Principles of Islamic Jurisprudence

This third edition of the best-selling title Principles of Islamic Jurisprudence has been completely revised and substantially enlarged. In this work, Prof Kamali offers us the first detailed presentation available in English of the theory of Muslim law (usul al-fiqh). Often regarded as the most sophisticated of the traditional Islamic disciplines, Islamic Jurisprudence is concerned with the way in which the rituals and laws of religion are derived from the Qur’an and the Sunnah—the precedent of the Prophet. Written as a university textbook, Principles of Islamic Jurisprudence is distinguished by its clarity and readability; it is an essential reference work not only for students of Islamic law, but also for anyone with an interest in Muslim society or in issues of comparative Jurisprudence.

‘The best thing of its kind I have ever seen. Exactly the kind of thing I have wanted for years to put into the hands of students.’ 

- Professor Charles Adams (McGill University)’

'This book is a valuable addition to existing Islamic jurisprudential literature in English ... remarkably successful.’ 

- The Muslim World Book Review

About Author:

Mohammad Hashim Kamali (born February 7, 1944, Nangarhar Province, Afghanistan) is an Afghan Islamic scholar and former professor of law at the International Islamic University of Malaysia. He taught Islamic law and jurisprudence between 1985 and 2004. Born in Afghanistan in 1944, he graduated from the University of Kabul and the University of London.

Kamali is the author of Islamic Commercial Law (2000), a study of the application of Shariah principles to some crucial financial instruments, options and futures contracts. He takes a much more permissive view of these instruments than do most Islamists.

In his book, Islamic Commercial Law (2000), Kamali wrote, for example, that many have "passed prohibitive judgments on futures and options" who have "not only failed to produce decisive evidence in support of their positions but have done so on the assumption that futures trading has no social utility and has no bearing on the welfare... of the people."

Among the scholars who pass the "prohibitive judgments" with which Kamali disagrees are Muhammad Akram Khan and Umar Chapra.

Mohammad Hashim Kamali served as Professor of Islamic law and jurisprudence at the International Islamic University Malaysia, and also as Dean of the International Institute of Islamic Thought & Civilisation (ISTAC) from 1985-2007. He is currently the CEO of the International Institute of Advanced Islamic Studies (IAIS) Malaysia under the newly appointed Chairman of the Institute, Former Prime Minister of Malaysia, Tun Abdullah Haji Ahmad Badawi. He studied law at Kabul University and then served as Assistant Professor, and subsequently as Public Prosecutor with the Ministry of Justice, Afghanistan, 1965-1968. He completed his LL.M. in comparative law and a PhD in Islamic and Middle Eastern law at the University of London, 1969–1976.

Table of Contents

Introduction to Usul al-Fiqh

I. Definition and Scope
Usul al-fiqh is concerned with the sources of Islamic law, their order of priority, and the methods by which legal rules may be deduced from the source materials of the Shari’ah. It is also concerned with regulating the exercise of ijtihad. The sources of the Shari’ah are of two kinds: revealed and non-revealed. Whereas the former provide the basic evidence and indications from which detailed rules may be derived, the latter provides the methodology and procedural guidelines to ensure correct utilisation of the source evidence. Usul al-fiqh, or the roots of Islamic law, thus expound the indications and methodology by which the rules of fiqh are deduced from their source evidence. The rules of fiqh are thereby derived from the Qur’an and Sunnah in conformity with a body of principles and methods which are collectively known as usul al-fiqh.

Some writers have described usul al-fiqh as the methodology of law, a description which is accurate but incomplete. Although methods of interpretation and deduction are of primary concern to usul al-fiqh, the latter is not exclusively devoted to methodology. To say that usul al-fiqh is the science of the sources and methodology of the law is accurate in the sense that the Qur’an and Sunnah constitute the sources as well as the subject-matter to which the methodology of usul al-fiqh is applied. The Qur’an and Sunnah contain both specific injunctions and general guidelines on law and religion, but it is the broad and general directives which occupy the larger part of the legal content of these sources. The general directives that are found in the Qur’an and Sunnah are concerned not so much with methodology as with substantive law, and they provide indications which can be used as raw material in the development of law. The methodology of usul al-fiqh refers mainly to methods of reasoning such as analogy (qiyas), juristic preference (istihsan), presumption of continuity (istishab) and the rules of interpretation and deduction. These are all designed to serve as an aid to the correct understanding of the sources of Shari’ahand ijtihad. While the clear directives of the Qur’an and the Sunnah command permanent validity, the methodology of usuldoes not, for it was developed after the revelation of the Qur’an and Sunnah came to an end, and most of it consists of juristic propositions and ijtihad advanced by scholars and ‘ulama’ of different periods. As an instrument of legal construction and ijtihad, the methodology of usul al-fiqh must therefore remain open to further adaptation and refinement in order to respond to the changing needs of society and civilisation.

To deduce the rules of fiqh from the indications that are provided in the sources is the expressed purpose of usul al-fiqh. Fiqh as such is the end product of usul al-fiqh, and yet the two are separate disciplines. The main difference between fiqh and usul al-fiqh is that the former is concerned with the knowledge of the detailed rules of Islamic law in its various branches, and the latter with the methods that are applied in the deduction of such rules from their sources. Fiqh, in other words, is the law itself, whereas usul al-fiqh is the methodology of the law. The relationship between the two disciplines resembles that of the rules of grammar to the language. Usul al-fiqh in this sense provides standard criteria for the correct deduction of the rules of fiqh from the sources of Shari’ah. An adequate knowledge of fiqh necessitates close familiarity with its sources. This is borne out in the definition of fiqh, which is ‘knowledge of the practical rules of Shari’ah acquired from the detailed evidence in the sources’. The knowledge of the rules of fiqh, in other words, must be acquired directly from the sources, a requirement which implies that the faqih must be in contact with the sources of fiqh. Consequently, a person who learns fiqh in isolation from its sources is not a faqih. The faqih must know not only the rule that misappropriating the property of others is forbidden but also the detailed evidence for it in the source, that is, the Qur’anic ayah (2:188) which states: ‘Devour not each other’s property in defiance of the law.’ This is the detailed evidence, as opposed to saying merely that ‘theft is forbidden in the Qur’an’. Fiqh is acquired knowledge which is obtained by study and self-application and is therefore different from inherent knowledge, for example, that of God, who is All-Knowing; it is also different from the knowledge of the Prophet, and that of the angel Gabriel, as theirs was given or transmitted to them essentially through revelation.

The word asl has several meanings, including proof, root, origin, and source, such as in saying that the asl (proof) of this or that rule is ijma’; or in the expression usul al-fiqh, which means the roots of fiqh or its underlying evidence. It is also used in the sense of the original rule or norm as in the legal maxim that ‘the asl in all things is permissibility’, or when it is said thatal-asl bara’ah al-dhimmah, the norm is the absence of liability. Asl also means the foundation on which something is constructed. When it is said, for example, that qiyas or analogy must have an asl, this may be the Qur’an or the Sunnah.  Asl also means that which is preferable (al-rajih), such as in the saying that al-asl fi’l kalam al-haqiqah (the literal meaning is preferable to the metaphorical one). And lastly, asl and usul denote rules or principles on which a branch of knowledge may be founded, such as in usul al-hadith, which is equivalent to qawa’id al-hadith, that is, the rules governing the science of hadith.

Knowledge of the rules of interpretation is essential to the proper understanding of a legal text. Unless the texts of the Qur’an or the Sunnah are correctly understood, no rules can be deduced from them, especially in cases where the text in question is not self-evident. Hence, the rules by which one is to distinguish a speculative text from a definitive one, the manifest.