Sunnipath Academy 2010 In the Name of Allah, Most Merciful Merciful and Compassionate
The Waraqat of Waraqat of Imam al-Haramayn al-Juwayni (d. 478 A.H.) Translated by: Hamza Karamli
Lesson 1 - The Difference between Law and Legal Methodology
In the Name of Allah, Most Merciful and Compassionate These are some sheets comprising selected sections from usul al-fiqh. al-fiqh. The phrase usul al-fiqh is composed of two simple parts: (1) usul , and (2) fiqh (2) fiqh.. An asl is asl is what another is built on. A far A far is what is built on another. Fiqh is the knowledge of revelatory rulings that are established through ijtihad . There are seven revelatory rulings are seven: (1) obligatory, (2) recommended, (3) permissible, (4) unlawful, (5) disliked, (6) valid, and (7) invalid. ’ ’
An obligatory act is that whose performance is rewarded and whose nonperformance is punished. A recommended act is that whose performance is rewarded and whose nonperformance is not punished. A permissible act is that whose performance is not rewarded and whose nonperformance is not punished. An unlawful act is that whose nonperformance is rewarded and whose performance is punished. A disliked act is that whose nonperformance is rewarded and whose performance is not punished. A valid act is that which is effected and counts. An invalid act is that which is not effected and does not count. Fiqh is more specific than knowledge. Knowledge is perception of what is knowable. Ignorance is perception of something contrary to how it really is. Necessary knowledge is knowledge that does do es not require reflection or deduction, such as knowledge gained through one of the five senses. Acquired knowledge is knowledge that requires reflection and deduction. Reflection is to think about the object of reflection. Deduction is the seeking of proof. Proof is what leads to that which is sought. Confidence is to deem each of two matters possible, with one predominant over the other. Doubt is to deem two matters possible without the predominance of one over the other. Usul al-fiqh consists of the general proofs of fiqh fiqh and how to adduce them as proof. The chapters of usul of usul al-fiqh are: (1) types of speech, (2) commands, (3) prohibitions, (4) general wordings, (5) specific wordings, (6) ambiguous wordings, (7) clarifying wordings, (8) probabilistic indications, (9) actions, (10) abrogating texts, (11) abrogated texts, (12) scholarly consensus, (13)
transmitted reports, (14) analogy, (15) unlawfulness and permissibility, (16) the proper proof-order, (17) the attributes of the mufti and the mustafti, and (18) rulings related to mujtahids. Lesson 2 - Using Language in its Literal and Figurative Senses
Types of Speech Speech is minimally composed of: (1) two nouns, (2) a noun and a verb, (3) a verb and a particle, or (4) a noun and a particle. Speech is classified into: (1) commands and prohibitions, (2) declarative statements, and (3) questions. Other classes include: (4) wishes, (5) suggestions and (6) oaths. From another perspective, it is classified into: (1) literal and (2) figurative. Something is literal when it is used according to its original coinage. Others say that it is literal when it is used according to the nomenclature of the community that is speaking. Something is figurative when it is extended beyond its original coinage. A literal use is either: (1) lexical, (2) revelatory, or (3) customary. A figurative use is either: (1) figurative by addition, (2) figurative by subtraction, (3) figurative by lexical shift, or (4) figurative by metaphor. Figurative by addition is like His Most High‘s H igh‘s saying, laysa ka mithlihi shay . Figurative by subtraction is like His Most High‘s saying, was ali ali ll-qaryata. ll-qaryata . Figurative by lexical shift is like al gha it with it with respect to human excrement. Figurative by metaphor is like His Most High‘s saying, idaran yuridu an yanqadda. yanqadda. Lesson 3 - Commands and Prohibitions
Commands To command means command means to verbally call someone who is below one to an action by way of obligation. Its form is if al al . When used without qualification or diverting indication, it is understood as an obligation. When evidence indicates that the intended meaning is recommendation or permissibility, it is understood accordingly. It does not imply repetition according to the correct position, unless other evidence indicates that repetition was intended. Nor does it necessitate immediacy. A command to perform an action is a command to perform the action as well as everything that the action cannot be completed without. ’ ’
For example, the command to prayer is also a command to purification, which enables one to validly perform it. When the commanded act is performed, the one who is commanded is considered to have discharged his responsibility. Those who are included in the audience of commands and prohibitions and those who are not
Believers are included in those who Allah Most High addresses, but those who forget, children, and the insane are not included.
Disbelievers are addressed both by the details of sacred law and by what they are not valid without (i.e., Islam), because of His His Most High‘s saying, ―They responded, ‗We were not of those who prayed.‘‖ A command to do something is a prohibition against its opposite; and a prohibition against something is a command to do its opposite. To prohibit To prohibit means means to verbally call someone who is below one to leave an action by way of obligation. It indicates the invalidity of what which is prohibited. The command form is sometimes used with the intention of permissibility, threat, equivalence, or existentiation. Lesson 4 - General and Specific Utterances
General and Specific Utterances and their types A general utterance is what encompasses two or more things without limit. It comes from one‘s saying, amamtu amamtu zaydan wa amran bi ll- ata ata and amamtu amamtu jami al-nas. al-nas. ‘
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There are four types of utterances that denote generality: (1) a singular noun with the definite article al , (2) a plural noun with the definite article al , (3) ambiguous nouns – like man for rational beings, ma for non-rational beings and things, ayyu for both, ayna for places, mata for times, the ma when used for questions and conditions, and others, and (4) la with indefinite nouns. Generality applies exclusively to utterances; generality may not be claimed with anything else, such as actions and the like. Specific utterances are the contraries of general utterances. Exclusion is to exclude part of a group. It is either (1) attached or (2) separate. Attached exclusion is either (1) an exception, or (2) a condition, or (3) qualification with a describer. Exception is the exclusion of what would otherwise have been included in speech. It is only valid on condition that some of the excepted-from remains. Also among its conditions is that it immediately follow what was said. The exception may precede the excepted-from. Exception may be made from the category of the excepted-from or from another category. The condition may precede the conditioned. Something that is unqualified and is mentioned elsewhere qualified by a describer is interpreted accordingly, such as the slave to be freed as expiation — expiation — it it was qualified with faith in some places, and left unqualified in others, so the unqualified instance is understood in accordance with the qualified instance. A Quranic utterance may exclude from the generality of another Quranic utterance, a sunnaic utterance may exclude from the generality of a Quranic utterance, a Quranic utterance may exclude from the generality of a sunnaic utterance, and a sunnaic utterance may exclude from the generality of a Quranic utterance. Analogy may exclude from the generality of an utterance. By utterance, utterance, we mean something that was said by Allah Most High or by the Messenger (Allah bless him and give him peace).
Lesson 5 - Clear and Unclear Expressions
Clear and Unclear Utterances An unclear utterance is something that needs explanation. Explanation is to take something from the sphere of ambiguity into the sphere of clarity. A definitive utterance ( nass) nass) is what can only have one meaning. Others say that it is something whose understanding is its mere revelation. The word nass is etymologically derived from the bride‘s minassa, minassa, i.e., her seat. A probabilistic utterance (dhahir ( dhahir ) is what accepts two meanings, one of which is likelier than the other. A probabilistic utterance may be figuratively interpreted when there is proof, and it is then called probabilistic called probabilistic by proof . Lesson 6 - The Legal Implications of Prophetic Actions
Prophetic Actions A prophetic action is either performed out of worship and obedience or not. If it is performed out of worship and obedience, then if a proof indicates that it is specific to him, it is understood accordingly; otherwise, it is not made specific to him because Allah Most High said, ―Verily in the messenger of Allah you have a good example.‖ (33:21) According to some of our scholars, it is then interpreted as being obligatory, according to others, it is interpreted as being recommended, and according to others, judgment is suspended regarding it. If it is not done out of worship and obedience, it is interpreted as being permissible. The Prophet‘s corroboration of what someone else says is like his saying it himself, and his corroboration of what someone else does is like his doing it himself. If he knew about something that was done in his absence during his lifetime and did not condemn it, then it is as if the action was done in his presence. Lesson 7 - Abrogation
Abrogation Naskh means removal: one says, ―The sun did naskh of the shade,‖ when it removed it. Others say that it means transfer, taken from their saying, ―I did naskh of the contents of this book,‖ when one transferred them. It is defined as: an address that separately indicates the removal of a ruling established by a previous address such that were it not for it, it would remain established. It is possible for the wording to be abrogated without the ruling or for the ruling to be abrogated without the wording; for the abrogation to be replaced with a substitute or for it not to be replaced; and for the abrogation to move toward what is stricter or what is easier. It is possible for the Quran to abrogate the Quran, for the Quran to abrogate the sunna, but not for the sunna to abrogate the Quran. It is possible for a mass-narrated report to abrogate a mass-narrated report and for a mass-narrated report to abrogate a non-mass-narrated report, but not for a non-mass-narrated report to abrogate a massnarrated report.
Lesson 8 - Conflicting Texts: Reconciliation Reconciliation vs. Preponderance Preponderance
Conflict and Preponderance When two statements conflict, then either (1) both are general, or (2) both are specific, or (3) one is general and the other is specific, or (4) each is general from one perspective and specific from another. If both are general, then if it is possible to reconcile between them, one reconciles them, and if it is not possible to reconcile them, then if the dates are unknown, judgment regarding each of them is suspended. The same applies when both are specific. If one is general, and the other is specific, then the general is specified by the specific. If each is general from one perspective and specific from another perspective, then the generality of each is specified by the specificity of the other. Lesson 9 - Scholarly Consensus Consensus
Scholarly Consensus Scholarly consensus is the agreement of the scholars of a generation on the ruling of an occurrence. By ―scholars‖ we mean ―scholars of Sacred Law,‖ and by ―occurrence‖ we mean ―an occurrence that relates to Sacred Law.‖ The scholarly consensus of this religious community is proof, but not of previous religious communities, because of his (Allah bless him and give him peace) saying, ―My community will not agree on error.‖ Revelation has mentioned that this religious community is divinely protected from error. Scholarly consensus is binding on subsequent generations, regardless of when the consensus occurred. The correct position is that generational demise is not a condition. Someone who holds that it is a condition will also take into consideration the position of someone who is born during their lifetimes, studies Sacred Law, and becomes a mujtahid, and he will also allow them to go back on their judgment. Scholarly consensus can be established by their statements, by their actions, or by the statements or actions of some when the statements or actions are well-known and the others remain silent. According to Shafi`i's later position, the position of one Companion is not binding on anyone else. Lesson 10 - Transmitted Transmitted Reports
Transmitted Reports A report is something that can be described as being true or false. One may sometimes be certain of its truth or falsehood.
Reports are either: (1) non-mass-transmitted, n on-mass-transmitted, or (2) mass-transmitted. A mass-transmitted report is what gives certainty. It is when a group that cannot conspire to lie narrates from a similar group all the way back to the matter that is reported, which must be something that is seen or heard. A non-mass-transmitted report is what obligates implementation but does not give certainty. It is of two types: (1) contiguous, and (2) interrupted. A contiguous report is one with a connected chain of transmission. An interrupted report is one with a disconnected chain of transmission. If the one who omits a narrator is other than a companion, then an interrupted report is not binding proof, excepted for the interrupted reports of Sa`id b. al-Musayyib, which have been investigated and found to be contiguous. Contiguous chains of transmission may contain the word, ―from‖ ( an). an). ‘
When the teacher reads, it is permissible for the narrator to say both say both ―haddathani ―haddathani‖‖ and ―akhbarani ―akhbarani‖. ‖. If the narrator reads to the teacher, then he may say, ―akhbarani ― akhbarani‖‖ but not ―haddathani ―haddathani‖. ‖. If the teacher gives him permission to narrate from him without any actual narration, narratio n, he should say, ―ajazani ― ajazani‖‖ or ―akhbarani ijazatan‖. ijazatan ‖. Lesson 11 – Analogy
Analogy Analogy the equating of a derivative case with an original case through a legal cause that unites them in their legal ruling. It is of three types: (1) causal analogy, (2) indicative analogy, and (3) resemblance-analogy. Causal analogy is where the legal cause necessitates the legal ruling. Indicative analogy is to adduce one of two similar cases as evidence for the other; this happens when the legal cause indicates the legal ruling but does not necessitate it. Resemblance-analogy consists of a derivative case that alternates between two original cases and is given the ruling of the one that it resembles the most. One of the conditions of the derivative case is that it be compatible with the original case. One of the conditions of the original case is that it be established with a proof that both disputants agree on. One of the conditions of the legal cause is that it be consistently present in the legal rulings that it causes so that neither its attribute nor its purpose is inconsistent. One of the conditions of the legal ruling is that it follow the legal cause in absence and presence. The legal cause is what attracts and the legal ruling is what is attracted to the legal cause. Prohibition, Permission, and the Presumption of Continuity Some say that all matters are prohibited until the Sacred Law permits them: if, therefore, there is nothing in the Sacred Law that indicates permissibility, we should default to the original state, which is prohibition.
Others say the opposite, namely that the initial assumption about matters is that they are permitted except for those that the Sacred Law has prohibited. ―Presumption of continuity‖ means that the original state is assumed to persist when the Sacred Law doesn‘t indicate otherwise. As for proofs, clear proofs are given precedence over obscure ones, proofs that afford certain knowledge over those that afford probabilistic knowledge, statements over analogy, and clear analogy over obscure analogy. If a statement comprises something that changes the original state, it is implemented; otherwise, one presumes the continuity of the original original state. Lesson 12 - Independent Independent Interpretation and Following Qualified Scholarship
Ijtihad, Giving Fatwa and Following Among the prerequisites of a mujtahid is mujtahid is that: (1) he have knowledge of Sacred Law, both in methodology and application, both in areas of scholarly disagreement and adopted positions; that (2) he have all the tools that are needed for ijtihad for ijtihad ; that (3) he know what he needs in order to derive legal rulings, such as grammar, Arabic language, hadith narrators, and the explanation of Quranic verses and hadiths that are connected with legal rulings. Among the conditions of someone who seeks fatwa seeks fatwa is that he be allowed to follow a mujtahid . It is not permitted for a scholar to follow anyone else. Following means Following means to accept someone‘s position without proof. According to this definition, accepting the statement of the Prophet (Allah bless him and give him peace) is termed following termed following . Others say that following is to accept someone‘s position without knowing what his position is based on. Based on this, if we say that the Prophet (Allah bless him and give him peace) used to judge based on analogy, it is correct to say that someone who accepts his direction is following is following him. him. Ijtihad is Ijtihad is to exert one‘s utmost to reach one‘s goal. If a mujtahid is mujtahid is adequately equipped with the tools of Ijtihad, then if his ijtihad on ijtihad on matters of Sacred Law takes him to the correct answer, he is rewarded twice, and if his ijtihad takes ijtihad takes him to the incorrect answer, he is rewarded once. Some have said that everyone who performs ijtihad in matters of Sacred Law is correct. It is not possible to say that everyone who makes ijtihad in ijtihad in matters of belief is correct because this leads to the conclusion that the Christians, Magians, disbelievers, and heretics are all correct. The proof of those who say that every mujtahid is not correct in matters of Sacred Law is his saying (Allah bless him and give him peace), ―Whoever performs ―Whoever performs ijtihad and reaches the correct answer is rewarded twice, and whoever reaches the wrong answer is rewarded once.‖ The way in which this indicates the desired result is that the Prophet (Allah bless him and give him peace) said that one mujtahid was mujtahid was mistaken and the other was correct.
