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Questions concerning
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:

a) Are they accepted unanimously? If so, are there any references to indicate this? If not which scholars differed and why?

The last two are to my knowledge accepted unanimously while the first was proposed by the Hanafis and generally but not unanimously adopted.

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-Usul.
- 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-Sughra.
- 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-Sunniyya.
- 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 al-Imam Malik.

b) How were such principles established?

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."

c) What evidences are they based upon?

The sources of legislation beginning with Qur'an, Sunna, Qiyas, Ijma`, and moving on to `Urf, Maslaha, Istihsan, and others.

d) How do these principles work (i.e. what is/are the conditions for their application?

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 Law.

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?

Yes - Yes - Yes. (Provided ability in each case.)

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?

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.

c) Which works discuss such principles?

See the list above.

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?

The "ultimate reference of acts" is their legal status in the light of intentions, consequences, means etc.

3) How does 'Sadd al-Dharai' work?

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.

4) Is it true that usul have to be based upon definitive/conclusive (i.e. qat'i) evidences?

The usul that are shared by all are, but the scope of usul and the definition of what constitutes qat`i may vary.

a) If so, why?

b) Which scholars addressed this issue? And in which works?

I don't know the answer to these questions.

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?

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.

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2000-11-16
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