Alhassanain(p) Network for Heritage and Islamic Thought

A Short History of Ilm ul Usul al-Fiqh

(The Science of the Principles of Jurisprudence)

A discussion of 'Ilm al-Usul (the science of the principles of Islamic Jurisprudence), including its need, importance, and history.

Author(s): Sayyid Muhammad Baqir al-Sadr

Publisher(s): Islamic Seminary Publications

Table of Contents

Preface 3

The need for ‘Ilm’ul Usul 4

Definition of ‘Ilm’ul Usul 5

The Subject Matter of ‘Ilm’ul Usul 8

’Ilm’ul Usul is the Logic of ‘Ilm’ul Fiqh. 9

Notes 11

The Importance of ‘Ilm’ul Usul in the process of Deduction  12

Usul and Fiqh Represent the Theory and its Application. 12

Interaction Between the Thinking of ‘Ilm’ul Usul and that Of ‘Ilm’ul Fiqh. 14

Examples of Questions Answered by ‘Ilm’ul Usul 16

Permissibility of Istinbat 16

The Meaning of Ijtihad. 17

The Main Sources of Proving Validity in ‘Ilm’ul Usul 22

Text of the Qur'an or the Sunnah. 23

Intellectual Discernment 23

Contradictory Tendencies Regarding Al-Idrakul ‘Aqli 25

Struggle Against the Unqualified use of Reason. 25

Contrary Reactions in Sunni Theology. 29

The Struggle in Defence of Reason. 30

The History of ‘Ilm’ul Usul 33

The Historical Necessity for ‘Ilm’ul Usul 36

Works on ‘Ilm’ul Usul 38

The Development of the Knowledge of Theory and of its Application by Shaykh Tusi 40

Relative Stand Still in Knowledge 44

Ibn Idris Describes the Period of Stagnation. 49

Renewal of Life and Vitality in Academic Research. 49

From the Author of Al-Sara’ir to the Author of Al-Ma’alim. 51

The Shock Experienced by ‘Ilm’ul Usul 54

The Alleged Roots of the Movement of the Akhbaris 57

Trends of Writing in that Period. 58

Research on ‘Ilm’ul Usul in that Period. 59

The Victory of ‘Ilm’ul Usul and the Emergence of a New School 60

Text Depicting the Struggle with the Akhbari Movement 61

Summary. 61

Notes 63

Sources of inspiration for thinking on ‘Ilm’ul Usul 64

The Endowment of Thinking on ‘Ilm’ul Usul and its Originality. 67

Notes 70

Laws of the Shari’ah and their categories 71

Division of Laws into Positive (Taklifi) and Situational (Waz'i) 71

Subdivisions of Positive Laws 72

Preface

In the Name of Allah, the Beneficent, the Merciful

The subject under discussion is the knowledge of the Principles of Jurisprudence (Usul’ul Fiqh ). The study of Principles of Jurisprudence is tantamount to a preparation to the study of Jurisprudence.

The knowledge about the Principles of Jurisprudence is more profound than the knowledge of Jurisprudence itself. The relationship between the study of Jurisprudence and its Principles is the same as it is between the study of Logic and Philosophy.

For example, everybody knows that the price of a certain commodity shows an upward trend while that of another remains static. This knowledge is superficial but the knowledge as to why the prices show an upward trend is a deep-rooted knowledge. The Holy Qur'an and the Sunnah of the Holy Prophet gives us precise commandments and edicts to adhere to the teachings of Islam in every walk of life; but all of these commandments have not been explained in detail.

It has been so because events and situations pertaining to relevant human activity and behavior vary; but to arrive at conclusions regarding various general rules and regulations, a guideline in the form of principles has no doubt been laid down.

Hence, the study of the Principles of Jurisprudence viz. the principles of deducing laws has become very important as well as a fascinating subject. The work on this subject started from the second century of the Hegira with a view to making correct deductions from Islamic injunctions for practical purposes.

In short, the Principles of Jurisprudence is the study of those rules that are used in deducing Islamic laws from the Book of Allah (Qur'an) and the Traditions of the Holy Prophet (Ahadith ).

Publishers

The need for ‘Ilm’ul Usul

A man who believes in Allah, Islam and the Islamic law and who knows that being a slave of Allah, the Almighty, he is accountable to Him for all his actions, has no alternative but to lead his life in every respect in accordance with the law of Islam. His common sense demands that he should base all his personal actions as well as his relations with others on Islamic teachings, and for all practical purposes take that position which his knowledge of himself that is the knowledge that he is a slave of Allah and has to obey the law sent by Him to His Prophet, enjoins upon him.

In view of this, it is essential that in his practical life man should know clearly what he should do and what he should not.

Had all the injunctions of Islam been quite clear and easy to understand, everybody could determine himself what he should do in a given case.

Everybody knows that it is his duty to follow the Islamic law. He has to do whatever has been enjoined by it and has to refrain from whatever has been declared improper by it. As for the acts which have been declared permissible, he is at liberty to do or not to do them, Therefore if all the rules of Islamic law as to what is obligatory, forbidden and permissible were clear and definitely known, there would have been no doubt regarding the practical attitude that a man should take to observe the Islamic law in any given situation. In this case, there would have also been no need of any wide scale research or study.

But owing to many factors including our remoteness from the time when Islamic law was enunciated, in many cases the religious instructions are not very clear and appear to be complicated. Consequently in these cases it is very difficult for a layman to make a decision based on the understanding of Islamic law.

Naturally a man, who does not know whether a particular act is obligatory, forbidden or permissible according to Islamic teachings, cannot be sure what practical attitude he should adopt in regard to that particular act.

For this reason it is necessary to set up a science that may look into each and every case and state with proof what practical attitude one should adopt in regard to it according to the Islamic law.

The science of jurisprudence has come into being for this very purpose, it determines and specifies the practical attitude in each specific case in accordance with Islamic Law. This specification is supported by arguments and proofs. The jurist endeavors to find out a rule of law for every occasion and every incident in life, It is this process which is technically calledIjtihad .

To find out the rules of law actually means the delineation of practical attitude towards Islamic law. This delineation is substantiated by means of supporting arguments. By practical attitude we mean the faithful observance of the law of Islam, which is the duty of everybody.

Hence the science of Islamic jurisprudence means the science of the arguments adduced in support of the fixation and delineation of practical attitude towards every specific situation in conformity with the shariah (Islamic law), the faithful observance of which is our obligatory duty. The

fixation of practical attitude through arguments is what we callIstinbat (deduction) in the matter of Islamic law.

Thus it may be said that the science of Islamic jurisprudence is the science of deducing the rules of Islamic law; in other words, it is the knowledge of the process of deduction. The science of jurisprudence uses two methods to determine the practical attitude by means of a proof that removes any ambiguity or complexity from it:

1. Indirect Method: That means proving a rule of law by discovering that it has been specifically prescribed by Islam and thus fixing clearly the practical attitude enjoined on man by his duty in regard to the observance of Islamic law. If we can prove that a certain action is obligatory, we can be sure what our attitude should be to it and can know that we must take that action.

2. Direct Method: In this method a proof is adduced to determine the practical attitude, but not through the discovery of a clear decision in a particular case, as we I observed in the indirect method. Here we cite a direct argument to determine what the practical attitude should be. This is done in the case in which we are unable to find a firm legal decision and do not know whether a particular act according to the Islamic law is obligatory, forbidden or permissible.

In this case we cannot successfully employ the first method in the absence of enough legal proof, but have to resort to other arguments which may help us in determining our practical attitude and in deciding what we should do so that we may be able to follow the teachings of Islam earnestly and may not be slack in our duty which Islam has imposed on us.

In both these methods the jurist deduces the rules of Islamic law and fixes the attitude to be taken vis-à-vis the Islamic law. He adduces a proof to support his opinion either in a direct or an indirect way.

The process of deduction in the science of Islamic jurisprudence is so vast that it covers every event and every happening in human life. A rule has to be deduced to cover every eventuality and every occasion. For this purpose the jurist employs the above-mentioned two methods.

It is this process of deduction which comprises the science of jurisprudence, and in spite of its multifold variety consists of a number of common elements and general rules, which put together, form the basis of the process of deduction, which constitutes the science of jurisprudence.

The common elements forming the basis of deduction require the institution of a special science for their study and processing to meet the requirements of jurisprudence. This science is called‘Ilm’ul Usul’ul Fiqh (the science of the principles of jurisprudence).

Definition of ‘Ilm’ul Usul

On this basis‘Ilm’ul Usul (the science of the principles of Islamic jurisprudence) may be defined as the science dealing with the common elements in the procedure of deducing Islamic laws. In order to grasp this definition it is essential that we know what are the common elements in the procedure of deduction (Istinbat ).

Now let us cite a few examples of this procedure so that through a comparative study of these, we may arrive at the idea of the common elements, in the procedure of deduction.

Suppose, for instance, that a jurist faces the following questions and wishes to answer them:

1. Is it prohibited for one who is fasting to immerse himself in water?

2. Is it obligatory on an individual who inherits wealth from his father to pay its khums?

3. Does prayers become null and void because of laughter during that time?

If the jurist wants to reply to the first question, for example, he would say, “Yes, immersion in water is prohibited for one who is fasting''. The jurist derived this law of Islam by following a tradition narrated by Ya'qub ibn Shu'ayb from Imam Ja'far Sadiq (a). “Imam Sadiq (a) said, neither a mohrim (one in the state of ehram, i.e. ready for pilgrimage) nor one who is fasting should immerse himself in water”. A sentence framed in this way indicates, in common parlance, according to philologists, to prohibition. The narrator of this tradition, Ya'qub ibn Shu'ayb, is reliable and trustworthy.

And although a reliable and trustworthy narrator may, in rare cases, err or deviate (since he is not infallible), the Almighty Law-giver has prohibited us from attributing error and deviation to any reliable and trustworthy narrator, and has declared such narrations to be taken as true. He has also ordered us to follow them without paying any attention to the slight possibility of error or deviation. Thus the conclusion is drawn from the above that immersion in water is prohibited (haram) for one who is fasting, and theMukallaf (responsible person in the eyes of Islamic law) must abstain from it while fasting in accordance with the law of Islam.

The jurist will reply to the second question in the negative, i.e. that it is not obligatory for a son to pay khums on the legacy (received) from his father, because there is a tradition in that behalf, narrated by Ali ibn Mahziyir, in which Imam Sadiq (a) has defined the kinds of wealth on which the payment of khums is obligatory. In common parlance this sentence clarifies that the Almighty Law-giver has not imposed khums on legacies that are transferred from father to son. Although the possibility exists that the narrator, in spite of his reliability and trustworthiness, may have erred, the Almighty Lawgiver has ordered us to follow the narrations of the reliable and trustworthy narrators, and to disregard the slight possibility of error or deviation on his side.

Thus theMukallaf is not bound to pay khums on wealth inherited from his father, according to the Islamic law. The jurist will reply to the third question in the affirmative i.e. “Laughter nullifies prayers”. This reply is based on the tradition narrated by Zurarah from Imam Sadiq who says, “Laughter does not invalidate ablution (wuzu ) but it invalidates prayers”. In common parlance, this would mean that a prayer (salat) in which laughter occurs will be deemed null and void, and will have to be repeated obligatorily.

In other words this means the nullification of the prayer. And the narration of Zurarah falls among those which the Almighty Law-giver has

commanded us to follow and for which He has given clear and revealing proofs. Thus it is obligatory on the worshipper, according to the Islamic law, to repeat the prayers in which laughter occurred, as that is required of him by the Islamic law.

By examining these three juristic standpoints we find that the laws, which the jurist derived, belong to different categories. The first concerns fasting and the one who fasts; the second khums and the economic system of Islam; and the third prayer and some of its limits. We also see that the proofs on which the jurist relied are all different. Regarding the first law he relied on the narration of Ya'qub ibn Shu'ayb, for the second on that of Ali ibn Mahziyar and for the third, on that of Zurarah. Each of these narrations has its own text and special verbal construction, which is essential to study in depth, and to clearly define. However in the midst of this variety and these differences in the three standpoints, some common elements are found in all the three cases. These common elements were utilized by the jurists in all the three procedures of deduction.

Among those common elements is the recourse to common parlance (al-'Urf al-'Am) to understand a text (al-Nass).1 Thus the jurist relied for his understanding the text in each case on the manner in which the text would be understood in general usage. This means that general usage is a valid proof and a competent source in fixing the exact meanings of words. In terms of‘Ilm’ul Usul , it is calledHujjiyah al-Zuhur al-'Urfi ,2 or the validity of general usage as a proof. SoHujjiyah al-Zuhur al-'Urfi ' is a common element in the three procedures of deduction.

Similarly, another common element is found and that is the command of the Almighty Law-giver, to accept and follow the narrations of the reliable and trustworthy narrators. The jurist in each of the three cases of deduction discussed and came up against a text transmitted by a reliable and trustworthy narrator. In those texts the possibility of error and deviation exists, since the narrators were not infallible. However, the jurist disregarded this possibility, nay, ignored it completely, on the basis of the command of the Almighty Law-giver to accept and follow the narrations of the reliable and trustworthy narrators.

To this common element we give the name Hujjiyahtul Khabar or the validity of a reliable transmitted text as proof. ThusHujjiyahtu'l Khabar is a common element in all the three cases of deduction discussed above. Had it not been so, it would have been impossible for the jurist to derive the prohibition of immersion in water in the first case, or that the payment of khums being not obligatory in the second case or the nullification of prayers by laughter in the third instance.

Thus, we arrive at the conclusion that the procedure to deduce the law consists of particular as well as common elements. By “particular elements” we mean those elements that vary from case to case. Thus the narration of Ya'qub ibn Shu'ayb is a particular element in deriving the prohibition of immersion in water (for one who is fasting) because it does not enter into other operations of deductions. In such case other particular elements take its place as for example, the narration of Ali ibn Mahziyar and Zurarah. By “common element” we mean the general rules which enter into different

operations of deduction on a variety of subjects, as are the elements ofHujjiyah al-Zuhur al-'Urfi andHujjiyahtu'l Khabar .

In‘Ilm’ul Usul the common elements are studied in the process of deduction which are not confined specifically to anyone legal problem. And in ‘Ilm’ul Fiqh (the science of jurisprudence) the particular elements are studied in each case of the process of deduction that concern that legal problem particularly.

Thus, it is left to the jurist to scrutinize meticulously, in every legal problem, the particular narrations, which are connected with that problem and to study the value of those narrations and to endeavor to understand the texts and words in the light of common parlance. On the other hand, the specialist in‘Ilm’ul Usul deals with the examination of the validity of common parlance in itself as a proof (i.e.Hujjiyahtu'l 'Urf al-'Am ) and of the validity of a reliably transmitted text as a proof (i.e.Hujjiyahtu'l Khabar ). He poses questions along the following lines: Is common parlance valid proof? What are the limits within which recourse to common parlance is obligatory'? On what evidence is the validity of a reliably transmitted text established as a proof? What are the general conditions in a reliably transmitted text by virtue of which the Almighty Law-giver confers upon it the status of validity as a proof and deems it as acceptable evidence? And there are other such questions pertaining to the common elements in the process of deduction.

In this light we can conclude that‘Ilm’ul Usul is the science dealing with the common elements in the process of deduction. It is the science which discusses the elements which enter into different cases of deduction to derive laws on a variety of subjects, as, for example, al-Zuhur al-'Urfi andal-Khabar as a proof are two common elements which were relied upon in the derivation of the laws concerning fasting, khums and prayers (as discussed above).

‘Ilm’ul Usul does not only define the common elements but it also fixes the degrees to which they may be used in the process of deduction and the inter-relationships existing between them, as we shall see in the forthcoming discussion. It is through this that the general system of deduction is established.

Hence, we deduce that‘Ilm’ul Usul and ‘Ilm’ul Fiqh are inter-connected in the process of deduction. ‘Ilm’ul Fiqh deals with the process of deduction whereas,‘Ilm’ul Usul deals with the common elements in the process of deduction. A jurist delves into ‘Ilm’ul Fiqh and endeavors to derive a law of theShari’ah by adding the particular elements for that case in a legal discussion to the common elements obtained in‘Ilm’ul Usul . A specialist in‘Ilm’ul Usul , on the other hand, studies the common elements in the process of deduction and places them at the search of the jurists.

The Subject Matter of ‘Ilm’ul Usul

Every branch of knowledge usually has a basic subject matter on which all its discussions are centered and around which they revolve, aiming to discover the characteristics,

conditions and laws pertaining to the said subject matter. Thus, for example, the subject matter of physics is nature and the discussions and

researches of physics are all connected with nature, so we attempt to discover natural conditions and natural laws. Similarly the subject matter of grammar is the word, as it discusses the various cases and conditions of words. Thus the question arises, as to what is the subject matter of‘Ilm’ul Usul to the study of which we devote all our attention, and around which all its discussions revolve.

If we keep in mind the definition which we have mentioned above, we conclude that‘Ilm’ul Usul in reality, studies the same process of deduction which the jurists study in ‘Ilm’ul Fiqh , and all the discussions of‘Ilm’ul Usul are connected with the close examination of this process and also bringing out their common elements. Thus the process of deduction is the subject matter of‘Ilm’ul Usul , in view of its being a science of studying the common elements which enter into processes, such as, the validity of al-Zuhur al-'Urfi andal-Khabar as proofs.

’Ilm’ul Usul is the Logic of ‘Ilm’ul Fiqh

Your knowledge of logic would no doubt permit us to cite the science of logic as an example in discussing‘Ilm’ul Usul . As you know, the science of logic studies, in reality, the process of thinking, whatever may be its kind or scope or academic field, and establishes a general system that must be followed by the process of thinking in order that it should be correct. For example, the science of logic teaches us how we must proceed in reasoning, in view of its being a process of thinking, in order that our reasoning be correct. How do we prove that Socrates is mortal? How do we prove that the sum of the angles of a triangle is equal to two right angles? How do we prove that a lunar eclipse is caused by the earth coming in between the sun and the moon?

The science of logic replies to all these questions through the general methods of reasoning like analogy and induction, which apply to these different fields of knowledge. Thus the science of logic is the science of the very process of thinking as it lays down the general methods and elements for it.

From this angle,‘Ilm’ul Usul resembles the science of logic apart from its discussing, a special category of thinking i.e. the process of legal thinking to derive laws.‘Ilm’ul Usul studies the general common elements which the process of deduction must include and be in conformity with, in order to arrive at correct deduction, the conclusions, which the jurists will accept. Thus‘Ilm’ul Usul teaches us how we derive the rule of immersion in water for one, who is fasting, How do we derive the rule of purifying a thing with the water of a cistern i.e. Kur.3

How do we derive that the Idd prayers are obligatory? How do we derive the prohibition of defiling a masjid? How do we derive that a sale affected through coercion is null and void? All these questions are clarified by‘Ilm’ul Usul by setting up general methods for the process of deduction and pointing out the common elements in it.

Thus, we can call‘Ilm’ul Usul “the logic of ‘Ilm’ul Fiqh ” because the former plays an active part in ‘Ilm’ul Fiqh analogous to the positive role performed by the science of logic in different sciences and in human thought

generally. On this basis it is the logic of ‘Ilm’ul Fiqh , or in other words, “the logic of the process of deduction”.

We conclude from all this that ‘Ilm’ul Fiqh is the science of the process of deduction and‘Ilm’ul Usul is the logic of that process, which brings out its common elements, and establishes a general system on which ‘Ilm’ul Fiqh must rely.

Notes

1. By al-Nass or text here, we intend the words transmitted from the infallible Prophet or Imam.

2. In the terminology of ‘Ilm’ul Usul, Hujjiyah means the validity as a proof to justify the master punishing his servant if he had not acted according to it and to justify the servant seeking release from punishment by his master if he had acted thereby. So every proof having this dual capacity is deemed as Hujjah in the terminology of ‘Ilm’ul Usul. Apparent words of the master belong to this category. That is why it is called Hujjiyah.

3. 1 Kurr means water which takes 27 cubic span space (3x3x3). It is better to make it 42 -78 cub. ft. Note: 1 span = 9 inches.

The Importance of ‘Ilm’ul Usul in the process of Deduction

After the above discussion, we are no longer in need of stressing the importance of‘Ilm’ul Usul and the significance of its role in the sphere of deduction, because, as long as it presents its common elements and lays down a general system for it, then, it is the backbone of the process of deduction, and its guiding force. Thus, without‘Ilm’ul Usul , an individual would confront in jurisprudence scattered heaps of texts and evidences, without being able to use, or benefit from them through deduction. This is similar to a man who is given the tools of carpentry like a saw and an axe, and who does not know the head or tail of the techniques of carpentry and the method of utilizing those tools.

Just as the common elements, which‘Ilm’ul Usul studies, are essential for the process of deduction, similarly the particular elements which vary from one legal problem to another, like the scattered terms and expressions of the Qur'an and the Riwayat (Traditions), which constitute these particular varying elements in the process of deduction, attribute to other essential parts, without which deduction is not possible. And a mere knowledge and comprehension of the common elements which‘Ilm’ul Usul describes will not suffice for the success of deduction.

Also, anyone attempting the process of deduction on the basis of only the knowledge given by‘Ilm’ul Usul , is similar to one possessing the general theoretical knowledge of carpentry but not having before him any axe, saw or other tools of carpentry. Just as the latter will be unable to build a wooden bed, for instance, the former will be unable to carry out deduction unless he examines and scrutinizes the varying particular elements as well.

Thus, we come to know that the common elements and the particular elements are two conjoint poles of the process of deduction and both are indispensable for it. It is therefore incumbent upon anyone attempting the process of deduction to study the common elements as defined by‘Ilm’ul Usul and then to add to it the particular elements, obtained from studies of ‘Ilm’ul Fiqh , so that he may complete the process of deduction which occurs in ‘Ilm’ul Fiqh .

Usul and Fiqh Represent the Theory and its Application

We are afraid that we may have given you a wrong idea when we said that he, who is attempting to carry out deduction must study in‘Ilm’ul Usul , the common elements and define them and then take the particular elements from ‘Ilm’ul Fiqh , so that he may complete the process of deduction. This is because some may thereby feel that once we have studied the common elements in the process of deduction from‘Ilm’ul Usul and we come to know, for example, the validity ofal-Khabar and of al-Zuhur al-'Urfi as proofs, as well as other such common elements, there would be no need of any further intellectual exertion on our part, and that we would need nothing further after possessing those elements, than to merely extract the traditions and valid texts where they are located just as one extracts the date of the Battle of Khaybar or the reports about the Hejra (migration of the Holy Prophet (p) from Mecca to Medina) from the biographies of the Prophet.

Thus the job of the jurist in ‘Ilm’ul Fiqh would be confined to merely searching for the particular elements from the traditions and valid texts, so that these may be added to the common elements, and he may derive from them the laws of theShari’ah . And this would be an easy and simple task in view of its needing no intellectual effort. The result of it would be that the intellectual effort exerted by the Mujtahid in the process of deduction would be represented by laying down the common elements and their systematization and study in‘Ilm’ul Usul , and not in gathering the particular elements from the valid texts, traditions and other sources in ‘Ilm’ul Fiqh .

The above conception is, to a large extent, misleading because the Mujtahid, after studying the common elements in the process of deduction and defining them in‘Ilm’ul Usul , is not contented with blindly collecting the particular elements from the books of traditions (Ahadith ) and narrations, for example; but it remains for him, in ‘Ilm’ul Fiqh , to apply those common elements and their general theory to the particular elements; and application is an important intellectual task which naturally requires careful study and thorough examination. The intellectual effort spent in‘Ilm’ul Usul in studying the common elements and formulating their general theory cannot dispense with the fresh effort required for drawing conclusion.

We are not, at this juncture, able to present a variety of examples to show clearly the effort needed for the process of application, because the understanding of those examples would depend on a prior knowledge of the general theories of‘Ilm’ul Usul . Therefore presenting one simple example however shall suffice.

Let us suppose that the Mujtahid has accepted in‘Ilm’ul Usul the validity of al-Zuhur al-'Urfi as a proof, together with its being a common element in the process of deduction. Will it then suffice to place his finger on the narration of Ali ibn Mahziyir (which established the scope of khums), for instance, then to add it to that common element and to derive from it a law that khums is not obligatory on wealth inherited from one's father?

Is not the Mujtahid, in need of scrutinizing the meaning of the text in the narration to come to know the kind of meaning given to it in general usage, and of studying everything that is connected with establishing al-Zuhur al-'Urfi, like the different contexts and characteristics, both within and without the framework of the text so that he may be able to honestly apply the common element expressing the validity of al-Zuhur al-'Urfi as proof? Thus in this example, after discovering the common element and accepting al-Zuhur al-'Urfi as proof there yet remains the difficulty of fixing the nature of al-Zuhur in the text, and of studying its relations and contexts, until the Mujtahid is sure that he has established al-Zuhur in the valid text and its proving positively the non-obligation of khums on inherited wealth, apply to the text the general theory established by the common element stating the validity of al-Zuhur al-'Urfi as proof, and he deduces from it the law that Khums is not obligatory in such a case.

In the light of the above, we come to know that the legal study to arrive at the particular elements in the process of deduction is not merely a matter of collection, but its scope goes further in applying the general theories

established by the common elements in the process of deduction. And the application of general theories always has its own difficulties and endurance, and mere struggle in the general theories does not dispense with the endurance needed in their application. Do you not see that one who studies in depth the general theories in medicine, stands in need of thoroughness, alertness, caution and deep thinking in the field of their application, in addition to examining the pathological symptoms, so that he may properly apply those theories to the patient under his care?

Thus the studies of the specialist in‘Ilm’ul Usul concerning the common elements and the general theories laid down, resemble the studies of a physician concerning the general theories in medicine. And the studies of the jurist concerning the particular elements in the field of applying those general theories are like the studies of the physician concerning the symptoms of the patient in the field of applying those general medical theories to him. And just as the physician stands in need of a great degree of research work so that he may apply those general theories to the patient correctly and bring about whatever cure is possible, similarly the jurist, after completing the study of‘Ilm’ul Usul concerning the common elements and the general theories, and after confronting a problem in the sphere of legal research and studies (like the problems of khums, or fasting, etc.) stands in need of deep thinking about how to apply those common elements correctly to the particular elements in the problem mentioned before.

Thus, we come to know that‘Ilm’ul Usul , which describes the common elements, is “the science of general theories”; while ‘Ilm’ul Fiqh , which consists of the particular elements, is “the science of applying those theories in the field of the particular elements”. Each of them demands research and special intellectual effort.

Deduction is the result of the blending of the theories with their application, i.e. of the common elements with the particular elements. This process of blending is the process of deduction. The research needed in formulating the general theories does not dispense with the exactness required in applying them during the process of deduction.

The Second Martyr, Zaynuddin Jabal Amili, has referred to the importance of this application in the field of law and what it demands of exactness in his book of “laws”, is as follows, “Yes, together with that (with formulating general theories) it is stipulated that he has the power and ability to refer the derivative matters to their original sources and to draw conclusion from it and this is the basic issue of this chapter…. And that power is in the Hands of Allah and because of its important role, He bestows it on whomsoever He pleases from among His servants, in accordance with His wisdom and purpose, to those who strive hard and are capable”.

Interaction Between the Thinking of ‘Ilm’ul Usul and that Of ‘Ilm’ul Fiqh

We have come to know that‘Ilm’ul Usul plays the role of logic in relation to ‘Ilm’ul Fiqh and that the relationship between these two is the relationship of theory to its application, because‘Ilm’ul Usul formulates the

general theories by establishing the common elements in the process of deduction, while ‘Ilm’ul Fiqh applies those theories and common elements to the particular elements, which vary from problem to problem.

The strong mutual bond between‘Ilm’ul Usul and ‘Ilm’ul Fiqh explains the reciprocal interaction between the outlook of the former (i.e. the standard of intellectual research at the level of theory) and the outlook of the latter (i.e. the standard of intellectual research at the level of application). This is because, any extension of the researches on application would advance the researches on theory a step forward, owing to the fact that such an extension would raise new difficulties before it and would compel‘Ilm’ul Usul to formulate general theories to solve those difficulties. Similarly, the accuracy and thoroughness needed in research in theory is reflected at the level of application, and as the theories become more subtle, they demand greater probe, depth and comprehension for their application.

The history of these two branches of knowledge,‘Ilm’ul Usul and ‘Ilm’ul Fiqh , emphasizes the mutual interaction between their outlooks and levels of thought all along the line, and reveals clearly the various stages through which these two have passed in the history of knowledge.‘Ilm’ul Usul has expanded and extended gradually following extensions in the studies of ‘Ilm’ul Fiqh . Since extensions at the level of legal application directed the attention of those making the application to new difficulties.

And the suitable solutions laid down for these difficulties took the form of common elements in‘Ilm’ul Usul . Similarly abstruseness in the common elements in‘Ilm’ul Usul and establishing their well-defined limits were reflected at the level of application, since every time the general theories were expressed in more difficult and subtle forms, they become more complex and demanded greater care and attention at the level of application.

We cannot, at this juncture, present any examples from these two branches of knowledge to show their interaction, as we are in the first stage, and the student does not, as yet possess enough knowledge about the researches of‘Ilm’ul Usul . Hence, it is enough for the student, at present, to know that the interaction between ‘Ilm’ul Fiqh and‘Ilm’ul Usul is one instance of the long line of interaction in many fields, between the studies on the theories and on their application. Does not the application of medical theories by the physician on his patients on a large scale, continuously present new difficulties to him?

And do the studies on general medical theories not come up with solutions for such difficulties? Do these theories not then become gradually more complex? Is this greater complexity then not reflected in future applications? And as the number of theories increased for the physician so did application become a greater task for him. All of us know that the physician of the past years was content in the field of application with checking the pulse of the patient, and thus his task was over in a few moments. However, today, the physician continues to study the condition of the patient through a complex and extensive procedure.

The same phenomenon of mutual interaction between the outlooks of ‘Ilm’ul Fiqh and‘Ilm’ul Usul , (the latter plays the role of logic in relation to the former) is found between the generalized academic thinking and the

general outlook of logic, which studies the fundamental system of human thought. Every time the scope of human knowledge widens and its fields offer greater variety, new difficulties arise in the way of putting forward proofs in the general system of thought.

Logic then attempts to overcome these difficulties and to develop and perfect its theories in such a way as to preserve for itself the supreme power of directing and systematizing human thought. In any case this concept of interaction, whether it be between ‘Ilm’ul Fiqh and its special logic, as represented by ‘Ilm’ul Fiqh , or between all branches of knowledge and general logic, or between the studies on any theory and the studies on its application, requires greater clarification and explanation. At present, we do not intend to refer to that concept, but to arouse the mind of the student, even if it may be by a brief description given above.

Examples of Questions Answered by ‘Ilm’ul Usul

For the benefit of the student who does not possess information about the studies and researches of‘Ilm’ul Usul , it is best that we present a list consisting of examples of the questions which are considered to be solved by‘Ilm’ul Usul , in order to (depict, in a practical form, the importance of the role it plays in deduction.

1. What is the evidence for the validity of the narration of a reliable and trustworthy person as proof?

2. Why is it obligatory that we explain legal texts in the light of general usage?

3. What do we do if we come across a problem for which we find no evidence that reveals the nature of the law of theShari’ah relating to it?

4. What is the value of the majority in a legal problem? And is a particular view ofShari’ah generally bound to be accepted if its exponents are many in number?

5. What do we do if we come across two texts, the meanings of which are not in agreement (with each other)?

6. What should be our stand-point if we had previously been certain about a given law of the Shari 'ah and then doubts arise about its continuing to hold good?

7. What are the words that clearly and directly indicate obligation? And are they to be considered as imperative like the following “Take a bath!” “Perform ablution!” “Offer prayers!”.

And so on numerous questions‘Ilm’ul Usul answers, and establishes thereby the common elements in the process of deduction and fills every gap which it is possible for a jurist to face in the process of deriving a law of theShari’ah , i.e. of deduction.

Permissibility of Istinbat

In the light of what has preceded, we have come to know that‘Ilm’ul Usul plays the role of logic in relation to the process of deduction, because it consists of the common elements of the latter and expresses them as general laws in a comprehensive system. Therefore no individual should attempt to carry out the process of deduction without first studying‘Ilm’ul Usul .

Since‘Ilm’ul Usul is so closely connected with the process of deduction, we must first of all know the viewpoint of theShari’ah about this process. Firstly, has the Almighty Law-giver permitted anyone to carry out deduction? If He has permitted it then it is reasonable that the branch of knowledge called‘Ilm’ul Usul be established to study the common elements of deduction. However, if He has prohibited it, then deduction would be null and void, and consequently‘Ilm’ul Usul would be null and void since this branch of knowledge was developed in order to make deduction possible. Thus if there were no deduction, there would be no need of‘Ilm’ul Usul , because it would thereby lose its raison d'etre (purpose). Thus it is essential that we study this point in a fundamental form.

In fact, this point the question of the permissibility of deduction, when it is submitted for study in the form in which we have presented it does not appear worthy of serious thinking and intellectual research. This is because if we ask ourselves, “Is it permissible for us to carry out the process of deduction? ' the answer is in the affirmative, because deduction, as we have come to know in the foregoing, consists of “the delineation of the practical stand-point vis-à-vis the Shari 'ah through valid evidence and proofs”. Obviously man, by virtue of his subordination to theShari’ah and of the obligation on him to obey its laws, is compelled to delineate the required practical standpoint. And since the laws of theShari’ah are mostly not obvious and clear to the extent that setting out proofs can be dispensed with, it is reasonable that the delineation of the practical stand-point through valid evidence and proofs would not be prohibited to the whole of mankind, and they would be forbidden to examine the proofs which delineate their stand-point vis-à-vis theShari’ah . Thus the process of deduction would be not only permissible, but it is also essential that it should be adopted. This necessity arises from man's subordination to theShari’ah and any dispute about that would be at the level of a dispute about self-evident truths.

However, it happens that this point has, unfortunately, taken up a new form, which is not free from ambiguity and confusion, and has on that account become the cause of differences. The word “Ijtihad ” has been used to express the process of deduction and the question arises. IsIjtihad permissible in theShari’ah ? Since this word “Ijtihad ” is under discussion (and it is a word that has been given a variety of meanings during its history) it has projected all those previous meanings into the discussion. This has resulted in a group of our modern 'Ulema’ replying to the question in the negative, and consequently condemning the whole of‘Ilm’ul Usul , since it is needed because ofIjtihad , and ifIjtihad is null and void, then there remains no need for‘Ilm’ul Usul .

By way of clarifying that point, we must mention the development undergone by the wordIjtihad to show that the dispute that has arisen over the process ofIjtihad and the outcry against it, are nothing but the result of a superficial understanding of the academic term “Ijtihad ”, and of a disregard of the development it has undergone.

The Meaning of Ijtihad

Literally “Ijtihad ” is derived from the word Juhd and means “doing one's utmost to perform any action whatsoever”. This word was first used in the

field of jurisprudence to express one of the rules laid down by the Sunni schools ofFiqh , following their founding. This rule states that, “When a jurist wants to derive a law of theShari’ah and he doesn't find any text referring to it in the Qur'an and the Sunnah, he should have recourse toIjtihad in lieu of such a text. HereIjtihad means “individual thinking”. Thus a jurist not finding any valid text would resort to his specific individual thinking or Divine inspiration and would base laws of theShari’ah on the basis of his thinking. This process is also expressed by the term Ra’y (opinion).

Ijtihad , in this meaning, is the expression of one of the proofs used by a jurist and one of his sources of law. So just as a jurist relies on the Qur'an and the Sunnah and uses them as proofs and evidence, similarly he relies on his ownIjtihad and uses it as proof and evidence in cases where there are no suitable texts.

The major schools of SunniFiqh have proclaimed this meaning ofIjtihad , and at their head is the school of Abu Hanifa. At the same time tough opposition was met from the Imams of the Ahlul Bayt and the jurists attached to their schools of thought as we shall come across in the forthcoming discussion.

An examination of the word “Ijtihad ” shows that it was used to express this meaning since the time of the Imams (a) up to the seventh century (A.H.). Thus the traditions related from the Imams of the Ahlal Bayt condemnedIjtihad , i.e., that principle ofFiqh that adopts individual thinking as one of the sources of Islamic law. The attack on this principle also found its way into the literary works composed during the period of the Imams (a) and of the narrators who transmitted their traditions.

This attack used the wordIjtihad mostly to express that principle, which can be seen from the usage in these traditions. Thus Abdullah ibn Abdur Rahman Zubayri wrote a book called “Al-Istifadah fi al-Ta'un ala'l awa'il wa 'r-radd 'ala as'hab al-Ijtihad wa'l-Qiyas ”, while Hilal ibn Ibrahim ibn Abi al-Fath al-Madani wrote a book on the topic named “Al-radd 'ala man radda athar Rasul wa 'tamada 'ala nata'ij il-'uqul. (The rejection of those who ignore the traditions of the messenger and rely on their intellectual conclusions).

Isma 'il ibn Ali ibn Ishaq ibn Abi Sahl Nawbakhti wrote a book during the period of the minor occultation or thereabouts on the rejection of Isa ibn Aban concerningIjtihad . The above has been mentioned by Najashi, the biographer, in his biography of each of the above.

Just after the minor occultation we find Shaykh Saduq in the middle of the fourth century A.H. continuing that attack. Here we quote, as an example, the critical comments from his book on the story of Musa and Khizr: “Musa -in spite of perfection of intellect, superiority and cleverness bestowed on him by Allah was not able to perceive through the rational processes of deduction, (istidlal) the meaning of the actions of Khizr, so much so that the reasons therefore became obscure to him.

Now if it were not permissible for the Prophets and Messengers of Allah to exerciseQiyas (analogy), Istidlal (reasoning) and Istikhraj (deduction), for others who are below them in rank, it would be all the more not

permissible. Thus if Musa was not entitled to make a choice in spite of his superiority and cleverness, how then can the Muslim ummah be entitled to make a choice in the matter of the Imam? And how can they be entitled to derive the rules of theShari’ah through deduction using their defective intellects and differences of views?”

In the closing years of the fourth century A.H. arose Shaykh Mufid writing along the same lines and making an attack on the concept ofIjtihad , which he used to mean the principle of Islamic law mentioned above. His book on this subject is called “an-Naqd 'ala ibn Junayd fiijtihad ir ra'y” (The Criticism on Ibn Junayd regarding the matter ofIjtihad ).

We find the same usage ofIjtihad by Sayyid Murtaza at the commencement of the fifth century. He wrote in al-Zhari'ah criticizingIjtihad : “Ijtihad is null and void and for those who follow the Imams, to act on conjecture, opinion andIjtihad is not permissible”. He also wrote in his book onFiqh , “al-Intisar”, alluding to Ibn Junayd: “The dependence of Ibn Junayd in this problem is on a kind of opinion andIjtihad , and his error therein is obvious”. And in the chapter on cleanliness (Taharah) in his book al-Intisar, he wrote concerning the question of wiping one's two feet, “we do not considerIjtihad nor do we advocate it”.

This usage of the wordIjtihad continued after that (period) also. Thus Shaykh Tusi, who died about the middle of the fifth century wrote in Kitab al-Iddah as follows: “As forQiyas (analogy) andIjtihad , in our opinion they are not valid proofs. On the contrary, their use is forbidden in theShari’ah ”.

At the commencement of the sixth century, on the question of the contradiction between two statements of evidence, Ibn Idris considered a number of grounds for preferring one to the other. He afterwards wrote: “There is no preference on any other ground in our school of thought, andQiyas , Istihsan andIjtihad are all null and void in our opinion”.

The above texts, presented in their historical and chronological sequence, prove clearly that the wordIjtihad was used to denote the above mentioned principle of Islamic law up to the commencement of the seventh century. On this basis, the word acquired a distasteful connotation and the sign of dislike and disgust in the legal outlook of the Imamiyah school of thought as a result of the latter's opposition to that principle and their belief in its being null and void.

However the wordIjtihad was used in a different sense in the terminology used by our jurists. Thus no Shi'ite text describing this development is found historically prior to Kitab al-Ma'arij by Muhaqqiq Hilli (d. 676 A.H.) who wrote under the heading “The Reality ofIjtihad ” as follows: “It is, in the terminology of the jurists, doing one's utmost to derive the laws of theShari’ah . Hence, the deduction of laws from the proofs and evidence available in theShari’ah constitutesIjtihad , because such laws are mostly based on the points of view of a theory which is not deduced from the explicit meaning of any text, whether such a proof is based on analogy or otherwise. ThusQiyas (analogy) is one of the kinds ofIjtihad . Therefore, if it is said that it is accordingly imperative that the Imamiyah school of thought is one of the exponents ofIjtihad , we will reply that it is so, and that there is the suggestion thatQiyas is one of the kinds ofIjtihad . Thus even if

we excludeQiyas , we shall still be among the exponents ofIjtihad in deriving the laws of theShari’ah by other theoretical ways apart fromQiyas ”.

It is quite obvious from the above quotation that the wordIjtihad continued to be burdened with the stamp of its first usage in the Imammiyah outlook. This quotation points out that there are those who refrain from using this description and on whom calling the Imamiyah jurists Mujtahids, weighs heavily.

However Muhaqqiaq Hilli does not refrain from using the termIjtihad after it had developed and changed in the usage of the Jurists in such a way as to be in agreement with the methods of deduction in the Imammiyah school of thought. ThusIjtihad was previously used to denote a source of Islamic law, from which the jurist derives laws, and furnish a proof for it, just as the verses of the Qur'an and the traditions are regarded sources. In the new usage it came to denote the jurist's utmost effort in deriving a law of theShari’ah from the valid proofs and sources, but it was not considered as one of the sources used for deduction. On the contrary,Ijtihad meant the very process of deduction carried out by a jurist to derive a law from its valid sources.

The difference between the two meanings is quite important. In the first usage ofIjtihad , the jurist derives laws on the basis of his own individual views and particular inclinations in cases where the valid texts are not adequate. Thus if he is asked, “What is your proof and your source for this law which you have derived?” He will reply: “The proof is my ownIjtihad and individual views”.

However, in the new usage ofIjtihad , the jurist is not permitted to justify any laws of theShari’ah byIjtihad , as in this second meaning,Ijtihad is not a source for laws, but it is the process of deduction to derive laws from their sources. Thus if a jurist says: “This is myIjtihad ”, he means that this is what he has derived through deduction from the sources of laws and from valid proofs. Thus we will have the right to demand of him, to indicate to us those sources and proofs from which he derived the law.

This new meaning for the wordIjtihad also underwent development and transformation. Muhaqqiq Hilli had limited it to the field of the operations of deduction, which are not based on the explicit meanings of texts. Thus every act of deduction that does not depend on the explicit meanings of texts will be termedIjtihad . Perhaps the reason for this limitation is that the deduction of a law regarding the explicit meaning of a text does not involve enough effort and academic labour to be termedIjtihad .

Then the scope ofIjtihad widened afterwards and included the process of deduction of a law from the explicit meaning of a text also. This is because the specialists in‘Ilm’ul Usul then rightly realized that the process of deduction of a law, from the explicit meaning of a text, involved much intellectual effort and labour in arriving at the exact meaning and its limitation and in proving the validity ofal-Zuhurul 'Urfi (general usage) as a proof. This expansion in the meaning of the termIjtihad did not cease there, but in a new development it came to include all forms of the process of deduction. Thus under the heading ofIjtihad came every process carried out

by a jurist to determine the practical standpoint vis-à-vis theShari’ah either by establishing out the proofs for the law of theShari’ah , or by defining that practical standpoint directly.

Hence,Ijtihad came to be synonymous with the process of deduction. Consequently‘Ilm’ul Usul became an essential branch of knowledge for the implementation ofIjtihad . In other words it is the science of the common elements in the process of deduction.

These developments sustained by the wordIjtihad as a technical term are, to a great extent, related to the developments of academic thought itself. The elucidation of the above will be possible through our study of the history of‘Ilm’ul Usul .

In light of the above, we can explain the standpoint of that group of Muhaddithin (traditionalists) opposingIjtihad and consequently condemning‘Ilm’ul Usul . The wordIjtihad frightened them because it carried the heritage of the first usage, against which the Ahlal Bayt (Progeny of the Prophet) had launched a severe attack. The scholars also prohibitedIjtihad , the banner of which was being carried by the Mujtahids among our jurists, and they based this prohibition on the standpoint of the Imams and their school of thought againstIjtihad . They are, however, not aware that the standpoint of the Imams was against the first meaning ofIjtihad , while the jurists among our companions are propounding the second meaning of it.

The process of deduction however faced a strong and persistent attack because of the attack onIjtihad . Consequently the attack extended to‘Ilm’ul Usul because of its relation to the process of deduction and toIjtihad . However, after having distinguished between the two meanings ofIjtihad , we are now able to restore the problem to its natural form, and to demonstrate clearly that the permissibility ofIjtihad in the meaning, synonymous to the process of deduction, is one of the self-evident truths.

Since the process of deduction to derive a law of theShari’ah is obviously permissible, it is essential that it should be preserved by‘Ilm’ul Usul through the study of the common elements in that process.

After we have established the permissibility of the process of deduction in Islam, there remain two points for us to study:

1. Does Islam permit this process at every age and to every individual or does it permit it only to some individuals and at certain ages?

2. Just as Islam permits an individual to make deductions to derive a law relating to himself, does it also permit him to make deduction to derive laws relating to others and to deliver formal legal verdicts for that?

We shall soon study these two points in the forth-coming discussions, which we have prepared for the higher stages of the study of this science.