26
 There are two main approaches which are: the theoretical approach
and the deductive approach.
UNIT 2: AL-ḤUKMU `SH-SHAR-„Ī (SHARĪ„AH RULES OF LAW)

AND ITS DIVISIONS
Unit Structure
2.1 Introduction
2.3 Al-Hukmu 'sh-shar'ī (Sharī'ah rules of law).
2.3.1 The Concept and Defininition of the Al-Hukmu `sh – Shar ‘ī or a`t-
Taklīfī
2.3.2 The Acts of Mukallafs.
2.3.3 Obligation of Rule of Law (Al-Hukmu `sh – Shar ‘ī or a`t- Taklīfī).
2.3.4 Al-Wājib/al-Farđ
2.3.5 Divisions of Al-Wājib/al-Farđ
2.4 Conclusion
2.5 Summary
2.1 INTRODUCTION
The prescriptions which Al-ḥukm al-shar‘ī or al-taklīfī, set forth for the
actions of the Mukallafīn (the capable people) by the Lawgiver are divided
into five divisions as unanimously agreed to by the majority of jurists
namely:
i. Al-farḍ / al-wājib (obligation)
ii. Al-taḥrīm (prohibition)
iii. An-nadb (Recommendation)
iv. Al-ikrāh (abomination/dislike)
v. Al-ibāḥah (indifference)
These shall be examined one by one for our understanding. Come on board.
By the end of this Unit you will be able to:
 define al-ḥukmu `sh-shar-‘ī and explain the concept of legal capacity.
 discuss the acts of Mukallafīn
 dlaborate on the implication of the attainment of legal capacity in
respect of the rules in the Shariah.
27
 explain al-Wājib /al-Farđ (The Rule of Law which implies
Obligation)
 define and explain the implications of Al-Ḥukm sh-Shar-‘ī or al-
Taklīfī which imposes duties.
 highlight the divisions of al-Wājib / al-Farḍ

2.3 Al-Hukmu 'sh-shar'ī (Sharī'ah rules of law).
2.3.1 Concept and Definition of the Al-Hukmu `sh – Shar „ī or a`t-
Taklīfī
According to the legal theorists (Usulists) Ḥukm Shāri‘ī is the speech
(Qur’ān and Sunnah) or communication from the Lawgiver which relates to
the acts of the mukallaf (person legally capable) with which he is charged.
The above definition of the speech of the Lord or the Lawgiver is concerned
with man‟s outward conduct and excludes the intellect and perceptual
values (such as the obligation of belief in Allah and the Prophets).
Moreover, the speech of Allah consists of a requirement which according to
the rhetorician is termed inshā’u ṭalabī which is usually communicated in
the form of either a command (al-’amr) or prohibition (al-nahy). The
Command requires that the mukallaf (the capable person) does something,
whereas the prohibition requires him to avoid doing something. Thus, the
mukallaf (the legally responsible person) is interchangeably called al-
maḥkūm ‘alayhi (subject of law) in ’uṣūl al-fiqh.
The Usulists differentiate between the legally capacitated person and the
other whose legality was incapacitated and curtailed due to certain
circumstances which prevented him from discharging his responsibility
actively and efficiently. Usulists call the incapacitated person, the
unmindful which is loaded with meanings. It can be, the minor, the insane
or the one who sleeps. The other legally incapacitated is the mukrah (a
legally capacitated acting under duress). The Usulists termed these issues as
„awāriḍ al-ahliyyah that is impediments of legal capacity. The possession
of „aql (mental faculty) is the basic criterion of taklīf. The law as
expounded by the Usulists, concerns itself with the circumstances that
affect the sanity and capacity of the individual such as minority, insanity,
duress, intoxication, interdiction (ḥajr) and mistake, all these terms are
grouped under the word ghāfil and mukrah.
In-text question: Who is a Mukallaf?
2.3.2 The acts of Mukallafūn
28
The related speech of God to the acts of mukallafīn as it is expressed in the
definition, is an indication of the following
i. That the speech of God which is not related to the acts of mukallafūn
is excluded from this definition.
ii. That the speech of God which relates to the mukallafūn but not to
their acts is beyond the scope of this definition.
iii. That non–mukallafūn is excempted from the ḥukm.
Active legal capacity is only acquired upon attaining a certain level of
intellectual maturity and competence. Only a person who understands what
he does and says is competent to conclude a contract, discharge an
obligation or can be punished for violating the law. This is why an adult
who is insane, or an adult of any age who is asleep, is not held responsible
for his conduct. The principle here is clearly stated in the ḥadīth which
provides:
The pen is lifted from three persons: the one who is asleep until he
wakes;
the minor until he attains puberty and the insane until he regained
sanity.
Other Ḥadīth in this regard provides as follows: verily God
has, for my sake overlooked the mistakes and forgetfulness of
my community and what they are forced to do.
In other words, these three people are exempted from liabilities unless in
some aspects of tortuous cases where their guardians or relatives will be
held liable. It can be conveniently deduced that sleeping, infancy and
madness are preventive of liability as the ḥadīth pointed out.
As for the active legal capacity, three possible situations have been
envisaged:
First, a person may be totally lacking of active legal capacity as in the case
of a minor during infancy or an insane person of any age. Since neither is
endowed with the faculty of intellect, no legal consequences accrued from
their words and action. When a child or a madman kills someone or
destroys the property of another person, they can only be held liable with
reference to their property but not their persons. They cannot be subjected,
for example to retaliation or any other types of punishment.
Second, a person may be partially lacking in active legal capacity. Thus the
discerning child (al-ṣabiyy al-mumayyiz) that is, a child between seven and
fifteen years of age or an idiot (ma‘tūh) who is neither insane nor totally
lacking in intellect but whose intellect is defective and weak possesses a
29
legal capacity which is deficient. Both of them possess an active legal
capacity which is incomplete and partial, and thus can only conclude
transactions that are totally to their benefit, such as accepting gift or charity;
even without the permission of their guardians.
Third, active legal capacity is complete upon the attainment of intellect
maturity. Hence every person who has acquired this ability is presumed to
possess active legal capacity unless there is evidence to show that he or she
is deficient of intellect or suffers from insanity.
Self–Assessment Exercises 1 (SAEs)
1. Define al-Hukmu ‘sh-Shar‘ī and elucidate concept of legal

capacity.
2. When is a man said to have attained legal capacity?
Elaborate on the envisaged three possible situations.
2.3.3 Al-Ḥukm sh-Shar-„ī or al-Taklīfī al-Wājib /al-Farđ (The Rule of

Law which implies Obligation)
Al-Ḥukm sh-Shar-‘ī is defined as the communication from Allah which

assumes the form of requirement which may be absolute or not absolute.
If the former (absolute), the requirement may consist in demanding men to

do something in which case the act required is regarded obligatory farḍ or
wājib. Or it may require him to forbear or abstain from doing something, in
which case the action to be forborne or abstained from is said to be
forbidden (ḥarām).
If such a speech imposes duties of commission or omission, when the
requirement is not of an absolute character the act to which it refers, if it be
one of commission, is commendable (mandūb), and if it be one to be
forborne or abstained from it is called condemned, or abominable or
improper (makrūh).
An act with reference to the doing or omission of which there is no
requirement, or in other words, with respect to which the Lawgiver is
indifferent, is regarded as permissible (mubāḥ).
All acts which are neither obligatory, nor forbidden, nor commanded fall
within the last category.
Law which thus defines the characteristics of a man‟s actions, namely,
whether they are obligatory, forbidden, condemned or permissible or
30
indicate the legal effects of acts for instance, that the right of ownership
arise from an act of purchase, the obligation to pay rent, from possession of
another‟s land and the like, are called in Arabic taklīfī (literally:
imposition). This law defines or indicates the extent of a man‟s liberty of
action and the restraint imposed upon it, or in other words his right and
obligations.
2.3.4 Al-Wājib/Al-farḍ
This refers to an action, which the mukallaf is compelled to do while failure
to do it attracts heavy punishment.
Farḍ and wājib are arrived at by means of clear and definitive text of the
Qur’ān and Sunnah.
A typical example of al-farḍ or al-wājib is the institution of ritual prayer,
where Allah says:
Regular prayers are enjoined on believers at stated times (Q. 4:
103).
The reason being that another verse of the Qur’ān narrated that among the
causes of divine punishment on the would-be-dwellers of Hell is their
neglect of regular prayers where Allah says:
What led you into Hell fire? The said: we were not of
those who
prayed (Q. 74:42-43)
Besides, al-farḍ according to Usulists is a synonym for word al-wājib in the

view of the majority schools of law.25 Imām Mālik and Imām and Shāfi„ī
and those who follow them are representatives of this view. Thus, the
majority of jurists defined al-farḍ and al-wājib as:
Al-farḍ is a legal norm arrived at by means of clear and

definitive text of the Qur’ān and Sunnah and whose
performance is strictly required from mukallafīn.
On the other hand, al-wājib is defined by the majority of Usulists as in the

following:
Al-wājib is a legal norm established by definitive
evidences and speculative authority and whose
performance is equally strictly required from mukallafīn.
31
That is to say, al-wājib and al-farḍ are based on clear textual evidences,
which admit no interpretation and which have been transmitted through so
many channels that no doubt can be cast on their authenticity, like the
obligation of prayer and zakāt etc.
However, Ḥanafis school opined that al-farḍ is an action which is proved
with a definitive and emphatic evidence, like prayer and zakāt and so on,
while al-wājib is an action proved with a clear evidence but not emphatic,
like Umrah (lesser hajj).
Al-Ghazālī concluded when he said that; as far as we are concerned, there is
no difference between farḍ and wājib, the two terms are synonymous.
Imām Shāfi„ī on the other hand is of the opinion that farḍ and wājib are to
be merged into a single concept being defined as that whose commission is
rewarded and omission punished.
In-text question: Mention some religious activities that fall under wājib or
fard.
3. Define and explain the implications of Al-Ḥukm sh-Shar-‘ī

or al-Taklīfī which imposes duties..
4. Expound the concept of al-Wājib / al-Farḍ. Give a critical
presentation of the stand of various schools and shades of
opinion.
.
2.3. 5 Divisions of al-Wājib / al-Farḍ
Taking various aspects of duties into consideration, there are different types
of al-wājib recognized by the Usulis. The most important of them are:
First, al-wājib in consideration of the period of which it must be done or
carried out, is divided into two: al-muṭlaq and al-mu’aqqat.
(a) Al-wājib al-muṭlaq is an obligatory action which the Lawgiver does not
specify any particular period for its performance.
Mukallaf is therefore free to perform the duty at his convenient time. An
instance of this is the violation of an oath. The time of expiation for
violating the oath is not specified by the Lawgiver. Allah says:
Allah will not punish you for what is unintentional in your
oaths, but He will punish you for your deliberate oaths; for
32
its expiation, feed a ten poor persons, on a scale of the
average of that which you feed your own families, or clothe
them or manumit a slave. But whosoever cannot afford that,
then, he should fast for three days. That is the expiation for
the oaths when you have sworn. (Q. 5 :89).
The same thing is applied to a nadhr (vow to do a lawful thing) at
unspecified day.
Al-wājib al-mu’aqqat is an act that the Lawgiver prescribes a certain rule
for its performance, examples of such are Ramaḍān fasting and Ḥājj. These
actions are to be performed at specialised times which had been ordained in
order to attain legal validity. This Wājib Mu’aqqat is also divided into three
kinds.
(a) al-waqt al-muwassa‘
(b) al-waqt al-muḍayyaq
(c) Al-waqt dhū al-shabahayn
(i) Al-waqt al-muwassa„ is a prescribed period which is sufficient to
perform the wājib mu’aqqat in it, and still remains sufficiently for
another act of the same nature.
The example of this is Ṣalat Ẓuhr, the afternoon prayer whose period
accommodates its raka’ts and other types of prayer like nawāfil.
al-Wājib al-muḍayyaq indicates the period which cannot accommodate
another act of the same nature except the prescribed act.
Example of this is Ramaḍān fasting which its period cannot be shared or

allotted to another act of fasting.
Al- Wājib dhū al-shabahayn or al-mushkil

Al-waqtu dhū al-shabahayn is a period which seems in one aspect to be
accommodating another act of the same nature rather than the
prescribed act for the period. But it is on the reverse if we consider its
other aspect.
An instance of this wājib is Ḥājj which can be carried out ones in a year
but during the renowned months, that is Shawwāl, Dhūl-Qa‘dah, Dhūl-
Ḥijjah, ‘Umrah or lesser Ḥajj, can also be carried out, Ḥājj in
considering its performance once in a year and in a specific day which
cannot be deferred seems to be unaccommodating. At the same time,
since „Umrah which is similar to it can be performed during the Ḥājj‟s
33
limited time it can be said to be accommodating. Thus, Ḥājj is Wājib of
Dhū al-shabahayn.
Subsidiary Laws Regulating Divisions of the Muwaqqat Duties.
Meanwhile, Islamic jurists have formulated subsidiary laws regulating
these divisions of Mu’aqqat which validate the duties by determined
intention from mukallaf. For instance, if a person performs four rak‘ats
at the period of Ṣalāt al-Ẓuhr, or afternoon prayer, if he intended with
these four rak‘ats obligatory afternoon prayer it will be valid. But if he
failed to put his intention the rak‘ats will not be taken for obligatory
prayer. The reason is that it is possible for him to make these four
rak‘ats as nāfilah that is, non-obligatory.
In the case of al-waqt al-muḍayyaq the validity of the action is granted
with ordinary intention, because the time itself is an indicator. For
example, the Ḥanafis are of the opinion that if a mukallaf intends to fast
during the month of Ramadān without specifying the nature of the fast
whether obligatory or non-obligatory, his fast will necessarily be
considered obligatory because he cannot do otherwise legally.
In the cases of actions of al-waqtu dhū shabahayn, the validity of the
main action is granted with ordinary intention. But if a mukallaf intends
to do an accommodated action, he must specify the act with determined
intention. This means that a mukallaf who wishes to perform ‘Umrah
during the period of Ḥājj needs to be specific in his intention, because
activities of ‘Umrah can also go for Ḥājj. Another subsidiary law on this
division is that if the mukallaf delayed an action of al-mu‘aqqat without
any legally acceptable reason, he is indictable.
In addition to this, the Usulis further divided Al-wājib in consideration
of its characteristic; these are:
(b) Al-mu„ayyan and al-mubham
al-Wājib al-Mu‘ayyan is a specified obligatory act which cannot be
substituted by another act. This is to say in other words, that the
Lawgiver has categorically formulated the act and ordained it as a
compulsory act which must be done, whether we are in position to
find reason and wisdom which may serve as the kernel of the act or
not. No iota of change can be effected on it. An example of such is
the act of Ṣalāh. Similarly, other specific prescribed obligatory acts
cannot be substituted like cases of ḥudūd that is, prescribed
punishment.
34
Al-wājib al-mubham is an unspecified obligatory action in which a
choice is given to a mukallaf to select one out of the mentioned
actions.
In-text question: Explain what you understand by Al-wājib Al-mu‘ayyan
and Al-wājib al-mubham
An instance of them is the kaffārat al-yamīn (atonement for the breaking of
an oath). A verse of the Qur’ān prescribes several options for violator of
oaths. This includes feeding of ten needy people, or clothing of ten poor, or
liberation of a slave, or three days fast. Only one of the actions can be
specifically required. The following verse explains this kind of al-wājib:
…for its expiation: feed ten poor persons, on
scale average of that which you feed your
families, or clothe them, or manumit a slave,
but whosoever whosoever cannot afford that,
then he should fast for three days..(Q.5: 89).
This wājib mubham is equally known as al-wājib al-mukhayyar.
(c) Al-Wājib al-‟Aynī and al-Wājib al-Kifā‟ī

Al-wājib, in relation to who is held responsible and answerable for its
execution, is also divided by the Usulis into two, namely al-wājib al-
’Aynī and al-wājib al-kifā’ī.
Al-wājib al-‘Aynī is an action which its performance is required from all

and sundry of Mukallaf by the Lawgiver. No representation can be
accepted.
Examples of this acts is prayer, fasting, zakāt, fulfillment of contractual
obligations etc. Notwithstanding, when anyone of these actions become
debts on a mukallaf, it may in some specific conditions be carried out by
another mukallaf rather than the debtor.
The major evidence for the rule of law of al-‘aynī is found in the verse
which states thus:
I have only created Jinns and men that they may worship
me.(Q. 51:56)
Al-Wājib al-Kifā’ī
Al-wājib al-kifā’ī: Is an act that its execution is required from any
person or group of Mukallafs by the Lawgiver.
35
This means that it is the execution of the duty that matters not the
doers, because if the duty is carried out by any member of the
mukallaf the remainders who did not participate will also be free from
any liability or indictment.
Examples of acts of this nature are numerous like al-’amr bi al-
ma‘rūf and al-nahy ‘an al-munkar (enjoining of what is just and
forbiddance of what is evil), al-janāzah (burial of a Muslims corpse),
rescue of a drowning person, reply of greetings, etc. the intention of
the law is to see that these actions are performed for the good of all. It
is not required from all members of ‟Ummah. However, collective
neglect of the action there will bring collective indictment.
It is worthwhile to mention that an action of al-wājib al-kifā’ī can be
circumstantially changed to al-wājib al-‘aynī if it happens that the
skill to do the action in question is known by one particular person or
a specific group of persons. In this instance the act will become
compulsory and ‘aynī upon the skilled person or person alone. But
the generality of Muslims will also be bound to encourage skilled
men‟ until the action is executed.

5. Elaborate on the divisions of al-Wājib / al-Farḍ
4.0. CONCLUSION
Al-ḥukm al-shar‘ī or at-taklīfī, are requirements from the Qur’ān and
Hadīth relating to the acts of the Mukallafs.
The Mukallafs are people who attained legal capacity by being free
from circumstances which can prevent them from discharging their
responsibility actively.
Farđ/Wājib (Obligatory) is the absolute requirement for an action
while harām (prohibition) is the absolute requirement forbidden an
action.
Mandūb is non absolute requirement for doing something while
makrūh is the act of non absolute forbidden of an act or something.
An act in respect of which the Law giver is indifferent is permissible
(mubāħ).
The above are the rules that are called al-ħukmu at-taklīfī.
Al-Wājib/ al-Farđ is divided into:
(a) Mutlaq is for actions with unspecified period and muqayyad is for
action with unspecified action.
36
(b) Muayyan is the term for the action that cannot be substitutded and
mubham for that which choice is given to select one.
(c) Fard ‘aynī is the term for an action to be performed by all and
sundary and farđ kifayah is for the action required from a person
or group.
2.5 SUMMARY
The main contents of this Unit open with an elucidation of the concept
of al-Hukum taklīfī and definition of the Mukallaf. It gives detailed
(analysis of a man who has attained legal capacity and elaborates the
envisaged possible situation.
Detailed analysis of al- Hukmu ash-shar-‘ī At-taklīfī is thereafter given
with focus on Al-wājib al-Farđ, its different types and various divisions.
This main content ends with an analysis of the division of the wajib/ al-
farđ.

Abdullah b.
Fūdī; an Unpublished PhD Thesis, University of Ibadan.
 Khallāf, Abd al-Wahhab. 1977. ‘Ilm ’Uṣūl al-Fiqh (11th Edition). Kuwait.
 Al-Tahawi, M.A. 1862. Dictionary of Technical Terms (ed.) „Abd al-Haqq et. al.
Turkey.
 Qadri, A. A. 1973. Islamic Jurisprudence in Modern World. Lahore.
Answers to SAEs 1
1. Al-hukmu Ash-Shāri‘ī is the speech (Qur’ān and Sunnah) or communication

from the Lawgiver which relates to the acts of the mukallaf (person legally
capable) with which he is charged.
2. A man is said to have attained legal capacity when he becomes mature and in
state of sanity. This means such a person is no more a minor. He is conscious
of his actions or inactions and not under any duress.
37
Answers to SAEs 2
3. Al-Ḥukm sh-Shar-‘ī is defined as the communication from Allah

which assumes the form of requirement which may be absolute or not
absolute. If it is absolute, the requirement may consist in demanding
men to do something, i.e. doing of such thing is obligatory (farḍ or
wājib). Or it may require him to forbear or abstain from doing
anything that is regarded to be forbidden (ḥarām).
4. The concept of al-Wājib / al-Farḍ:
This refers to an action, which the mukallaf (a person who is legally
capable of doing something required of him) is compelled to do while
failure to do it attracts heavy punishment.
5. Divisions of al-Wājib / al-Farḍ
a. Al-wājib al-muṭlaq is an obligatory action which the Lawgiver does
not specify any particular period for its performance.
b. Al-Wājib al-Mu‘ayyan is a specified obligatory act which cannot be
substituted by another act.
c. Al-wājib al-‘Aynī is an action which its performance is required from
all and sundry of Mukallaf by the Lawgiver. No representation can be
accepted.
38
UNIT 3: AL-WĀJIB AL-MUHADDAD AND AL-WĀJIB GHAYR
MUHADDAD (The Restricted and the Unrestricted Obligatory
Requirements)
Unit Structure
3.1 Introduction
3.3 Still on al-Wājib / al-Farḍ
3.3.1 Al-Wajib al-Muhaddad and al-Wājib ghayr Muhaddad
3.3.2 Kinds of Restricted Obligatory Requirement (wājib) in Relation to
the
Period of its Performance and Characteristic.
3.4 Conclusion
3.5 Summary
3.1 INTRODUCTION
In the last section of Unit 2, the divisions of al-wajib al-farđ were

analysed with focus on consideration of its period, specification and who
is held responsible for its execution. I want to believe you attempted all the
Self-Assessment Exercises given. In continuation of our discussion still on
al-Wājib / al-Farḍ and what it entails, this Unit 3 expounds the restricted
and the unrestriceted obligatory requirements.

By the end of this Unit you will be able to expound
 the obligatory requirements as either restricted or unrestricted.
 the concept of al-wājib al- mu„ajjal in the principles of Islamic law.
 the principle of al-Adāu with the opinions of the various madhāhib.
 the principle of al-qađāu in the Islamic Jurisprudence.
 the concept of Iādah/takrar. Mention devergent opinions.
3.3 Still on al-Wājib / al-Farḍ

3.3.1 Al-Wajib al-Muhaddad and al-Wājib ghayr Muhaddad
39
Al-wājib, in regard to the required quantity is divided into two: al-
wājib al-Muḥaddad and al-wājib ghayr al-muḥaddad. (Restricted and
unrestricted)
(i) Al-wājib al-muḥaddad.
Al-wājib al-muḥaddad is jurisprudential requirement in which the
Lawgiver, God, stipulates a certain quantity which a Mukallaf needs to
meet before he can be free from liability. Examples of this can be seen
from actions such as five obligatory prayers, zakāt, monetary debts etc.
The stipulated quantity of these actions needs to be satisfied.
A mukallaf who does not meet this requirement, either by omission of a
part of the required quantity or by addition, especially in ritual duties,
will not be free from liability and he can be indicted. For this, if a
mukallaf executed four obligatory prayers instead of five, or he added
one prayer to it to become six prayers, he is accountable for his omission
as well as his addition of one prayer. The same rule applies to every
quantitative action of al-wājib al-muḥaddad.
(ii) Al-wājib ghayr muḥaddad is action in which no quantity is stipulated
such as spending in the way of God, righteousness and piety, alms-
giving (not zakāt) to the poor and the needy, feeding of hungry persons
etc. The intention of the law in this regard is to eliminate hardship and to
provide relief, which usually vary according to circumstances. A
mukallaf is not under any compulsion to meet a specific quantity of these
actions.
Meanwhile the jurists deduced that if al-wājib al-muḥaddad (a restricted
obligation) is not carried out as it is stipulated, it will remain a liability
on the concerned person, and it must be paid before he can be free from
the liability. The case is reverse in al-wājib ghayr al-muḥaddad if it is
missed by the mukallaf, it cannot be compulsorily repaid as a debt. Thus,
a husband who does not give sufficient maintenance to his wife cannot
be liable for the payment of past insufficient maintenance because the
law does not specify for him any quantity. But he will be liable to the
specified amount if the matter is brought to a court of law and a specific
amount is pronounced, or by his personal promise.
40
3.3.2 Kinds of Restricted Obligatory Requirement (wājib) in
Relation to the Period of its Performance and Characteristic.
There are four kinds of restricted wājib obligatory acts in relation to the
period of its performance, namely:
(i) Mu‘ajjal (prompt) (2) Al-’adā’u (3) Qaḍā’u (4) I‘ādah
1. Mu‘ajjal (to act in advance)
This action is always mentioned by the Jurists along with the others
mentioned above.
Al-mu‘ajjal is a kind of action performed before its due time provided
the Lawgiver allows such an action in advance. An instance of such is
the giving out the ṣadaqat al-fiṭr before the „Īd day: ṣadaqat al-fiṭr is
only obligatory on the dawn of the day of īd al-fiṭr according to the
views of the Mālikis and Ḥanafis. Similarly, the time of ṣadaqat al-fiṭr
starts from the sunset of the last day of the month of Ramaḍān.
This view is upheld by both Imām Aḥmad and Ash-Shāfi„ī. The
Lawgiver however has permitted the giving out of ṣadaqat al-fiṭr in
advance before its due time. There are divergent views regarding this
matter. The Ḥambalis allow its presentation in advance a day or two
before the fast-breaking festival. The Ḥanafis allow it to be presented at
any time of the month of Ramaḍān; it may be in the beginning or middle
of it. What matters is that it should be given out in the month of
Ramaḍān. The Shāfi„ī on the other hand held the view that ṣadaqat al-
fiṭr can be presented in the beginning of the month of Ramaḍān, because
according to them, the fasting and the breaking of the fasting are both
the reason that bring about the issue of ṣadaqat al- fiṭr, and when one of
these reasons is found, expediting the ṣadaqat fiṭr is permissible. On the
basis of this if a person carries out the ṣadaqat al-fiṭr before the
daybreak on the day of Īd, he has fulfilled the condition and has
promptly performed the obligatory duty of sadaqat al- fiṭr even though
the performance was done before its due time. Such action is called al-
wājib al- mu„ajjal (performance of an act in advance).
In-text question: What does Al-mu‘ajjal mean?
Self Assessment Exercises 1 (SAEs)
1. Obligatory requirements are either restricted or unrestricted.
Discuss.
2. Discuss the concept of al-wājib al- mu„ajjal in the principles of
Islamic law.
41
2. Al-‟Adā‟u (Prompt Performance of Obligatory Act)
Al-’adā’u is the performance of an act of worship at its specified time in
a complete form without being preceded (that is the obligatory act) by
any deficient position. An instance of such is the observance of valid and
complete Ẓuhr prayer during sundown. This is called ’adā’u al-wājib
(performance of obligatory action) promptly even though it is possible
for the person not to realize the full correctness of the act during that
time. This is the opinion of the majority of the jurists. For instance,
many jurists hold the view that when a person prayed Ẓuhr prayer lonely
and then repeats the same prayer in congregation within the due time of
Ẓuhr prayer, the repeated Ẓuhr prayer is still qualified as ‘adā’u (prompt
performance of obligatory act).
The Ḥanafis however hold the contrary. They consider the repeated Ẓuhr
prayer ’I‘ādah (repetition) and not ’adā’u . They maintain that when an
action is preceded by a deficient situation, then it is repeated to make it
fully completed. The repeated act will then be the prompt performance
of that duty, because according to them, the deficient act is deemed non-
existent and that the promptly and valid performance according to them
is the performance of obligatory act during its legally specified time.
On the basis of this the Ḥanafis have divided al-’adā’u into two
divisions namely al-’adā’u al-kāmil (complete promptly performance)
and al-’adā’u al-qāsir (incomplete or deficient prompt performance of
obligatory act).
Al-’adā’u al-kāmil in the act of worship is to perform the required action
while fulfilling all the legal qualities that validate the action, an example
of such is the observing of ṣalat (the prayer) in congregation.
Al-’adā’u al-qāṣir (the deficient prompt performance of obligatory
action) is the performance of the required action without meeting all the
legal characteristics which validate it, an example of such, is to pray
lonely.
3. Al-Qaḍā‟u (Payment of Obligatory act as Debt)

Al-Qaḍā’u is the performance of an obligatory act after the expiration of
its legal specified time like praying the Maghrib prayer at the time of
‘Ishā’i. Such performance at that time is qaḍā’u because it was
performed after its legal specified time.
Majority of jurists agree that whoever missed an obligatory action in its
stipulated time must pay it back there after, and he is indictable when the
delay was without any genuine excuse. Similarly, deliberate neglect of
42
an obligatory action, or forgetting it and sleeping are all equal in
necessitating the re-payment of the missed actions.
The Ẓāhiris differ with the majority of jurists and hold a contrary view
on this issue. They did not make the repayment of the missed obligatory
act compulsory for a person who intentionally neglected it; they only
make the repayment necessary on a person who was asleep and the
person who was forgetful. They reason with the saying of the prophet
which informed that;
There is no negligence in the sleep, the abuse is found
in wakefulness. So, when anyone forget a prayer or
slept over it, let him pray it whenever he remembers it.
4. Al-I„ādah/Takrār (Repetition of an Obligatory act)

Al-’i‘ādah (repetition of an obligatory act) is the performance of an
obligatory action in a complete form in its legal specified time, though
the action was being preceded by a deficient condition. An instance of
such is when a person has performed an obligatory prayer but later,
discovered that he has not made ablution. He then performed ablution
and observe a fresh prayer. The last prayer, according to the majority of
jurists is called ’i ‘ādah (repetition).
The Ḥanafis called it ’adā’u (prompt performance) because they are of
opinion that the former action is non-existent. They maintained that
’i‘ādah is the performance of an obligatory action in its complete form
and during the legal time set for it, after it had been formerly performed
but not valid for some reason. An example of such is the person who
previously prayed lonely then repeated the prayer in a congregation.
However, the majority of the jurists call the repetition of the prayer in
the congregation ’adā’u (prompt performance) and not ’I‘ādah
(repetition of the action) as held by Ḥanafis.
In-text question: Explain the different views of scholars on the
appropriate time for the payment of sadaqat al- fiṭr.

3. Expound on the principle of al-Adāu, Mention the opinions of the
various madhāhib.
4. Examine the principle of al-qađāu in the Islamic Jurisprudence.
5. Analyse the concept of Iādah/takrar. Mention devergent opinions.
43
3.4 CONCLUSIONS
Al-wājib al-muḥaddad is an act in which the Lawgiver, God, stipulates
a certain quantity which a Mukallaf needs to meet before he can be free
from liability.
(ii) Al-wājib ghayr muḥaddad is action in which no quantity is
stipulated.
There are four kinds of restricted wājib obligatory acts in relation to
the period of its
performance, namely:
(1) Mu‘ajjal (to act in advance) (2) Al-’adā’u (prompt action)
(3) Qaḍā’u (to act in arrears) and (4) Al-I‘ādah (repetition of
action)
There are differences of opinions in the Schools on these pricinples.
3.5 SUMMARY
This Unit discusses the Islamic jurisprudential principles of the
restricted and the unrestricted obligatory requirements. It relates the
implications of carrying out and failure to carry out the two. Corpious
examples are given as illustration of each of them. The Unit also
highlights the kinds of restricted obligatory requirement (wājib) in
relation to the period of its performance and opinions of various
schools of Islamic jurisprudence are presented on the issues.

 Schacht, Joseph. 1969. The Origin of Muhammadan
Jurisprudence. Oxford.
 Khallāf, Abd al-Wahhab. 1977. ‘Ilm ’Uṣūl al-Fiqh (11th Edition).
Kuwait.
 Al-Tahanawi, M.A. 1862. Dictionary of Technical Terms (ed)
„Abd al-Haqq and Gulam Kadir, Turkey.
 Qadri, A. A. 1973. Islamic Jurisprudence in Modern World.
Lahore.
 Salahu `d-Dīn Abdu`l-Hamīd (2012): An Enquiry into Khulāşatu
`l-Uşūl of Abdullah b.Fūdī; an Unpublished PhD Thesis,
University of Ibadan.
44
Answers to SAEs 1
1. Al-wājib al-muḥaddad is jurisprudential requirement in which the

Lawgiver, God, stipulates a certain quantity which a Mukallaf needs
to meet before he can be free from liability while Al-wājib ghayr
muḥaddad is action in which no quantity is stipulated.
2. Al-mu‘ajjal is a kind of action performed before its due time provided
the Lawgiver allows such an action in advance. An instance of such is
the giving out the ṣadaqat al-fiṭr before the „Īd day: ṣadaqat al-fiṭr is
only obligatory on the dawn of the day of īd al-fiṭr according to the
views of the Mālikis and Ḥanafis. Similarly, the time of ṣadaqat al-
fiṭr starts from the sunset of the last day of the month of Ramaḍān.
3. Al-’adā’u is the performance of an act of worship at its specified time
in a complete form without being preceded (that is the obligatory act)
by any deficient position. This is the opinion of the majority of the
jurists. For instance, many jurists hold the view that when a person
prayed Ẓuhr prayer lonely and then repeats the same prayer in
congregation within the due time of Ẓuhr prayer, the repeated Ẓuhr
prayer is still qualified as ‘adā’u (prompt performance of obligatory
act). The Ḥanafis however hold the contrary. They consider the
repeated Ẓuhr prayer ’I‘ādah (repetition) and not ’adā’u
4. Al-Qaḍā’u is the performance of an obligatory act after the expiration
of its legal specified time like praying the Maghrib prayer at the time
of ‘Ishā’i. Such performance at that time is qaḍā’u because it was
performed after its legal specified time.
5. Al-’i‘ādah (repetition of an obligatory act) is the performance of an
obligatory action in a complete form in its legal specified time,
though the action was being preceded by a deficient condition. An
instance of such is when a person has performed an obligatory prayer
but later, discovered that he has not made ablution. He then
performed ablution and observe a fresh prayer. The last prayer,
according to the majority of jurists is called ’i ‘ādah (repetition).
45
UNIT 4: AL-ḤARĀM, (THE PROHIBITED), A`L-MAKRŪH (THE
REPULSIVE) AND AL-MUBĀH (THE PERMISSIBLE)
Unit Structure
4.1 Introduction
4.3 Al-Harām, Al-Makrūh, and Al-Mubāh
4.3.1 Al-Ḥarām: Its Definition, Divergent Views and Divisions
4.3.2 Recommended act (Mandūb) and its Divisions
4.3.3 Concept and Divisions of al-Mubāħ
4.4 Conclusion
4.5 Summary
4.1 INTRODUCTION
In the Unit 2 of this Modulewe discussed some detailed issues relating to
al-Hukmu `t-Taklifī and its major divisions with particular focus on al-
Wājb/al-farđ (the obligatory requirement). Unit 3 of the Module focuses on
the restricted obligatory requirements and the unrestricted. This Unit 4,
focuses on the remaining categories of jurisprudential requirements.
define Al-Ḥarām mentioning dissenting opinions.
explain the divisions of al-Haram and their implication.
define Al-Mandūb, explain its divisions and exemplify your answers.
expatiate upon al-Makrūh and its Division by the Hanafis.
discuss the concept and divisions of al-Mubāħ. Illustrate your answers.
4.3 Al-Harām, Al-Makrūh, and Al-Mubāh

4.3.1 Al-Ḥarām: Definition, Divergent Views and Divisions
Al-Ḥarām: connotes what the Lawgiver proscribed among the actions of
mukallaf. It is defined as “what is forbidden strictly. The precept of actions
under this provision is that certain punishment of either divinely or worldly
nature, or both, is awaiting whoever violates the rule. An example of this
can be drawn from the Qur’ān where Allah says:
O you who believe! Eat not up your property among
yourselves unjustly except it is a trade amongst you, by
46
mutual consent, and do not kill yourselves (nor kill one
another). Surely, Allah is most merciful to you and
whoever commits that through aggression and injustices,
we shall cast him into the fire, and that is easy for Allah.
(Q. 4:29-30).
The prohibited actions are possibly indicated in many ways, such as using
the word “prohibit” or its indication as in the verse which reads as follows.
Prohibited to you (for marriage) are your mothers,
daughter, sisters. (Q. 4:23)
Another verse of the Qur’ān reads:
And divorced women shall wait for three
menstruation periods, and it is not lawful for
them to conceal what Allah has created in
their wombs, if they believe in Allah and the
last Day. (Q. 2:228).
The Ḥanafis have divided al-ḥarām into two kinds viz: ḥarām and makrūh
al-taḥrīm, while the majority of jurists, considered the two divisions to be
synonymous and identical. To Ḥanafis, ḥarām means what its prohibition is
stipulated by emphatic and manifest evidence, while makrūh al-taḥrīm
means what its prohibition is pronounced by non-forceful and ordinary
evidence. Nonetheless, the Hanafis agree with other schools of law that
ḥarām and makrūh al-taḥrīm are of the same nature in the rule of law. This
is to say, in other words that the doer of ḥarām and makrūh al-taḥrīm
subject himself to divine legal punishment, while who refrains from it is
entitled to divine legal reward. The only disparity so ever in the division of
Ḥanafis is in the fact that whoever disputes ḥarām can be considered a
renegade (murtadd) while the disputant of makrūh al-taḥrīm can only be
subjected to both divine and legal punishment and the notion of renegade is
remote.
In-text question: Now tell me what you understand by the term Al-
Harām?
Divisions of Ḥarām
Prohibition of actions is divided into two namely ḥurmatun dhātiyyah that
is perfect prohibition and ḥurmatun ‘āriḍah that is conditional prohibition.
(i). Perfect prohibition is what the Lawgiver, proscribed ab initio, among
the actions of mukallafīn e.g. adultery, incest, theft, sale of carrion,
etc. These prohibited actions can, by no means, create a legitimate
right in Islamic law
47
For example, neither adultery nor incest can originate kindred, while
theft also cannot create ownership.
(ii). Conditional prohibition (ḥurmatun‘āriḍah) indicates that the actions
is initially valid but because certain condition applies to the action
and thus renders it prohibited. Acts, such as prayer on extorted land
and sale with deceit are good examples. These acts can legitimise
rights in sharī‘ah. This is the popular opinion of Islamic jurists and
they explained that prayer performed on extorted land is valid
because the action of prayer is required and rewardable. Conversely,
they agreed that extortion of another man‟s property is prohibited and
punishable. In the same way, the action of sale is recommended but
deceit is condemned and proscribed in sharī‘ah.
4.3.2 Recommended act (Mandūb) and its division

(i) Definition
When an act is legally preferable to be done it is known as al-mandūb or
mustaḥab. The definition of this act is what is demanded from mukallaf
preferably:
There are various ways to indicate acts of mandūb, however the major rule
of making the requirements to be optionally demanded is indicated within
the context. For example, Allah says in the Qur’ān thus:
O you who believe! When you contract a debt
for a fixed period, write it down (Q. 2: 282).
The order in this verse, which is the writing down of debt, is considered to
be mandūb because in the following verse there is syntax which renders it
optional. And that is the clause which says:
... Then if one of you entrust the other let the
one who is entrusted discharge his trust
(faithfully). (Q. 2:283).
This clause shows also that if the creditor trusts the debtor it may not be
necessary for them to resort into writing their contract of debt.
Another example is seen in the Qur‟anic verse which says:
... and such your slaves as seek a writing (of
emancipation), give them such writing, if you find
that there is good and honesty in them” (Q. 24:33)
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This verse indicates that it is commendable act for a master to set his
servant free because the injunction in the verse includes a condition which
can only be fulfilled at the option of the master himself. Similar examples
of recommended acts (mandūb) are the traditions of prophet Muḥammad
which bear strict commands.
The precept of mandūb is that the doer is promised with reward and that is
why it is commendable even though its neglect warrants no punishment.
(ii) Divisions of al-Mandūb.
There are some acts of mandūb which warrants blames while others do not.
This is what led some Jurists to divide mandūb acts into some divisions.
Mandūb, according to these Jurists, can be divided into three divisions.
(i) A mandūb act whose requirement includes some emphasis. Although
the omission of any act under this category does not warrant any
punishment, it subjects the culprit to be blamed. Examples of this
mandūb are the acts which accompanies the obligatory acts, like al-
’adhān (calling to prayers) and the performance of five obligatory
prayers in congregation. Also, every practice of the Prophet,
persistently observed and rarely omitted, is enshrined under this
category. It is also Sunnah Mu’akkadah.
(ii) A mandūb act whose requirement is without any emphasis. Its doer is
rewarded while its defaulter is not meted with any punishment. The
pretext of this act is what Prophet Muḥammad did not persistently
observe. Example of this can be seen in alms-giving to the needy;
fasting on Thursday; nawāfil that is voluntary prayers after the
obligatory prayers. It is also known as Sunnah Zā’idah.
(iii) The Mandūb acts which are supplementary for the mukallaf. These
are generally exemplified by natural acts of Prophet Muḥammad such
as eating, drinking, sleeping, dressing etc. When a mukallaf emultaes
the Prophet in anyone of these acts, his act will be considered to be
mandūb, because it shows that the person has the love of the Prophet
which will entitle him rewards. But one who avoids following such
good examples of the Prophet is not to be blamed or punished,
because they are not legal proclamations from the Prophet. Mandūb is
synonymously called mustaḥab, or Sunnah or Taṭṭawu‘ (voluntary
act).
In-text question: Mention the three divisions into which mandūb can be
divided.
1. Define Al-Ḥarām mentioning dissenting opinions.
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2. Explain the divisions of al-Harām and their implication.
3. Define Al-Mandūb and explain its divisions.
4.3.3 Al-Makrūh and its Division by the Hanafis

(i) Definition of Term
This designates what Allah commands mukallafīn to refrain from even
though the command is not strictly ordered. It is defined as follows
“Makrūh is an act whose neglect is preferable than its performance”.
The precept of this act is shown when the structure of the text contains a
syntactic mood which renders the proscription to a minor stage of distaste.
An example is seen in the Qur’ān which says:
…O you who believe! Ask not about things which
if made plain to you may cause you trouble. But if
you ask about them while the Qur’ān is being
revealed, they will be made plain to you. Allah has
forgiven that, and Allah is oft-forgiving, most
forbearing. Before you, a community asked such
questions, then on that account they became
disbelievers (Q. 5: 101-102).
This verse indicates that the unwarranted questions are distasteful. But there
is a syntactic structure within the verse which renders this proscription to a
minor stage of distastes.
…But if you ask about them while the Qur’ān
is being revealed, they will be made plain to
you, Allah has forgiven that, and Allah is oft-
forgiving, most Forbearing. (Q. 5: 101).
Another example of Makrūh is the Ḥadith of the Prophet which says:
Allah distastes for you acts of gossip, abundant questions and
extravagance.
This two evidences indicate that the acts in questions are distasteful in
Sharī‘ah.
(ii) Hanafi’s Divisions of al-Makrūh
The Ḥanafis have divided al-Makrūh into two divisions namely; al-makrūh
al-taḥrīmī and al-makrūh al-tanzīhī.
1. al-makrūh al-taḥrīmī is what Allah commands the mukallafīn to
strictly refrain from, though this type of makrūh is based on
presumptive evidence (dalīl ẓannī) and not definitive evidence (dalīl
qati‘ī). It is infact an act which is closer to strictly prohibit act.
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Examples of such acts are the prohibition of a Muslim proposing a woman
over the proposal of his Muslim brother; similarly, the bargaining of
commodity is prohibited when a Muslim is bargaining it. This type of
makrūh according to the view of the Ḥanafis is equivalent to al-wājib
(obligatory act). That is, to avoid these acts are obligatory.
The legal rule on this is that committing any of these acts is punishable
under Islamic law even though the defaulter could not be declared an
infidel, because, the evidences that established this law are presumptive
proofs (dalīl ẓannī).
2. Al-makrūh al-tanzīhī is a kind of command that the Lawgiver requests
the Mukallafīn to refrain from, though the command is not strictly ordered.
Example of such acts are the eating of the meat of horse out of the need
especially during the war, or performance of ablution from the remnant of
water drunk by wild birds. The commission of this act under this concept
does not warrant any punishment or blame.
Meanwhile, all mandūb are makrūh if they are neglected and vice-versa.
We can therefore know the rule of makrūh from the rule of mandūb
conveniently.
In-text questions: Mention the two Hanafi‟s divisions of al-Makrūh
4.3.4 Concept and Divisions of al-Mubāħ

(i) Definition of Term
Al-mubāḥ is an act that stands in equilibrium between requirements to do
and requirements not to do. This can be known through legal means or
through mental faculty of human beings. That is Ibāḥah Shar‘iyyah or
Ibāḥah ‘Aqliyyah respectively. This process paves way to divide the act into
two kinds. The act of Mubāḥ can be known in Islamic law through various
indicators such as no objection, no blame, and no interdiction in the
performance of the duty.
Examples of such are the following verses which say:
No blame or sin is there upon the blind, nor is
there blame or sin upon the lame, nor is there
blame or sin upon the sick (that they go not
for fighting) (Q. 48:17).
And there is no sin on you, if you make a hint
of betrothal or conceal it in yourself. (Q.
2:235).
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…But if one is forced by necessity without
willful disobedience nor transgressing due to
limits, then there is no sin on him. Truly, Allah
is off-forgiving, most merciful (Q. 2:173).
These verses, in essence testified that indictment is overruled for the
commitment of any of the act in question, if they are within the
circumstances prescribed by law.
(ii) Division of Al-Mubāh
In addition to this we bring here the division of al-mubāḥ as recognized
by the Usulis. Al- Ibāḥah: the indifference in the rule of law is divided
into two, namely, al-Ibāḥah al-shar‘iyyah is legal indifference and al-
Ibāḥah al-‘aqliyyah is logical indifference.
(1) A legal indifference indicates indifferent acts which are only known
through the means of law. e.g intercourse with wives during the night
of Ramaḍān‟s fast. The Qur’ān states as follows:
It is made lawful for you to have sexual
relations with your wives on the night of the
fast, they are the body cover for you, and you
are the body cover for them (Q. 2:187).
The above-mentioned example is a legal indifferent act because the source
of their being known are legal not through reasoning.
In-text question: Before we continue, answer this question; into how many
parts is Al-Mubāh divided?
(2) Logical indifference is also known in Usulis technical terms as
Istiṣḥāb al-aṣliyyah, which means “associating to the natural absence
of law.” The general rule of Islamic law shows that the natural
absence of law is an evidence of no indictment ab initio.
Example of this is shown in the transaction of Usury (ribā) at the beginning
of the Islamic era. When the law of its prohibition was ordained the
companion of the Prophet (s.a.w) entertained fear of what would be the fate
of their resource which had accumulated from this transaction. For this
reason, a verse was revealed as allay their worries thus Allah says:
So, whoever receives an admonition from his
Lord and stops eating ribā (Usury) shall not be
punished for the past, his case is for Allah to
(judge), but whoever returns to Ribā (Usury),
such are the dwellers of the fire-they will abide
therein (Q. 2:275).
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The clause “shall not be punished for the past” indicates that what they
transacted before the prohibition of the act is to be associated to the natural
absence of law (al-barā’ah al-aṣliyyah) and no indictment for it. A similar
example is also available in the verse which says:
And marry not women whom your fathers married,
except what has already passed, indeed it was
shameful and most hateful, and an evil way (Q.
4:22).
The clause except what has already passed is an excuse which indicates that
what had passed before the ordinances of this law are forgiven.
The importance of dividing Ibāḥah into these divisions is that alteration or
cancellation of legal indifference can be called al-naskh that is, abrogation.
For instance, the cancellation of option of breaking the fast in Ramaḍān and
its substitution for the feeding of a poor which was the law for anyone who
finds difficulty in fasting, as indicating in this verse thus:
…And as for those who can fast with difficulty,
they have to feed a poor person for everyday.
But whoever does good of his own accord, it is
better for him. (Q.2:184).
This verse is regarded by jurists to have been abrogated. They quoted
another verse. The verse reads thus:
So, whoever of you sights the month and is
present at his home, he must observe (fasts)
that month (Q.2:185).
They said that the insistence in this verse for the fast is more evident, to the
extent that the sick people and the travelers who are to be included in the
first verse (that is options for who can do it with hardship) are now ordained
to repay back the missing period of Ramaḍān by fasting.
4. Expatiate upon al-Makrūh and its Division by the Hanafis.
5. Discuss the concept and divisions of al-Mubāħ.
4.4 CONCLUSION
In conclusion, it is clear from this discussion that al-ḥukm al-taklīfī is
obligatory rule of law, in majority view is five divisions namely: al-wājib,
al-ḥarām, al-mandūb, al-makrūh and al-mubāḥ, while in view of Hanafi
jurists it has seven division viz: al-farḍ, al-wājib, al-mandūb, al-ḥarām, al-
makrūh al-taḥrīm, al-makrūh al-tanzīh and al-mubāḥ.55
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Meanwhile, an act can be judged with different range of rules of law. For
example, act of marriage can be mandūb or sunnah mu’akkadah, when
there is no fear for mukallaf of being corrupt and he or she is financially
capable. It will become wājib when there is certainty that he or she will
commit the offence of adultery or fornication, it becomes makrūh when
there is fear of occurrence of injustice or it may lead to the violation of
another strict ordinance, e.g. marriage of the fifth wife when there are four
already in mukallaf’s possession all of lawful wedlock and they are free
woman, it becomes al-mubāḥ when a mukallaf wishes to marry third or
fourth wife not for the fear of committing an offence or for any necessity.
This instance can be applicable to other acts of mukallaf within the limit
and boundary of Islamic law and with proofs from the authentic sources of
law.
4.5 SUMMARY
This Unit defines proscribed requirements (al-Ḥarām), highlights modes
of expressing it by the law-giver in the Muslim scripture, divergent
views of the schools of Islamic Jurisprdence and Divisions. The Unit
also acquaints you with principles of deducing recommended act
(Mandūb) and its divisions. An analysis of modes f expressing, the
concept and division of al-Makrūh and its division by the Hanafis and
the concept and divisions of al-Mubāħ concludes the main sections of
the Unit.
4.6 REFERENCES AND FURTHER READING
 Al-Tabrīzī, M.A. 1985. Mishkāt al-Maṣābiḥ. Beirut. Vol.2, Ḥadīth No.
3287.
 Kamāli, M.H. 1991. The Principles of Islamic Jurispudence.
Cambridge.
 Khallāf, A.W. 1977. ‘llm ’Uṣūl al-Fiqh. Kuwait.
 A. Raḥīm, M. A. 1994. The Principles of Islamic Juristprudence. New
Delhi.
 Al-Zāhidī, H.T. 1994. Talkhīṣ al-’Uṣūl. Kuwait.
 Zubair A. Q. 1994. The Rules of Law in the Sharī‘ah. Lagos.
 Al-Ghazālī, M. n. d. al-Mustaṣfa min ‘Ilm-al-’Uṣūl. Beirut.
 Qadri, A. A. 1963. Islamic Juristprudence in the Modern World.
Lahore.
 Maṭlūb, A. M. 2005. ’Uṣūl al-Fiqh al-Islāmī. Cairo.
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Answers to SAEs 1
1. Al-Ḥarām: connotes what the Lawgiver proscribed among the actions

of mukallaf. It is defined as “what is forbidden strictly.
2. Al-Ḥarām is divided into two namely ḥurmatun dhātiyyah that is
perfect prohibition and ḥurmatun ‘āriḍah that is conditional
prohibition.
3. When an act is legally preferable to be done it is known as al-mandūb
or mustaḥab. It is of three categories:
i. A mandūb act whose requirement includes some emphasis.
ii. A mandūb act whose requirement is without any emphasis.
iii. The Mandūb acts which are supplementary for the mukallaf.
Answers to SAEs 2
4. Makrūh is an act whose neglect is preferable than its performance.

The Ḥanafis have divided al-Makrūh into two divisions namely; al-
makrūh al-taḥrīmī and al-makrūh al-tanzīhī.
5. Al-mubāḥ is an act that stands in equilibrium between
requirements to do and requirements not to do. It is divided into
two, namely:
i. al-Ibāḥah al-shar‘iyyah - legal indifference, and
ii. al-Ibāḥah al-‘aqliyyah - logical indifference.
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UNIT 5 : AL-HUKMU `L-WAĐ-„Ī (POSITIONAL RULE OF LAW)
UNIT STRUCTURE
5.1 Introduction
5.3 Definition of Terms
5.3.1 Definition of al-Hukmu al-Wađ‘ī and its kinds
5.3.2 Kinds of al-Ḥukm al-Waḍ-‘ī and their characteristics
5.3.3 Ṣaḥīḥ and Fāsid or Bāṭil (Valid and Invalid)
5.4 Conclusion
5.5 Summary
5.1 INTRODUCTION
In continuation of our discussion on our topic under the last Unit,

another major theme in the science of Uşūl al-Fiqh is al-Ḥukmu al-
Waḍ-‘ī. It connotes the speech of the Lawgiver which enacts
something as a cause (sabab), or condition (sharṭ), or a hindrance
(māni„), validation (Siḥḥah) or invalidation (buṭlān) to another
jurisprudential requirement. Various kinds of the acts of Mukallaf
which demand that these rules of law be applied will be our focus in
this Unit. If you are ready, then let‟s continue.
5.2 OBJECTIVES
 define al-Ḥukm al-Waḍ-‘ī.
 enumerate kinds of al-Ḥukm al-Waḍ-‘ī.
 discuss as-Sabab (a Cause to a jurisprudential requirement), its
divisions and Characteristics. Give examples for your submissions.
 provide a comprehensive analysis of al-Sharṭ (Condition) and Its
Divisions in the principles of Islamic jurisprudence.
 give an analysis of existence of al-Māni‘ (preventive situation) with
examples.
 elaborate on the terms Ṣaḥīḥ, Bāṭil and Fāsid (Valid and Invalid) as
principles in of Islamic Jurisprudence.
 give examples in support of your submissions.
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5.3 Definition of terms
In-text question: Before we continue, let someone remind us the title of

our discussion during the last class.
5.3.1 Definition of al-Ḥukm al-Waḍ-„ī
Al-Ḥukm al-Waḍ-‘ī is the speech of the Lawgiver which enacts

something as a cause (sabab), condition (sharṭ), or a hindrance
jurisprudential requirement.
The numerous types of acts of mukallaf demand that the positional rule of
law, which is to guide them, should be numerous in kind. Thus al-ḥukm
al-waḍ-‘ī according to al-Shāṭibī is divided into seven namely: al-sabab,
(cause), al-sharṭ (condition), al-māni‘ (hindrance), Aṣ-ṣiḥḥah (validity)
al-buṭlān (invalidity), al-‘azīmah (strictly required) and ar-rukhṣah
(permission or strictly required with modification).
5.3.2 Kinds of al-Ḥukm al-Waḍ-„ī and their characteristics
(i) As-Sabab (a Cause to a jurisprudential requirement), its divisions
and Characteristics
As-Sabab is “a clear and adequate description upon which the Lawgiver
based the happening of certain thing which will compel the presence of
al-musabbab, that is, the act, while in its absence the act will go into
abeyance.
In other words, Sabab is defined as an apparent and constant attribute
(waṣf ẓāhir munḍabit) which the Lawgiver has prescribed as the
indicator of a rule (ḥukm) in such a way that its presence necessitates the
presence of the ḥukm and its absence means that the ḥukm is also absent.
This shows that the Lawgiver imposes an act or an instance as a cause to
another act of mukallaf which serves in turn as a pre-requisite for the
regulated act. The essence of this connection is that al-musabbab that is,
the regulated act, cannot become valid except if the sabab is available.
Divisions and Characteristics of As-Sabab
Al-Sabab is of two kinds (1) maqdūr lil mukallaf i.e that which comes
under mukallaf‟s capability and (2) ghayr maqdūr li ‘l-mukallaf i.e that
57
which comes out of the mukallaf‟s capability. These are as-sabab of
divinely nature and al-sabab of worldly nature respectively.
As-Sabab of divinely nature: is a cause which is originated by the order
of the Lawgiver. An example of this cause is the niṣāb or minimum
amount due for the payment of zakāt. The niṣāb is a cause for the
obligation of zakāt. If this amount is diminished or there is prevention by
any circumstance, like debt there shall be no obligation of zakāt. Another
example is in the breaking of fasting, if a mukallaf engages in a lawful
journey during the month of Ramaḍān, the lawful journey has been
prescribed as a cause for the breaking of the fast by the Lawgiver. These
two acts of Sabab, the Niṣāb and the travelling, are under the capability
of mukallaf.
Examples of what are out of mukallaf‟s capacity can be drawn from the
setting in the time of prayers which is a cause for the obligation of each
particular prayer and the coercion which is also a cause for the eating of
unlawful foods. These acts, setting-in of the time of prayers and coercion,
are out of every mukallaf‟s control.
As-Sabab of worldly nature (sabab li ḥukm shar‘ī duniyāwī), is a cause of
whose rules govern the law ordained by the Lawgiver, Allah, but its
origin is created by the action of human beings. An example of this is the
act of contract which causes the sanctity of contractual obligations.
Another example is the damage of another man‟s property which is a
cause for being liable. These two acts are under mukallaf‟s capability.
Examples of sababs which are beyond the control of mukallaf are like
kindred (qarābah) which is a cause to the inheritance and infancy
(sighar) which is a cause for guardianship.
These two acts are not depended on the wishes of those that are affected
by the positional rules of law; therefore, these causes are beyond their
control.
In-text question: Mention the two kinds of Al-Sabab
1. Define al-Ḥukm al-Waḍ-‘ī and mention its kinds.
2. Discuss as-Sabab (a Cause to a jurisprudential
requirement), its divisions and Characteristics. Give
examples for your submissions.
(ii) Al-Sharṭ (Condition) and Its Divisions

Al-sharṭ is “the Condition that the Lawgiver laid down as a requisite for
an act”. In other words, Sharṭ connotes:
58
An evident and constant attribute whose absence necessitates
the
absence of the ḥukm (rule /judgement) but whose presence
does not automatically bring about its object (mashrūṭ).
An example of this is that the presence of a valid marriage is

precondition of divorce, but it does not mean that when there is a valid
marriage, it must lead to divorce. The same rule is applicable to the
ablution which is requisite, that is, conditional for ritual prayer, but the
presence of ablution does not necessitate Ṣalāh.
Al-sharṭ is divided into two in consideration of its relation to the act or
the cause of an act namely.
(i) Sharṭ mukammil li sabab, that is, condition which is requisite for the
cause.
(ii) Sharṭ mukammil li al-musabbab, that is, condition which is requisite for
the act.
Examples for these divisions are as follows:
Al-sharṭ al-mukammil li sabab which is the first kind under this division
can be exemplified by the expiration of a year, that is, murūr al-ḥawl,
which is a requisite of al-niṣāb that is the minimum amount due for
zakāt. This niṣāb, in turn, is a cause or al-sabab for the obligation of
zakāt. If a mukallaf is out of possession of this minimum amount no
obligation can be imposed upon him to pay zakāt. Another example is
witness, which is a condition in the contract of marriage.
The second kind of this division is al-sharṭ al-mukammil li musabbab,
and it is exemplified by ablution (wuḍū’) which is a requisite condition
for prayer. In this example, ritual prayer is the musabbab, because it is
the act in question for a cause (al-sabab). The condition is regulated by
the Lawgiver for the musabbab without which the prayer will be
invalid.
The cause that makes the prayer to become an obligation on mukallaf is
the setting-in of its period, that is, dukhūl al-waqt. The reason is the fact
that a mukallaf can have his ablution at any time without having any
obligation to perform prayer if the period of the prayer in question has
not set in.
This type of mukammil is also complementary condition.
A second division of al-sharṭ is in consideration of its characteristic and
it is divided into two: sharṭ al-wujūb and sharṭ al-siḥḥah.
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Sharṭ al-wujūb is exemplified by post meridiem, al-zawāl (p.m.), for
afternoon prayer. This means that if a mukallaf performs his afternoon
prayer before the post meridiem, his afternoon prayer will be invalid.
The example of sharṭ al-siḥḥaḥ is seen in ablution for any ritual prayer,
because no prayer can be valid without ablution, and for this, it becomes
a requisite for any ritual prayer.
In other words examples of sharṭ al-wujūb are: al-zawāl that is post
meridiem, for afternoon prayer as in the above mentioned example;
similarly, murūr al-ḥawl that is, expiration of one year, in the case of
zakāt, chastity in the case of adultery and custody of stolen property in
the case of amputation for theft. All these are under positional rules of
law (al-hukmu `l-wađ-‘ī.)
The third division is in consideration of the origin of al-sharṭ. It is
divided into three namely: al-sharṭ al-shar‘ī, al-sharṭ al-lughawī, al-
sharṭ al-‘aqlī.
Al-sharṭ al-shar‘ī is what we have been discussing since the beginning
of this topic. This is because it originates from sources and provision of
Islamic law as revealed by the Lawgiver. The rules of law that regulates
this condition are ordained by Allah.
Al-sharṭ al-lughawī is the condition that people lay down by themselves
in their transactions, and it is understood through the literal meaning of
the words in use and the custom of the transaction in question. An
example of this is, is the statement of a husband to his wife thus; “if you
(wife) enter A‟s house you are divorced”, or a person says: “if my father
agrees, I will sell you the goods”.
The first statement concerns the institution of divorce, while the second
statement relates to the sale of goods. These conditions are right and the
acts are valid since the intentions are clearly understandable and they
are not contravening any rule of law.
The sharṭ is called a lingual condition because we understand it from
the usage of language and modus operandi of acts in question, not from
other means like legal or logical means.
The last of this is al-sharṭ al-‘aqlī which denotes that the relevant act
cannot be reasonably accomplished without the sharṭ. It is exemplified
by knowledge al-‘ilm which is a condition for intention. This means that
you must have knowledge of the object of your intention.
The means of understanding this, is neither sharī‘ah nor use of language
but reasoning. Similar example of this, is to avoid the opposite act of
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what is commanded to do, for instance when one is required to sit, he is
not expected to stand. Also, it is known that if something is none-
existing, the knowledge about it will not emerge. This kind of condition
depends largely on logic.
The sharṭ shar‘ī is a condition laid down by Allah, while sharṭ wađ-ī or
improvised condition is laid down by human being. An example of the
former is witnesses in a marriage contract, and of the latter, is the case
when spouses stipulate the condition in their marriage contract that they
will reside in a particular locality.
(iii) Al-Māni„ ( The Preventive)

Al-Māni„ is another important element of positional rules defined as:
an act or attribute whose presence nullifies either
the ḥukm or the cause. In either case, the result is
that the presence of māni„ means the absence of the
ḥukm.
In other words, the legal cause and conditions of an act may be duly
fulfilled, yet if the preventive is existing, the rule of law in issue will fall
into abeyance. For example, a valid contract of marriage or kinship may
exist between a heir and a deceased person but if there is any legal
preventive, such as difference of religion between the heir and his or her
deceased relatives or it happened that the heir was the murderer of the
deceased, the inheritance between them will be abated.
In the second instance, the cause of an act may be prevented which in
turn will prevent the continuance of the rule of law on the issue. For
example, if a mukallaf possesses the niṣāb, that is minimum amount due
for the obligation of zakāt and at the same time, he is in debt that is
capable to diminish this niṣāb, he will be exempted from the obligation
of zakāt. The reason is that the debt is a preventive to the proper
ownership of niṣāb which is a cause for the compulsion of zakāt.
From the viewpoint of its effect on the cause or on the ḥukm itself,
māni‘ is divided into two types;
First, māni‘ mu’aththir fī sabab, that is māni‘ which affects the cause in
the sense that its presence nullifies the cause. The example of this is the
instance of debt that hinders the cause of zakāt, which is ownership of
property.
Second is the Māni‘ mu’aththir fī al-ḥukm nafsihi fayaslubuhu
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That is, there is the hindrance which affect the ḥukm (the rule of law).
The presence of this type nullifies the ḥukm directly, even if the cause
and the condition are both present.
An example of this is paternity, which hinders retaliation; if a father
kills his son, he is not liable to retaliation although he may be punished.
Paternity thus hinders retaliation according to the majority of jurists
despite the presence of the cause of retaliation, which is killing, and its
condition, which is hostility and the intention to kill.
5.3.3 Ṣaḥīḥ and Fāsid or Bāṭil (Valid and Invalid)

The ṣaḥīḥ (valid) and fāsid (invalid) are situational rules of law which
describe and evaluate legal acts incurred by the mukallaf. To evaluate an
act according to these criteria, depends on whether or not the act in
question fulfills the essential requirements (arkān) and conditions
(shurūṭ) that the sharī‘ah has laid down for it, as well as to ensure that
there exist no obstacles to hinder its proper conclusion. For example,
ṣalāh is a Sharī‘ah act and is evaluated as ṣaḥīḥ (valid) when it fulfils all
the essential requirements and conditions that the sharī‘ah has provided
for its observance. Conversely, Ṣalāh becomes void (bāṭil) when some of
its essential requirements and conditions are lacking. A valid contract
gives rise to its effective consequences whereas a void contract fails to
satisfy its legal purpose.
Muslim jurists are in agreement to the effect that acts of devotion
(ibādāt) can either be valid or void, in the sense that there is no
intermediate category in between. Legal acts are valid when they fulfill
all the essential requirements (arkān), causes, conditions and hindrances.
They are void when any of these is lacking or deficient.
Majority of Muslim jurists maintained that fāsid and bāṭil are two words
with the same meaning whether in reference to devotional matters or to
civil transactions. The Hanafis have however, distinguished an
intermediate category between the valid and void, namely the fāsid.
When the deficiency in a contract affects an essential requirement (rukn),
the contract is null and void and fulfill no legal purpose. If however, the
deficiency in a contract only affects a condition, the contract is fāsid but
not void.
A Fāsid contract although deficient in some respect, is still a contract and
produces some of its legal consequence, but not all. Thus a fāsid contract
of sale establishes the purchaser‟s ownership over the object of sale when
he has taken possession thereof, but does not entitle the purchaser to the
usefullness (intifā‘).
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Similarly, in the case of an irregular contract of marriage, such as one
without witnesses the spouse or the qāḍī must either remove the
deficiency or dissolve the marriage, even if the marriage has been
consummated. If the deficiency is known before consummation, the
marriage is unlawful but the wife is still entitled to the dower and must
observe the waiting period of ‘iddah upon dissolution of marriage. The
offspring of a fāsid marriage is legitimate, but the wife is not entitled to
maintenance, and no right of inheritance between the spouses can
proceed from such marriage.
The Hanafis describe the fāsid as something which is essentially lawful
(mashrū‘) but is deficient in respect of an attribute (waṣf) as opposed to
the bāṭil which is unlawful (ghayr mashrū‘) on account of its deficiency
in regards to both the essence (aṣl) and attribute. The Ḥanafi‟s approach
to the fāsid is also grounded in the idea that the deficiency which affects
the attribute but not the essence of a transaction can often be removed
and ratified. If for example, a contract of sale is concluded without
assigned specified price, it is possible to specify the price (thaman) after
the conclusion of the contract and thus rectify the irregularity at a later
opportunity, that is, as soon as is known to exist or as soon as possible.
In-text question: Differentiate between Ṣaḥīḥ and Fāsid
3. Provide a comprehensive analysis of al-Sharṭ (Condition) and its
divisions in the principles of Islamic jurisprudence.
4. Give an analysis of existence of al-Māni‘ (preventive situation)
with examples.
5. Elaborate on the terms Ṣaḥīḥ, Bāṭil and Fāsid (Valid and Invalid)
as
principles in of Islamic Jurisprudence. Give examples in support
of your submissions.
5.4 CONCLUSION
From the above we can deduce the following conclusions:
Al-Ḥukm al-Waḍ-‘ī can be defined as the speech of the Lawgiver which
enacts something as a cause (sabab), condition (sharṭ), or a hindrance
jurisprudential requirement.
As-Sabab is “a cause the presense of which the Lawgiver based the
happening of al- Musabbab (an act) while in its absence the act will go
into abeyance.
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A third kind of al-Hukmu `l-Wađ-‘ī is Al-Māni‘ implying an act or
attribute whose presence nullifies either the ḥukm or the cause.
Ṣaḥīḥ, Bāṭil and Fāsid (Valid and Invalid) are the last f the principles of
al-Hukmu `l- Wađ-‘ī. They describe and evaluate legal acts incurred by
the mukallaf.
5.5 SUMMARY
This Unit opens with a definition of al-Hukmu `l-Wađ-‘ī and
enumeration of its kinds. It elaborates as-Sabab (a Cause of
jurisprudential requirement) its divisions and characteristics.Thereafter it
defines ash-sharṭ (the Condition) and its division. The third kind of
the positional or situational rule discussed in the main content of the Unit
is al-Māni‘u (the Preventive) and its different kinds. The Şaħīħ (valid),
Fāsid and the Bāṭil which are terminologies for jurisprudential
evaluation of acts constitutes the concluding parts of the main content of
this Unit.
5.6 REFERENCES
 Khallāf, A. W. 1977. ‘Ilm al-’Uṣūl al-Fiqh. (11th ed.), Kuwait.
 Abū Zahrah, M. 1958. ’Uṣūl al-Fiqh. Cairo.
 Kamāli, M. H. 1991. The Principles of Islamic Jurisprudence,
Cambridge.
 Al-Alwānī, T. J. 1995. ’Uṣūl al-Fiqh- al-Islāmī, Manhaj Baḥth’ in
Al-Ma„rifah. Al- Riyāḍ.
 Gorji, Abū Qāsim,1986. „A Brief Survey of the Development of
‘llm al ’Uṣūl al-Fiqh’, Al-Tawhīd, A Quarterly journal of Islamic
Thought and Culture. Vol. 3, No. 2. April-June.
 Salahu `d-Dīn Abdu`l-Hamīd (2012): An Enquiry into Khulāşatu
`l-Uşūl of Abdullah b. Fūdī; an Unpublished PhD Thesis,
University of Ibadan.
Answers to SAEs 1
1. Al-Ḥukm al-Waḍ-‘ī is the speech of the Lawgiver which enacts

something as a cause (sabab), condition (sharṭ), or a hindrance
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jurisprudential requirement. It is of three kinds:
i. As-Sabab
ii. Al-sharṭ, and
iii. Al- Māni‘
2. As-Sabab is “a clear and adequate description upon which the

Lawgiver based the happening of certain thing which will compel
the presence of al-musabbab, that is, the act, while in its absence the
act will go into abeyance.
In other words, Sabab is defined as an apparent and constant attribute
(waṣf ẓāhir munḍabit) which the Lawgiver has prescribed as the
indicator of a rule (ḥukm) in such a way that its presence necessitates
the presence of the ḥukm and its absence means that the ḥukm is also
absent.
Answers to SAEs
3. Al-sharṭ is the Condition that the Lawgiver laid down as a requisite

for an act. Al-sharṭ is divided into two in consideration of its relation to
the act or the cause of an act namely:
i. Sharṭ mukammil li sabab, that is, condition which is requisite for the
cause.
ii. Sharṭ mukammil li al-musabbab, that is, condition which is requisite
for the act.
4. Al-māni„ is an act or attribute whose presence nullifies either the
ḥukm or the cause. In either case, the result is that the presence of
māni„ means the absence of the ḥukm. It is the legal cause and
conditions of an act which may be duly fulfilled, yet if the
preventive exists, the rule of law in issue will fall into abeyance.
For example, a valid contract of marriage or kinship may exist
between a heir and a deceased person but if there is any legal
preventive, such as difference of religion between the heir and his
or her deceased relatives or it happened that the heir was the
murderer of the deceased, the inheritance between them will be
abated.
5. Saḥīḥ means that something is valid while fāsid means that
something is invalid. Thwy are situational rules of law which
describe and evaluate legal acts incurred by the mukallaf.
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UNIT 6: A`L-„AZῙMAH (STRICT LAW), A‟R-RUKHṢAH (CONCESSION)
Unit Structure
6.1 Introduction
6.3 Al-‘Azīmah and a’r-Rukhṣah (Strict Law and Concession)
6.3.1 Definition of al-‘Azīmah and a’r-Rukhṣah
6.3.2 Different Ways of Using the term Rukhṣah
6.3.3 Change of Rule of a`r-Rukhṣah to al-‘Azīmah
6.4 Conclusion
6.5 Summary
6.1 INTRODUCTION
The rigours of the obligatory rule of laws (aḥkām taklīfī) have a soften
influence by rukhṣah (concession) which are the bounties of Allah which
should not be rejected. This bounties from the Law-giver is the main focus
of this Unit.
define al-‘Azīmah and a`r-Rukhşah and support your definition with
examples
highlight the different ways of using the term Rukhṣah.
substaniate how a rule of a’r-Rukhṣah can change to al-‘Azīmah.
6.3 Al-„Azīmah and a‟r-Rukhṣah (Strict Law and Concession)
6.3.1 Defintion of al-„Aẓīmah and a`r-Rukhṣah
A rule of law or (al-ḥukm) is ‘azīmah when it is in its primary rigour
without reference to any circumstances which may soften its original force
or even entirely suspend it. For example, Ṣalāh (prayer) Zakāt, the Ḥājj,
Jihād etc. which Allah has enjoined upon all Mukallaf are classified under
‘azīmah.
A rule of law (ḥukm) is a rukhṣah by contrast. Whereas, ‘azīmah is the law
in its normal state, rukhṣah embodies the exceptions, if any, that the
Lawgiver has granted with a view to bringing facility and its difficult
circumstances. For instance, the law which grants concession to traveller to
break the fast during the month of Ramaḍān is exception to the norm that
requires everyone to fast.
66
Thus al-‘azīmah (Strict law) and al-rukhṣah (concession) are types of al-
ḥukm al-waḍ-ī.
1. Define al-‘Azīmah and support your definition with
examples.
2. Define a`r-Rukhşah and support your definition with
examples
6.3.2 Different Ways of using the term Rukhṣah.

First, the word is used in constrained circumstances where the prohibited
acts will become permissible, e.g. eating of carrion, and drinking of
intoxicant. The evidence to this is in the verse of Qur’ān which says:
He has forbidden you only the dead animals,
and blood, and the flesh of swine, and that
which is slaughtered as a sacrifice for others
than Allah. But if one is forced by necessity
without willful disobedience nor transgressing
due limits then there is no sin on him. Truly,
Allah is Oft-forgiving, most Merciful (Q. 2:
172-173).
The clause: But if one is forced by necessity, without willful disobedience,
nor transgressing due limits, there is no sin on him… states that if a person
is constrained to take any of the aforementioned forbidden, without
prejudice, God will forgive him. Similar example is in pronouncement of
paganic word under duress and without any intention of heathenism. The
person will be forgiven.
This is evidenced by the Qur’ān where Allah says:
Whoever disbelieved in Allah after his
belief, except who is forced thereto and
whose heart is at rest with faith… Q.
16:106).
Secondly, the word al-rukhṣah, is used in reducing the required quantity of
an obligatory act. For example ritual prayers are four prostrations (rak‘at)
in Ẓuhr, Aṣr, and ‘Ishā’i prayer, when a Mukallaf is in normal condition and
he is resident. This situation is called al-‘azīmah because the Lawgiver
initially ordained these prayers in this formula. Incidentally, if a mukallaf
engages in a lawful journey, either for worldly gains or eternal rewards, he
is allowed to shorten these prayers into two raka‘āts respectively. Similarly,
67
in the month of Ramaḍān fast if a mukallaf is on journey or in illness, he is
allowed to postpone it till another convenient time Allah says:
So, whoever of you sights the month he must
observe fasts that month, and whoever is ill or on
a journey, the same number must be made up from
other days, Allah intends for you ease, and he
does not want to make things difficult for you. (Q.
2:185).
These usages of permission are initially known as a`r-Rukhṣah in the
technical term of Islamic jurists.
Another extensive use of the term is in the usage for all what Allah
simplified for Muslim community out of hard obligations of old revelation
and ordinances of the past prophets. Repentance by way of killing each
other as in the law of prophet Mūsa and invalidity of prayers of Jews except
in their cults are some examples.
This is explained in the Qur’ān where Allah says:
Our Lord lay not on us a burden like that
which you did lay on those before us (Q.
2:286)
Although the verse is in form of prayer, it is an indication that all the
hardships in the previous religions had been easened for Muslims‟
community.
Finally, although the rule of rukhṣah is applicable when the occasion
warrants it in accordance with the given circumstances, a mukallaf is at
option to adhere to the permission or to prefer the ‘azīmah (the strict law)
on the matter in question.
The reason why the rule of persmission is optional is that all evidences that
indicate its proposition are clearly of indifferent nature.
In-text question: Do you know what Rukhṣah really means?
6.3.3 Change of Rule from a‟r-Rukhṣah to al-„Azīmah

Meanwhile, rule of rukhṣah which is initially optional can eventually
change to act of al-‘azīmah. Suppose a person is in a constrained condition
of hunger in which he has nothing to make him survive rather than carrion,
the eating of carrion becomes the only option left for him and it is no longer
rukhṣah in this situation. This assertion is based on other evidence in the
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Qur’ān additional to the provision that allows such a person to eat carrion.
The evidences are as follows. Allah says: And make not your own hands
contribute to your destruction. (Q. 2:190). Also, And kill not yourselves (Q.
4:29).
This rule gains the consensus of Islamic jurists except in a case of
pronouncing heathenish words which no jurist makes a compulsory act.
3. Highlight the different ways of using the term Rukhṣah.
4. Can a rule of a’r-Rukhṣah change to al-‘Azīmah?
Substantiate.
6.4 CONCLUSION
A rule of law (al-Hukmu) is either strict (azīmah), or leinient/concessionl
(rukhşah). The rule is strict (azīmah) when it lacks circumstnces which
may soften its original force or suspend it. By contrast rukhşah rules
embody concessions/exceptions that the Law-giver has granted to alleviate
difficult circumstances. Both „ażīmah and rukhşah are types of al-Hukmu
al-wađ„ī . There are different ways of expressing rukhşah. Finally, a rule
may change from rukhşah to ‘ażīmah and vice
versa.
6.5 SUMMARY
This Unit defines the rules of al-azīmah and a`r-rukhşah (Strict rule and
concession) as principles in Islamic Jurisprudent. I analyses the different
ways by which rukhşah was epressed by the Law-giver; and substantiates
situations when rukhşah rules can change into „azīmah and vice versa.
 Qadri, A. A. 1973. Islamic Jurisprudence in the Modern World,
Lahore.
 Kamāli, M. H. 1991. The Principles of Islamic Jurisprudence,
Cambridge.
 Al-Ashqar, M.S. 1997. Al-wādiḥ fī ’Uṣūl al- Fiqh li Al-mubtadi’īn.
Jordan.
 Zubair A.Q. 1994. The Rules of Law in the Sharī‘ah. Lagos.
 Kamali, Muḥammad Hashim. 1991. The Principles of Islamic
Jurisprudence. U.K. Cambridge Edmunds Bury Press. P. 114.
 A. Raḥim M.A. 1994. The Principles of Islamic Jurisprudence. New
Delhi.
69
 Salahu`d-Dīn Abdu`l-Hamīd (2012): An Enquiry into Khulāşatu `l-
Uşūl of Abdullah b. Fūdī; an Unpublished PhD Thesis, University of
Ibadan.
Answers to SAEs 1
1. A rule of law or (al-ḥukm) is ‘azīmah when it is in its primary rigour
without reference to any circumstances which may soften its original
force or even entirely suspend it. For example, Ṣalāh (prayer) Zakāt,
the Ḥājj, Jihād etc. which Allah has enjoined upon all Mukallaf are
classified under ‘azīmah.
2. Ar-rukhṣah embodies the exceptions, if any, that the Lawgiver has
granted with a view to bringing facility and its difficult circumstances.
For instance, the law which grants concession to traveller to break the
fast during the month of Ramaḍān is exception to the norm that
requires everyone to fast.
Answers to SAEs 2
3. The different ways of using Ar-rukhsah:
i. First, the word is used in constrained circumstances where the
prohibited acts will become permissible.
ii. Secondly, the word al-rukhṣah is used in reducing the required
quantity of an obligatory act.
iii. Thirdly, it is used for all what Allah simplified for Muslim
community out of hard obligations of old revelation and
ordinances of the past prophets.
4. The rule of rukhṣah which is initially optional can eventually change
to act of al-‘azīmah. This can happen for example when what is
forbidden is the only means left for one's survival. In that situation,
such person can take the forbidden to survive.
Unit 2: The ‘Aqliyyāt (Reason): 1. Ij-māu (Concensus)
Unit 3. The ‘Aqliyyāt (Reason): 2. Qiyās (Analogy)
Unit 4. The ‘Aqliyyāt (Reason): 3. Al-Ijtihād (Exercise of Reasoning)
70
UNIT 1: THE MANQŪLĀT (REVELATIONS: QUR‟ĀN AND
HADĪTH).
1.1 Introduction
1.3 The Manqūlāt (Revelations: Qur'an and Hadith)
1.3.1 Definition of Tawātur and Aḥādī Transmission of Reports and
Their
Places in validating Sharī‘ah Rules.
1.3.2 Qur’ān and the Principle of Islamic Jurisprudence.
1.3.3 Tawātur al-Qur’ān (Successive Report of the Qur’ān)
1.3.4 The Sunnah and principles of establishing Sharī‘ah rules from it.
1.4 Conclusion
1.5 Summary
1.1 INTRODUCTION
You are welcome to Module 3 of this course. Our discussion in this Module
shall centre around the principles of deducting rules from Revelation and
Reason sourses of Sharī‘ah both of which sometimes come under the
terminologies Naql and ‘Aql or the Manqūlāt and the ‘Aqliyyāt. In other
words, the Manqūlāt are the two main primary sources of Sharī‘ah which
are the Divine Revelation and the Prophetic Traditions. On the other hand,
what is termed Reason here are the Secondary sources of Sharī‘ah you are
already familiar with namely: Ij-mā‘u. (Concensus), Qiyās (Analogy), Al-
Ijtihād (Exercise of Reasoning) etc, etc. Our discussion in this Unit begins
with the Primary sources and as always, you will enjoy all we are going to
be discussing in this Unit.

 define Tawātur and Aḥādī transmission of reports.
 show the place Tawātur and Aḥādī transmission occupy in
validating
Sharī„ah rules.
 discuss the Qur’ān and the Principle of Islamic Jurisprudence.
 expatiate upon Tawātur al-Qur’ān (Successive Report of the
Qur’ān)
71
 elaborate on the Sunnah and Principles of Establishing Sharī‘ah
rules from It.
1.3 The Manqūlāt (Revelations: Qur'an and Hadith)
1.3.1 Definition of Tawātur and Aḥādī transmission of reports and their
places in validating Shariah rules.
Tawātur literally means sucessive and continuous. Technically, it means, a

report which has been transmitted through the first three generations of
Muslims by such large number of transmitters as cannot be reasonably
expected to agree on falsehood. Any event or evidence transmitted in this
manner produces absolute knowledge devoid of conjectures.
The opposite of tawātur is aḥād (solitary report). Solitary report is a report
which was transmitted during the first three generations of Muslims by one
to four transmitters only. The aḥād transmissions do not hold strong
validity for they are by their nature open to suspectability. In other words,
aḥād is a report transmitted by one or more or two or even more, provided
their number falls short of that number required for the mutawātir
(successive report).
1.3.2 Qur‟ān and the Principle of Islamic Jurisprudence.

The Qur’ān has been defined as the speech of Allah sent down upon the last
Prophet Muḥammad through Angel Jibrīl in its precise meaning and precise
wording transmitted by numerous persons successively (bi`t-tawātur) both
verbally and in writing. It is inimitable and uniquely protected by Allah
from corruption.
The Book of Allah is the first and principal source of sharī‘ah, which is
closely followed by Sunnah of His Messenger. These fundamental sources
of the sharī‘ah are referred to as nuṣūṣ or binding ordinances. Information
obtained from the Qur’ān provides clear cut knowledge (qaṭi‘). So also is
information obtained through ahadith mutawātir (recurrent report).
Whereas Aḥād (isolated report can only provide speculative knowledge)
(‘ilm ẓannī).
The primary sources of Sharī‘ah deal with the permanent and unalterable
elements of the sharī‘ah while the secondary source deals with the dynamic
and modifiable aspects of sharī‘ah.
There are many traditions reported in which the Prophet confirmed the use
of Qur’ān as the first source of Islamic law. For example when the Prophet
appointed Mu„ādh bn Jabal as governor of Yemen, he asked him how he
was going to judge if people brought cases to him. Mu„ādh bn Jabal replied
72
that he would consult the Book of Allah for the solution of such problems.
If he found answer therein, but if not he would resort to the Sunnah of the
Messenger of Allah and if he still found no solution, he said, he would not
hesitate to use his own ijtihād (or exercise of one‟s reasoning faculty) based
on the understanding of the Qur’ān and Sunnah. The Prophet very much
appreciated the answer given by Mu„ādh bn Jabal.

1. Define Tawātur and Aḥādī transmission of reports.
2. Show the place Tawātur and Aḥādī occupy in validating
Sharī‘ah Rules.
3. Discuss the Qur’ān and the Principle of Islamic
Jurisprudence.
1.3.3 Tawātur al-Qur‟ān (Successive Report of the Qur‟ān)

The Muslim scholars are in agreement to the effect that the entire text of the
Qur’ān is mutawātir or successively reported. That is, its authenticity is
proven by universally accepted testimony. It has been retained both in
memory and in written record throughout the generations. Hence, it is
necessary for Muslims to abide and work in line with such injunctions
whose basis is the Qur’ān whose tawātur was guaranteed.
On the other hand, the variant readings of some words in a few Āyahs
(verses), attributed to Abdullah bn Mas„ūd and some other Companions of
the Prophet, for example which are not established by tawātur is not part of
the Qur’ān. In the context of penance (kaffārah) of a false oath, for
example, the standard text provides this to be three days of fasting. But Ibn
Mas‟ūd‟s version has it as three consecutive days of fasting. Since the
additional element (that is consecutive) in the relevant āyah in sūrah al-
mā’idah (5:92) is not established by tawātur, it is not a part of the Qur’ān
and is therefore of no effect.
The same would apply to other instances of variant readings which is
attributed to Ā„ishah, the widow of the Prophet concerning the number of
breastfeedings which prohibit marriage between the foster sisters and foster
male child. Ā„ishah limited the suckling to five times.
So also, other variant of readings which are attributed to Abdullah bn
Mas„ūd concerning the punishment of theft, and the form of divorce known
as Īlā’ in sūrah al-mā’idah (5:38) and al-baqarah (2:226) respectively.
73
Since these are only supported by solitary reports (aḥād) they do not
constitute a part of the Qur’ān.
Muslim Scholars differ in opinion concerning the variant readings attributed
to the Qur’ān whether they are part of Qur’ān or not. It is stipulated that the
wordings of the Holy Qur’ān should be transmitted successively (tawātur).
Thus, anything that falls short of the above condition of succession of the
Qur‟anic transmission is not regarded nor considered part of the Holy
Qur’ān. Such wordings are not used as evidence and not applicable as
Islamic injunction. The reason being that these wordings lack authenticity
of being the word of Allah. This is the opinion held by the Mālikis school
of Law.
Meanwhile, the Shāfi„ī school of law hold the opposite. They hold the
opinion that whatever word attributed to the Holy Qur’ān, but lacks
concurrent (tawātur) transmission is not considered a part of the Qur’ān.
However, its non-concurrent transmission does not prevent it from being a
legal evidence that has legal applicability. Thus according to Shāfi„ī and
Ḥanafis, the concurrent transmission of the Qur’ān is a condition limited
only to the reading of the Qur’ān and not to the legal ruling. By and large,
the proponents of this opinion intend to establish that milk suckling of a
foster-male and a foster female five times only prohibit marriage between
them. Though, this ruling is established on the basis of unstandardized
variant readings. As it is related by A‟isha that: Only ten suckling was
prohibited, then abrogated to only five times.
It is in the same vein that the Ḥanafis based their argument on the version of
Ibn Mas„ūd in the context of penance (kaffārah) of false oath that three
consecutive days of fasting is a condition in the observance of the penance.
The Hanafis further said if the culprit observes the fasting on separate days,
it will not be sufficient, in other words, the culprit still remains a sinner.
This is based on the version of Ibn Mas„ūd which reads: Then three
consecutive days fasting should be observed.
However, the Mālikis refuted this view and said that the additional element
(that is, consecutive) is not a part of the Holy Qur’ān, because it is not
established by tawātur and is therefore of no effect.
This is the first sub divisional matters established on the rule of the
principles of Islamic Jurisprudence in this line. The rule goes thus, is the
concurrent transmission a condition in establishing whether a context is a
part of Qur’ān or not? The Muslim Jurists unanimously agreed that
concurrent transmission (tawātur) is a condition in all the context of the
Qur’ān. Thus, a concurrence of the Qur’ān embraces both the concurrent
readings and their applicability according to the Mālikis.
74
Meanwhile, the Shāfi„ī only limit concurrent transmission to reading and
not in the establishment of Islamic decision. In other words, according to
Shāfi„ī, the non-concurrent transmission of the Qur‟anic wordings are
applicable in the establishment of legal ruling. According to them, every
āyah in the Qur’ān is evidence in two ways, both in its reading and its
applicability for legal ruling.
1.3.4 The Sunnah and Principles of Establishing Shariah Rules from

It.
Sunnah, literally connotes among other meaning, mode, way or conduct of
life whether it is commendable or blameworthy.
The Traditionists defined Sunnah as “What is reported from the Prophet of
his sayings, deeds, silent approval which are applicable to an established
law”.
A good example of such report is: Lā waşiyyata li`l-wārith, there is no
bequest for a heir.
Sunnah is of various kinds. It may be qawliyyah – a saying of the Prophet
which has a bearing on a religious question, fi‘liyyah – an action or a
practice of his or taqrīriyyah – his silent approval of the action or practice
of another.
In-text question: What sources of Shari‟ah are referred to as examples of
Manqūlāt
The Conditions necessary to be fulfilled in establishing Islamic law or
jurisprudence matters from Hadith as Second primary source and
supplement to the Qur’ān is:
that the transmition or the legal evidence upon which the Islamic legal rule
is to be established should be of an authentic chain traceable to the
Lawgiver, devoid of any defect neither from the text (matn) nor from the
chain (Isnād) point of views. Thus the text (matn) is always preceded by a
chain of transmitters (isnād) which is intended to guarantee its authenticity.
In other words information obtained through ahadith mutawātir (successive
report) provides clear cut knowledge (ilm qaṭ‘) whereas aħādīth aḥādī
(isolated report can only provide speculative knowledge) (‘ilm ẓannī).
4. Expatiate upon Tawātur al-Qur’ān. Illustrate your points
with examples.
5. Elaborate on the Sunnah and Principles of Establishing
Sharī‘ah rules from it.
75
1.4 CONCLUSION
The Conditions necessary to be fulfilled in establishing Islamic law or
jurisprudence matters from its primary sources, i.e. the Qur’ān and Hadīth
are:
(1) That the transmitted source or the legal evidence upon which the
Islamic legal rule is to be established should be an authentic chain of
transmission traceable to the Lawgiver, devoid of any defect neither
from the text (matn) nor transmission (riwāyah) point of views. Thus
the text (matn) is always preceded by a chain of transmitters (isnād)
which is intended to guarantee its authenticity.
(2) The meaning of the primary source upon which the Islamic legal rule is
intended to be established should be explicit, clear and unambiguous.
(3) The Islamic legal rule should have continuity not repealed but last
forever.
(4) The primary source should enjoy preference over whatever text that
contradicts it. If it (the primary source) contradicts other text more
reliable and stronger than it is or having equal meaning concerning the
intended rule to be established upon it, then such source cannot be said
to be good enough to be used as an evidence of legal proof.
1.5 SUMMARY
The Unit identifies and defines the primary sources of sharī‘ah and divides
them into two types namely: manqūlāt (the transmitted/revealed sources)
and „aqliyāt (exercise of reasoning sources).
It emphasizes tawātur as major principle for the validation of jurisprudential
rules derived from them. It also emphasizes the point that once the rules
deried are validated they become biding.
The conditions laid down by the Usūlīs (Islamic theorists) for the
authentication of rules derived from the primary sources of sharī‘ah which
are the Qur’ān and Hadīth constitute the focus of the concluding part of the
Unit.
76
1.6 REFERENCES/FURTHER READING
 Ḥasaballah, Ali 1971. ’Uṣūlu `t-Tashrī‘ al-Islāmī. Egypt.

 Khallāf, A. W. 1947. ‘Ilm al-’Uṣūl al-Fiqh. Cairo.
 Denfer, A. V. 1983. ‘Ulūm al-Qur’ān- An Introduction to the
Sciences of
the Qur’ān. London .
 Al-Khaṭīb, A. M. 2003. ’Uṣūl al-Ḥadīth, ‘Ulūmuhu wa Musṭalaḥuhu.
Beirut.
 Al-Sibāī, Musṭapha. 1949. Al- Sunnah wa Makānatuha fī-Al-Tashrī‘
al- Islāmī.Cairo.
 Al-Ghazālī, M. M. n.d. al-Mustaṣfa min ‘Ilm al-’Uṣūl. Beirut.
 Shaltūt, M. 1985. Al-’Islām ‘Aqīdatum Wa Sharī‘atun. Beirut.
 Maṭlūb, A. M. 2005. ’Uṣūl al- Fiqh al-Islāmī. Cairo.
Abdullah b.
Fūdī; an Unpublished PhD Thesis, University of Ibadan.
Answers to SAEs 1
 Tawātur literally means sucessive and continuous. Technically, it

means, a report which has been transmitted through the first three
generations of Muslims by such large number of transmitters as
cannot be reasonably expected to agree on falsehood. Aḥād or
Solitary report is a report which was transmitted during the first three
generations of Muslims by one or four transmitters only. In other
words, aḥād is a report transmitted by one or more or two or even
more, provided their number falls short of that number required for
the mutawātir (successive report).
 Tawātur strongly validates the Shari'ah rules but Aḥādī do not
strongly validate the Shari'ah rules.
 The Qur’ān has been defined as the speech of Allah sent down upon
the last Prophet Muḥammad through Angel Jibrīl. It is the first and
principal source of sharī‘ah, which is closely followed by Sunnah of
His Messenger.
77
Answers to SAEs 2
 The Muslim scholars are in agreement to the effect that the entire text
of the Qur’ān is mutawātir or successively reported. That is, its
authenticity is proven by universally accepted testimony. It has been
retained both in memory and in written record throughout the
generations. Hence, it is necessary for Muslims to abide and work in
line with such injunctions whose basis is the Qur’ān whose tawātur
was guaranteed
 Sunnah is “What is reported from the Prophet of his sayings, deeds,
or his silent approval which are applicable to an established law”.
Sunnah is of various kinds. It may be qawliyyah – a saying of the
Prophet which has a bearing on a religious question, fi‘liyyah – an
action or a practice of his or taqrīriyyah – his silent approval of the
action or practice of another.
78
UNIT 2: THE „AQLIYĀT (REASON: IJMĀc: CONCENSUS OF
OPINIONS)
2.1 Introduction
2.3 Secondary sources of Sharī‘ah
2.3.1 Definition and Basis of al-Ijmā‘
2.3.2 Divisions of Ijmā‘
2.4 Conclusion
2.5 Summary
2.1 INTRODUCTION
The two primary sources of Sharī‘ah are the Qur’ān and the
Sunnah as presented in the foregoing Units One of this Module. In
the following two units we shall discuss two other sources of the
Islamic law viz. Ijmā‘and al-Qiyās. As the final sanction for all
intellectual activities in respect of the development of Sharī‘ah comes
from no where else but the Qur’ān and Sunnah of the Holy Prophet
these two instruments are regarded as secondary deriving from the
legal stipulations from the two primary sources. This unit presents to
you an examination of al-Ijmā‘as one of the two secondary sources of
Islamic law to you.
By the end of this Unit you are expected to be able to:

 define al-Ijmā‘and give its basis
 highlight the divisions of al-Ijmā‘
 expatiate upon application of al-Ijmā‘as a source of the Sharīcah.
2.3 Secondary Sources of Sharī‘ah
2.3.1 Definition and Basis of al-Ijmā„

Al-Ijmā‘ is the consensus of juristic opinions of the learned scholars
of the Ummah after the death of the Messenger of Allah. Ijmā‟ can
also be defined as the consensus of the opinion of the Companions of
79
the prophet (Şaħābah) and the agreement reached on the decisions
taken by the learned Muftis or Jurists on various Islamic matters.
Almighty Allah Himself encourages seeking the opinions of

others on religious matters as is said in the Holy Qur’ān:
“It is through the mercy of Allah that you are lenient with
them. If you are to be hard-hearted, they would have deserted you:
pardon them and seek forgiveness for them and seek their opinions
in the matters; whenever you decide upon something. Have believe
in Allah surely Allah loves those that rely on Him”
Almighty Allah has also said:
“Those who answer the call of their Lord, and establish

regular prayer (Salat) and whose affairs are a matter of counsel
and spend out of what we bestow on them for sustenance”
Prophet Muhammad (SAW) also supported the process of al-Ijmā‘

when he says in the Hadīth: “My people would never agree on
whoever leads them astray”
The practice of al-Ijmā‘ can be traced back to the days of the

Companions of the Prophet as can be seen from the following
examples. Almighty Allah does not state the type of punishment that
should be applied to one who drinks alcohol. But the agreement was
reached by the consensus of opinions of the Şaħābah when Caliph
Ali bn Abī Ţālib said: “he who drinks, get drunk, he who gets
drunk, raves; he who raves, accuses people falsely; and he who
accuses people falsely should be given eighty strokes of cane
according to the injunction of the Holy Qur‟ān. Almighty Allah
has said:
“Those that accurse the innocent women falsely, and they do not
bring forth four witnesses, flog them eighty strokes of cane and
do not accept their witnesses, they are the wrong doers”
Al-Ijmā‘ owes its origin to the following Qur’ānic verses in Sūrah al-
Nisāi
“But whoso makes a breach with the Messenger after the

guidance has come clear to him, and follows a way other than that
80
becoming to men of faith. We shall leave him over to what he has
chosen and we shall land him in the fire of hell- an evil refuge”
“O believers, obey Allah and obey Messenger and those in

authority among you. If you should quarrel on anything, refer it to
Allah and the Messenger”
Consultation (Shūrā) and the use of juristic reason (Ijtihād) are

normal preliminaries for arriving at a binding Ijmā ‘. The Rightly
guided Caliphs always consulted the Şaħābah whenever a novel issue
arose. The caliphate of Abu Bakr was based and run on the process of
the Şaħābah.
The following few examples are based on such process of al-

Ijmā‘. The validity of a contract for the purchase of goods yet to be
manufactured (‘aqd al-Istisna’) is based on an al-Ijmā‘.
The normal rule is that a sale of non-existence goods is not

valid because of uncertainty. The juristic consensus was aiming at
providing a practical solution. In the field of inheritance, for example,
it was agreed that if a person is predeceased by his father, then the
grandfather participates in the inheritance of the estate with the son
taking the share of the father.
It was also agreed that the grandfather is entitled to a sixth of

the estate of the propositus. The Ijmā‘ on this issue, is based on a
descision attributed by al-Mughirah Ibn Shu‟bah (d. 50 A.H.) to the
Prophet (SAW).
In the field of family law, it was agreed that since the Qur’ān
prohibits marriage with mothers and daughters then grandmothers
and grand daughters (however remoted) by the same token fall within
the prohibited degrees.
The minimum period of gestation is six months according to

all fiqh schools, but an example of lack of al-Ijmā‘ is in fact the
disagreement over the maximum period of gestation.
During the caliphate of cUmar b. Al-Khaṭṭāb, Muslims conquered

Syria which had a large expanse of fertile land being cultivated. In
line with the stipulation in the Qur’ān 8:41 and the practice of the
Prophet, in most cases the Muslim soldiers demanded that the land be
81
distributed among them. The Caliph sensed the dangers in doing that.
In the first instance, the distance between Medina, the capital of the
Government, and Syria, was so long that the settlement of the soldiers
in Syria would lead to their relocation. Secondly, having settled for
cultivating the land, the soldiers‟ attention would be diverted from
defending Islam and the Islamic Empire against external aggression.
More importantly, Medina would lose the services of gallant soldiers
and accomplished intellectuals who had been assets and pillars of the
city.
In the end, the Caliph invited the generality of people versed

in the Islamic Law to consider the problem dispassionately. In the
end, they took the unanimous decision that the land be left in the
hands of the original owners. In return, they would pay rents the
proceeds from which would be used to compensate the soldiers and
provide amenities for all the citizens. As from that time, Kharāj, rent
paid on using Government land, became a source of revenues to the
Islamic Government. Thus, he charged cUthmān b. Hanīf with the
responsibility of administering the conquered land of cIrāq, as well as
of other places.
The example cited above illustrates how the explanation of the

Qur’ān and its spirit can influence personal reasoning. It is true that
the soldiers, according to the Qur’ān, had the right to share the four
fifths of booties especially at the time of the Prophet because of their
precarious financial condition and proximity of the territories
subdued to the seat of the Empire.
In-text question: What is al-Ijmā‘?
Having the spirit of the Law rather than the text to guide one‟s
reasoning also comes into play here. Despite the text of the verse and
the Prophet‟s tradition, cUmar has chosen to consider the far
implications and the welfare of the society which both the Qur’ān
and Sunnah aim to guarantee. Centuries after that bold decision has
been taken, it is to be noted that events so far have proved him right.
The territories still remain in the hands of Muslims to date.
Thus, the consensus of the ‘Ulamā (al-Ijmā‘) must be based on

the Book of Allah, the instructions of the prophet (Qawlu Rasūl), the
82
actions and demonstrations of the prophet (Fi’l Rasūl). But some
actions of the prophet can be of a very special nature which can not
be applicable to an ordinary man. Lastly, the consensus must be
based on preachings and speeches of the prophet (Taqrīrāt al-Rasūl).

1. Define al-Ijmā‘and give its basis
2.3.2 Divisions of Ijmā„

The Ijmā„ could be divided into three broad categories: Ijmā‘ Qawlī
(the erbal
consensus of opinion), Ijmā‘ al-Fi ‘l (consensus of opinion on an
action) and Ijmā‘ Sukūtī (silent approaval).
The Ijmā‘ could also be sub-divided into two broad categories: Ijmā‘al-
Azīmah (the regular consensus of opinion) and Ijmā‘ Rukhşah (the
irregular consensus of opinion).
As regards the verbal consensus of opinion, if an issue is raised and all

the Jurists assent to it by voicing out their approval, the consensus of
opinion is regular. Nonetheless both of them are valid in Islamic Law
system.
As regards the practical Ijmā‘, if a Jurist does something and none of the
other Jurists challenges him, the Ijmā‘ is regular; but if a Jurist does
something, and one or more Jurists question him, the Ijmā‘ is irregular.
Nonetheless, both of them are valid as far as Islamic law is concerned.
During the time of Imam Malik and Abu Hanifah, the eligibility of
Jurists who could sanction the Ijmā‘ became a matter of controversy.
According to some Jurists, it is only the companions of the prophet who
were in position to sanction the Ijmā‘. According the Shites, however,
the Ijmā‘ can only be sanctioned by Ahlu `l-Bayt (the people of the
house of the prophet), that is the descendants of Ali and Fatimah, the
daughter of the prophet.
According to Imam Malik, the Ijmā‘ can only be sanctioned by the

Jurists of Medinah. But as far as the Hanafi school of thought is
concerned, the Ijmā‘ can be sanctioned by any qualified jurist
83
irrespective of his geographical place f abode or the religious sect that
he belongs to.
The Jurists also disagreed amongst themselves as to the number of the

Jurists who can ratify the Ijmā‘. According to Imams Malik and Abu
Hanifa, the number must not necessary be very great. Some Jurists put
the number to three Jurists while some others say that two will suffice the
purpose. The Jurist also say that any Ijmā‘ sanctioned by the companions
of the prophet can only be repealed by no one else but by the Jurists who
lived during their period. But any Ijmā‘ sanctioned by the Jurists who are
not the companions of the prophet can be repealed by the Jurists of their
generations as will as the jurists of ther generation after them are
empowered to do so because people consider their opinion as of the same
weight in the Islamic legal system.
The jurists say that any Ijmā‘ that has to do with some marginal issue on
Ibādah (religious worship), must be ratified by every member of the
community that is concerned. If a layman says that he does not agree to a
matter raised, it must be accepted as invalid. But, on the other hand, if the
Ijmā‘ has anything to do with Mu’āmalāt which need thorough
reasoning, the layman‟s point of view must not be considered.
The Maliki school considers that the established practice of the people of
Medinah (amal ahl al-Madīnah) provided valid Ijmā‘. But other schools
disagreed on this point. Some Hanbalis (as well as some other Jurists)
accept only the agreement of the four Rashidun Caliphs as the only
binding Ijmā‘.
Similarly, other Jurists consider the Fatwas (Jurisdical opinions and

decisions) of the Şaħābah as binding Ijmā‘ for the Ummah. To the
Shi‟ites, however, the binding Ijmā‘ is that of ahl al-Bait, as we have seen
before. Some Hanbali scholars are of the view that Ijmā‘ is not binding if
reached more than one generation after the prophet‟s death, because it is
nearly impossible to obtain the express agreement of every single
qualified Jurist after that stage of the spread of Islam.
Most jurists have agreed that only an express Ijmā‘ is binding. But the
Hanafi Jurists consider the silenceof the jurists with regard to the vocal
expression ofa particular opinion as an effective implied agreement
provide that (a) there is an evidence that the silent Jurist were really
84
well acquainted with the issue (b) a reasonable period of time passed
after the view was expressed to enable other Jurists to devote
suffiienttime for rsearch and analysis. If both conditions are met, say the
Hanafi Jurists, silence of Jurists amounts to an approval.
No matter the rank of the „Ulamā‟ and their thorough deliberations, no

amount of Ijmā‘ can abrogate a text (nass) i.e. a provision laid down in
the Qur’ān and Sunnah of the prophet. It should also be recommended
that no Ijmā‘ was eached or could have been reached except after the
death of the Holy Prophet, that is after all the texts were revealed or
stated, for Ijmā‘ is based on always on the interpretations of the Qur’ān
and the Sunnah.
If any Ijmā‘ is soundly founded on the texts of the Qur’ān and the
Sunnah it can not be repealed by any subsequent consensus; but if the
Ijma, is merely based on public interest (Maşāliħ Mursalah), it may be
repealed if the public welfare so requires.
In the fourth century of Hijrah era that is the tenth centure A.D., some
Muslim Jurists took a passive attitude and said that the Ijtihād and
Tafsīr had been exhaustively accomplished by the early scholars of
peerless ability.
In-text question: Before we continue, mention the three categories that

Ijmā’ can be divided.
Later, in the seventh century of Hijrah (the middle of the 13th century
A.D.), a great catastrophe struck the Muslim world and the Tartars,
headed by Holaku Khan the grand son of Chengis Khan, captured
Baghdad and killed the Abbasid Caliph al-Musta‟sim on 1258 A.D. the
Mumluks who overthrew the Ayyubids in Egypt in 1205 A.D. fought
the central Asian invaders and defeated the Mongols on more than one
occasion, starting their campagn as early as 1260 A.D. under al-Sultān
Nāşir, a former army commander under theAyyubids, that the Tartars
were finally defeated. During the period when Baghdad was under the
mercy of the Nomadic warriors of central Asia, the Jurist in Iraq
reached a wrong consensus to close the door of Ijtihād which they had
not practised much anyway since the tenth century A.D. No one, in fact,
had the right to put a stop to the process of Ijtihād.
85
In short, Ijmā‘ is Hujjah for all the four schools of Islamic
Jurisprudence.
Imam Shafi‟ has fully discussed Ijmā‘ as one of the sources of Sharī ‘ah
in his famous Risālah.
The following discourse of al-Shāfi„ī throws enough light on Ijmā‘. He

says:
“Someone asked me „Do you assert, with others, that the consensus of
the Ulamā‟ should always be based on an established Sunnah even if it
were related (on the authority of the prophet)?” he replied
“That on which the Ulama‟ are agreed and which, as they assert, was
related from the messenger of Allah, that is so. As to that which they
may or may not relate as a tradition from the prophet, we can not
consider it as related on the authority of the Holy prophet because one
may relate only what he has heard, for no one is permitted to relate (on
the authority of the prophet) information which may or may not be true.
So we accept the decision of the Ulama‟ because we have to obey their
authority, and we know that wherever there are Sunnahs of the Prophet,
the Ulama‟ can not be ignorant of them, although it is possible that
some of them are, and we know that Ulama‟ can neither agree on
anything contrary to the Sunnah of the Prophet nor on error”.
Some may ask: Is there any evidence in support of what you hold?
Imam Shafi‟ replied: Sufyan (b. Uyayna) told us from „Abd al-Malik
b. Umayr from Abd al-Rahman b. Abd Allah B. Masu‟d from his father,
who said: The messenger of Allah said: “Allah will grant prosperity to
His servant who hears mywords, remembers them, guards them and
hands them on. Many a transmitter of law is no Lawyer himself, and
many may transmit law to others who are more versed in the law than
they, etc.”

2. Highlight the divisions of al-Ijmā‘
3. Expatiate upon application of al-Ijmā‘ as a source of
the Sharīcah.
86
2.4 CONCLUSION
You have learnt in this Unit the definition of Ijmāc consensus of
opinions, as a source of the Sharīcah, based on the Qur’ān and the
Sunnah. You have learnt how it was practiced at the time of the
Prophet, his successors and in the following generations known
technically as Tābicūn (Followers) or Tābicū Tābicīn (Followers of the
Followers) as the case may be. It has also been explained to you how
the peculiarities of each centre of learning in the Islamic Empire
influenced the concept and practice of Ijmāc in each with minor
differences here and there.
2.5 SUMMARY
Ijmāc, Consensus of Opinions, is the third source of the Sharīcāh. Its

legitimacy is based on the Qur’ān and Sunnah. Its application which
started informally at the time of the Prophet assumed larger dimensions
in the following generations. This was in response to new challenges
that arose at the time. Ijmāc can be in form of Qawl (Speech) Ficl
(Practice) and Sukūt (Tacit Approval).
It can also be of the whole community, in which case it is binding on all

Muslims, or of the learned alone when it relates to technicalities and
difference of opinions is allowed. The concept of Ijmāc and its
application differed from one centre of learning to another especially in
relation to details.

 Bernand, M. 2008. « Idjmā». Encylopedia of Islam. Edited by : P.
Bearman, et al.
 Hallaq Wael, A History of Islamic Legal Theories, An Introduction
to Sunnī ’Uṣūl al-Fiqh. Cambridge University Press.
 Al-„Uthaymīn, M. S. 1993. al-’Uṣūl min ‘ilm al-’Uṣūl. Cairo.
Maktabat al-Sunnah.
 „Ali, M. M. (1973). The Religion of Islam, Lahore.
 Doi, A. R. I. (1984/14040). Sharīcah: the Islamic Law, London, Ta
Ha Publishers.
87
Answers to SAEs 1
1. Al-Ijmā‘ is the consensus of juristic opinions of the learned scholars
of the Ummah after the death of the Messenger of Allah. Ijmā‟ can
also be defined as the consensus of the opinion of the Companions of
the prophet (Şaħābah) and the agreement reached on the decisions
taken by the learned Muftis or Jurists on various Islamic matters.
The basis of Ijma' is the Qur'anic verse that encourages Muslims to
seek the opinions of others on religious matters.
Answers to SAEs 2
2. The Ijmā„ could be divided into three broad categories:
i. Ijmā‘ Qawlī (the verbal consensus of opinion),
ii. Ijmā‘ al-Fi ‘l (consensus of opinion on an action) and,
iii. Ijmā‘ Sukūtī (silent approaval).
The Ijmā‘ could also be sub-divided into two broad categories:

i. Ijmā‘al-Azīmah (the regular consensus of opinion) and,
ii. Ijmā‘ Rukhşah (the irregular consensus of opinion).
3. Ijmā' may either be regular or irregular. As regards the practical

Ijmā‘, if a Jurist does something and none of the other Jurists
challenges him, the Ijmā‘ is regular; but if a Jurist does something,
and one or more Jurists question him, the Ijmā‘ is irregular.
Nonetheless, both of them are valid as far as Islamic law is
concerned.
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UNIT 3: REASON 2: (QIYĀS - ANALOGICAL DEDUCTION)
CONTENTS
3.1 Introduction
3.3 Qiyās – Analogical Deduction
3.3.1 Definition of Qiyās
3.3.2 Variant views on the application of Qiyās as source of Sharī„ah
3.3.3 Conditions governing validity of Qiyās
3.3.4 Examples of Qiyās
3.4 Conclusion
3.5 Summary
3.6 Tutor Marked Assignment
3.7 References and Further Reading
3.1 INTRODUCTION
Unit three presented Ijmā‘ to you as one of the two secondary
sources of Sharī‘ah - the Islamic law. Its definition, basis, kinds and
examples were all expatiated upon for your digest. This unit will focus on
Qiyās (Analogical Deduction) which is the second of the secondary sources
of the Islamic law. To be specific, the unit will present the definition of
Qiyās, its origin, evolution and application, and contemporary issues
relating to it. The legality of Qiyās will also be established on the basis of
the Qur’ān and precedents from the early Muslims.

By the end of this unit, you are expected to be able to:
 define Qiyās
 give the variant views on the application of Qiyās as a source
of Sharī„ah
 highlight the conditions governing validity of Qiyās
 illutsrate application of Qiyās with samples
3.3 Qiyās – Analogical Deduction
3.3.1 Definition of Qiyās

As an Arabic word, Qiyās is a noun derived from the verb “qāsa”,
meaning he compared, consider the extent, magnitude, depth, etc of
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something, he determined the extent … etc. Qiyās, therefore, means
measurement, measure, dimension, scale, relation, comparison, etc.
As a technical term, Qiyās is first met with in the letter of Caliph

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Umar to Abū Mūsā al-Ashcarī. Among other things, the Caliph gave
instructions that the Governor should learn the “parallels and
precedents‟ (of legal cases) and then „weigh up‟ the cases (qis al-
Umūr), deciding what in his judgement would be the most pleasing to
God and nearest to the truth”. Apparently, the Caliph meant that the
Governor should exercise personal reasoning in judging cases which
are not provided for in the Qur’ān and Sunnah. To avoid misguided
judgments, he should use unanimous decisions or precedents as the
basis of his decisions in this respect.
Perhaps, it will be pertinent to produce here the definition derivable

from Sharī‘ah – the Islamic Law by R.I. Doi. According to him Al-
Qiyās could be defined in Islamic theological parlance as analogy, or
analogical deduction. In other words, al-Qiyās is the legal principle
introduced in order to arrive at a logical conclusion of a certain law
on a certain issue that has to do with the welfare of the Muslims. In
exercising this, however, it must be based on Qur’ān, Sunnah and
Ijmā‘.
In-text question: Define Qiyās as a secondary source of Sharī „ah.
3.3.2 Variant views on the application of Qiyās as source of Sharī „ah.

Qiyās was introduced as a legal principle by Imam Abū Hanīfah, the
founder of the Hanafī School in Iraq. The reason why he introduced it
was not unconnected with the intention of cubing the excessive
thinking and digression of the people from the Islamic legal point.
During the period of the Abbasids, people engaged themselves in

reading various text books on logical philosophy, etymology,
linguistics, literatures of various places, foreign text books, which to
some extent tended to corrupt their minds and lead them astray. They
wanted to apply what they had studied in these foreign text books to
Islamic Jurisprudence. Many new Muslim in far away lands had
brought with them their philosophical outlook, their culture and even
some religious and legal notions in the fold of Islam. Abū Hanīfah
introduced Qiyās as a measure to curb the excessive thinking and to
keep them on check.
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However, the Mutazilites like Ibrahim bn Sayyar, and the scholars of
Zāhirī school including Ibn Hazm of Andalusia, were among Jurists
who opposed the use of Qiyās. In this regard, there are scholars and
Jurists who may be termed as anti-Qiyās and pro-Qiyās. Each and
everyone of them brought forth evidence to support his stand.
The following are some of the reasons put forward for rejecting it.
i. The notion that the Qur’ān is complete and covers all the areas of
human need. The Qur’ān itself says:
…And We have sent down to you (i.e. Prophet
Muhammad) the Book explaining all things, a
Guide, a Mercy and Glad Tidings to Muslims.
… Nothing have We omitted from the Book … (Qur’ān 6:38)
The argument here is that having recourse to Qiyās despite the claim
made by the Qur’ān that it is all-encompassing is to deny the
completion, perfection and comprehensiveness of the holy scripture.
Qiyās, according to this line of thought, is therefore, unnecessary.
ii. The alleged prohibition of Qiyās by the Prophet as shown in this

Ḥadīth:
The affairs of the sons of Israel have continued

to prosper until there multiplied among them the
children of the war captives, for these have
measured (qāsū) what did not exist on the basis
of what did exist, and so they have erred and led
others into error.
In other words, the downfall of the Israelites was as a result of

the “sin” of analogical reasoning committed by those who were not of
the thorough Israel stock. This is another way of saying that Qiyās is
such an evil that no well-bred person will ever attempt, and that it
leads astray.
iii. Difficulty in identifying the cIllah (effective cause):
As the application of Qiyās is based on identifying the effective

cause (cillah) of the revelation so as to use it to assess and determine
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the course of handling the problem on hand in form of analogy, it is
argued that it is very difficult, if not impossible, to know the causes
of the texts especially where they are not explicitly declared. This
argument, based on reason, goes further to say that man does not rely
on his thought or reason to worship Allah. Indeed, many of the rites
may appear unreasonable. If this is the case, on what premises is
Qiyās based?
In their response to the above, the proponents of Qiyās say that:
i. The apparent support of the Qur’ān for the use of reasoning:

The Qur’ān supports the practice of Qiyās thus:
… consider, oh you possessors of sight”
Other verses in the Qur’ān where Allah addresses those who reflect
(yatafakkarūn) or understand (yacqilūn) as in 10:24 and 30:28
respectively, are also cited in this respect. In effect, the completion
of the Qur’ān is in the sense of providing guiding principles
potentially which the jurists will strive to understand, interpret and
apply in the prevailing circumstances. Thus, Qiyās is solidly based
on the Qur’ān as the scripture urges Muslims to reflect, reason and
exert themselves to understand.
ii. The support of the Sunnah for the use of reasoning: So many
Ḥadīths and practices of the Companions support the practice of
Qiyās. For instance, the Prophet was pleased to learn from Mucādh
bn Jabal, whom he had sent to Yeman, that he would use his personal
opinion to judge cases in the absence of guidance from the Qur’ān
and Sunnah. Showing his satisfaction, the Prophet said:
Thanks to God that He has directed the delegate

of His prophet to that opinion in which the
Prophet of God finds pleasure.
When Abū Mūsā was sent to the same place, he was instructed not to
hesitate to use his personal opinion (ra’y) to judge cases if the Qur’ān
and Sunnah did not give necessary information. Companions are also
known to have used Qiyās to decide many cases after the Prophet.
Some of such cases are the election of Caliph to succeed the Prophet
and determining the penalty for drinking intoxicants (Khamr). With
respect to the latter, cAlī is said to have reasoned.
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“When one drinks, he gets drunk; and when he gets drunk,
he raves; and when he raves, he accuses falsely”.
That was how the same penalty was fixed for drunkenness and false
accusation of infidelity.
iii. The use of probability instead of exact facts when necessary:

Inability to understand or know the effective cause (cillah) of
revelation does not necessarily mean that Qiyās cannot be based on it.
In that case, one has to base one‟s action on what is most probable
and “probability is sufficient for purposes of conduct”. The
opponents are queried for using Qiyās in determining the Qiblah, the
direction of the Kacbah which they should face in prayer. They are
also challenged for using Qiyās to determine the amount of
compensation for property destroyed. Since the property is already
destroyed, there is no basis for determining its exact worth.
The controversy above notwithstanding, Qiyās is recognized as a

source of the Sharīcāh by the overwhelming majority of the jurists,
with the exception of groups like the Muctazilites who cannot even be
exonerated from it in practice.
Perhaps, it may serve a good purpose here to make some

observations on the arguments put forward by the opponents and
proponents of Qiyās. It is an established fact that the Qur’ān
states and is believed to have covered all the areas of man‟s needs,
but this is only by providing the guiding principles. If this argument
is not faulty, it threatens the acceptance of all other recognized
sources of the Law such as the Sunnah and Ijmāc. Contrary to this, it
is generally known that without these additional and supplementary
sources, the whole of the Sharīcāh would be out of tune with the
practical needs of man particularly in the light of the dynamic nature
of man‟s life. That is why the Prophet and the Companions could not
but encourage and instruct that Qiyās and other forms of Ijtihād
should be used in response to the dictates of circumstances.

1. Examine the stand taken by both the anti-Qiyas and
pro-Qiyas elements on its application as a source of
Islamic law.
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3.3.3 Conditions Governing validity of Qiyās
Many efforts have been made to ensure proper application of Qiyās and
to avoid its abuse. Thus, certain guidelines were laid down specifying
the conditions to be fulfilled before Qiyās can be deemed to have taken
place. The rules are elaborate and different, somewhat, from one school
of thought to another. The following, however, is summary
representing the views accepted by the generality of the jurists:
i. Applicability to general cases as against isolated cases: Qiyās must

be based on a stipulation or prescription that is general (cāmm), and not
of special (Khass), application. There are many legislations in the
Qur’ān and Sunnah relating to the various aspects of life which do not
apply to every Dick and Harry. An example that readily comes to mind
here is the special allowance given to the Prophet in the Qur’ān to
exceed the maximum number of four wives and to be exempted from
some other laws applicable to marriage. The Qur’ān specifically
mentions that “This is only for you, and not for other believers” (Qur’ān
33:50). No caliph or any Muslim ruler, no matter how highly placed,
can therefore justify failure to comply with the general rules regulating
marriage in Islam on the basis of the special allowance to the Prophet by
analogical deduction. Another example is that of combining the Ẓuhr
and ‘Aṣr prayers at cArafāt, and the Maghrib and cIshā’ at Muzdalifah,
by pilgrims while on Ḥajj. This practice is compulsory on the special
occasion of pilgrimage which cannot be extended to any other one.
Ordinarily, combination of prayers (Salawāt) is a concession or
allowance which one may take the advantage of or otherwise, if one is
under the condition to enjoy it.
ii. The cause (cillah) must be known and understood: Justification

for analogy is based on the premise that there is an operative cause
common to the original case and the one on hand requiring a solution.
Before the question of being common or otherwise arises, it must be
ascertained that the cause is clearly identified and thoroughly
understood. For instance, the Qur’ān 5:94 appears to state that the
cause for prohibiting intoxicants and gambling is, among other things,
that Satan uses them to set those involved in them against one another
and prevent them from remembering Allah and observing Ṣalāt. This is
understood and supported by experience. This injunction can therefore
be used for analogy to prohibit anything that may do the same harm as
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mentioned above. On the other hand, the reason for having a particular
number of Rakcahs for one Ṣalāt and the requirement to read aloud or
silently is not given. Thus, these practices cannot be used as a basis for
analogy.
iii. Basing the decision on the Qur’ān, Ḥadīth or Ijmāc: the Sharīcah
principle Aṣl, being the precedent, must be based on an express
injunction of the Qur’ān, authentic Ḥadīth or popular Ijmāc. Any
c
previous case not decided according to these sources of the Sharī ah is
not suitable as a basis for any analogy. This is necessary to avoid
digressing from the course of the Sharīcah in favour of one‟s whims and
caprices.
iv. The decision arrived at as a result of analogy must not be

contradictory to the Qur’ān and Ḥadīth. The rationale behind the use of
Qiyās is to be guided by the Qur’ān and Sunnah in deciding new cases
that do not directly come under any of the injunctions. Thus, the spirit
of the Sharīcah should guide the decision. Except something goes
wrong, the decision eventually arrived at should not run counter to the
principles laid in the Qur’ān or Ḥadīth. If it does, the analogy is null
and void, and is of no effect.
To conclude with, it would be observed that these conditions were laid

down quite a long time ago when the challenges were different from
what we have at present. The world is changing everyday. It is
necessary to have a critical look at these conditions and see if they can
satisfy the modern needs. If not, further Ijtihād has to be exercised to
bring them up to date. The ultimate conclusion is most likely to be in
favour of reopening the gate of Ijtihād erroneously believed to have
been closed for centuries in certain quarters.
In-text question: Mention two out of the conditions that make Qiyās to
be acceptable.
3.3.4 Examples of Qiyās

During the life time of the companions of the prophet they arrived at
various descisions on analogical deductions. As for example on the
punishment that should be given to a drunkard Ali bn Abī Ţālib said:
“he who drinks, gets drunk, he who gets drunk, raves; he who
raves,accuses people falsely; and he who accuses people falsely
should be given eighty strokes of cane”.
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From all that has been said so far, we can infer that there is nothing
wrong in using al-Qiyās in deriving at a logical conclusion in Islamic
law in as much as that conclusion does not go against the injunctions of
the Holy Qur’ān or the Sunnah of the prophet.
Another interesting example of analogical deduction is that of the Qiyās

and Ijtihād by „Umar, the second Caliph. He asked the prophet whether
a kiss during the fast vitiates the fast even though no organism is
reached. The prophet posed a question: “Does rinsing ones mouth
vitiate the fast” Umar replied “No, it was alright to do so”. So the
prophet indicated that the fast is similarly not vitiated by a kiss if it is
not accompanied by an orgasm.
Similarly, when a Muslim breaks his fast during the Ramadan

intentionally, he is obliged to expiate for it in the following manner:
(a) Manumitting a slave;

(b) Fasting for two months consecutively in lieu of manumission;
(c) If his health will not stand 2 months fasting, then he must feed
60 paupers
Another example of Qiyās is provided in the case of Bedouin who had a

sexual intercourse with his wife during the time of fasting. He went to the
prophet and confessed of his sin. The prophet told him that he should
give a Kafarah (expiation). The „illah (effective cause for extending a
rule by analogy) was deliberate breaking of fast. Kaffarah (expiation)
becomes incumbent upon the defaulter.
Imam Mālik has also given a verdict issued on Qiyās by a remarriage of

the wife of a missing person after the court has issued a decree deeming
him dead, although he subsequently appears, with the remarriage of a
divorced wife who has been recalled by her husband into the
matrimonial home bond but who has remarried because the recall was
not communicated to her. In both cases the wife observes Iddah of death
in the first case and the „Iddah of Ţalāq in the second case. In both cases
the woman enters into the second marriage in good faith. Sayyidna
Umar had given a fatwa that in the case of a woman who was not made
aware of the recall becomes the lawful wife of the new husband. Imam
Malik said the same applies in the case of the former wife of the missing
person as she becomes the legal wife of the new husband.
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The prophet was asked by a woman whether she could perform the Hajj
on behalf of her aged father. The prophet replied in affirmative just as
she may discharge on his behalf a pecuniary debt.
3.3.5 Kinds of Qiyās
There are two types of al-Qiyās: (a) al-Qiyās al-Jaliyy (the transparent
Qiyās) and (b) al-Qiyās al-Khafiyy (the hidden Qiyās)
With regard to Qiyās Jaliyy, alcohol is forbidden on the grounds of its

being intoxicant, other new intoxicants can also be equally forbidden in
Islam based on this reason.
As regards the al-Qiyās al-Khafiyy, Almighty Allah asks us to give out

Zakāt. It was the prophet who explained how it should be given out. He
said among other things, that one goat must be given out as Zakāt on
every forty goats. Giving a poor man a goat will do him little or no use.
Therefore, we are allowed to sell that goat and give him the money. He
would appreciate perhaps the money more than he would appreciate the
goat.
The Shī‘ah sect like the Ithnā ‘Ashariyyah (the twelvers), the Uşūlīs and
the Ibāđite (Kharijite sect) employ the terms ‘aql and ra’y for the same
concept of Qiyās.
In-text question: Name the two kinds of Qiyās.
3.4 CONCLUSION
In this Unit, you have learnt the definition, importance and basis of Qiyās
as one of the sources of the Sharīcah. You have also been taught the
various arguments in favour or against its application as a source of the
Islamic Law. So also you have been introduced to the conditions to be
satisfied before Qiyās is understood to have been properly carried out and
the need to review the conditions in view of the modern dispensation
with a view to ensuring that the Sharīcah practices keep pace with the
contemporary situation.
3.5 SUMMARY
Qiyās, analogical reasoning, is the fourth source of the Islamic Law. Its
legality is based on the numerous verses of the Qur’ān that urge
Muslims to reflect especially on the Book to understand and apply its
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teaching appropriately. There are also sayings and deeds of the Prophet
and Companions that legitimize the use of Qiyās as a source of the
Sharī’ah. To ensure that it is not abused, certain conditions are required
to be satisfied. Some of them are:
i) basing it on verses and Ḥadīths that are of general application,

ii) proper understanding of the spirit and motive of the verses and/or
Ḥadīths.
iii) avoiding using Qiyās as the basis for Qiyās and
iv) ensuring that the final decision does not contradict the principles
of
Islam.

2. Discuss the conditions governing validiy of the application
of qiyās as a source of Sharīcah.
3. Define Qiyās justifying its application as a source of the
Sharīcah in the light of the Qur’ān and Sunnah. Cite cases
to illustrate your answer.

 Hasan, A. (1970). The Early Development of Islamic
Jurisprudence, Islamabad,
Islamic Research Institute.
 Doi, A. R. I. (1984/14040). Sharīcah: the Islamic Law, London,
Ta Ha Publishers.
 Faruki, K. A. (1962). Islamic Jurisprudence, Karachi, Pakistan
Publishing House.
 Khan, M.Z. (1962). Islam: Its Meaning to Modern Man, London,
Routledge and Kegan Paul Ltd.
 Maududi, A. A. (1978). The Meaning of the Qur’ān, Lahore,
Islamic Publications Ltd.
 Nasr, S. H. (1972). Ideals and Realities of Islam, London, G.
Allen & Unwin Ltd.

Answers to SAEs 1
1. For the opponents to Qiyās, their reasons include:
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i. The notion that the Qur’ān is complete and covers all the areas
of human need.
ii. The alleged prohibition of Qiyās by the Prophet.
iii. Difficulty in identifying the cIllah (effective cause).
And for the proponent to Qiyās, they brought the following reasons to
support their position:
i. The apparent support of the Qur’ān for the use of reasoning.

ii. The support of the Sunnah for the use of reasoning.
iii. The use of probability instead of exact facts when necessary.
Answers to SAEs 2
2. Conditions for validity of Qiyās include:
i. Applicability to general cases as against isolated cases.
ii. The cause (cillah) must be known and understood.
iii. Basing the decision on the Qur’ān, Ḥadīth or Ijmāc
iv. The decision arrived at as a result of analogy must not be
contradictory to the Qur’ān and Ḥadīth.
3. Technically, Qiyās is the exercise of personal reasoning in judging

cases which are not provided for in the Qur’ān and Sunnah.
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UNIT 4: REASON 3 (AL-IJTIHĀD – EXERCISE OF REASONING)
CONTENTS
4.1 Introduction
4.3 Al-Ijtihād – Exercise of Reasoning
4.3.1 Definition of the Term: al-Ijtihād
4.3.2 Conditions under which al-Ijtihād must not be exercised.
4.3.3 Knowlegde and Moral Qualifications Required of a Mujtahid
4.3.4 Classification of the Mujtahids
4.3.5 Method of Exercising Ijtihād
4.4 Conclusion
4.5 Summary
4.1 INTRODUCTION
In formulating rules of law, the Sunnis (Orthodox Muslims) place high
premium on Ijtihād in arriving at decisions based on the four sources
expatiated upon in this module.Where the Book or the Sunnah provides
the legal solution to a particular problem, no inference is necessary.
However, when there are newly emerging issues and for which neither
the Book nor the Sunnah provides an equivocal answer, then Ijtihād
becomes inevitable. In other words, Ijtihād is the main instrument for
interpreting the divine message as well as relating it to the aspirations of
the Ummah to finding solution to laying down rules and regulations for
its ever emerging new cases and its pursuit of fair-play, justice, and
salvation.

 give the literal and technical terms of al-Ijtihād .
 enumerate the issues to which al-Ijtihād is not applicable.
 write notes on knowledge and moral qualification of a Mujtahid.
 enumerate three categories of the Mujtahidūn
 describe the method of applying Ijtihad. Give examples.
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4.3 Al-Ijtihād – Exercise of Reasoning
4.3.1 Definition of the Term: al-Ijtihād

The Arabic word Ijtihād technically means an effort or an exercise to
arrive at ones own judgement. In its wider Sharī‘ah sense, it means the
use of human reasoning to the elaboration and explanation of the
Sharī‘ah law. It covers a variety of mental process, ranging from the
interpretation of texts of the Qur’ān and the assessment of Hadiths.
Qiyās or analogical reasoning then is a particular form of Ijtihād, the
method by which the principles established by the Qur’ān, Sunnah and
Ijmā’ are to be extended and applied to the solution of new problems
not expressly regulated before.
Al-Ijtihād, therefore, is an exercise of Jurist`s reasoning to arrive at a
logical conclusion on a legal issue, to deduce a conclusion as to the
effectiveness of a legal precept in Islam.
In-text question: What is the technical definition of Ijtihād?
Imam Muhammad Idris al-Shāfi„ī has supported the justification for
Ijtihād by with a verse of the Holy Qur’ān to substantiate his conviction
over the issue. Almighty Allah said:
“Wherever you go, face the Mosque of Haram, and wherever you
are, turn your face towards it.”
Imam Shafi„ī maintains that if one does not exercise his
intellect, he would not be ale to know where Masjid al-Harām is.
Therefore, Allah Himself indirectly encourages us to exercise our
reasoning faculty, a great gift to mankind, to derive a logical
conclusion on certain matters.
4.3.2 Conditions under which al-Ijtihād must not be exercised.
The Jurists have laid down certain conditions under which al-Ijtihād
must not be exercised:
(a) Ijtihād must not be exercised as to the extent of Allah. It is certain
that Allah does exist and attempt to think in his existence or not will
lead to disbelief.
(b) Ijtihād must not be exercised as to the truism of the prophets of

Allah who were sent by Allah himself and any attempt to argue over the
idea of their prophethood is tantamount to disbelief.
(c) Ijtihād must not be exercised on the authenticity of the Qur’ān.
Self Assessment Execises 1 (SAEs)
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1. Give the literal and technical terms of al-Ijtihād.
2. Enumerate the issues to which al-Ijtihād is not
applicable.
4.3.3 Knowlegde and Moral Qualifications Required of a Mujtahid

Before one can assume the role of al-Mujtahid he has to be
knowledgeable about the religion of Islam, the Sunnah, Fiqh and Uşūl-
al-fiqh. He should possess the following qualities:
(a) He must be very well versed in the study of the Qur’ān.That he must
know the reason why the verses and chapters of the Qur’ān were
revealed (asbābu`n-nuzūl)
(b) He must be well versed in the study of the traditions of prophet
Muhammad. That is, he must know the distinction between authentic
Hadith from the spurious; he must know Hadith Şaħīħ, (authentic),
Hadith Hasan (good Hadith) and Hadith Daif (weak Hadith) and so
on.
(c) He must know the principles of Ijmā‟ very well.
(d) He must know the Injunctions of Qiyās and the conditions that
governs it.
On the other hand, the Mujtahid must possess good character apart
from academic excellence. Among the moral qualities he must posses
are:
(a) He must be a good and practicing Muslim.
(b) He must be very pious and law abiding to all the injunctions of
the Holy Quran.
(c) He must not be under the influence of heresies
(d) He must be just, reliable, trustworthy and pure from iniquitous
practices.
4.3.4 Classification of the Mujtahids

The Mujtahid can be classified into three broad categories:
a) Al-Mujtahid fi `sh- Sharī‘ah: These were those who did Ijtihād in the
matter of Sharīah. These were the companions of the prophet till the
third century of Islam.
b) Al-Mujtahid fi `l-Madhab: These were those who did Ijtihād and later
founded schools of Jurisprudence.
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c) Al-Mujtahid fi `l-Masā’il: These are the present-day Mujtahids who
give fatwā or juristic opinions on religious matters.
In-text question: Who is a Mujtahid and into how many groups can you
categorise a Mujtahid
4.3.5 Method of Exercising Ijtihād
Any form of Ijtihād must have its starting point in a principle of the
Qur’ān, Sunnah or Ijmā‘. In other words, Ijtihād can not be used to
achieve a result which contradicts a rule established by any of these
three fundamental sources.
Whenever a new case of issue presents itself resoning by Qiyās with an
original case covered by the Qur’ān, the Sunnah or Ijmā’ is possible
provided the effective cause (illah) is common to both cases.
As for example, wine is prohibited by the texts, and the illah for this
prohibition is intoxication. Therefore, other intoxicants like spirits and
drugs like hemp and marijuana are prohibited by Qiyās because they
also lead to drunkenness and loss of senses. In this way the prohibition
is extended by analogical deduction. The majority of the Muslims,
including the four major Sunni schools, accept Qiyās and Ijtihad to
determine Juristic basis for reasoning on an issue:
a) There should be original subject (aşl)
b) There should be an object of analogy, being a new subject (far-
‘u)
c) There should exist effective cause common to both subject
(‘illah)
d) There should also be a rule arrive at by Qiyās (hukm)
For example, in the case of prohibition of an intoxicant like gin, the

following four cardinal points must exist:
(i) Wine (ii) Gin (iii) Intoxication (iv) Prohibition
The following are some other examples of exercising Ijtihād in arriving at
analogical deduction.
1. In Surah al-Jum-‘ah the Quran prohibits the sale transactions after
the last call to Jumah prayer. The rule is extended by Qiyās to other kinds
of transactions and engagements which distract Muslims from attending the
Jumah prayer.
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2. In the Sunnah of the prophet a killer is deprived from sharing in the
inheritance of his victim. This rule is extended to the law of Waşiyyah
(bequests) as well.
3. Write notes on knowledge and moral qualification of a
Mujtahid.
4. Enumerate three categories of the Mujtahidūn.
5. Describe the method of applying Ijtihad.
4.4 CONCLUSION
The Shī„ah believe that Ijtihād is only the prerogative of their Imams who
are presumed to be infallible.
In the modern times, Muslim scholars like Jamal Dīn al-Afghānī and his
disciple Shaykh Muhammad Abdou tried to justify in the presence of a
group of Muslim scholars in Cairo that the importance of reopening the
door of Ijtihād was an Islamic response to imperialism prevalent in the
Muslim world at that time. Muhammad Abduh, Afghani‟s disciple gave
fresh interpretation of the principles embodied in the divine revelation as a
basis for legal reform. Although it engendered violent controversy, the
supporters of the fresh Ijtihād argued that the doctrine of the closure of the
door of Ijtihād had not been established by an infallible Ijmā„u as alleged by
the opponents of the Ijtihād.
It was argued that any Ijmā’ of the „Ulama‟ in the period of intellectual
stagnation and under fear as well as during any foreign domination like that
of the Mongols in Baghdad around 1258 A.D. and afterwards could lead to
harmful consequences. Therefore, fresh Ijtihād was launched in the 19th
Century in the public interest and thus it was believed that the door of
Ijtihād was re-opened and Ijmā’ reached in Baghdad in the 13th century was
repealed. But the question is: was the door of Ijtihād ever closed?
From the foregoing, you will agree with me that the door of Ijtihād is
always widely open. Its basis are in the Qur’ān and Hadīth; and it only
requires that the machinery uphold the relevance and universality of Islam,
as a divine religion; and the only way to enable it to be able to cope with
newly arising issues and matters.
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4.5 SUMMARY
It is obvious that al- Ijtihād is an indispensable ingredient in Islam. It is
primarily by virtue of the Ijtihād of jurists that Islamic law thrives as a body
of positive rules. The statement credited to some medieval Muslim jurists
that the door of Ijtihād has been closed perhaps meant to appreciate efforts
already made by the Doctors of Islamic jurisprudence or to control
proliferation of its schools.

Journal of Middle East Studies. Vol. 16 No. 1 (Mar., 1984).
 Al-Khuḍarī, Muḥammad, Tarikh Al-Tashri.
 Schacht, J.; MacDonald, D.B.; Schacht, J. 2008. “Idjithād”
Encylopedia of Islam. Edited by : P. Bearman, et al..
 Ajetunmobi, M.A. (2000): “Intellectual Perspective on the
Practices of Islamic Law among the Yoruba Muslims of Nigeria”.
In Journal of the Nigerian Association of Teachers of Arabic And
Islamic Studies (NATAIS), Ijebu – Ode, Shebiotimo Publications,
Vol 5 No. 1
 Doi, A.R.I. (1984); Sharī‘ah: The Islamic Law, United Kingdom,
Ta-Ha Publishers
 Hallāq, Wael B. (1997); A History of Islamic Theories: An
Introduction to Sunni Usul al-Fiqh, Cambridge, University Press
Cambridge, Islamic Texts Society.
Answers to SAEs 1
1. Literally, Ijtihād means to excert power on something, but
technically, it means an effort or an exercise to arrive at ones own
judgement. It is an exercise of Jurist`s reasoning to arrive at a logical
conclusion on a legal issue, to deduce a conclusion as to the
effectiveness of a legal precept in Islam.
2. Issues to which al-Ijtihād is not applicable:
i. Ijtihād must not be exercised as to the extent of Allah. It is
certain that Allah does exist and attempt to think in his
existence or not will lead to disbelief.
105
ii. Ijtihād must not be exercised as to the truism of the prophets of
Allah who were sent by Allah himself and any attempt to argue
over the idea of their prophethood is tantamount to disbelief.
iii. Ijtihād must not be exercised on the authenticity of the Qur’ān.
Answers to SAEs 2
3. Before one can assume the role of al-Mujtahid he has to be

knowledgeable about the religion of Islam, the Sunnah, Fiqh and
Uşūl-al-fiqh. He should possess the following qualities:
i. He must be very well versed in the study of the Qur’ān.
ii. He must be well versed in the study of the traditions of Prophet
Muhammad.
iii. He must know the principles of Ijmā‟ very well.
iv. He must know the Injunctions of Qiyās and the conditions that govern
it.
v. He must be a good and practicing Muslim.
vi. He must be very pious and law abiding to all the injunctions of the
Holy Quran.
vii. He must not be under the influence of heresies
viii. He must be just, reliable, trustworthy and pure from iniquitous
practices.
4. The three categories of the Mujtahidūn are:

i. Al-Mujtahid fi `sh- Sharī‘ah
ii. Al-Mujtahid fi `l-Madhab
iii. Al-Mujtahid fi `l-Masā’il
5. Method of applying Ijtihād: Any form of Ijtihād must have its

starting point in a principle of the Qur’ān, Sunnah or Ijmā‘.
106
MODULE 3: MISCELLAEOUS PRINCIPLES
Unit 1: Iftā’, Taqlīd and Talfīq

Unit 2: Miscellaneous Sources
Unit 4: Daāwā wa`sh-Shuhūd (Procedure and Evidence)
UNIT 1…. IFTĀ‟, TAQLĪD AND TALFĪQ
Unit Structure
1.1 Introduction
1.3 Iftā’, Taqlīd and Talfīq
1.3.1 Al-Iftā’ (Giving Juridical Opinion)
1.3.2 Taqlīd (Adherence to a Particular School of Jurisprudence).
1.3.3 Talfīq (Eclectic Practice)
1.4 Conclusion
1.5 Summary
1.1 INTRODUCTION
A term usually equated with Ijtihād is Iftā from which derives the
Mujtahid and the Muftī respectively. In the writings of the Jurists the
two terms are used interchangeably; and whatever scholarly credentials
the Mujtahid must possess the Muftī (jurisconsult) should also possess.
However, despite the acceptance of Ijtihād as a valid process in
jurisprudence by majority of Scholars, the practice of following the
precedents of other people known as Taqlīd is still maintained. Another
phenomenum related to Iftā and Taqlīd is Talfīq which means practice
of eclecticism). This Unit acquaints you with these three aspects of the
principles of Islamic Jurisprudence.

 define Iftā and elaborate the Muftī and Mustaftī relation.
 discuss the emergence of Taqlid in Islamic Jurisprudence
 itemize the characteristics of the period of Taqlīd in Islamic
Jurisprudence
 define and appraise the practice of Talfīq in the Islamic Principle
 of Jurisprudence
107
1.3 Iftā‟, Taqlīd and Talfīq
1.3.1 Al-Iftā
The Uşūlīs are agreed that a Muslim is at liberty to adopt the view of any
School of law. They usually equate the Mujtahid with the Muftī (Jurisconsult)
who gives legal judgement to be followed by the laymen. In their writings the two
terms are used interchangeably. Whatever scholarly credentials the Mujtahid must
possess the Muftī (jurisconsult) should also possess.
The latter, according to the majority, must not only be of just and trustworthy
character, but he must also be known to take religion and religious matter
seriously.
He is a specialist in law who can give an authoritative opinion on points of
jurisprudence. His considered legal opinion is called fatwā, the plural of which is
Futyā or Fatāwā.
Al-Mustaftī is the person who asks for fatāwā from the Muftī. Thus, Iftā is an
institution
closely related to the Muslim judicial system and represents a practical expression of
the
principle of legal advice. It is permissible for any Muslim who is an āmī i.e. layman
to
emulate scholars who attained the rank of muftī. The layman is however charged
with the
responsibility of enquiring about the credentials of the legists that he consults. He
should
consult the one noted for his religious learning, who is proficient in legal matters,
just
and of trustworthy character in case there are two or more of them in the locality.
If only one Mujtahid or Muftī is to be found in the layman‟s town, he may consult
him without conducting such an enquiry. If more than one is available, the
majority of the Jurists maintained that he may consult any one of them, with the
provision that he establishes the Mujtahid‟s credentials.
Furthermore the layman must be selective in adopting legal opinion given by
the Muftis. Similarly he must not hold himself free to make a deduction on his
own or according to his personal desires. By so doing he may fall into sinful act
due to his inability to to grasp the truth of law in the particular matter of law. It
is incumbent upon him to have a Mujtahid or Muftī from whom he enquires the
rightful step that has bearing with legal points. The similitude of a person, who
does so, is like someone who interpretes the Qur’ān through his personal
opinion and the Prophet has said:
Man fassara `l-Qur’ān bira’yihī faqad akhtaa wa in aşāba.
"Whoever interprets the Qur’ān by his personal opinion is wrong even his
interpretation may be right."
Thus, all laymen and non-mujtahid Jurists are under obligation to follow the
guidance of the Mujtahid or Mufti. The obligation is further justified by the
108
Companions of the Prophet‟s practice. Some of them were reported to have been
less proficient in legal matters, and they were in the practice of others noted for
their legal erudition for their opinion on legal matters
that arose. So also was the Quranic injunction which says:
Fas-alū ahla `dh-dhikr in kuntum laa talamūn.
Ask the people of rememberance if you donot know (Q.6:43)
People of rememberance in the āyah refers to the Mujtahids.
The complete absence of the erudite Companions disapproval of the practice
indicates that they were in unanimous agreement that taqlid (following the
Mujtahid in his legal decision is perfectly legitimate.
Finally, it is erroneous for a layman to take any religious action without having
the knowledge of the legal rule involved in such an act. Such layman is like
someone who formulates a legal rule on a matter without knowledge evn though
he gets it right but of no legal consequence and not biding on other laymen.
In-text question: Who is a Mufti?
1.3.2 Taqlīd
(i) The Concept of Taqlīd in Islamic Jurisprudence

Taqlīd as used in Islamic Jurisprudence is an unquestionable acceptance
of the legislation of established schools of legal thought of Islamic
Jurisprudence. According to the proponents of such doctrine, every
decision must be by initiation of legislations of previous scholars and not
the reasoning of modern-day scholars. “The Encyclopedia of Islam”
describes Taqlid as the adoption of the utterances or actions of another
person as authoritative with faith in their correctness without
investigating his reasons.
Taqlīd flourished during the reign of the Abbasid Caliph al-Musta‟sim

through the rise of the Ottoman Empire until its decline. It was also the
period of factionalism when all forms of Ijtihad were dropped and there
was the evolution of Schools of Legal Thought. The schools stood as
legal entities resembling sects and the dogma or idea of the individual
Schools were promoted by their followers. They blindly followed the
schools regardless of the errors that they see. The practice of Taqlīd
coincided with the formation of Schools of Islamic Jurisprudence which
arose out of unconditional adherence to particular notable Jurists.
During this period, some European laws became gradually introduced
into the Islamic laws until it supplanted it. The Scholars of the period
unanimously issued a legal ruling intended to close the door of Ijtihad
permanently. They argued that all issues in Islamic Jurisprudence have
been raised and addressed and therefore felt no need for any form of
Ijtihad. Hence, Taqlīd could also be regarded as the blind following of a
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school (Madh had) and factionalism which has continued even till the
present day. After the acceptance of Taqlīd by the followers of a
particular school, they do not consider themselves capable of engaging
in any form of Ijtihad any longer. Someone who engages in the practice
of Taqlid is referred to as a “Muqallid”.
The principle of Taqlīd could occur in any of the following three

forms:-
i. An ordinary person following a religious Scholar
ii. An ordinary person following another ordinary person
iii. A religious Scholar following another religious Scholar
(ii) Emergence of and the characteristics of the period of Taqlid in Islamic Jurisprudence
The emergence of the practice of Taqlīd dates back to the sixth century
after the assassination of the last Abassid Caliph Musta‟ṣim and the rise
of the Ottoman Empire.This gave rise to corruption in law and influence
of the European law over the Islamic Jurisprudence. It was in a bid to
stem this tide of European influence and maintain the laws of pristine
Islam that the masses became restricted within the confines of the four
existing schools of legal thought of Islamic Jurisprudence. The four
schools were considered as divine manifestations and correct
representatives of true Islam even though there exist innumerable
differences among them. Thus, whoever goes beyond the views or
refuses to follow any of the four schools was considered heretical and
classified an apostate and this thus promoted the practice of Taqlid.
The major characteristics of the period of Taqlid in Islamic

Jurisprudence are as follows:-
 Everyone must stick to the school of legal thought which he follows
and any attempt to transfer from one school to the other accrue
punishment to the person by the discretion of a local Judge.
 A ruling was also made specifically by the Hanafi school prohibiting
the marriage of a follower of the school to the follower of Shafi‟
school
 Followers of particular school also refuse to offer Salat (canonical
worship) behind the Imam of another school
 There were building of separate prayer places in the mosques of
communities where two schools exist; this existed even in the Ka‘bah
where separate Imams of separate schools led their followers in
separate places within the mosque
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(iii) Reasons for the practice of Taqlīd in Islamic Jurisprudence
The practice of Taqlīd did not just find its way into Islamic
Jurisprudence, certain factors were responsible for its evolution and
these include:-
 Overdependence on the works of early Scholars of the schools. It was
believed that the laws for what had occurred and might occur were
already deduced and recorded due to extensive development of
Islamic Jurisprudence; hence, there was no need for Ijtihād
 The loss of power by the Abbasid Caliphate (which came earlier
under the guise of reformers) to the Kings‟ Ministers many of whom
were Shites and the empire became broken into mini-states. These
people were more interested in private power than religious
scholarship.
 Consequent upon the power loss by the Abbasid Caliphate, each of
the mini-state broken into follow different schools and thus promoted
the doctrines of such school; for example, Egypt followed Shafi‟,
Spain followed Mālikī, Turkey and India followed Hanafī, Hijāz
followed Hambalī.
 Rulings by many unqualified individuals is also one of the reasons for
Taqlīd. Such people claim the right to make Ijtihād in order to twist
the religion to suit their wishes and there was then the need to break
the yolk of such individuals.
It was in a bid to prevent Islamic Jurisprudence from being tampered

with, that reputable scholars closed the doors of Ijtihad.
In-text question: Discuss some of the reasons for the practice of Taqlīd
in Islamic Jurisprudence.
Self Assessmet Exercises 1 (SAEs)

1. Define Iftā and elaborate the Muftī and Mustaftī
relation.
2. Expatiate on the practice of Taqlid in Islamic
Jurisprudence.
3. Discuss the emergence of Taqlīd in Islamic
Jurisprudence.
Differences between Ijtihad and Taqlīd

Ijtihad and Taqlid are the two major processes used in Islamic
Jurisprudence even though there still exist some major differences
between the two of them. The first major difference between Ijtihad
and Taqlīd is that while Ijtihad is done by Jurists (since they engage
in reasoning), Taqlīd is done by the laymen. Such laymen follow the
111
precedents or the opinion of other people without questioning the
rationale behind such an opinion.
Secondly, Ijtihād requires a personal effort before arriving at a
conclusion which promotes scholarship and reformation of laws in
real sense but Taqlīd is limited to blind following and this thus, leads
to stagnation.
Ijtihad gives room for individual reasoning and opinions while Taqlīd
promotes sectarianism, factionalism and desire for personal glory
which has existed even till today.
In-text question: Mention some major differences between Ijtihad and

Taqlid.
1.3.3 Talfīq
Talfīq literally means to make a patch-work or piece together.
Technically it means changing the rules and not adhering strictly to one
particular School.
The layman who is not qualified to exercise Ijtihād may strictly adopt
the opinion of a particular school of thought when he deemed it fit or
preferable. Some scholars maintain that it is possible for the layman to
depart from one school of Islamic law on a particular judicial matter if he so
desired and was convinced that the view of other school adopted is stronger
than the view of his school of law with respect to the particular point of law
other wise he may not do so.
However the majority of the Muslim Scholars remarked that the practice
of arbitrarily combining the most convenient opinions from the various
schools with the purpose of fulfilling base desires and achieve personal end
is prohibited. Thus the layman must not follow any opinion that suits him or
which is agreeable to his rule, interests or desires. Rather, he should adopt
the opinion he deems, in the footsteps of the Mujtahid, to be juristically
preponderant. (Culson History of Islamic Law).
It is further argued that one may change the school on point of less regour
provided it is not made fun by picking some points from each school
according to personal desire. Such a practice according to Shawkani
(1993) is considered by some jurists as immorality and sinful and the
person involved as āşī, dissolute. (Matlub).

4. Identify the major differences between Ijtihād and Taqlīd in Islamic
Jurisprudence
112
1.4 CONCLUSION
Iftā’ is the process in Islamic Jurisprudence by which a qualified
Muslim Jurisconsult uses his independent reasoning based on the three
previous sources of Islamic Jurisprudence to give juridical opinions
which could be applied by the laymen and the Muslim generality. The
opposite of Iftā’ is Taqlid and it is the unquestionable acceptance of the
views of another person or school of legal thought in law. The third
related juridical theme Talfīq is arbiterarily combining the most
convenient opinions from the various schools with the purpose of
fulfilling base desires and achieve personal end.
1.5 SUMMARY
This unit exposes you to the concepts of Iftā’, Taqlīd and Talfīq and their
place in the Islamic jurisprudential processes. It equates Iftā’ with Ijtihād
and identifies the reasons for the emergence of Taqlīd; the major
differences between Ijtihad and Taqlīd.in Islamic Jurisprudence is equally
identified. It discredits Talfīq process of adopting jurisprudential opinions.

Journal of Middle East Studies. Vol. 16 No. 1 (Mar., 1984).
 Ajetunmobi, M.A. (2000): “Intellectual Perspective on the Practices
of Islamic Law among the Yoruba Muslims of Nigeria”. In Journal
of the Nigerian Association of Teachers of Arabic And Islamic
Studies (NATAIS), Ijebu – Ode, Shebiotimo Publications, Vol 5 No.
1
 Doi, A.R.I. (1984); Sharī‘ah: The Islamic Law, United Kingdom, Ta-
Ha Publishers
 Hallāq, Wael B. (1997); A History of Islamic Theories: An
Introduction to Sunni Usul al-Fiqh, Cambridge, University Press
Cambridge, Islamic Texts Society.
Answers to SAEs 1
1. Al-Iftā is the liberty given to a Muslim to adopt the view of any of the Schools of
law in Islam. Al-Mustaftī is the person who asks for fatāwā from the Muftī. Thus,
Iftā is an institution closely related to the Muslim judicial system and represents
a practical expression of the principle of legal advice. It is permissible for any
113
Muslim who is an āmī i.e. layman to emulate scholars who attained the rank of
muftī. The layman is however charged with the responsibility of enquiring about
the credentials of the legists that he consults. He should consult the one noted for
his religious learning, who is proficient in legal matters, just and of trustworthy
character in case there are two or more of them in the locality.
2. The Concept of Taqlīd in Islamic Jurisprudence

Taqlīd as used in Islamic Jurisprudence is an unquestionable acceptance of the
legislation of established schools of legal thought of Islamic Jurisprudence.
According to the proponents of such doctrine, every decision must be by
initiation of legislations of previous scholars and not the reasoning of modern-
day scholars. “The Encyclopedia of Islam” describes Taqlid as the adoption of
the utterances or actions of another person as authoritative with faith in their
correctness without investigating his reasons.
3. Emmergence of Taqlīd in Islamic Jurisprudence:

The emergence of the practice of Taqlīd dates back to the sixth century after the
assassination of the last Abassid Caliph Musta‟ṣim and the rise of the Ottoman
Empire.This gave rise to corruption in law and influence of the European law
over the Islamic Jurisprudence. It was in a bid to stem this tide of European
influence and maintain the laws of pristine Islam that the masses became
restricted within the confines of the four existing schools of legal thought of
4. Differences between Ijtihad and Taqlīd

The first major difference between Ijtihad and Taqlīd is that while
Ijtihad is done by Jurists (since they engage in reasoning), Taqlīd is
done by the laymen. Such laymen follow the precedents or the opinion
of other people without questioning the rationale behind such an
opinion.
Secondly, Ijtihād requires a personal effort before arriving at a
conclusion which promotes scholarship and reformation of laws in
real sense but Taqlīd is limited to blind following and this thus, leads
to stagnation.
Ijtihad gives room for individual reasoning and opinions while Taqlīd
promotes sectarianism, factionalism and desire for personal glory
which has existed even till today.
114
UNIT 2: MISCELLANEOUS SOURCES OF ISLAMIC LAW.
Unit Structure
2.1 Introduction
2.3 Miscellaneous Sources of Islamic Law
2.3.1 ‘Urf wa ‘Ādah (Custom and Practice)
2.3.2 Istiḥsān (Juristic Preference)
2.3.4 Istislāħ or Maṣāliħ Mursalah
2.4.4 Saddu ‘dh-Dharāi‘i (Blocking the Ways)
2.4 Conclusion
2.5 Summary
2.6 References / Further Reading
2.1 INTRODUCTION
In addition to the two major and primary sources of Islamic
Jurisprudence and the other two secondary which are dependent on the
two primaries in Islamic Jurisprudence, through the process of Ijtihad
there arose some other miscellaneous principles. The utilization and
recognition of these relevant sources in Islamic Jurisprudence is based
on the need for legislation on the day to day activities within the Muslim
community. These less significant principles are accepted to cater for
situations that are newly arising as long as they do not go contrary to
what is laid down. These other considerably less relevant subsidiaries
principles include the following to be discussed in this Unit.

 clarify Islamic position vis-à-vis prevailing custom and practice
within a community.
 discuss the significance of Istihsān in the Islamic Jurisprudence.
 discuss Maşlahah as a principle to be considered in formulating
 analyze the positon of Istişhāb (legal presumption) in Islamic
Jurisprudence.
2.3 MAIN CONTENT

2.3.1 „Urf wa „Ādah (Practice and Custom)
„Urf, the known practice and ‘Ādah or Customs are recognised as a
subsidiary source by all schools of jurisprudence. The Maliki School
attaches more importance to custom than any other schools. But
customary rules are valid as long as there is no provision on the matter in
115
the Qur’ān and the Sunnah. If any of the customs contradict any of the
rules of Shariah, they will be considered outside the pale of Islamic Law.
2.3. 2 Istiḥsān (Juristic Preference)

Juristic preference to one rulling over another was the subject of much
controversy among jurists. Al-Shāfi„ī, for example wrote a chapter in
his treatise, a‟r-Risālah, in refutation of this mode of legal reasoning,
which he perceived as mere employment of personal preference. But
other jurists „agree that istiḥsān is nothing but a „preferred form of legal
argument based on qiyās, an argument in which a special piece of textual
evidence gives rise to a conclusion different from what would have been
reached by qiyās Hallaq gives the following scenario as a typical
example of istiḥsān.
If a person, for example, forgets what he is doing and eats while he is

supposed to be fasting, qiyās dictates that his fasting would become
void, for the crucial consideration in qiyās is that food has entered his
body, whether intentionally or not. But qiyās in this case was abandoned
on the basis of a prophetic report which declares fasting valid if eating
was the result of a mistake .

1. Islamic Jurisprudence is not against the prevailing custom and
practice within a community. Discuss.
2. Discuss the significance of Istihsan in the Islamic Jurisprudence.
2.3.3 Istislāħ or Masāliħ Mursalah has been mentioned indirectly in the

Holy Qur’ān in the following verses:
“Those who listen to the word and follow the best meaning in it:
Those are the ones whom Allah has guided, and those are the ones
endued with understanding”
The Exgetes (Mufasirūn) have interpreted this verse in two ways. If
word in this verse is taken as any word, the clause would mean that good
and pious men should listen to all that is said and choose the best of it
for general good-as long as that word is according to the spirit of Divine
Message. But if the word is taken here to mean the word of Allah, it
would mean they should listen reverently to it, and where permissive and
alternative courses are allowed for those who are strong enough to
follow the higher course, those endued with understanding should prefer
to attempt the higher course of conduct. For example, it is permitted
116
within limit to punish those who wrong us, but the nobler course is to
repel evil with good. We should try to follow the nobler course.
Public interest is also regarded in Sharī‘ah as a basis of law. The Jurists
of different schools have used different Arabic term to describe it. The
Hanafīs call it Istihsān meaning equitable preference to find a just
solution. Imam Malik calls it al-Maṣālih al-Mursalah that is the public
benefit or public welfare. The Arabic word Mursalah literarily means to
set loose from the texts and Maṣāliħ means welfare. Imam Ahmad bn
Hanbal calls it Istişlāh seeking the best solution for the general interest.
The Hanbali scholar Ibn Qudāmah as well as Mālik jurist Ibn Rushd
have occasionally used the term Istiħsān. It is only the Shāfi „ī school
which does not recognise Istihsān as asource. According to Imam Shafi‟,
if it is allowed, it can open the door to unrestricted use of fallible human
opinions since the public interest, will vary from place to place and time
to time.
It should be noted that the precept of public welfare and general interest
can really be very helpful particularly in cases which are not regulated
by any authority of the Book of Allah, the Sunnah of the Prophet or
Ijma‟. In that case, equitable consideration may override the result of
strict Qiyās taking into consideration the public interest. Shāfi„ī jurists
have employed Istidlāl to achieve similar results by avoiding merely the
application of strict Qiyās. Istidlal is the process of seeking guidance,
basis and proof from the sources although its dictionary meaning is
merely an argumentation. With this brief introduction, we shall examine
some examples of Istiħsān.
1. The bay‘u bi `l-wafā or the sale subject to any future redemption
which can be construed as a kind of mortgage was allowed because of
the practical need for such transactions in the interest of public welfare.
2. Islam attaches a great importance to the proper dress of a woman
(sutru `l-‘awrah). No man except her husband can see certain parts of
her body. But on account of necessity, a physician may be allowed to
medically examine and diagnose a woman in the interest of saving her
life.
3. Divorce given in death, sickness (marađ al-mawt), even though
effected as irrevocable ṭalāq, it will not deprive the divorced wife from
her share in the inheritance. The husband in reality was trying to deprive
her of her rights and he wanted to shun his obligations. It was merely the
divorce for an escape (ṭalāq al-fār). Some Shāfiī‟ and Zāhirī jurists
disagree with the majority of Ulamā‟ on this issue. The Hanafi jurists
maintain that the entitlements of the divorced wife last during her iddah
period while the Hanbalīs take the view that she will be entitle to
117
participate as long as she has not remarried. The Mālikīs however,
accord her the right to participate in the inheritance even if she has
remarried provided the deceased did not recover in between the death
illness and his ultimate death.
4. The Hadd punishment of amputation of hands in case of theft will not
be applied even if all evidences proved that it was really committed
during the period of famine when no food was available and one was
forced to steal. Imam Shāfi„ī says that he will apply this rule simply
because Sayyidna Umar decided a case in this way. He does not think
that it was done on the principle of Istihsān.
5. The eating of meat which has not been slaughtered according to the
Islamic ritual (dhabīħah) permissible where no other lawful food is
available.
6. Distruction of lawful food-stuff is not allowed without any special
reason. But Sayyidna Umar ordered the spilling of milk mixed with
water as punishment that would prevent deceit of dishonest persons
engaged in the sale of adulterated milk.
7. The second call of the Ādhān for Jumu‘ah prayer was not a practice in
the time of the prophet and the two Rashidūn Caliphs. Sayyidna Uthman
bn „Affān, the third Caliph, started it as a reminder for the public benefit.
Imam Malik bn Anas gave several juristic decisions (fatwās) based on
maṣāliħ mursalah (public-interest). Some of them are listed as follows:
a) The Muslim ruler may exact additional taxes from the wealthy
citizens in the period of emergency.
b) A Caliph or a ruler does not have to be the most meritorious
claimant, otherwise strive will be inevitable.
c) Imam Mālik as well as Imam Ahmad bn Hanbal prohibited the
sale of grapes, which is otherwise legal, to a wine merchant as he will
use them to ferment wine which is unlawful.
d) The sale of arms during a civil disturbance is prohibited as it
may intensify the struggle.
Most of these rules could fit into Hanafi Istiħsān or Shafi„ī‟s Qiyās.
2.3.4 Istişħāb: Legal Presumption
Istisħāb means a rule of evidence or legal presumption of
continuance (Istisħāb) of conditions (ħāl). In other words, it is the
presumptions in the laws of evidence that a state of affair known to
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exist in the past continues to exist until the contrary is proved. Istisħāb
is accepted by all schools of Islamic jurisprudence as a subsidiary
source of the Sharī ‘ah.
There is a presumption of innocence until the guilt is established. This
presumption is based on Istisħāb. There will be a similar presumption
of ħalāl things in the absence of its specific prohibition. A debt is
presumed to subsist until its discharge is evidenced. Likewise, a
marriage is presumed to continue until its dissolution (ṭalāq) becomes
known.
In the case of ‘Ibādāt, mere doubt does not vitiate the validity of
rituals. Supposing a man after ablution entertain a mere doubt as to
whether he still has his ablution to perform the prayers, then there is a
presumption of purity and ,similarly, if he thinks genuinely that he has
performed the correct number of prostrations (sajdah) then a mere
doubt will not affect his genuine belief.
In the case of an ownership title, a judge will presume ownership from
valid title deeds until the contrary is proved. If a person is missing
(mafqūd), his wife remains his legal wife until the court, after due
enquiries issues a decree presuming the contrary, namely death.
In-text question: What does Istisħāb mean?
3. Discuss Maşlahah as a principle to be considered in the
4. Analyze the positon of Istishab (legal presumption) in
2.3.5 Saddu „dh-Dharāi„i (Blocking the Ways)

Saddu ‘dh-Dharāi‘i really means blocking the ways even if the
method involved is otherwise legal. In fact, the source of Sharī‘ah is
not much different from the Maṣālih al-Mursalah, but it is used by
Mālik Jurists and some Hanbalīs under this name. Most of the rules
categorised under Saddu ‘dh-Dharāi‘i can conveniently fit into the
various subsidiary sources related to public interest or public welfare.
2.4 CONCLUSION
Some other miscellaneous subsidiary principles which are also

recognized as bases for formulating Jurisprudential rules in Islam
include Istihsan, Istislah Istislah, or Masalih Mursalsh (all of which
connote public interest), Istishab (legl presumption, Sadd dharaii
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(blocking the ways) urf (Practice and Adah). . The recognition of these
principles is based on the fact that they serve as solution to the day to
day evolving problems within the community and the content of such
sources do not go contrary to what is legislated in the previous sources.
2.5 SUMMARY
This Unit pinpoints the fact that the principles of deriving Islamic
Jurisprudence rules are not restricted to sources discussed in previous
Units alone. It identifies such subsidiary sources as Istihsan, Istişlaħ, or
Masalih Mursalah (all of which connote public interest), Istishab (legal
presumption, Sadd dharaii (blocking the ways) urf wa Adah (Practice
and Custom). It itemized these other sources and as well provide
illustration which depicts the relevance of each of them to Islamic
Jurisprudence in detail.

 Libson, G.; Steward F.H. 2008. “Urf” Encylopedia of Islam. ed. P.
Bearman, et al..
 Zaidān, A. K 1987. Al- wajīz fi ’Uṣūl al-Fiqh. Beirut.
 Sources of Islamic Jurisprudence; Wikipedia: Free Encyclopedia.
www.wikipedia.com
 Maṭlūb, A. M. 2005. ’Uṣūl al-Fiqh al-Islāmī. Egypt, Mu‟assassat
al- Mukhtār.
 Phillips, A.A.B. 1990 The Evolution of Fiqh: International
Islamic Publishing House; Riyadh.
Answers to SAEs 1
1. „Urf, the known practice and ‘Ādah or Customs are recognised as a
subsidiary source by all schools of jurisprudence. The Maliki School
attaches more importance to custom than any other schools. But
customary rules are valid as long as there is no provision on the
matter in the Qur’ān and the Sunnah. If any of the customs contradict
any of the rule of Shariah, they will be considered outside the pale of
Islamic Law.
2. Jurists agree that istiḥsān is nothing but a „preferred form of legal
argument based on qiyās, an argument in which a special piece of
textual evidence gives rise to a conclusion different from what would
have been reached by qiyās.
Answers to SAEs 2
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3. Maşlahah, as a principle in the Islamic Jurisprudence, means that
good and pious men should listen to all that is said and choose the
best of it for general good, as long as that word is according to the
spirit of Divine Message.
4. Istishab is the presumption in the laws of evidence that a state of
affair known to exist in the past continues to exist until the contrary is
proved. Istisħāb is accepted by all schools of Islamic jurisprudence as
a subsidiary source of the Sharī ‘ah.
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UNIT 3: JURISTIC MAXIMS (AL-QAWĀ„ID AL-FIQHIYYAH)
Unit Structure
3.1 Introduction
3.3 Juristic Maxims (Al-Qawā‘id al-Fiqhiyyah)
3.3.1 Al-‘Urf wa`l-Umūr bi `l-Maqāşid
3.3.2 Al-yaqīn lā yazūl bi `shakk
3.3.3 Al-‘Urf Muhakkamah (Custom is given consideration)
3.3.4 Kullu Đararin Mazāl/Ađrāru yuzāl (All that are harmful are to
be removed)
3.3.5 Shaqqu `l-Umūr tajlibu `t-taysīr (Hardship causes giving the
facility)
3.3.6 Daf-‘u `l-mafāsid muqaddam alā jalbi `l-manāfi‘ (The
repelling of mischief is prefered to the acquisition of benefits)
3.4 Conclusion
3.5 Summary
3.1 INTRODUCTION
This Unit presents the maxims which play considerable role in the
affixation of rules of law (ahkām) in relation to their application among
the people. The maxims are based on the divine sources of the rules.
They played significant roles in the evolution of the Islamic
jurisprudential rules and organization of its legal knowledge and
pirnciples. Thus the qawāidu `l-fiqh is defined as a gerneral rule which
applies to all the particulars. The five legal maxims from which other
maxims further originated are five. These will be our focus in this
concluding Unit of this Course.

By the end of this Unit, you will be able to:
 analyse the maxim al-‘Urf wa`l-Umūr bi `l-Maqāşid.
 elaborate the jurisprudential maxim al-yaqīn lā yazūl bi `shakk.
 expatiate the jurisprudential maxims:
(i) Custum is given consideration.
(ii) All that are harmful are to be removed.
 discuss the maxim : Shaqqu `l-Umūr tajlibu `t-taysīr (Hardship
causes finding facility).
 Elaborate the implication of the juristic maxim „The repelling of
mischief is prefered to the acquisition of benefits.
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3.3 Al-Qawā„id al-Fiqhiyyah
3.3.1 Al-„Urf wa`l-Umūr bi `l-Maqāşid (Customs and actions are rewarded

according to intention).
This maxim is the first of all the principles. It is based on the essential
principle that intention and declaration form the fundamental concept of
the whole Islamic religious law, be it concerned with worship or with
law. It applied originally to acts of worship. Thus the religious
obligation is not deemed discharged by outward performance, but when
done with a pious intention. Thus an act of worship without intention is
invalid, and so it is intention not translated to action. This legal maxim
was derived from the Prophetic tradition: Surely actions shall be judged
according to intention and every person is entitled to what he intends.
Hence, according to the custom of the Jurists, intentions accompanied
actions. In every action of any person, intention behind the action is the
first thing to be considered before ranking it to its appropriate place.
Thus the maxim clearly shows the importance of intention. If the
intention is good a person will be rewarded accordngly even if the
person is unable to carry out the intention. The Hadīth of the prophet
explains the maxim better:
3.3.2 Al-yaqīn lā yazūl bi `shakk (Certainty may not be disproved by

doubt.)
This maxim provides that doubt in certainty originates on the part of
man and not from Sharī‘ah. The maxim is supported by the Quranic
Verse which reads:
wamā yatabiu‘ aktharuhum illa `l-zanna, wa inna `zanna laa yughni mina
`l-haqq shay'ā
(And most of them follow but conjecture. Certainly conjecture can be of
no avail against the truth... Q.10:36.)
Zann in an opinion is suspicion in Sharī‘ah which is presumption that a
change is well founded although the evidence is inconclusive. This means
that reality is like certainty.
Similar in an instance from Sunnah dispelling doubt, Abbād reported
from his uncle Abdullah bn Yazid al-Ansārī (RA) He asked Allah‟s
Messenger (S) about a person who immagined that he has passed wind
during Şalāt -prayer,. Allah‟s Messenger replied: He should not relinquish
his Şalāt-prayer unless he hears sound or smells odour.
Similarly it was reported by Abu Hurayrah that the Messenger of Allah

(S) said: If anyone of you has pain in his abdomen, but is doubtful whether
or not anything has issued from him, he should not leave the Mosque unless
he hears a sound or senses a smell.
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Al-Nawawī while commenting on the Hadith said: This Hadith is one
among those Hadiths which laid down the basic principles of Islamic
Sharī‘ah. Here we have been told not to act on doubts, but to hold things
valid unless there is some concrete evidence to prove otherwise. Islamic
Law does not make a man whimsical but makes him a man of trust and
confidence.
To further illustrate the above maxim, it can be infer from it that when
someone is known to be sane, he will be presumed such until it is
established that he has become insane. The presumpsion can only be set
aside with certainty, not by mere doubt or conjecture.
Similarly, when a person eats in the early morning during the month of
Ramadan while in doubt as to the possibility that he might have eaten after
the dawn break, his fast in this case remains intact and valid and no belated
performance (qadā) is necessary by way of conpensation. To identify the
two elements of the maxims under discussion, namely certainty and doubt
in this example, night represent certainty whereas daybreak is the state of
doubt, and the former prevails over the latter.
Self–Assessment Exercises 1
1. Analyse the maxim Al-‘Urf wa`l-Umūr bi `l-Maqāşid.
2. Give the meaning of jurisprudential maxim Al-yaqīn lā
yazūl bi `shakk. Support your submission with
examples.
3.3.3 Al-„Urf Muhakkamah (Custom is given consideration)

The third essential maxim is the consideration given to customary
practice. The maxim says custom is given consideration when passing
religious ruling. This has been discussed briefly under subsidiary sources of
Sharī‘ah.
3.3.4 Kullu Đararin Mazāl/Ađrāru yuzāl (All that are harmful are to be
removed)
This maxim provides that if harm is inflicted on a person by another
person, which is unbearable, the victim should prosecute the aggressor. The
judge should rule that infliction be removed. The ruler in turn should
enforce the judgement so that justice and security will prevail among the
citizen. Thus no harm shall be inflicted or reciprocated in Islam. (lā darār
walā dirār)
However the agrieved person shall look for amicable method in resolving
the conflict. But if he is unable to institute legal proceedings against the
aggressor, he should handle the
matter very gently and through fair method, which is the easiest way, and
closer to God-fearing. This is because such a method will promote peaceful
social relationship and brother hood.
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3.3.5 Shaqqu `l-Umūr tajlibu `t-taysīr (Hardship causes giving the
facility)
This maxim is based upon the principle that difficulty becomes a cause
for faciltiy, and in term of embarrassment it becomes necessary. Many
places contains references to this subject. Allah says in the Quran:
Yurīdu bikumu `l-yusra walā yurīdu bikummu `l-‘usrā
(Allah desires for you ease and He does not want to
make
things difficult for you Q.2:185).
The Prophet‟s conduct explains at various occasions the same
principle. Many concessions granted, such as shortening of prayers for
traveller, breaking of fast during the month of Ramadan when a
Muslim is ill or on a journey, substitution of water ablution with sand
ablution (tayammam), praying while sitting or praying by means of
signal etc., etc., are branches of the above maxim.
Thus all the indulgences and reliefs shown by the jurists in matters of
religious law and worldly affairs are products of this maxim.
Where a matter is narrow, it becomes wide by means of this principle.
That is to say, so far as hardship or mashaqqah is experienced in a
business or transactions, latitude or indulgence are introduced into the
matters.
3.3.6 Daf-„u `l-mafāsid muqaddam alā jalbi `l-manāfi„ (The repelling of
mischief is prefered to the acquisition of benefits)
The employment of this maxim by the jurists is replete in their books. The
implication is that, to prevent what is harmful is given priority over the acquisition
of benefits. If mischieve is simultaneously present with benefit, evil should be
eliminated first before pursuing what is beneficial. The reason is that two
advantages are derivable from the elimination of evil. Because evil does affect
adversely and negatively the benefits. Similarly, if evil is not eliminated from its
early inception it is possible that corruption will aggravate and spread all over,
then it may lead to other evils worse that might even interfere and stand between
the acquisition of both the temporal benefits and those of the hereafter.
Self Assessment Exercises 2

3. Discuss the maxim : Shaqqu `l-Umūr tajlibu `t-taysīr
(Hardship causes finding facility).
4. Elaborate the implication of the juristic maxim „The repelling
of mischief is prefered to the acquisition of benefits.
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3.4 CONCLUSION
1. Gerneral rules which apply to different particulars in the Islamic
Jurisprudence are six:
(i) Customs and actions are rewarded according to Intention.
(ii) Certainty may not be disproved by doubt.
(iii) Custom can be considered for the formulation of rule.
(iv) All that are harmful are to be removed.
(v) Hardship causes giving facility.
(vi) The repelling of mischief is prefered to the acquisition of benefits.
2. The basis of procedure and evidence in the Islamic Jurisprudence is
the Prophet Tradition „al-bayyinatu ‘alā`l-mudda‘ī wa `l-yamīn ‘ala
man ankara’.
3.5 SUMMARY
This Unit contains an enumeratrion of the six Juristic Maxims on which

Sharī„ah rules are based. It analyzes them, expatiate their connotation,
revealed their bases from the Qur‟ān or Hadith and provide illustrations.
In the second section the Unit expatiates upon the the Prophet Tradition
„al-bayyinatu ‘ala `l-mudda‘ī wa `l-yamīn ‘ala man ankara’ as basis of
procedure and evidence in the Islamic Jurisprudence.
3.6 REFERENCES / FURTHER READING

 Salahu `d-Dīn Abdu`l-Hamīd (2012): An Enquiry into Khulāşatu `l-Uşūl
of Abdullah b. Fūdī; an Unpublished PhD Thesis, University of Ibadan.
 Al-Fiqh wa Usuluhu (1422H -2001CE.), Ministry of Education
; catalogue no 22/0603
 Hittu, M. H. 1981. Al-Wajīz fī ’Uṣūl al-Tashrī‘ al-Islāmī. Al-

Kuwait.
 Maṭlūb, M. M. 2005. ’Uṣūl al- Fiqh al-Islāmī. Cairo.

Mu‟assasat al-Mukhtār.
 Sha„bān, Z. 1988. ’Uṣūl al-Fiqh al-Islāmī. Al-Kuwait.

Mu‟assat Ali Al-Ṣabāḥ.
 Al-„Uthaymīn M. S. 2003. Sharḥ Naẓm al-Waraqāt fi-’Uṣūl al-

Fiqh.
126
Answers to SAEs 1
1. This maxim is the first of all the principles. It is based on the essential
principle that intention and declaration form the fundamental concept
of the whole Islamic religious law, be it concerned with worship or
with law.
2. Al-yaqīn lā yazūl bi `shakk (Certainty may not be disproved by

doubt.)
This maxim provides that doubt in certainty originates on the part of
man and not from Sharī‘ah. This is alluded to in the Qur'an chapter
10 verse 36 which reads: wamā yatabiu‘ aktharuhum illa `l-zanna,
wa inna `zanna laa yughni mina `l-haqq shay'ā
(And most of them follow but conjecture. Certainly conjecture can
be of no avail against the truth...
Answers to SAEs 2
3. This maxim is based upon the principle that difficulty becomes a

cause for faciltiy, and in term of embarrassment it becomes
necessary.
4. The maxim reads: Daf-‘u `l-mafāsid muqaddam alā jalbi `l-
manāfi‘. The implication of this maxim is that, to prevent what is
harmful is given priority over the acquisition of benefits.
127
UNIT 4: NĀSIKH (ABROGATION) DA„ĀWĀ WA`SH-SHUHŪD
(PROCEDURE AND EVIDENCE)
Unit Structure
4.1 Introduction
4.3 Nāsikh, Da‘āwā wa`sh-Shuhūd
4.3.1 Al- Nāsikh (Abrogation as a Principle of Jurisprudence)
4.3.2 Procedure and Evidence (A`d-Da‘āwā wa`sh-Shuhūd)
4.4 Conclusion
4.5 Summary
4.1 INTRODUCTION
Welcome to today's lesson. This Unit presents what is known as Nāsikh
princples in the science of Islamic Jurisprudence. It is brought to a
conclusion with an analysis of significance of the Prophetic Statement
„al-bayyinatu‘alā `l-mudda‘ī wa `l-yamīn ‘ala man ankara’. The onus of
proof is on the claimant while the onus is on the defendant to swear on
oath. Pay rapt attention as we proceed in our discussion of this very
important lesson.

By the end of this Unit, you will be able to:
 provide the theory of abrogation as it relates to principles of Islamic
jurisprudence.
 highlight exceptional cases when the theory cannot be applied.
 highlight the conditions governing its application when it is applicable.
 explain divisions of abrogation considering the abrogated text.
 elaborate on the Jurisprudential significance of the Prophetic Statement „al-
bayyinatu‘alā `l-mudda‘ī wa `l-yamīn ‘ala man ankara’.
4.3 Nāsikh, Da„āwā wa`sh-Shuhūd
4.3.1 Nāsikh (Abrogation)
Nāsikh literally connotes to abolish, invalidate, repeal, revoke or cancel

etc. etc. As an Islamic Jurisprudence terminology, it implies abrogation
or repeal of a proof of a shariah rule or word by another proof from the
Qur’ān and Sunnah. The substitution or abrogation may be from
obligatory injunction (wujūb) to permissibility (Ibāħah) or prohibition
128
(tahrīm). Thus, excludes non-applicability of rule for non-fulfillment of
condition or for the availability of a preventive e.g. wealth may not
attract zakat taxation for lack of Nisāb. Şalāt – prayer may not be
compulsory due to menstruation. These cannot be termed Nāsikh.
Meanwhile, the abrogation/substitution may affect only the rule and not
the words and vice versa. Furthermore, proofs from other than the
Qur’ān and Sunnah such as Ijmā, and Qiyās cannot abrogate or change
rule.
Abrogation is a logical phenomenon; and it is one of the principles of the

Sharī‘ah. This is because all the rules on affairs of man are in the hands
of the Sovereign Lord, Allah. He enacts rules for His Servants, out of His
Wisdom and Mercy and as He wills, that which He thinks is in their best
interest in this life and in the hereafter. People‟s welfare differs according
to different times and positions. A rule which may be in the best interest
of a people at a time may not be so at another time. Q. 2:106 is a clear
proof as Allah says:
„Whatever We abrogate or make you forget We bring something better or

similar‟. An Hadith in the Şaħiħ of Imam Muslim reports the Prophet as
saying: „I had forbidden you visitation of graves before, you can now
undertake graves visitation.‟ This is a testament from the Hadīth
abrogating prohibition of visitation to graves.
In-text question: What is Nāsikh?
Proofs of Rules that cannot be abrogated:

1. Divine Reports (Qur’ān) cannot be abrogated; it is the rules that can
be. This is because abrogation of one of the two reports implies falsehood
of the other. Falsehood is an impossibility as regards reports from Allah
and His Messenger. However, if the rule comes in form of report, it may
be abrogated, e.g.:
If there could be 20 people who can persevere, they will overcome
200.
This statement is an injunction. It is thus abrogated in the verse that

follows it.
„Now Allah has relieved you; He knows there are weak ones among
you, therefore if there could be 100 who can persevere among you they
will overcome 200.
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2. Rules that are in the interest of the people at any time and place such
as faith and its principles, devotional worships and their principles, good
conducts such as truthfulness, modesty, generosity, courage etc., etc. The
rules commanding them cannot be abrogated. So also, prohibition of
characters that are regarded as despicable at all time and every where
such as association of partner to Allah, (shirk), infidelity (kufr), evil
deeds / despicable characters such as falsehood stinginess, cowardice and
the like. Their prohibition cannot be abrogated. This is because, Sharī‘ah
rules are made in the interest of the people and to prevent them from
evils.

1. What is the significance of the term Nāsikh from the
Islamic Jurisprudence perspective?
2. What are the proofs of rules that cannot be abrogated and
why?
Conditions Governing Abrogation
The following conditions apply when abrogation is possible:
1. Impossibility of combining the two proofs. Where it is possible to

combine the two there should be no abrogation because the two rules can
be applied.
2. Coming of the abrogating proof later than the abrogated the
knowledge of which could be either through the text or through or the
report of a Companion or through the dates. An example of that which is
known by the text is the Prophetic saying. I had permitted enjoyment
(temporary marriage) with women before; now Allah had forbidden that
until the day of Qiyāmah. An example of what is known as a result of
report from a Sahabi is Aisha‟s statement: What was earlier revealed was
ten know baby suckling is impediment to marriage then it was
abrogated with five. Allah‟s words: „Now you have been relieved‟
exemplifies the one known by chronology the word NOW indicating late
coming of this rule. So also, if it is mentioned that the Prophet gave a rule
before Hijrah and then gave another different from that after Hijrah. Then
the second abrogates the first.
3. Establishing (Thubut) of the abrogating proof. The majority of the
scholars give the condition that it must be stronger than the abrogated. A
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successive report cannot be abrogated by the singular ahaadi report even
if authenticated. In the soundest of the opinions it is not conditional that
the abrogating evidence should be stronger. The reason being that it is the
rule that is abrogated and succession of report is not a condition.
Divisions of Nāsikh (Abrogation)
Considering the abrogated text, Naskh is divided into three kinds:

(1) The first is that whose rule is abrogated but its wording remains. The
Qur’ān is replete with the examples of these e.g. the two Ayahs of
forbearance.
(If there could be twenty persevering among you, they will conquer two
hundred). The rule of which has been abrogated by the word of Almighty
Allah.
Al-Ana khaffafa llahu ankum waalima anna ffeekum dafan…Wallahu maa „s-sabirin
The reason for abrogating rule and leaving the words is to retain the reword
of recitation and to remind the Ummah about the wisdom in the
abrogation.
(2) The second is the cancellation of words and retention of the rule
such as the verse of stoning as recorded in the two most authentic
collections of Hadiths. One Hadith related by Ibn Abbas (r) reported
that Umar bn Khattāb (r) said: The verse of stoning was one of the
verses revealed. We read and digested it. The Prophet stoned and we too
stoned after him. I am afraid that as time passes by some may be saying
we cannot find stoning in the Book of Allah. They will thus be led
astray by abandoning an obligation revealed by Allah. And that stoning
is a reality in the Book of Allah against whoever commits adultery if
married among men and women when there is proof, or pregnancy or
confession.
The word was abrogated without the rule in order to test the Ummah on
implementing what they cannot find its words in the Qur’ān; and to
verify their faith in what Allah has revealed against the condition of the
Jews who attempted hiding the text of stoning in the Tawrah.
(3) The third is that whose rule and word are abrogated like the ten
suckling earlier mentioned in Aisha‟s report (r).
Abrogation is divided into four kinds considering the abrogating.
131
The first is abrogating the Qur‟ān by the Qur‟ān. The two verses of
perseverance illustrate this.
The second is abrogating the Qur’ān by the Sunnah. This does not exist.
The third is abrogating the Sunnah by the Qur’ān such as abrogation of
Qiblah from Bayt al-Maqdis in Jerusalem as recorded in the Sunnah
with facing the direction of Ka „bah as on record in the words of Allah:
(Turn your face towards the Haram Mosque and wherever you are turn
your faces towards it.
The fourth is abrogating the Sunnah by Sunnah like his words (S): I
have forbidden you from drinking wine in vessel, drink in whatever you
like but do not drink an intoxicant.
Rational underlying Abrogation:

1. Abrogation by enactment of rules that will be better and more useful
for the Ummah in this world and the hereafter is in their best interest.
2. Taking legislation to higher level of perfection.
3. Testing the Mukallafīn on their preparation to accept change from
one rule to another and their satisfaction with that.
4. Testing the Mukallafīn on the duty of giving thanks if the change in
the rule is to the lesser; and the duty of patience if the change is to a
heavier task.
4.3.2 Da„āwā wa`sh-Shuhūd (Procedure and Evidence)

The term Da‘āwā is defined as demand by a person of his right from
another in the presence of a judge. The person making the demand is
called the mudda‘ī, i.e. plaintiff or claimant and the person from whom
the demand is made is called mudda‘ī ‘alayh or defendant. The plaintiff
or claimant is he who says 'it was', while the defendant is he who says 'it
was not'. Proof is demanded from the former on account of the
weakness of his side; an oath is demanded from the defendant on
account of the strength of his side, as having the benefit of the main
principle which is non-liability until proved otherwise.
On the basis of presumptions (aşl) attached by law to the facts in issues
(e.g. presumpti on of innocence in a criminal case or presumption of
freedom from debt from a civil suit) the parties to litigation were
allotted a free and fair hearing. The former being the party whose
assertion ran counter to this presumption (istisħāb), the latter, the party
whose assertion istisħāb was supported by it. Thus upon the claimant
(mudda‘ī) falls the burden of proof (albayyinah). Where (the claimer)
declines to discharge the burden of proof, the madda‘ī ‘alayh
(defendant) is offered the oath of denial (inkār).
132
This procedure is based on the Prophet‟s saying which provides:
al-bayyinatu ‘ala `l-mudda‘ī wa `l-yamīn ‘ala man ankara.
The proof lies on the plaintiff and oath must be taken by him who
rejects the claims.
Therefore when a mudda‘ī ‘alayh (the defendant) properly made

ordinary swearing, such as an oath he secured judgement in his favour.
If he the defendant failed to take oath, judgement would be given for the
mudda‘ī (the claimant) provided in some circumstances, he himself is
made to take an oath.
Judgement according to the Jurists is given according to manifest
evidences and circumstances.
For instance, if two persons dispute over the ownership of some objects
the situation could be one of the following:
(i) The object of dispute could be in possession of one of them. In either
case, it would be that one of them had possessed the object to the
exclusion of the other, then the one in whose possession is the object
will be the defendant because possession of the object strengthens his
claim to it. What both parties laid claim of ownership of the object
should establish his ownership of it and his contact with it up to the time
of dispute. This means that each or both of them should produce
evidence of ownership. If one of them produces such evidence
judgement shall be passed in his favour after the oath party has been
given the benefit of self defence to prove his case.
If both of them produce evidence of ownership the judgement shall be
passed in favour of the one whose evidence is weightier. But if the
evidence of one of them is as weighty as that of the other, the object
shall be divided equally between them after both of them have made the
oath. However, in the event of dividing the object between them, their
shares shall be equal if the proportions to which they claimin the
property is equal.
This is the rule according to Abdul (1982) which is also followed in the
established courts. When the plaintiff fails to produce sufficient proof to
support his claim, then the defence lawyers always make “no-case”
submission which means that since the claimant has failed to establish
his case the Judge does not need to call on the one from whom the claim
is made to defend himself, and the judgement is given without the judge
on the defence at all.

3. Mension and expatiate upon conditions to apply when
133
abrogation is possible.
4. Enumerate divisions of Nāsikh and give the rationale
underlying it.
5. Elaborate on the Jurisprudential significance of the
Prophetic Statement „al-bayyinatu ‘alā `l-mudda‘ī wa `l-
yamīn ‘ala man ankara’.
4.4 CONCLUSION
1. Nāsikh is a principle of Islamic jurisprudence connoting abrogation.

Rules can be abrogated not the proofs from the divine testaments.
2. (i) Impossibility of combining the two proofs (ii) Coming of the
abrogating proof later than the proof of the abrogated rule and (iii)
Establishing (Thubut) of the abrogating proof are three conditions
governing application of abrogation.
3. There are four kinds of abrogations (i) abrogating the Qur‟ān by the
Qur‟ān (ii) abrogating the Quran by the Sunnah which does not exist
(iii) abrogating the Sunnah by the Qur’ān (iv) abrogating the Sunnah by
the Sunnah.
4. The basis of procedure and evidence in the Islamic Jurisprudence is
the Prophet Tradition „al-bayyinatu ‘alā`l-mudda‘ī wa `l-yamīn ‘ala
man ankara’.
4.5 SUMMARY
This Unit discusses Naskh and Daāwā wa `sh-Shuhūd i. e abrogation,

procedure and witness. It analyzes them, expatiate their connotation,
revealed their bases from the Qur‟ān or Hadith and provides
illustrations. In the second section the Unit expatiates upon the the
Prophet Tradition „al-bayyinatu ‘ala `l-mudda‘ī wa `l-yamīn ‘ala man
ankara’ as basis of procedure and evidence in the Islamic Jurisprudence.
134
4.6 REFERENCES / FURTHER READING
 Salahu `d-Dīn Abdu`l-Hamīd (2012): An Enquiry into Khulāşatu `l-Uşūl
of Abdullah b. Fūdī; an Unpublished PhD Thesis, University of Ibadan.
 Al-Fiqh wa Usuluhu (1422H -2001CE.), Ministry of Education;
catalogue no 22/0603
 Hittu, M. H. 1981. Al-Wajīz fī ’Uṣūl al-Tashrī‘ al-Islāmī. Al-

Kuwait.
 Maṭlūb, M. M. 2005. ’Uṣūl al- Fiqh al-Islāmī. Cairo.

Mu‟assasat al-Mukhtār.
 Sha„bān, Z. 1988. ’Uṣūl al-Fiqh al-Islāmī. Al-Kuwait.

Mu‟assat Ali Al-Ṣabāḥ.
 Al-„Uthaymīn M. S. 2003. Sharḥ Naẓm al-Waraqāt fi-’Uṣūl al-

Fiqh.
Answers to SAEs
1. As people‟s welfare differs according to different times and positions, a

rule which may be in the best interest of a people at a time may not be so
at another time. Therefore, Allah abrogates some rules and replaces them
with other rules at appropriate times to cater for the welfare of man
according to His wills.
2. Rules that cannot be abrogated are:

i. Divine Reports (Qur’an) cannot be abrogated; it is the rules that can be.
This is because abrogation of one of the two reports implies falsehood of
the other.
ii. Rules that are in the interest of the people at any time and place such as
faith and its principles, devotional worships and their principles, good
conducts such as truthfulness, modesty, generosity, courage etc.
3. Conditions to apply when abrogation is possible.
135
i. Impossibility of combining the two proofs;
ii. Coming of the abrogating proof later than the abrogated;
iii. Establishing (Thubut) of the abrogating proof.
4. Division of Nasikh
Naskh is divided into three kinds:
i. That whose rule is abrogated but its wording remains;
ii. Cancellation of words and retention of the rule;
iii. That whose rule and word are abrogated.
5. The term Da‘āwā is defined as demand by a person of his right from

another in the presence of a judge. The person making the demand is called
the mudda‘ī, i.e. plaintiff or claimant and the person from whom the
demand is made is called mudda‘ī ‘alayh or defendant. The Prophet says:
"The proof lies on the plaintiff and oath must be taken by him who rejects
the claims."
136

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NATIONAL OPEN UNIVERSITY OF NIGERIA

COURSE CODE: ISL431

COURSE TITLE: PRINCIPLES OF ISLAMIC JURISRUDENCE

ISL431: Principles of Islamic Jurisprudence

Course Team Prof. Asif Folarin Ahmed

Dr. Adejoro Raheem Mustapha

Dr. Kahar. Wahab.Sarumi

REVIEWED BY: Prof. Mustapha, Raheem Adejoro

First Printed 2013

Latest date of review: May 2022

All Rights Reserved

ISL431: Principles of Islamic Jurisprudence – is a two-credit unit

The Aims and Objecives of this Course.

 Uṣūlu `l-Fiqh and its relationship with Fiqh.

1. This Course Guide

MODULE 2: SOURCES OF SHARĪ„AH

References and Other Resources

 Maṭlūb, M. M. 2005. ’Uṣūl al- Fiqh al-Islāmī. Cairo. Mu‟assasat al-

 Sha„bān, Z. 1988. ’Uṣūl al-Fiqh al-Islāmī. Al-Kuwait. Mu‟assat Al

 Al-„Uthaymīn M. S. 2003. Sharḥ Naẓm al-Waraqāt fi-’Uṣūl al-Fiqh.

 Al-Shanqīṭī M. A. 1999. Mudhakkirat al-’Uṣūl al-Fiqh.

 Libson, Steward F.H. 2008. “Urf” Encylopedia of Islam. ed. P.

Your assessment will be based on tutor-marked assignments (TMAs)

Tutor Marked Assignment

Course Overview and Presentation Schedule

Unit Title of Work Weeks Assessment Activity

Unit 1 Concept, Scope and Brief Historical Week 1

Unit 2 The ‘Aqliyyāt (Reason): 1. Week 8 Assignment 3

Unit 3 The ‘Aqliyyāt (Reason): 2. Week 9

Unit 4 The ‘Aqliyyāt (Reason): 3. Week 10 Assignment 4

Unit 1 Istiftā, Taqlīd and Talfīq

Unit 2 The Miscellaneous Sources Week 12

Unit 3 Al-Qawā‘id al-Fiqhiyyah Week 13

Final Examination and Grading

This table shows the actual marks allocations

Four Best three marks of the four assignments count as

Final 70% of overall marks

Total 100% of course marks

How to Get the Most from this Course

2. Organize a Study Schedule. Design a „Course Overview‟ to guide

3. Once you have created your own study schedule, do everything to

7. Keep in touch with your Study Centre. Up-to-date course information

Tutors and Tutorials

Much as I cannot promise you a too-easy ride on this course, I equally do

We wish you best of luck and success in the course.

MODULE 2: SOURCES OF SHARĪ„AH

which is titled PRINCIPLES OF ISLAMIC JURISPRUDENCE. This is

separate though related disciplines. Their common basis is the Islamic

injunction. Knowledge of Uṣūl al-fiqh often entails knowledge of al-

Muslim scholars who have good knowledge of al-fiqh or „Ilmu`l-

furū„(science of the detailed branches of laws) but have little or no

the fact that the two subjects have different functions.

Fiqh, its significance, scope and differences between the two

development of the science. Welcome. .

1.2 LEARNING OUTCOMES

1.3 Uşūlu `l-Fiqh

1.3.1 Definition of Uşūlu `l-Fiqh and Its two Components

of the principles underlying the branches of Islamic law. This definition is

enjoyed much recognition among Muslim scholars. Therefore, most of

The word Uṣūl is plural of ’asl. which has a variety of technical