Juristic Principles & Usuli Points
1) I have come across the following principles (qawaid?) in usul:
- Rulings change according to time
- That which leads to a wajib is wajib
- That which leads to haram is haram
With respect to these three principles, I would like to know:
The last two are to my knowledge accepted unanimously while the first was
proposed by the Hanafis and generally but not unanimously adopted.
a) Are they accepted unanimously? If so, are there any references to
indicate this? If not which scholars differed and why?
References to the axioms of jurisprudence (al-qawa`id al-fiqhiyya), taken
from the bibliography given in Dr. Mustafa al-Bugha's recent book Dar'
al-Mafsada fi al-Shari`a al-Islamiyya (1997):
- al-Isnawi, Jamal al-Din (d. 772). al-Tamhid fi Takhrij al-Furu` `ala
- al-Tilimsani, Abu `Abd Allah (d. 771). Miftah al-Wusul ila Bina'
al-Furu` `ala al-Usul.
- al-Hamawi, Shihab al-Din (d. 1098). Ghamz `Uyun al-Basa'ir Sharh
al-Ashbah wa al-Naza'ir li Abi Nujaym.
- Haydar, `Ali Haydar. Durar al-Hukkam Sharh Majalla al-Ahkam.
- Ibn Rajab, Abu al-Faraj (d. 795). Al-Qawa`id.
- al-Zarkashi, Badr al-Din (d. 794). al-Manthur fi al-Qawa`id.
- al-Zanjani, Shihab al-Din (d. 656). Takhrij al-Furu` `ala al-Usul.
- Ibn al-Subki, `Abd al-Wahhab (d. 771). al-Ashbah wa al-Naza'ir.
- al-Suyuti, Jalal al-Din (d. 911). al-Ashbah wa al-Naza'ir fi Qawa`id wa
Furu` Fiqh al-Shafi`iyya.
- Ibn al-Shat, Qasim (d. 723). Idrak al-Shuruq `ala Anwa` al-Furuq.
- Ibn `Abd al-Salam (d. 660). Qawa`id al-Ahkam. Also: al-Qawa`id
- al-Qurafi, Shihab al-Din (d. 684). al-Buruq fi Anwa` al-Furuq.
- al-Maliki, Muhammad `Ali ibn Husayn. Tahdhib al-Furuq wa al-Qawa`id
- al-Maqarri, Abu `Abd Allah (d. 758). al-Qawa`id.
- Ibn Nujaym, Zayn al-Din (d. 970). al-Ashbah wa al-Naza'ir.
- al-Nadwi, `Ali Ahmad. al-Qawa`id al-Fiqhiyya.
- Ibn al-Wakil, Muhammad (d. 716). al-Ashbah wa al-Naza'ir.
- al-Wansharisi, Abu al-`Abbas (d. 914). Idah al-Masalik ila Qawa`id
From the general truths dictated by the sources of legislation. For
example, the principle that "Words are understood according to their
external sense" is taken from the general custom of people (`urf) that
the basic sense of words is their literal sense. Their (commonly
understandable) figurativeness is covered by another principle that states
"meaning is according to purpose."
b) How were such principles established?
The sources of legislation beginning with Qur'an, Sunna, Qiyas, Ijma`, and
moving on to `Urf, Maslaha, Istihsan, and others.
c) What evidences are they based upon?
These principles both encapsulate and clarify the aspects that are
inherent in their Qur'anic and Sunnic formulations, as well as extract the
logical rules and presuppositions at work in the practice of people in
conformity with the meanings of language and the purposes (maqasid) of the
d) How do these principles work (i.e. what is/are the conditions for
Yes - Yes - Yes. (Provided ability in each case.)
For instance, if we take the one about wajibaat, how
often can it be iterated? That is, say if it is juma. Can I say that if
without catching a taxi I cannot make juma, it is wajib to catch that
taxi? What if I can't catch that taxi unless I leave the meeting at work
10 minutes early, does it become wajib to leave that meeting earlier? And
I can't leave that meeting earlier unless I start work an hour earlier in
the morning, does it become wajib to do that then?
The khitab and qarina are definitely present in the inferrence of the
Qawa`id fiqhiyya even if we don't see exactly how, just as they are
present in the rulings of the Imams of Fiqh in their respective schools,
even if the majority of people are uneducated to follow the intimate
connection of such rulings with the evidence at hand.
e) I thought that ahkam can only be ahkam if there is a khitab (address)
from the Legislator in the evidence, and a qarina (indication) which
shows whether the rule is wajib, mandoub, mubah, makruh or haram. Yet I
don't see where there is either a khitab or qarina when such principles
as mentioned above are used. Can anyone explain please?
See the list above.
c) Which works discuss such principles?
The "ultimate reference of acts" is their legal status in the light of
intentions, consequences, means etc.
2) What is 'Ma'alat ul af'al'? (I think it is translated as 'the results
of actions'. Is it related to the last two principles above?
It means preclusion of means. "That which leads or most probably leads to
the haram must be precluded even if it consists in good, in order to
preclude the haram." Its proof from the Qur'an is "Do not insult those
that call upon other than Allah lest they insult Allah in enmity due to
their ignorance." In the hadith: the interdiction of insulting one's
ancestors to preclude its reciprocation.
3) How does 'Sadd al-Dharai' work?
The usul that are shared by all are, but the scope of usul and the
definition of what constitutes qat`i may vary.
4) Is it true that usul have to be based upon definitive/conclusive (i.e.
I don't know the answer to these questions.
a) If so, why?
b) Which scholars addressed this issue? And in which works?
I am not sure the premises of the questions are correct, as the latter
usul are also based on definite evidence. E.g. Ijma` al-Ulama is based on
the near-mass-transmitted hadith that the Umma does not agree upon error,
and its formulation is qat`i. Allah knows best.
c) I appreciate that usul such as Qur'an, Sunnah are based upon qat'i
evidences. However is it true that usul such as Sadd al-Dharai, Istihsan,
Ijma al-Ulema, and others, are not? And if so then why are they used?
That is, what is the justification for doing so?
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