by Shaykh 'Abdur-Rahmân ibn Nâsir as-Sa'dî
(d. 1383 AH / n/a CE)
From Islaam.Net
Prologue
[Risaalah Lateefah Jaami’ah fee Usoolil-Fiqhil-Muhimmah, which is part of
Manhajus-Saalikeen wa Tawdeehul-Fiqh bid-Deen (pp.101-112)]
All praise belongs to Allaah. So we praise Him for what He possess from His
beautiful Names and lofty and perfect Attributes; and for His Judgement and
Decree which encompasses everything in existence; and for His Divinely
Prescribed Laws which encompass every field of legislation; and His Judgement
concerning rewards for the doers of good, and punishments for the criminals.
I testify that none has the right to be worshipped except Allaah alone, who has
no partner in His Names. Attributes or Judgement. And I testify that Muhammad is
His Slave and Messenger; who clarified the Judgement and the rulings, made clear
the halaal (lawful) and the haraam (prohibited), and established the
fundamentals and expounded upon them - until the Religion was completed and
establsihed firmly. O Allaah extol and send the blessings of peace upon
Muhammad, and upon his family, his Companions and those that follow them,
particularly the Scholars.
To proceed: This is a brief essay concerning usoolul-fiqh (fundamentals of
jurisprudence), uncomplicated in wording, clear in meaning, and useful in
learning its rulings for whosoever contemplates its meanings. We ask Allaah that
He benefits both its compiler and its reader. Indeed He is the Most Generous.
Chapter 1
Usoolul-Fiqh: it is the science concerning the comprehensive evidences of fiqh.
Since fiqh consist of either [i] masaa‘il (issues) concerning which the ruling
by one of the five rulings is sought, or [ii] it is the dalaa‘il (evidences)
employed in extracting and determining these masaa‘il (issues). So fiqh is
actualy knowledge of the masaa‘il (issues) and the dalaa‘il (evidences).
These dalaa‘il (evidences) are of two types:-
Comprehensive evidences that encompass every ruling - from the beginning to the
end of fiqh - of a single kind; such as our saying: “al-amr lil-wujoob (a
command is indicative of an obligation).” Or: “an-nahee lit-tahreem (a
forbiddance is indicative of a prohibition).” And other similar evidences. So
these are part of usoolul-fiqh
Detailed evidences that are to be understood in the light of the comprehensive
evidences. So when such is completed, then the ahkaam (rulings) can be resolved.
Thus, the ahkaam (rulings) are in need of their detailed evidences, and the
detailed evidences are themselves in need of comprehensive evidences. So by
this, we recognise the need and the necessity of knowing usoolul-fiqh, and that
it aids in the understanding of fiqh itself, and that it is the foundations for
deducing and making ijtihaad in the ahkaam (rulings).
Chapter 2
The ahkaam (rulings) upon which fiqh revolve are five:-
Waajib (obligation): that for which the one who performs it is rewarded, whilst
the one who abandons it is punished.
Haraam (prohibition): this is the opposite of an obligation.
Masnoon (recommended): that for which the one who performs it is rewarded,
whilst the one who leaves it is not punished.
Makrooh (detested): this is the opposite of a recommendation.
Mubaah (permissible): this is where both (its doing or leaving) are equivalent.
Those rulings which are waajib (obligatory) are divided into two catagories:
fard ’ayn (individual obligation), the doing of which is sought from every
mukallaf (morally responsible), baaligh (mature) ’aaqil (sane) person. The
majority of the Sharee’ah rulings enter into this catagory. The second is fard
kifaayah (collective obligation), the performance of which is sought from the
morally responsible collectively, but not from every individual specifcally;
such as the learning of the various branches of useful knowledge and useful
industries; the adhaan; the commanding of good and forbidding of evil; and other
similar matters.
These five rulings differ widely in accordance with its state, its levels and
its effects.
Thus, whatever is of pure or of overwhelming maslah (benefit), then the Shaari’
(Lawgiver) has commanded its performance with either an obligation or a
recommendation. Whatever is of pure, or of overwhelming mafsadah (harm), then
the Lawgiver has stopped its doing with either an absolute prohibition or
dislike. So this asl (fundamental principle) encompasses all matters commanded
of prohibited by the Lawgiver.
As for those matters which the Lawgiver has permitted and allowed, then at times
they lead to that which is good, and so are joined to those matters which have
been commanded; and at other times they lead to that which is evil, and so are
joined to those matters which are prohibited. So this is a great asl that:
“al-wasaa‘ilu lahaa ahkaamul-maqaasid (the means take on the same ruling as
their aims).”
From this we learn that: “maa yatimmul-waajib illaa bihi fahuwa waajib (whatever
is required to fulfill an obligation is itself an obligation).” Likewise,
whatever is required to fufill a masnoon (recomendation) is itself recommened.
Whatever leads to the establishment of a haraam (prohibition) is itself
prohibited. And whatever leads to the establishment of a makrooh (detested act)
is itself detested.
Chapter 3
The adillah (evidences) that fiqh is derived from are four:-
The Book and the Sunnah, and these two are the foundation by which the
mukallafoon (the morally responsible) are addressed, and upon which is built
their Religion. Then ijmaa’ (consensus) and al-qiyaasus-saheeh (sound and
correct analogy), these two are derived from the Book and the Sunnah. So fiqh -
in its entirety - does not leave the realms of these four usool (fundamentals).
The majority of the important ahkaam(rulings) are indicated to by these four
adillah (evidences). They are indicated to by the nusoos (texts) from the Book
and the Sunnah; and the Scholars have ijmaa’ (consensus) about them, and they
are indicated to by qiyaasus-saheeh (sound and correct analogy); because of what
they entail of benefit, if it is a command; or what they contain of harm, if it
is a forbiddance. Very few of the ahkaam have been differed over by the
Scholars. In such cases the closest of them to the truth is the one who
correctly refers back to these four usool.
Chapter 4 - Concerning the Book and the Sunnah
As for the Book: It is al-Qur‘aanul-’Adheem (the Great Qur‘aan), the Kalaam
(Speech) of the Lord of the worlds, which was sent down by the Trustworthy
Spirit upon the heart of Muhammad the Messenger of Allaah sallallaahu ’alayhi wa
sallam, that he may be from the warners to the whole of mankind - in the clear
arabic tongue - regarding all that they stand in need of with regards to what
benefits them concerning their Religion and their world. The Book of Allaah is
that which is recited by the tongues, written in the masaahif (copies), and
preserved in the hearts; regarding which:
“No falsehood can approach from before or from behind it, it was sent down from
the All-Wise, the One deserving of all praise.”
[Soorah Fussilat 41:42]
As for the Sunnah: It is the Prophet sallallaahu ’alayhi wa sallam’s aqwaal
(sayings), af’aal (actions), and his taqreer (tacit approvals) of the sayings
and actions of others.
The ahkaamush-shar’iyyah (Sharee’ah rulings) are sometimes taken from a definite
text of the Book and the Sunnah; which is defined as that text possessing a
clear meaning, which may not have any other meaning, except that single meaning.
Sometimes it is taken from the dhaahir (apparent) meaning; which is defined as
that which is indicative of the meaning, in a general manner, both through
wording and meaning. Sometimes it is taken from the mantooq (explicit meaning);
which is defined as being that which is indicative of the ruling due to the
wording of the text. Sometimes the ahkaamush-shar’iyyah is taken from the
mafhoom (implied meaning); which is defined as that which is indicative of the
ruling due to being in agreement with the text; in cases where themafhoom is
equal to, or stronger than the mantooq. Or by divergent meaning if the
mafhoomdiffers from the mantooq in its ruling; whereas the mantooq is linked to
a wasf (attribute) or a shart (condition), in the absence of which the ruling
differs.
The dalaalah (indications) in the Book and the Sunnah are of three kinds:-
Dalaalah Mutaabiqah: this is where we apply the word to indicate all of its
meanings.
Dalaalah Tadammun: when we employ the wording to indicate one of its meaning.
Dalaalah Iltizaam: where we employ the wording of the Book and the Sunnah to
indicate the meaning which is a necessary consequence of it; and which follows
on and completes it; and what the matter being judged with or being informed of
cannot come about, except by it.
Chapter 5
The asl (fundamental principle) concerning commands in the Book and the Sunnah
is that they are indicative of a wujoob (obligation), except if there is an
evidence to indicate to it being mustahabb (recommended) of mubaah (permissible)
The asl concerning prohibitions is that they are indicative of tahreem
(forbiddance), except if there is an evidence indicating it being makrooh
(hated).
The asl governing kalaam (speech) is that it is to be taken upon its haqeeqah
(literal sense). So it is not to be turned away from it to its majaaz
(figurative meaning) - if we accept this - except when it is impossible to
employ its haqeeqah (literal meaning) Al-Haqaa‘iq (literal meanings) are of
three types:
[i] shar’iyyah (that which is defined by the Sharee’ah), [ii] lughawiyyah (that
which is defined by language) and [iii] ’urfiyyah (that which is defined by
customary usage).
So whatever ruling the Shaari’ (Lawgiver) has defined, then it is obligatory to
return it to the Sharee’ah definition. However, what the Lawgiver has ruled, but
not defined, sufficing by its apparent linguistic meaning, then it is obligatory
to return it to its linguistic meaning. But whatever has not been defined,
neither in the Sharee’ah, nor in the language; then it is obligatory to refer it
back to the habits of the people, and their customary usage. The Shaari’
(Lawgiver) may clearly specify to return these matters to ’urf (customary
usage); such as commanding the good, living well with one’s wife, and other
similar matters.
So memorize these usool concerning which the faqeeh stands in need of in all his
dealings of fiqh.
Chapter 6
From the texts of the Book and the Sunnah are those which are ’aam (general);
which is defined as that word which is inclusive of many ajnaas (categories),
anwaa’ (types) and afraad (individuals). This majority of the texts are of this
nature. Other texts are khaass (specific), and are indicative of only some
categories, types and individuals. Thus, if there does not exist any
contradiction between the ’aam and the khaass texts, then each of them are
independently acted upon. However, if a contradiction is presumed, then the ’aam
is specified and delineated by the khaas.
From the texts are the mutlaq (absolute) and the muqayyad (restricted) ones. It
is restricted by a description or a reliable restriction. Thus, the mutlaq is
restricted and qualified by the muqayyad.
And from the texts are the mujmal (comprehensive) and mubayyan (explicit).
Whatever the Lawgiver has made comprehensive in one place, yet made it explicit
in another, then it is obligatory to return to what the Lawgiver made mubayyan
(explicit). Many of the rulings in the Qur‘aan are mujmal (comprehensive) in
nature, but have been explicitly explained in the Sunnah. So it is obligatory to
return to the bayaan (explicit clarification) of the Messenger sallallaahu
’alayhi wa sallam, since he is the clear explainer from Allaah.
Similar to this are the texts that are muhkam (unequivocal and singular in
meaning) and those that are mutashaabih (equivocal and open to more than one
meaning). It is obligatory to understand the mutashaabih in the light of those
texts that are muhkam.
Amongst the texts are the naasikh (abrogating) and the mansookh (abrogated) The
abrogated texts in the Qur‘aan and the Sunnah are few in number. Whenever there
is the possibility of harmonising two texts, with the possibility of each one
being acted upon in its own particular circumstance, then it is obligatory to do
so. One may not turn to abrogation, except with a text from the Lawgiver, or an
apparent contradiction between two authentic texts concerning which there is no
possible way to resolve this contradiction such that each text is acted upon in
its own particular circumstance. In this case, the later text abrogates the
earlier one. However, if it is impossible to determine which is the earlier text
and which is the later, we then turn to other means of tarjeeh (prefering one
text over another). For example, when there is an (apparent) contradiction
between the Prophet sallallaahu ’alayhi wa sallam’s statement and his action,
then precedence is given to his saying. This is because his statement represents
either a command or a prohibition to his Ummah, whereas his action is, in this
case, interpreted to be something particular to him alone. So the khasaa‘is
(particular and unique rulings) pertaining to the Prophet sallallaahu ’alayhi wa
sallam are actually based upon this asl (fundamental principle).
Likewise, when the Prophet sallallaahu ’alayhi wa sallam does something as an
act of ’ibaadah (worship), but he does not command its performance, then what is
correct is that this action of his is indicative of it being mustahabb
(recommended). If he does something as an act of ’aadah (custom or habit), then
it is indicative of it being mubaah (permissible).
Whatever the Prophet sallallaahu ’alayhi wa sallam acknowledges of statements
and actions, then the ruling is one of ibaahah (permissibility), or other than
it, according to the manner in which he acknowledged such statements and
actions.
Chapter 7
As for the ijmaa’ (consensus): it is the agreement of the mujtahid Scholars upon
a new judgement. So, whenever we are certain about their ijmaa’, then it is
obligatory to turn to it, and it is not lawful to oppose. It is necessary that
any ijmaa’ be rooted in the evidences of the Book and the Sunnah. As for
qiyaasus-saheeh (correct and sound analogy): it is linking a subsidiary branch
with its root, due to a common Illah (effective cause) between them. So whenever
the Lawgiver indicates a matter, or describes it with a particular wasf
(characteristic); or the Scholars deduce that the ruling has been legislated
because of that particular wasf (characteristic), then if that particular wasf
(characteristic) is found to exist in another issue, which the Lawgiver has not
legislated any particular ruling for - without their being a difference between
it and the texts - then it is obligatory to link the two in their ruling. This
is because the All-Wise Lawgiver does not differentiate between matters
equivalent in their characteristics, just as He does not join between dissimilar
and opposing matters. This sound and correct qiyaas (analogy) is al-Meezaan (the
Balance) which Allaah sent down. And it is inclusive of justice, and it is that
by which justice is recognised.
Qiyaas is only resorted to when there exists no text. So this asl (fundamental
principle) is turned to when there exists no other source. And qiyaas supports
the text. Thus, all that the texts that the Lawgiver has given rulings to, then
they are in agreement with qiyaas, not in opposition to it.
Chapter 8
The Scholars of usool have deduced from the Book and the Sunnah many usool
(fundamental principles), upon which they have built many rulings; by which they
have also benefited themselves and benefited others.
Amongst these usool (fundamental principles):
“Al-yaqeen laa yazoolu bish-shakk [certainty is not invalidated by doubt].”
Under this principle they have entered many ’ibaadaat (acts of worship),
mu’aamalaat (social interactions) and huqooq (rights). So whosoever entertains a
doubt regarding any of that, should return to the asl of certainty. They also
deduce: “al-aslut-tahaarah fee kulli shay [The basis concerning all things is
that they are pure].” And: “al-aslul-ibaahah illaa ma dallad-daleelu ’alaa
najaasatihi aw tahreemihi [The asl (basic principle) is permissibility of using
anything, except when there exists an evidence indicative of its impurity or
prohibition].” And: “The asl is freedom from accountability concerning
obligations towards the creation, until a proof is established to the contrary.”
And: “The asl is the continuation of accountability concerning the obligations
to the Creator, and to His servants, until there is certain proof of freedom and
discharging.”
And from them is that: “Al-mashaqah tajlibut-tayseer [difficulty brings about
ease].”
Based upon this are all the rukhas (concessions) allowed during a journey, and a
lightening of ’Ibaadaat (acts of worship), mu’aamalaat (social transactions),
and other matters.
And from it is their saying: “Laa waajib ma’al-’ajaz wa laa muharram
ma’ad-daroorah [there is no obligation with inability, nor is there any
prohibition with necessity].”
The Lawgiver has not made incumbent upon us what we are incapable of doing in
totality. What the Lawgiver has made obligatory, from the obligations, but the
servant is incapable of performing it, then that obligation is totally dropped.
However, if he is capable of performing a part of it, then it is required for
him to fulfil what he is capable of, whilst the part he is incapable of is
dropped. There are many many examples of this.
Likewise, whatever the creation are in need of, then it has not been made haraam
(prohibited) to them. As for the khabaa‘ith (evil matters), which have been made
haraam, then if the servant is in need of that (due to a necessity), then there
is no sin in using it. This is because daroorah (necessity) allows those matters
which are fixed and prohibited. And daroorah is measured by its need, in order
to lessen the evil. Thus, daroorah permits the use of what is normally forbidden
from food, drinks, clothing, and other than them.
And from them: “Al-umooru bi maqaasidiha [matters are judged by their motives].”
Entering into this are the ’ibaadaat and the mu’aamalaat. Likewise, the
prohibition of employing forbidden hiyaal (means and stratagems) is derived from
this asl. Likewise, is directing those words which are kinaayaat (not clear and
unequivocal) to be sareeh (clear and equivocal) is based upon this asl. Its
forms are very many indeed.
And from them: “Yukhtaaru ’alal-maslahatayn wa yartakab akhafal-mufsadatayn
’indat-tazaahum [select the higher of the two benefits, or incur the lesser of
the two harms when faced with them both].”
Upon this great principle many issues are built. So when the benefit and harm
are both in equal proportion, then: “dar‘ul-mafaasid uwla min jalbil-masaalih
[repelling harm takes precedence over procuring benefits].”
And from this is the principle: “Laa tutimmul-ahkaam illaa bi wujoodi shurootiha
wa intifaa‘ mawaani’iha [rulings are not complete except with the presence of
their conditions and the negation of their impediments].”
This is a tremendous principle, upon which is built - from the issues, rulings
and other matters - many things. So whenever a shart (condition) for ’ibaadaat
(acts of worship), or mu’aamaalaat (social transactions), or establishment of
rights is not present, then the ruling is not correct, nor is it established.
Likewise, if its mawaani’ (impediments) are present, then it is nor correct, nor
is it legally valid.
The shuroot (conditions) for ’ibaadaat and mu’aamalaat are: all those matters
upon which the validity of such ’ibaadaat and mu’aamalaat rest. And these
shuroot are known by a thorough and detailed study of the Sharee’ah. Due to this
asl, the fuqahaa were able to enumerate the faraa‘id (obligations) of the
various ’ibaadaat, and its shuroot (conditions). Likewise, by it they were able
to determine the various shuroot (conditions) and mawaani’ (impediments) for the
mu’aamalaat.
As regards al-hasr (collecting and enumerating): it is establishing a ruling for
something, whilst negating it from something else. By it, the fuqahaa are able
to determine the shuroot of various things and matters, and that what is other
than it, then the ruling is not affirmed for it.
And from it is their saying: “al-hukm yuduru ma’a ’illatihi thabootan wa ’adaman
[the ruling revolves around its effective cause in both affirmation and
negation].”
So when the ’illatut-taamah (complete effect cause) - which it is known theat
the Shaari’ has linked the ruling to it - is present, then the ruling is
present; and when it is absent, then the ruling is not established.
And from them is their saying: “al-aslu fil-’ibaadaat al-hadhru illaa maa
waradah ’anish-shaari’ tashree’ahu, wal-aslu fil-’aadaat al-ibaahaa illaa maa
waradah ’anish-shaari’ tahreemahu [the basic principle concerning acts of
worship is prohibition, except what is related from the Lawgiver regarding its
legislation, and the basic principle regarding customs and habits is
permissibility, except what is related from the Lawgiver regarding its
forbiddance].”
This is because al-’ibaadah (worship) is what the Lawgiver has prescribed;
either as an obligation, or a recommendation. Thus, whatever steps out of this
is not considered to be an act of worship. And because Allaah created for us all
that is upon the earth, so that we may benefit from all things and utilise them,
except those things that the Lawgiver has made haraam (unlawful) to us.
From them: “idhaa wajidat asbaabul-’ibaadaat wal-huqooq thabatat wa wajibat
illaa idhaa qaaranahl-maani’ [if the cause for acts of worship are present, they
are confirmed and oblugatory, except if linked by a prevention].”
And from them: “al-waajibaatu talzimul-mukallafeen [obligations obligate the
morally responsible].”
So at-takleef is reached with: al-buloogh (attainment of maturity) and al-’aql
(sanity). However, compensation for injury and harm is required from the
makallafeen (morally responsible), and others. So whenever a person reaches
maturity and is sane, those general obligations then become required from him to
do. And those specific obligations also become required from him, providing he
possesses those qualities which necessitate that. The naasee (forgetful) and the
jaahil (ignorant one) is not held responsible from the point of view of sinning,
nor from the point of view of compensating what is harmed or injured.
Chapter 9
The statement of a single Sahaabee(Companion) - who is defined as anyone who met
the Prophet sallallaahu ’alayhi wa sallam, having eemaan (certainty of faith) in
him, and dying upon eemaan - if it has become widespread and not objected to,
but rather it has been affirmed by the Sahaabah (Companions), then it is a form
of ijmaa’ (consensus). If it is not known to have become widespread, nor is
there known to be anything in opposition to it, then according to the most
correct opinion, it is a hujjah (proof). However, if other Companions have
disagreed or contradicted it, then it is not a proof.
Chapter 10
An amr (command) for something, entails a nahee (prohibition) for its opposite.
And a prohibition of something, entails a command for its opposite. A
prohibition of something necessitates that matter to be null and void, except if
there is a daleel (evidence) indicative of its validity. And a command which
follows a prohibition, returns it to what it was prior to this. And both an
amrand a nahee necessitate immediate compliance, but they do not require
repetition, except when linked to a specific sabab (cause). So it becomes waajib
(obligatory) or mustahabb (recommended) to comply whenever that sabab (cause)
exists.
Matters in which a choice is given are of varying types. So if the choice was
given with the aim of facilitating ease to the makallaf, then the choice is
desirable and preferred. If the choice was given to achieve a particular
maslahah (benefit), then choosing that which is a greater benefit is obligatory.
Words indicative of generality are: kull, jaami’, al-mufridul-mudaaf (the
genitive form of a singular), the indefinite when attached to a nahee
(prohibition), a nafee (negation), an istifhaam (interrogative), or ashart
(condition).
And: “al-’ibrah bi ’umoomil-lafdh laa bi khusoosi-sabab [the lesson. or
consideration is in the generality of the wording, not in its specific cause of
legislation].”
The khaass(specific) can mean the ’aam (general); and visa versa, providing the
existence of qaraa‘in (signs) are indicative of this.
The Khitaab (address) of the Lawgiver to any one of the Ummah, or His Speech in
any specific issue, actually includes all the Ummah, and all the specific
issues, unless there is an evidence indicative of it being khaass (specific).
Likewise, the asl (basic principle) concerning the actions of the Prophet
sallallaahu ‘alayhi wa sallam is that his Ummah is to take him as a model and an
example to follow, except when there exists an evidence indicative of that being
specific to him. If the Lawgiver negates an act of worship or a social
transaction, then this is indicative of it being invalid; or a negation of some
necessary aspect of it. Hence, it does not become totally invalid because of the
negation of some of its recommended aspects.
Contracts are bound or cancelled by all that which is indicative of this, from
both statements and actions.
Masaa‘il (issues) are of two types:- [i]: Those that have been agreed upon by
the Scholars. So here it is required to picture and to establish the evidence
upon it, then to rule accordingly, after picturing and deducing. [ii]: That in
which the Scholars have differed. So here it is required to reply to the
evidence of the differing opinions. This is the right of the mujtahid (the one
capable of employing ijtihaad) and the mustadlil(the one able to employ
inductive reasoning). As for the muqallid (blind follower), his duty is to ask
the People of Knowledge.
And taqleed is: the acceptance of a saying of someone, without a proof. So the
one capable of inductive reasoning, then it is upon him to exercise ijtihaad and
istidlaal. as for the one who is incapable, the it is upon him to make taqleed
and ask; as Allaah has mentioned both matters in His Saying:
“Ask the People of Knowledge if you do not know.”
[Soorah al-Anbiyaa 21:7].
And Allaah knows best.
And may Allah extol and send the blessings of peace upon Muhammad, the Messenger
of Allaah, and upon his Family, Companions and followers.
