ABSTRACT
The study of the Islamic law ( Sharīʿa ) has exploded in Western academia over the last few decades, treating it as a subject of history, law, religion, philosophy and sociology. According to M. Izzi Dien, Islamic law does not represent a set of theories and rules to be utilised within the limits of social government, but signifies a comprehensive way of life which is similar to a path leading to water, as the word Sharīʿa implies’. 1 Sharīʿa is a comprehensive system in the sense that all human activities are embraced in its sovereign domain of a five-fold division of religious injunctions: mandatory, preferred, permitted, disliked, and forbidden. Unlike man-made laws, Sharīʿa does not have a law book where the rules are specified in clauses and sub-sections. Some historians, however, have argued that short summaries of commonly applied rules called mukhtaṣarāt together with fatwās collections form a kind of semi-codified system of law. 2
Fiqh , which is the positive law in Islam, literally means “understanding”, and a person skilled in the law is called a faqīh (pl. fuqahā’ ). 3 According to the classical theory, fiqh is the name given to the whole science of jurisprudence due to its implication of intelligence while deciding a point of law where a binding text ( naṣṣ ) found in its original sources (the Qur’an and the Sunna ) is absent. 4 Because God is the only legislator ( al-Shāriʿ ), the faqīh ’s task is to find out what God meant the law ( ḥukm ) to be in each particular case. The legitimisation of the ḥukm as God’s lies in an acceptance of the appropriate methodology and of the scholar’s ability to use it. 5 Because of the central role of the faqīh (jurist), the Islamic legal system is often called a “juristic system”. 6
According to the traditional opinion of the Muslim scholars, the generation of the Companions of the Prophet is the starting point of the science
of Islamic Jurisprudence. 7 Their Successors continued the activity, expanding it a bit, while the generation following the Successors ( atbāʿ al-Tabiʿīn ) founded the schools of jurisprudence, known as al-madhāhib . 8 Although the reports show that many such schools have been developed since then, only four of them have survived: the Ḥanafī, Mālikī, Shāfiʿī and Ḥanbalī, all named after their founders. 9 Various historical accounts suggest that the founders of these four schools had established a coherent account, which was well documented with extensive biographical and historical source materials. 10 It is important to note here that the aforementioned four madhāhib regard one another as equally valid interpretations of the Sharīʿa. The science of fiqh is generally divided into two parts: the science of the Principles of Islamic Jurisprudence ( uṣūl al-fiqh ), literally “the roots of jurisprudence”, and the science of the actual rules and legal fields ( furūʿ al-fiqh ), literally “the branches of jurisprudence”. 11
According to Kamali, the main objectives of uṣūl al-fiqh are: to discuss the sources of Islamic law, to guide the jurists in their efforts at deducing laws from its sources, and to regulate ijtihād . 12 Initially, two approaches developed in the study of uṣūl : the theoretical and the deductive. 13 The first was developed by al-Shāfiʿī, who enacted a set of principles which should be followed in the formulation of fiqh . 14 On the other hand, the early Ḥanafī scholars looked into the details of law provided in the primary sources and from them derived legal rules and principles. 15 In due course, the four Sunni schools of jurisprudence succumbed to al-Shāfiʿī’s argument and developed a common hermeneutical approach to the law, presenting it as derived by a systematic act of interpretation from the Qur’an and ḥadīth. 16
Many theorists regard Imam al-Shāfiʿī as the founder of uṣūl al-fiqh . 17 After Imam al-Shāfiʿī, many scholars have contributed to the study of uṣūl , including: Abū al-Ḥasan al-Karkhī (d. 340 AH), Abū Bakr al-Jaṣṣāṣ (d. 370 AH), al-Juwaynī (d. 487 AH), al-Ghazālī (d. 505 AH), al-Rāzī (d. 606 AH), al-Āmidī (d. 630 AH), al-Subkī (d. 771 AH), Ibn Nujaym (d. 970 AH) and others. 18 Works of uṣūl usually contain four broad areas of discussion: the categories of the law, the sources of the law, the hermeneutical rules that permit extrapolation of norms from sources, and an elaboration of the theory of ijtihād . 19 Containing more or less all the topics of the discipline in a masterpiece of structure and expository detail, the Mustaṣfā of al-Ghazālī is arguably one of the most outstanding works of uṣūl to this day.
