ḤIKMAT

A Quarterly Journal of Islamic Research

Vol. 1, No. 1. Summer 1995/1416

Editor-in-Chief: S. A. R. Furughi

Editor: P. 'Amiri

Editorial Board: Dr. S. M. Muhaqqiq Dāmād,

Dr. M. Legenhausen,

Dr. Ghulām Ḥusayn Ibrāhimi Dinānī,

Dr. Muhammad Jawād Lārījāni,

M. J. 'Ilmi,

A. Q. Qarā'ī,

All correspondence should be addressed to the Editor-in-Chief, Ḥikmat, Islamic Thought Foundation, P.O. Box 14155-3899, Tehran, Iran. Fax (21) 898295, Tel (21) 844092-6.

CONTENTS

Editorial 1

Qur'ānīc Studies:

The Qur'ān as Its Own Interpreter 3

Philosophy:

Talab wa Irādah Part-1 27

Practical Wisdom

Uṣūl al-Fiqh:

The Early History of 'Ilm al-Uṣūl Part-1 71

Fiqh:

The Codification of Islamic Juridical Principles 89

Kalām:

Linguistic Doctrines in the Rational Interpretation of Revelation 109

Reports:

International Congress of Shaykh Anṣārī 119

The Center for the Great Islamic Encyclopedia 133

The Codification of Islamic Juridical Principles (Qawā'id Fiqhīyyah):

A Historīcal Outline

Muṣṭafā Muḥaqqiq Dāmād

Translated from the Persian by Āzarmidukht M. Farīdanī

A close examination of the system of law in Islam proves that this system meets all the essential qualifications required to constitute a "legal system." This can be readily established by tendering an exact definition of what, strictly speaking, makes up a "legal system" and by studying its qualities and elements.

There is some difference of opinion among jurists regarding the definition of a "legal system." For example, in the following passage it is defined as:

The structure of any functioning body of law, which reflects the inner unity and coherence of the juridical norms composing the body of law which expresses the division of the norms into com-

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ponents as objectively necessitated by the particular features of the social relations subject to such norms.¹

It is also said that,

A legal system exists if and only if it reaches a certain minimum degree of efficacy.²

Kelsen believes, however, that,

Efficacy depends not only on conformity to law by the general population but also on the success of the courts and other law-enforcing agencies in applying sanctions to those who violate the law.³

Thus, it may be inferred that a body of law constitutes a system when it has the qualities and elements required to establish a legal system, namely:

1. a body of law;

2. a great number of coherent general norms and principles;

3. a functioning body of law based on those general norms and principles;

4. a close and profound relation between the laws and general principles, as that of the component to the norm, or the general to the particular;

5. comprehensiveness of general principles which enables them to respond to particular needs, events and cases;

6. the conformity of norms and general principles to rational and human standards in a manner which makes it acceptable to the general public;

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7. Juridical guarantee of enforcement in the case of a breach or violation of the law.

As an objective study would well ascertain, all these elements are found in the Islamic legal system. By no means a collection of inconsistent and scattered rules formulated according to the circumstances of specific individuals or groups, the Islamic legal system represents a coherent and consistent body of law thoroughly based on general norms and principles, and expressed in laws and legal judgments which generally reflect the particular application and specific cases of those basic and essential norms.

Students of the methodology of the Islamic legal system are well aware that in this system the coherence and constancy of the juridical standards, from which particular regulations derive, are maintained to such a degree that if a jurist, for example, comes to believe that in a certain case he has a civic responsibility, he is automatically obliged to apply the same opinion to any number of other comparable cases, and a different ruling in similar cases, in fact, would reflect a lack of knowledge of juridical standards.

The above statements clearly demonstrate the significance of juridical codes and its place in the history of Islamic legal studies. The existence of a body of general norms and principles whereby the jurist can infer the corollaries and by way of comparing them with particular instances and cases, form decisions regarding current events, is, in fact, a mark of the dynamic nature of the Islamic legal system.

It is true that Muslim jurists, from the very beginning, made some attempts to introduce the general norms and principles of Islamic law. By this, however, we do not mean to imply that Islam, in itself, lacks a system, and that the principles of Islamic law were wholly formulated by Muslim jurists. In fact, there are two kinds of principles in Islamic law; one taken entirely from the Qur'ān and the Sunnah, e.g. the rule of lā ḍarar, the rule of yad and the rule of taslīṭ. The other category of princi-

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ples are those not mentioned in religious texts, but supported by legal texts and juridical evidence, such as the principle of "mā yuḍmanu bi ṣaḥīḥih yuḍmanu bi fāsidih." There is, of course, yet another group of principles formulated by jurists by adopting a uniform criterion for numerous similar cases. Sometimes classified as "al-ashbāh wa al-naẓā'ir," these principles are more commonly used by Sunni jurists.

In the last two groups, the jurist essentially deduces the criterion, basis, and the main principles of religious law and introduces them. Clearly this procedure provides a strong argument and positive proof in support of the fact that Islamic law has all the elements and qualities required to be classified as a legal system.

More information on the history of codification of juridical principles in Islam by Muslim Jurists is found in the following concise bibliography of relevant works compiled in the Sunnī, as well the Imāmī Shī'ī, schools:

1. Ḥanafi Fiqh

1. The oldest work in which a collection of juridical norms can be found is, according to ʿAlāʾī Shāfiʿī, al-Suyūṭī and Ibn Nujaym,⁴ the treatise of Abū Ṭāhir al-Dabbās. A Ḥanafī jurist of the 4th/10th century, al-Dabbās has reduced the most important principles of the Ḥanafī school to seventeen general principles. Imām Abū al-Ḥasan al-Karkhī, a contemporary of Abū Ṭāhir, may have adopted some of the material for his celebrated treatise Uṣūl al-Karkhī, on juridical principles, from the latter's work. It seems, therefore, that of the four different Sunni schools, the Ḥanafī’s was the first to compile works on juridical rules. A list of other important Ḥanafī compilations on this subject includes the following titles:

2. Uṣūl al-Karkhī, by ʿUbayd Allāh b. al-Ḥasan b. al-Dallāl also known as Abū al-Ḥasan al-Karkhī (260-340/873-951).

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3. Taʾsīs al-Naẓar fī Ikhtilāf al-Aʾimma, by ʿUbayd Allāh b. ʿUmar b. ʿĪsā Abū Zayd al-Dabūsī (d. 430/1038).

4. Al-Ashbāh wa al-Naẓāʾir fī al-Furūʿ, composed by Zayn al-Dīn b. Ibrāhīm b. Muḥammad, also called Ibn Nujaym (d. 970/1562). Of about twenty-six commentaries and glosses on this work, one of great reputation is Ghamz ʿuyūn al-baṣāʾir ʿalā maḥāsin al-Ashbāh wa al-naẓāʾir by Aḥmad b. Muḥammad al-Ḥamawī (d. 1098/1562–3), which has been reprinted several times.

5. Al-Qawāʿid fī al-Furūʿ, by ʿAlī b. ʿUthmān al-Ghazzī al-Dimashqī, commonly called Sharaf al-Dīn al-Ḥanafī (d. 799/1397).

6. Majallat al-Aḥkām al-ʿAdliyyah, compiled during the time of Sulṭān ʿAbd al-ʿAzīz Khān, by a committee of distinguished Ottoman scholars. Since the publication of the work by the Ottoman government in 1292/1875, several commentaries have been written on it.

7. Al-Farāʾiḍ al-BBahiyyah fī al-Qawāʿid wa al-Fawāʾid al-Fiqhiyyah, by Maḥmūd b. Muḥammad b. Naṣīb b. Ḥusayn, also known as Ibn Ḥamzah al-Ḥusaynī (1239–1305/1829–1887).

8. Tashrīḥ al-Qawāʿid al-Kulliyyah, by ʿAbd al-Sattār b. ʿAbd Allāh al-Quraymī al-Qusṭanṭīnī (d. 1304/1866).

9. Al-ʿUqūd al-Ḥisān fī Qawāʿid Madhhab al-Nuʿmān, by Aḥmad b. Muḥammad al-Ḥamawī (1098/1562), in verse, with a commentary by the author entitled Farāʾiḍ al-Durr wa al-Marjān Sharḥ al-ʿUqūd al-Ḥisān.

10. Khātimah Majāmiʿ al-Ḥaqāʾiq wa al-Qawāʿid wa Jawāmiʿ al-Daqāʾiq wa al-Fawāʾid, by Muḥammad b. Muḥammad b. Muṣṭafā al-Khādimī, known as Abū Saʿīd al-Khādimī (d. 1176/1762).

11. Qawāʿid al-Fiqh, by Shaykh ʿAmīm al-Iḥsān of Bangladesh, first published in the same country.

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12. Majmūʿat al-Qawāʿid by Ibrāhīm b. Muḥammad al-Qaysarī al-Ḥanafī, called Kūzī Būyūkzādeh (d. 1252/1836).

13. Sharḥ al-Qawāʿid al-Fiqhiyya, by Aḥmad al-Zarqāʾ al-Ḥalabī (1285–1352/1368–1938).

Unpublished Manuscripts:

1- "Talqīḥ al-ʿUqūl fī Furūq al-Manqūl," by Sāsī al-Sharīʿah the First, Aḥmad b. ʿUbayd Allāh Maḥbūbī al-Ḥanafī, of which a number of copies are found in the ʿĀrif Ḥikmah Library of Madīnah.⁵

2.- "Sharḥ al-Jāmiʿ al-Kabīr," by ʿĪsā Ayyūbī (576–624/1180–1227).⁶

3.- "Maʿrifat al-Ashbāh wa al-Naẓāʾir," by an anonymous author. A gilded copy of this manuscript with glosses by ʿUmar al-Riḍā, is available in the ʿArif Ḥikmah Library of Madīnah.⁷

2. Malikī Fiqh

1- Al-Furūq, by Abū al-ʿAbbās b. Abī al-ʿAlāʾ Idris b. ʿAbd al-Raḥmān, commonly called al-Qarāfī (d. 684/1250).

2.- Īḍāḥ al-Masālik ilā Qawāʿd al-Imām Mālik, by Aḥmad b. Yaḥyā b. Muḥammad al-Tilimsānī al-Wansharīsī (834–914/1430–1508).

3.- Al-Muwāfiqāt fī Uṣūl al-Fiqh, compiled by Ibrāhīm b. Mūsā b. Muḥsammad al-Lakhmī, Known as Abū Isḥāq al-Shāṭibī (d. 790/1388).

4.- Qawāʿid al-Aḥkām al-Sharʿīyyah, by Mūḥammad b. Aḥmad al-Mālikī.

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5- Al-Majmūʿ wa al-Furūq, by ʿAbd al-Wahhāb b. Aḥmad b. ʿAbd al-Wahhāb b. Jalabah al-Baghdādī (d. 476/1083), MS. 3822, Qarwīyyīn Library, Fez (Morocco).

6- Al-Kulliyyāt al-Fiqhiyyah ʿalā Madhhab al-Mālikiyyah, by Muḥammad b. ʿAlī b. Ghādī al-Makānāsī (841–919/1437–1513), a critical edition of which has been published by the Sharīʿah and Uṣūl al-Dīn Faculty of the Zaytūniyyah University in Tunis.

7- ʿAmal Man Ṭabba li Man Ḥabba, by Muḥammad b. Muḥammad al-Maqarrī (d. 758/1357). The second volume of this work is being edited at Riyāḍ University.

Manuscripts:

1- "Al-Qawāʿid," by Muḥammad b. Muḥammad al-Masaqqarī (d. 758/1357).

2- "Al-Qawāʿid," by Qāḍī ʿAyād b. Mūsā b. ʿIyāḍ b. ʿUmar al-Yahṣabī of morocco (476–544/1083–1149), microfilm 6018 at Muḥammad b. Saʿūd Islamic University Library.

3- "Al-Mudhhab fī Ḍabṭ Qawāʿid al-Madhhab," by Abū ʿAbd Allāh Muḥammad b. ʿAzūm (d. 889/1484), MS. 14891, National Library of Tunis.

4- "Al-Yawāqīt al-Thamīnah fī Nazāʾir ʿĀlam al-Madīnah," by Abū al-Ḥasan ʿAlī b. ʿAbd al-Wāḥid b. Muḥammad al-Anṣārī al-Sijilmāsī (d. 1057/1647), MS. 14708, National Library of Tunis.

5- "Qawāʿid al-Imām Mālik," by Muḥammad b. Muḥammad al-Sājīnī, MS. 1723, Ribāṭ University.