22 يوليو, 2017 - 29 Shawwal 1438

Islamic Legal Theory (Usul al-fiqh)

Islamic Legal Theory (Usul al-fiqh)


Introduction

There are typically eleven disciplines listed under the heading of the “Islamic sciences” or the “shar’i sciences.” These may be divided into the “intrinsic sciences” – theology, Qur’anic exegesis, hadith, law and legal theory – and the “ancillary sciences” – which include logic and the language arts.

Usul al-fiqh (legal theory) is considered one of the most important of the former category, though it often presents difficulties to those who seek to learn it, due to its heavy reliance on the ancillary sciences, and its extensive use of complex terminology which often requires previous learning.

Both ancient and modern authorities have paid an enormous amount of attention to this science, an indicator of its standing in their eyes, for it is a branch of knowledge which aids in the formation and development of the interpretive capabilities of those prepared to undertake and master the science of ijtihad, i.e., usul al-fiqh.

Among the most prominent works written in this field are the Risala of Imam al-Shafi’i, the Burhan of Imam al-Haramayn al-Juwayni, the Mustasfa of the Proof of Islam al-Ghazali, the Umad of al-Qadi al-Baqillani, and the Mu’tamad of Abu al-Hasan al-Basri. These were subsequently commented upon, clarified, and revised for generations until the principles and central concerns of the science were set out in a refined manner.

The definition and subject matter of usul al-fiqh
In order to clarify the meaning of usul al-fiqh, it is necessary to first know the meaning of the word fiqh. The great Imam al-Razi defines fiqh in his al-Mahsul as “knowledge of the practical legal rulings derived from particular proofs in a manner such that they are not necessarily known by reason . It has also been defined by al-Asnawi as “knowledge of the practical legal rulings derived from detailed proofs .”

The subject matter of fiqh is the activity of the legally responsible human being. The issues taken up within this realm, then, are constituted by the activity of humans and Allah’s rulings on it, as for example “Prayer is mandatory,” or “Usurious transactions are forbidden,” etc.

As for usul al-fiqh, Imam al-Baydawi defines it in his Minhaj al-Wusul as “a general knowledge of the proofs of fiqh, the manner in deriving from them, and the standing of the individual who does the deriving.” From this definition, we know that the scholars have traditionally been concerned with three major questions: knowledge of the general proofs of fiqh; the manner in deriving from them; and the knowledge of he who is entrusted with this derivation, or ijtihad, especially whether he is capable of it or not.

With regards to the first, this is primarily a question of sources: Where do fiqh and its rulings come from? Or, for that matter, where does knowledge of any science come from? Secondly, usul al-fiqh is an investigation into the methodology of research: How do we interact with knowledge? What are the relevant methodologies and tools? Finally, it is a discussion on the conditions necessary for a researcher to be well-equipped to undertake these investigations.

Indeed, these are the fundamental concerns of any branch of knowledge
Nor did the establishment of this science restrict itself solely to empirical matters. Rather, the scholars of usul al-fiqh laid down fundamentals. So, they relied on both revelation and lived reality, and not only one to the exclusion of the other .

The subject matter of usul al-fiqh is the proofs (in their general form) inasmuch as they serve a specific purpose, namely proving the rulings of the shari‘a.

One of the characteristics of usul al-fiqh is that its issues are limited in comparison to fiqh, whose compilations often list upwards of 1,170,000 individual questions.

Formation and Development

Usul al-fiqh has existed as long as fiqh has, for as long as there has been fiqh there have, by necessity, been principles and criteria related to it. And these last are precisely what make up the science of usul.

However, though they have always existed side by side, the codification of fiqh preceded that of the usul. That is to say, that the setting down and refinement of its central questions, the fixing of its principles, the arrangements of its chapters all occurred before their counterparts in usul al-fiqh.

This, of course, does not mean that usul al-fiqh did not exist until it was compiled and codified, nor that jurists did not make recourse to specific principles or established methodologies in their derivations of rulings. Because the reality is that the principles and methodologies of this science have long existed in the minds of jurists even if they did not make them explicit. Consider, for example, the case of Abdullah b. Mas’ud, the famous jurist and Companion of the Prophet, who held that the pregnant woman whose husband dies is considered to have completed her waiting period upon the birth of the child. He based this on the Qur’anic verse, “For those who carry (life within their wombs), their period is until they deliver their burdens” (al-Talaq: 4), and the fact that the above-mentioned chapter was revealed after al-Baqara, which contains the verse “If any of you die and leave widows behind, they shall wait concerning themselves four months and ten days” (al-Baqara: 234). This indicates, though he does not say so explicitly, his reliance on the following principle: a later text abrogates an earlier one.

The truth is that a science usually comes into existence before it is set out and codified; codification is not its origin, but rather an indication of its existence. Consider that this is also the case in grammar and logic, to take but two examples. The Arabs followed the rules of proper grammar when they spoke, though these rules had not yet been articulated and set down. Similarly, rational people would rely on evident truths to debate and prove their points before the science of logic was set down.

Usul al-fiqh, then, accompanied fiqh from the outset. Indeed, it may be said that it was present even before fiqh, for it comprises laws of derivation, and criteria for weighing different opinions. Despite this reality, the need for codification did not arise in the beginning, for in the time of the Prophet, there was no need to even speak about – let alone, compile – these principles because the ultimate authority was himself alive. As such, there was no impetus for ijtihad or fiqh, and so no real need for methodologies to be articulated or principles to be specified.

After the passing of the Prophet, new and novel circumstances presented themselves which could only be addressed through ijtihad based on the Qur’an and the Sunna, though the jurists among the Companions did not feel the need to speak of the principles of ijtihad, or the different manners of deriving rulings. This was due to their deep knowledge of the Arabic language, its stylistics, and its manner of denotation; their mastery of the secrets and wisdoms of legislation; and their knowledge of the circumstances surrounding the revelation of the various Qur’anic verses and the practice of the Prophet.

Their manner of derivation was as follows: if a situation presented itself, they would seek out the corresponding ruling in the Book of God. If they did not find it there, they would turn to the Sunna of the Prophet. If they still did not find a ruling in the Sunna, they would exert themselves in light of what they knew to be the Objectives of the Shari’a, thereby deriving a ruling, which was then transmitted from them and added to the judgements known from the Book of God and the Sunna of His Prophet. In this process, they did not need to make recourse to specified principles of derivation. Rather, they were helped by the mastery of juristic matters that they had cultivated by virtue of their long companionship with the Prophet, their keen mental prowess, the purity of their souls, the excellence of their discernment, and their understanding of language.

And so the era of the Companions came to an end without the principles of this science becoming codified. Similarly, the Followers (tabi’un) followed the example laid down by the Companions, feeling no need for codification due to the proximity of their lives to that of the Prophet, and their learning at the hands of the Companions.

After the era of the Followers, however, Islam spread to other places, and encountered many new circumstances and novel occurrences. Non-Arabs mixed with Arabs giving rise to a weakness in the Arabic language. Ijtihad increased, as did those who practised it. As a result, their methods multiplied, and discussion and debate predominated, as did doubts and variant interpretations. For these reasons, jurists sensed the need to set down principles and criteria for ijtihad, to which mujtahids could then turn in cases of conflict, and which could serve as measures for proper jurisprudence and sound opinions.

These principles were based on the stylistics and fundamentals of the Arabic language, the objectives and keys of the Sharia, a deep regard for public welfare and interest, and the manner of argumentation and demonstration of the Companions. And from these discussions and principles emerged the science of usul al-fiqh.

So, this science first emerged in its compiled form as discrete principles and maxims scattered amongst the writings of the jurists and their explanations for their rulings. For, the jurist would mention the ruling, its evidence, and the manner of his proof. And so, the differences between the jurists were supported by juristic principles on which they relied to strengthen their respective perspectives and schools of thought, and to explain their sources.

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It is said that the first to write a book in usul al-fiqh was Abu Yusuf, the student of Imam Abu Hanifa, however nothing of his work has made it down to us. This claim is also made of Ja’far al-Sadiq, but neither do we possess any of his works.

The reality according to the scholars is that the first to compile this science and to write an independent treatise on it is Imam Muhammad b. Idris al-Shafi’i (died 204). For he wrote his famous al-Risala, and treated in it standard usuli questions, such as those relating to abrogation, commands and prohibitions, and the status of using singular reports as evidence.

His writing in this work is characterized by precision and depth. He establishes proofs for what he claims, and discusses the opinions of his opponents. Upon completing it, he sent it with his student Abu Surayj al-Naqqal to ‘Abd al-Rahman al-Mahdi. Thereupon, he subjected it to a series of revisions such that there came to be two Risalas. The one that has reached us is “the new Risala,” which has now been published many times.

After al-Shafi’i (may God have mercy on him), Ahmad b. Hanbal wrote a book on obeying the prophet and another on abrogation; however, neither of them are extant.

After this, scholars wrote continuously on the topic, taking to organizing the different topics of discussion, and expanding on them .

Ibn Khaldun says in his Muqaddima: “Known that this is a created discipline, and the early scholars had no need for it. This is because they did not anything more than their standard linguistic capabilities to pinpoint the meanings of words. As for the rules by which legal rulings are specified, the majority of these rulings are taken from them to begin with. With regards to chains of narration, their proximity to the Prophet’s lifetime meant that they did not need them either. When these early scholars died out, and the disciplines of knowledge took on the form of a craft, jurists and mujtahids came to need these rules and principles in order to arrive at rulings from the proofs. And so, they wrote on an independent discipline known as usul al-fiqh. And the first to write in the field was al-Shafi’i, may God be pleased with him, who dictated his famous Risala .”

Modes of writing in usul al-fiqh
The scholars took to writing in the discipline of usul al-fiqh in various ways.

1. The way of the mutakallimun: This approach depends on establishing usuli principles supported, in turn, by rational proofs and first principles, without regard to their accordance with substantive law as transmitted from the early mujtahid Imams. As such, this is a theoretical approach, whose purpose is the setting out the principles of the discipline based on proofs, and making those principles the standards of proof within the discipline and an arbitrator between different interpretations. It is not the handmaiden of the fiqh.

This method is known as the way of the mutakallimin. It was adopted by the Mu’tazila, the Shafi’is, the Malikis and the Hanbalis. It is distinguished by its inclination towards rational proofs, its lack of partisanship between the different madhahib, and the relative infrequency with which matters of substantive law are mentioned – indeed, when they are brought up, it is usually only to provide examples.

Works written according to this approach include: Al-Burhan of Imam al-Haramayn ‘Abd al-Malik b. ‘Abdullah al-Juwayni (d. 413 H); and Al-Mustasfa of Abu Hamid Muhammad b. Muhammad al-Ghazali al-Shafi’i (d. 505 H)

2. The way of the Hanafis: This approach seeks to establish juristic principles based on the substantive law transmitted from the mujtahid Imams. That is to say, these scholars sought to set down the principles they believe their Imams used when they undertook ijtihad to arrive at their respective legal positions.

Hanafis became renowned for adopting this approach, and so it came to be known as “the way of the Hanafis.” It is distinguished by its focus on practice. As such, it may be thought of as a study of the legal rulings adopted by the Imams of the madhahib, and an attempt ot extract the usuli principles they followed and took into account in the process of arriving at those rulings.

This approach makes the usuli principles derivative to the legal opinions of the madhhab, and defends the ijtihads of the Imams of the madhhab. As such, it fits well with the fiqh.

Among the most important works written according to this approach are: al-Fusul, by Abu Bakr Ahmad, known as al-Jassas (d. 370 H), and al-Usul of Fakhr al-Islam ‘Ali b. Muhammad al-Bazdawi (d. 482 H).

3. A hybrid of the two approaches: This genre seeks to reconcile the methods of the two approaches, adopting the distinguishing characteristics of both. It sets out pure usuli principles supported by first principles, so that they may become the standards of derivation and the arbitrator of every opinion and ijtihad-process. At the same time, however, it takes account of the fiqhi opinions transmitted from the Imams, and explains the usuli principles based on these opinions, linking the two together, and subjecting the substantive laws to the theoretical principles.

Scholars from the various madhahib adopted this approach, including the Shafi’is, Malikis, Hanbalis and Hanafis. Some of the most important books written in this style include Sharh al-Tawdih by Sa’d al-Din al-Taftazani (d. 792); Jam’ al-Jawami’ by Taj al-Din al-Subki al-Shafi’i (d. 771); and al-Tahrir by Ibn al-Humam al-Hanafi (d. 861).

The importance of studying usul al-fiqh
Usul al-fiqh is the preeminent science for arriving at a knowledge of the commands and prohibitions of God in His Book and in the example of His Prophet. As Imam al-Ghazali says in al-Mustasfa, “It is a knowledge in which reason and revelation are paired, both acting as sources of equal importance. It is neither based purely on a reason which does not admit the role of revelation, nor only on tradition which cannot be supported by the mind .”

There are many benefits to be had from the science of usul al-fiqh, among which are:

1. The historical benefit:
Through the principles of usul al-fiqh, we come to know in a detailed manner of the perspicacity and capacities of the mujtahid jurists, and their methods of arriving at legal conclusions. Though this is a historical matter, it is undoubtedly of great importance for the umma to be keenly aware of its past so that it may serve as an example to its present and future.

2. The scientific and practical benefits:
From the perspective of the mujtahid, i.e. the jurist tasked with deriving rulings from specific proofs, usul al-fiqh allows him to make reference to principles of interpretation and derivation in undertaking this process. For example, his knowledge of the principle that “a command in the absence of mitigating factors entails obligation” allows him to deduce the obligation of prayer from the words of God, “Establish prayer.” Or similarly, he is able to arrive at the unlawfulness of fornication and adultery from His saying, “Do not approach zina.”

For, as is obvious, “establish prayer” is a command, and since commands entail obligations, the establishment of prayer is an obligation. Similarly, “do not approach zina” is an interdiction, and since interdictions entail prohibition, keeping away from zina indicates a prohibition.

The first premise in each of these proofs is known linguistically, but the second premise is known from usul al-fiqh. As such, without the mujtahid’s knowledge of usul al-fiqh, he would not be able to derive these rulings. This means, that usul al-fiqh is an integral part of the derivation process.

From the perspective of the muqallid, i.e, the one who takes these rulings from the mujtahid, if he studies this science, he comes to know better the manner in which his mujtahid Imam proceeds. With this knowledge, he gains contentment and understanding with respect to the discernment and competence of the Imam he follows. This motivates him to greater obedience and compliance, and cultivates in him the capacity to defend the views of his Imam.

3. The benefit in terms of ijtihad
The science of usul is of the utmost importance in deriving rulings. It sets out for the mujtahid a general system, without which a person encounters simply a scattered collection of texts and proofs without any means of using them appropriately. A person’s need for usul al-fiqh in the face of these materials, therefore, is not unlike a carpenter’s need for knowledge of the basics of his craft, though he may own the tools of carpentry, e.g., a saw and an axe.

At the same time, the specific texts and particular evidences, whose relevance varies from one particular legal issue to another, are an equally necessary element in the derivation process. It is not sufficient to rely exclusively on the common principles that constitute the discipline of usul al-fiqh. Those who attempt to do so, to return to our example above, are akin to those who know the principles of carpentry only theoretically, but do not possess the tools needed to practice their craft. Just as these latter are unable to produce a piece of furniture, the usuli who does not know in detail the particular texts of relevance is unable to embark on the process of deriving rulings. As such, knowledge of both the common principles and the particular texts are prerequisites for the derivation process.

As Imam al-Qarafi says, “He who does not study usul al-fiqh is prohibited from issuing fatwas, for he does not know how to distinguish between different concepts, nor how to restrict and specify general directives .” And Ibn Taymiyya says, “Knowledge of usul al-fiqh is a communal obligation. Some also say that it is an individual obligation for he who seeks to undertake ijtihad, deduce rulings, and issue fatwas. According to Ibn ‘Aqil and others, it is more important than knowledge of the legal rulings (furu’), for the latter are based on the former. According to al-Baqillani, however, knowledge of the legal rulings take priority because they are the very conclusions sought by the science of usul .”

4. The benefit in comparative work:

Comparative work can only be carried out fruitfully by focusing on proofs based on reason, revelation and principles (naql, ‘aql, and usul). In our times, comparative work has taken on enormous importance, whether it is comparisons among the various madhahib (schools of thought), or between the sharia and positive law. In neither case can we ignore the principles of usul al-fiqh, for they rely on proofs-based argumentation and permit us to weigh between different opinions, and to choose the strongest among them. Here we see the importance of usul for the muqallid, for it allows him to weigh between the proofs of his school and those of other schools .

Usul al-fiqh as the logic of law
Logic, as is well known, is the study of how to think well, regardless of the particular science or discipline under discussion. It specifies a general system that must be followed if one’s argument is to be sound. For example, logic teaches us how to prove that Socrates is a mortal, or that an infinite plane is impossible. All such questions are taken up by logic according to standard methods of argumentation, such as the syllogism or induction.

From this perspective, usul al-fiqh resembles logic, except that it deals with a specific science, namely that of law. It directs us how to think soundly in the process of deriving rulings, through a study of the common principles necessary for such a derivation process to be valid. In sum, it teaches how a ruling is extracted from its proofs according to standard methods of evidence. As such, it is appropriate to think of it as “the logic of the legal sciences,” for its relationship to law is that of the relationship of logic to human thinking in general .

Usul al-fiqh and fiqh represent theory and application
Though the mujtahid studies and specifies common principles of interpretation in the field of usul, it is not sufficient for him to thereafter simply gather together arbitrarily the particular texts of relevance from the books of traditions and narrations. Rather, it remains for him to apply the common principles and their general theoretical commitments to these particular texts.

Indeed, application itself is a crucial part of the derivation process, in need of study and examination. No scientific discussion of usul can be had without reference to the issue of application. The legal investigation into the particular texts involved in the process of derivation is not simply a matter of gathering them together, but is rather a matter of applying the general theoretical principles contained in usul. This is a process which requires talent and careful attention, and theoretical precision cannot be attained without due attention to the matter of application. Consider the example of medicine. Though one may study in great depth the general theoretical principles of medicine, he remains in need of close attention and reflection with respect to applying these principles upon the patient under his care.

So, there is a clear interaction between theoretical reflection, on the one hand, and practical, legal thinking on the other. Advances in research on application push forward research on theory, in that they give rise to new problems, which compel the theory to adapt in new ways to resolve them. Similarly, sophistication in the theory of usul is reflected in the field of application – whenever theory gains in sophistication, the question of how to apply it becomes more sophisticated and deep. The history of these two sciences confirms this interaction between the two mentalities – that is, that of the theoretical and the practical – as does a study of their stages of development.

Indeed, the science of usul grew up in the bosom of fiqh, just as fiqh developed in the arms of the science of hadith. Usul was not, in the first instance, independent of fiqh; but, through the development of the latter and an expansion of the horizons of its thinking, general trends of thinking with respect to the process of derivation began to appear. And those working in the field of fiqh began to take note of commonalities within discrete legal derivations – common elements which came to be seen as indispensable. This was the harbinger of the birth of the science of usul, and the move of the legal scholar towards an usuli bent of mind. In due course, usul became an independent science, separate from fiqh in terms of research and writing. It then gradually expanded and grew in richness as a result of the development of both usuli and fiqhi thinking .
Usul al-fiqh between methodology and Islamic philosophy
Usul al-fiqh and the sciences of hadith are two disciplines founded and developed exclusively by Muslims in a manner unprecedented in nations previous to it. Both can be thought of as “methodologies” in the truest meaning of the term. Usul al-fiqh, for example, is the method outlining how to interact with the foundational legal texts. Indeed, the integral components of a scientific methodology are mentioned in the very definition of the science. Take, for example, al-Razi, who defines it in his al-Mahsul as “the opinions of the schools of law, the manner of proving them, and the status of he who embarks on this process.” In this definition, we are able to enumerate the integral components of a scientific methodology as (a) the sources; (b) the methods; and (c) the requirements of the investigator. These are three prerequisites for any science which seeks to distance itself from superstition and subjectivity, and approach objectivity.

If we grant that a methodology is “a philosophy from which emanate particular measures,” the extent of the relationship between usul al-fiqh and the Islamic philosophy becomes clear. For, there is no doubt usul al-fiqh includes an explication of the steps required to interact with proof-texts in order to understand them and then arrive at an evaluation of human action. These are what the usul scholars are concerned with when they discuss al-hukm, “the ruling” . Without doubt, these procedures that constitute usul al-fiqh proceed from a general outlook which are representative of the outcomes of discussions found in Islamic philosophy and theology.

If we further grant that the subject matter of philosophy incorporates three main discussions – ontology, epistemology and ethics – we will see clearly the points of convergence between usul al-fiqh and Islamic philosophy. Indeed, one will consider this philosophy to be the basis of the procedures discussed above (i.e., sources, methods, and requirements of the investigator) .

According to Dr Taha Jabir al-‘Alwani, “We may say that the ‘usuli syllogism’ was an important starting point for the construction of a scientific methodology. Discussions of the different types of legal causes -- especially those that depend on expertise and experience – as well as the modes of conceptualizing, establishing and evaluating arguments, created an opening for human thinking to establish a methodology which later came to be known as the empirical scientific method. This discovery led to a cultural and scientific revolution which brought the world great scientific and technological progress.”

He also says, “The scholars of usul and theology did not speak of a methodology, but they did mention ‘the legal proof,’ defining it as ‘that which permits us to arrive at a desideratum through sound thinking.’ By ‘thinking,’ we mean rational reflection. The truth is that this was precisely the definition of a methodology, after the latter emerged as a concept. The ‘desideratum’ is the conclusion from sound premises, or in the context of fiqh, a sentence that carries an evaluation of an action. As such, when they came to the question of a methodology, they explained it as ‘a clear and sound method which enables one to arrive, through sound thinking, at a new piece of knowledge.’ So, if we compare the definition of “the legal proof” with that of a methodology, we find a deep connection .”

The reality is that the relationship of the scientific methodology to usul al-fiqh is quite strong. To be precise, both are tools for comprehending existence, in the case of the senses and reason, and for comprehending revelation, in the case of the shari’a. According to the Muslims, existence and revelation together – neither of them alone – constitute the sources of ultimate knowledge.

Theories of usul al-fiqh
It is possible for the methodology of usul al-fiqh, and its relationship to the field of Islamic philosophy, to inform the social sciences. To accomplish this, what is required is a distillation of the discipline into what might be called “theories of usul al-fiqh.”

1. Authority: (Al Hujjiyyah)
To start from the beginning, there are some universal questions every human being asks himself. The answers to these are contained in theology, and have primarily to do with the relationship of the person to the world, humanity, and life. Muslims answer these questions by affirming that it is God who created us, that we are to apply His Laws (that is, his commands and prohibitions), and that we will be raised and gathered in an afterlife beyond the life of this world. This worldview undoubtedly has a great influence on even the most mundane parts of an individual’s daily life.

The above has in fact a deep connection with usul al-fiqh, and with its theory of authority. For after settling on the above, the usuli asks himself how precisely we are to apply the laws of God. The answer to this question is that we take the rulings of God from the Holy Qur’an out of consideration for its being a revealed and infallible text, transmitted to us reliably, and out of our belief that it is the word of God, our Creator, and that we are bound to comply with it in our lives, and that the rulings contained within it are the basis of our reckoning on the Day of Judgement.

Through this understanding, we come to see that usul al-fiqh is an extension of theology (‘ilm al-kalam), for if the Qur’an is our foremost source and basis for legislation, it confirms that the Prophet is His messenger, and establishes the need to obey him. As such, the authority of the sunna is based on the authority of the Qur’an, which it comes to clarify and complement.

Thereafter, the usuli asks himself how precisely to understand such an authority. This gives rise to questions about how to understand the specificities of language. However, he then finds that there are matters that are definitively signified and others that are probabilistic, and that the challenges and disagreements about the latter may have significant impact on the shari’a. So, he studies the issues related to ijma’ (consensus) . After all this, he then discovers the need to apply the shari’a to novel circumstances for which there are no explicit texts, and so he learns of the importance of qiyas (analogy), which is the extension of finite proof-texts from the Qur’an and sunna to these new situations.

2. Authenticity:(Al Thuboot)
What is meant here is establishing the authenticity of the sources, for if the Qur’an, the sunna, ijma’ and other sources require transmission and narration, we are bound to confirm their authenticity in our times and that they can be reliably linked to their origins.

This theory is made up of a comprehensive vision which requires oral transmission between transmitters. This in turn demands the creation of a number of ancillary sciences, such as the evaluation of narrators and hadith terminology.

These sciences are necessary for authenticating narrations, for after explaining what counts as authoritative, we are tasked with authenticating these sources. Whereas the authority of the Qur’an and sunna are known primarily and fundamentally from rational proofs, authentication of their transmission through reliable means depend on narrated criteria.

3. Signification: (Al Dilaalah)
After the usuli comes to know that the Qur’an and sources are the authoritative sources, and that the current Qur’anic codex and some books of hadith are authentic, he asks how precisely to read these “linguistic sources” in order to extract from them legal rulings. In answering this question, he finds that language may be divided into two: that which makes a demand, and that which does not (e.g., a question or a sentence that conveys information).

Then, the usuli wonders: What is the relationship between a word and its meaning? And what are the types and categorizations of such relationships? Examples of answers to these questions include distinguishing between the universal and the particular. The universal is that which may apply to many individuals, such as “human”; whereas, the particular cannot, e.g. “Muhammad”.

Alternatively, we may divide the word into (a) that whose referents are equal, such as “human” for all its referents are equal in their humanity; (b) that whose referents are variant, such as “white” for it admits of degrees and variations; and (c) homonyms, a word which has multiple meanings, such as ‘ayn, which in Arabic refers to an eye, a spring, as well as gold.

Or again, we may categorize language into (a) the simple: none of its constituent parts signify any part of the meaning of the whole, e.g. “Zayd”; and (b) the compound, whose parts may in fact signify a part of the meaning of the whole, such as “Zayd’s son.” In this case, each of the words signifies a part of the meaning of the whole.

In addition, there are many other possible categorizations and discussions which bear upon the process of deriving legal rulings.

4. The definitive and the probable: (Al Qat'ee Wal Zanni)
The issue of the definitive vs. the probable falls within the very essence of the theories of authentication and signification. Muslim scholars have spoken of those things which are definitively authenticated, as well as those that signify definitively. In contrast, there are things which are only probabilistically authenticated, and those that signify only probabilistically.

The Qur’an, for example, is definitive in its authentication. The clear verses of the Qur’an and mass-transmitted hadiths are definitive in both authentication and signification. An example of this is the verse: “He must make an offering, such as he can afford, but if he cannot afford it, He should fast three days during the hajj and seven days on his return, Making ten days in all” (al-Baqara: 196). Another is the mass-transmitted tradition on the authority of Abu Hurayra that the Prophet said, “He who intentionally lies against me, let him take his place in Hellfire. ”

Texts may also be definitively authenticated, though they signify their meanings only probabilistically. These are in fact the majority of texts. An example is the verse: “Women who are divorced shall wait, keeping themselves apart, three (monthly) courses” (al-Baqara: 228). Though this is a definitively authentic text, its specification of three “courses” may refer in Arabic either to three periods of purity, or three periods of menstruation. As such, it is only probable in its signification.

As well, texts may be only probable in both authenticity and signification, such as singularly transmitted hadiths. An example is the Prophet’s statement: “None of you are to pray the afternoon prayer until you reach Banu Qurayza. ” Some Companions thought it to be a command, while others understood it as a directive to travel quickly. The Prophet himself approved of both interpretations.

If one understands this, he comes to understand that texts that are definitive in both authenticity and signification are few in number, and that the religion would become unstable if we were simply to leave matters only to them. Disputes between people would be many, as was the case with previous nations. Because of this, scholars came to grant importance to ijma’ (consensus) as an independent source. Many today have lost sight of this, without understanding that ijma’ minimizes disputation in the umma. They think that ijma’ is in fact the origin of the ruling, so they deny it. In fact, they do not seem to understand the matter properly.

5. Extension:(Al Ilhaq)
It is obvious that the texts before us, and the specific circumstances they address, do not encompass all possible scenarios. This is why we need the theory of extension. This theory takes many forms, such as qiyas (analogy) and the application of a universal principle to its particulars.

Through this theory of extension, the usuli can feel content with fatwas he issues in relation to new circumstances, for he is following a divine procedure, not insisting on stagnant readings of the texts. He strives to understand the intent of the Lawgiver, God, and His purposes in revealing legislation. He tries to apply these and bring them to realization among the people, staying away from conclusions at variance with the foundations and principles of the shari’a.

This is why the majority of usulis have said that the procedure of qiyas, though it may be simply permissible rationally speaking, is a legal obligation. Indeed, what the mujtahid arrives at through this process is God’s ruling in the matter.

6. Justification: (Al Istidlal)
By justification is meant an effort to seek out a proof.
Until now, the usuli has come to know that the Qur’an and sunna are the foundational sources of the shari’a; that ijma’ is a task that must be carried out in order to take probabilistic matters into the domain of the definitive, and in order to minimize disputation and unify the umma on common ground; and that extension closes the gap between the limited number of proof-texts and the endless possibilities of real life.
The theory of justification, by contrast, speaks of sources that are disagreed upon, though the usuli has taken it to have an influence in some form or another on the eventual ruling. These are “disagreed upon,” because some scholars have thought all of them legitimate, while some have only taken up some of them, and yet others have rejected them all. These are about 30 sources in total, the most famous of which include: the practice of the people of Madina; the practice of the Companions, public interest and welfare (al-masalih al-mursala), custom (‘urf), juristic discretion (istihsan), and “blocking off the means” (sad al-dhara’i).

7. Issuing fatwas: (al-ifta’)
Issuing fatwas includes a consideration of the Objectives of the Shari’a, favoring some factors over others in the case of contradictions, and the conditions of ijtihad and ifta’. He who undertakes this task must satisfy the relevant conditions, arriving at a ruling which is placed within the framework of the Objectives without transgressing them.

Through this journey of ijtihad, then, which brings the usuli or the mufti to a fatwa representing the verdict of God on the matter under consideration, he passes through several stages, all connected and interlocked. Each of them represents a specific theory of usul al-fiqh. That is to say, he first demonstrates to himself the nature of the sources and authenticates them. Then, he seeks to understand the language contained therein, differentiate between the definitive and the probabilistic in the matter under consideration, and consider the role of consensus in excluding certain interpretations. Finally, he seeks help from the theories of justification and extension as supplements for better understanding and application.

Approaching the study of usul al-fiqh from the perspective of these seven theories brings to light many issues that students may at first glance find extraneous and useless. It also constructs a suitable framework for study and analysis. Thirdly, it serves as a standard on which to base, or correct, opinions about usul al-fiqh. Finally, it facilitates thinking about the discipline in a way which highlights its relationship to the human and social sciences.