13. The science of the principles of jurisprudence
and its subdivisions, dialectics and
controversial questions. 263
It should be known that the science of the principles of jurisprudence is one of the greatest, most important, and most useful disciplines of the religious law. It is concerned with the evidence of the religious law from which the laws and legal obligations of the Muslims are derived.
The basic sources of legal evidence are the Book -that is, the Qur'an - and, then, the Sunnah, which clarifies the Qur'an. At the time of the Prophet, the laws were received (directly) from him. He possessed the Qur'anic revelation, and he explained it directly by his words and deeds. No transmission, speculation, or analogical reasoning was needed. After the Prophet's death, direct (explanation of the Qur'an's legal significance) was no longer possible. The Qur'an was preserved through a general and continuous transmission. As to the Sunnah, the men around Muhammad all agreed that it is necessary for us to act in accordance with whatever of it has reached us, as statement or practice, through a sound tradition that can be assumed to be truthful. It is in this sense that legal evidence is determined by Qur'an and Sunnah.
Then, general consensus (ijma') took its place next to (Qur'an and Sunnah). The men around Muhammad agreed to disapprove of those who held opinions different from theirs. They would not have done that without some basis for doing so, because people like the men around Muhammad do not agree upon something without a valid argument. In addition, the evidence attests the infallibility of the whole group. Thus, general consensus became a valid proof in legal matters.
Then, we looked into the methods according to which the men around Muhammad and the early generations made their deductions from Qur'an and Sunnah. It was found that they compared similar (cases) and drew conclusions from analogy, in that they either all agreed or some of them made concessions in this connection to others. Many of the things that happened after the Prophet are not included in the established texts 264 Therefore, they compared and combined them with the established indications that are found in the texts, (and drew their conclusions from analogy) according to certain rules that governed their combinations. This assured the soundness of their comparison of two similar (cases), so that it could be assumed that one and the same divine law covered both cases. This became (another kind of) legal evidence, because the (early Muslims) all agreed upon it. This is analogy (qiyas), the fourth kind of evidence.
The great mass of religious scholars is agreed that these are the four basic kinds of evidence. Some scholars differed on the matters of general consensus and analogy. But this is exceptional. Others added further kinds of evidence to the four. 265 We do not have to mention them here, because the basis (upon which they rest) is weak, and they are rarely referred to.
The first task of this discipline is to study the (right of) existence of the four kinds of evidence.
(1) Proofs for the Qur'an are the decisively miraculous, (inimitable) character of its text, and the general continuity of its transmission. This leaves no room for any doubt.
(2) The Sunnah, as it has been transmitted to us, is justified 266 by the general consensus (to the effect) that Muslims must act in accordance with traditions that are sound, as we have mentioned before. This is supported by Muhammad's practice, during his lifetime, of sending letters and messengers to the various regions with legal and religious commands and prohibitions.
(3) The general consensus is justified by the fact that the men around Muhammad had agreed to disapprove of those who held opinions different from theirs. In addition, there is the established infallibility of the Muslim nation (as a whole).
(4) Analogy is justified by the general consensus of the men around Muhammad concerning its (admissibility), as we have mentioned before.
These are the basic kinds of evidence.
The transmitted traditions of the Sunnah need verification through an investigation of the ways of transmission and the probity ('adalah) of transmitters, so that the likelihood of the truthfulness of the transmitted information, which is the basis for the necessity to act in accordance with it, becomes clear. This also is one of the basic subjects of the discipline. Added to this is the knowledge of abrogating and abrogated traditions, when two traditions are mutually contradictory and the earlier one of the two is sought. 267 This, too, is another subject of the discipline.
After that, there comes the study of the meaning of words. This is because one depends upon knowledge of the conventional meanings of single or composite utterances, for deriving ideas in general from word combinations in general. The philological norms needed in this connection are found in the sciences of grammar, inflection, and syntax and style.268 Now, when speech was a habit of those who used it, these (linguistic matters) were neither sciences nor norms. At that time, jurists did not need them, because linguistic matters were familiar to them by natural habit. But when the habit of the Arabic language was lost,269 the experts who made it their specialty determined it once and for all with the help of a sound tradition and of sound rules of analogy they evolved. (Linguistic matters,) thus, became sciences the jurists had to know, in order to know the divine laws. Then, there is certain other, special information to be derived from word combinations. One must derive what constitutes law, among the various ideas, from special indications in word combinations that have a bearing upon law. This is jurisprudence.270 Knowledge of the conventional meanings in general is not sufficient for that. A knowledge of certain other things on which that special information depends, is needed. The laws can be derived from (those things) in accordance with the principles evolved by expert scholars in the religious disciplines, who established those things as norms for the purpose. Among such norms, for instance, are:
A word of two meanings cannot be used to mean both things at the same time.
The use of wa- "and" does not imply an order (in time, or classification). 272
If certain special particulars are taken out of some general (term), does it remain proof for the rest?
Does a command imply necessary or voluntary (action), 273 immediate or delayed (action)? Does a prohibition imply corruption or soundness (in an action)?
Is something general applicable to something circumscribed?
Is a text indicating the ratio legis 274 sufficient or not for extension (of a rule to other cases)?
There are other such things. All of them are basic in this discipline, but since they are semantic problems, they have to do with philology.
Next, the study of analogy is a very important basis of this discipline. It helps to ascertain the correctness of both principal and special aspects of laws depending on reasoning and analogy; to examine the particular characteristic of a case on which the law is considered probably to depend, as to whether it (exists) in the principle; and to find out whether that characteristic exists in the special case without anything contradicting (it), which would make it impossible to base the law upon it. There are other problems that belong together with this one. All of them are basic in this discipline.
It should be known that this discipline is of recent origin in Islam. The early Muslims could dispense with it. Nothing more than the linguistic habit they possessed was needed for deriving ideas from words. The (early Muslims themselves also) were the source for most of the norms needed in special cases for deriving laws. They had no need to study the chains of transmitters, because they were close to the (transmitters) in time and had personal knowledge and experience of them. Then the early Muslims died, and the first period of Islam was over. All the sciences became technical, as we established earlier. 275 Jurists and religious scholars of independent judgment now had to acquire these norms and basic rules, in order to be able to derive the laws from the evidence. They wrote them down as a discipline in its own right and called it "principles of jurisprudence." The first scholar to write on the subject was ash-Shafi'i. He dictated his famous Risalah on the subject. In it, he discussed commands and prohibitions, syntax and style, traditions, abrogations, and the position of ratio legis indicated in a text in relation to analogy.276
Later on, Hanafite jurists wrote on the subject. They verified the basic rules and discussed them extensively. The speculative theologians also wrote on the subject. However, treatment by jurists is more germane to jurisprudence and more suited for (practical application to) special cases, (than treatment of the subject by speculative theologians), because (juridical works) mention many examples and cases and base their problems on legal points. The theologians, on the other hand, present these problems in their bare outlines, without reference to jurisprudence, and are inclined to use (abstract) logical deduction as much as possible, since that is their scholarly approach and required by their method.
Hanafite jurists were especially accomplished in extensive use of legal points and in derivation of the norms from the (actual) problems of jurisprudence, as far as possible. One of their leading scholars, Abu Zayd ad-Dabusi,277 wrote more widely on analogical reasoning than any other (Hanafite). He completed the research methods and conditions governing this discipline. Thus, the technique of the principles of jurisprudence was perfected. The problems were refined and the basic rules were laid down.
Scholars also occupied themselves with the methods of speculative theologians in connection with this discipline. The best books written by theologians on this subject were the Kitab al-Burhan, by the Imam al-Haramayn, and the Mustasfa, by al-Ghazzali. Both authors were Ash'arites. There were two more books, the Kitab al-' Umad by 'Abd-alJabbar,278 and the commentary on it, entitled al-Mu'tamad, by Abul-Husayn al-Basri.279 Both authors were Mu'tazilah. These four books were the basic works and pillars of this discipline. They were later on abridged by two excellent recent theologians, the imam Fakhr-ad-din Ibn al-Khatib, in the Kitab al-Mahsul,280 and Sayf-ad-din al-Amidi, in the Kitab al-Ihkam. 281 Their approaches to the discipline differed in (the degree of emphasis they placed upon) verification and argumentation. Ibn al-Khatib was more inclined to present many proofs and arguments, while al-Amidi was eager to verify the views of the schools and to present the problems in detail.
The Kitab al-Mahsul was abridged by such pupils of the imam (Fakhr-ad-din) as Siraj-ad-din al-Urmawi,282 in the Kitab at-Tahsil, and Taj-ad-din al-Urmawi,283 in the Kitab al-Hasil. Shihab-ad-din al-Qarafi 284 selected certain propositions and basic points from these works in a small book which he entitled at-Tanqihat. The same was done by alBaydawi in the Kitab al-Minhaj.285 Beginners occupied themselves with these two books, and many people wrote commentaries on them.
The Kitab al-Ihkam by al-Amidi is more concerned with verifying the problems. It was abridged by Abu 'Amr b. al-Hajib, in the work of his known as the large Mukhtasar.
Ibn al-Hajib then made another compendium of it, which is used by students. 286 People both in the East and the West studied it and wrote commentaries on it. These compendia represent at its best the approach of the theologians to this discipline.
The Hanafites have written a great deal on their approach (to the discipline). The best writings on it by an early scholar are the works of Abu Zayd ad-Dabusi. The best works on it by a recent scholar are those by Sayf-al-Islam al-Bazdawi,287 a leading Hanafite. They exhaust the subject. Later on, the Hanafite jurist Ibn as-Sa'ati 288 combined the approaches of the Kitab al-Ihkam and the work of al-Bazdawi in a book entitled Kitab al-Badi'. The Kitab al-Badi' turned out to be a very well-written and original work. Leading contemporary religious scholars use it for teaching and research. Many non-Arab scholars have been eager to write commentaries on it, and the situation is (still) the same at the present time.
The (foregoing remarks) have explained the real meaning of this discipline, described the subjects with which it deals, and enumerated the works on it known at the present time.
May God let us profit from scholarship and make us scholars through His kindness and generosity.
The controversial questions 289
It should be known that the jurisprudence described, which is based upon religious evidence, involves many differences of opinion among scholars of independent judgment. Differences of opinion result from the different sources they use and their different outlooks, and are unavoidable, as we have stated before. 290
(These differences) occupied a very large space in Islam. (Originally,) people could adhere to any (juridical authority) they wished. Later on, the matter was in the hands of the four leading authorities in the Muslim cities. They enjoyed a very high prestige. Adherence was restricted to them, and people were thus prevented from adhering to anyone else. This situation was the result of the disappearance of independent judgment, because (the exercise of independent judgment) was too difficult a matter and because, in the course of time, the scholarly disciplines constituting material for independent judgment had multiplied. Also, there existed nobody who might have organized a school in addition to the existing four. Thus, they were set up as the basic schools of Islam.
Differences of opinion among their adherents and the followers of their laws received equal status with differences of opinion concerning religious texts and legal principles (in general). The adherents of the four schools held disputations, in order to prove the correctness of their respective founders. These disputations took place according to sound principles and fast rules. Everyone argued in favor of the correctness of the school to which he adhered and which he followed. The disputations concerned all the problems of religious law and every subject of jurisprudence. The difference of opinion was on occasion between ash-Shafi'i and Malik, with Abu Hanifah agreeing with one of them. Or it was between Malik and Abu Hanifah, with ash-Shafi'i agreeing with one of them. Or it was between ash-Shafi'i and Abu Hanifah, with Malik agreeing with one of them. The disputations clarified the sources of the authorities as well as the motives of their differences and the occasions when they exercised independent judgment.
This kind of scholarship was called "controversial questions." The persons who cultivate it must know the basic rules through which laws can be evolved, just as they are known to scholars of independent judgment. However, the latter need those basic rules in order to find the law, while the former need them in order to guard the legal problems that have been evolved against destruction by the arguments of an opponent. It is, indeed, a very useful discipline. It affords acquaintance with the sources and evidence of the authorities, and gives students practice in arguing whatever they wish to prove. Works by Hanafites and Shafi'ites are more numerous on the subject than those by Malikites. As one knows, analogy is for the Hanafites a principle on which many details of their school depend. Therefore, they are the people who speculate and investigate. The Malikites, on the other hand, mostly rely on tradition. They do not speculate. Furthermore, most of them are Maghribis who are Bedouins, who care only a little for the crafts.291
There are the following works on the subject: the Kitab al-Ma'akhidh 292 by al-Ghazzali, the Kitab at-Talkhis by the Malikite Abu Bakr b. al-'Arabi, 293 who imported (the subject) from the East, the Kitab at-Ta'liqah by Abu Zayd adDabusi, and the ' Uyun al-adillah by the Malikite shaykh Ibn al-Qassar.294 In his Mukhtasar on the principles of jurisprudence, Ibn as-Sa'ati has collected all the controversial law that is based on the principles of jurisprudence. 295 In connection with every problem, he noted the controversial questions that are based on it.
"Dialectics" involves knowledge of the proper behavior in disputations among the adherents of the legal schools and others. The choices of rejection and acceptance in disputations are numerous. In arguing and answering, each disputant lets himself go in his argumentation. Some of it is correct.
Some of it is wrong. Therefore, the authorities had to lay down the proper rules of behavior by which the disputants would have to abide. These concern rejection and acceptance; how the person advancing an argument should behave and how the person replying to the argument should behave; when it is permissible for a disputant to advance an argument; how he (should admit) defeat 296 and stop; when he should interrupt or contradict (his opponent); and where he should be silent and permit his opponent to talk and advance his arguments. It has, therefore, been said that this discipline is the knowledge of the basic rules of proper behavior in arguing, which help either to safeguard an opinion or to demolish it, whether that opinion concerns jurisprudence or any other subject.
There are two methods. There is the method of alBazdawi, which is limited to the evidence of the religious law from texts, general consensus, and argumentation.297 And there is the method of al-'Amidi 298 which applies quite generally to every argument used in argumentation, no matter to which scholarly discipline it belongs.
Most of the (subject) is concerned with argumentation. It is a good procedure, but, by its very nature, it contains much sophistry. If it is considered under the aspect of logic, it is, as a rule, quite similar to sophistical reasoning. However, the (correct) forms of arguments and syllogisms are carefully observed in it, in that the methods of argumentation in this respect are chosen as it is proper.
The 'Amidi just mentioned was the first to write on his method.299 Therefore, its (invention) was ascribed to him, He wrote a brief book, entitled al-Irshad. Later on, he was followed by such recent scholars as an-Nasafi 300 and others who walked in his steps and followed the way he had shown. Many works were written on the method. At this time, no regard is paid to it, because scholarship and scientific instruction have dwindled in the Muslim cities. It is, after all, a luxury, and not a necessity.
"God has the power to execute His commands." 301