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Questions concerning
Juristic Principles & Usuli Points
1) I have come across the following principles (qawaid?) in usul:
- Rulings change according to time
- That which leads to a wajib is wajib
- That which leads to haram is haram
With respect to these three principles, I would like to know:
a) Are they accepted unanimously? If so, are there any references to
indicate this? If not which scholars differed and why?
References to the axioms of jurisprudence (al-qawaʿid al-fiqhiyya), taken
from the bibliography given in Dr. Mustafa al-Bugha's recent book Dar'
al-Mafsada fi al-Shariʿa al-Islamiyya (1997):
- al-Isnawi, Jamal al-Din (d. 772). al-Tamhid fi Takhrij al-Furuʿ ʿala
al-Usul.
- al-Tilimsani, Abu ʿAbd Allah (d. 771). Miftah al-Wusul ila Bina'
al-Furuʿ ʿala al-Usul.
- al-Hamawi, Shihab al-Din (d. 1098). Ghamz ʿUyun al-Basa'ir Sharh
al-Ashbah wa al-Naza'ir li Abi Nujaym.
- Haydar, ʿAli Haydar. Durar al-Hukkam Sharh Majalla al-Ahkam.
- Ibn Rajab, Abu al-Faraj (d. 795). Al-Qawaʿid.
- al-Zarkashi, Badr al-Din (d. 794). al-Manthur fi al-Qawaʿid.
- al-Zanjani, Shihab al-Din (d. 656). Takhrij al-Furuʿ ʿala al-Usul.
- Ibn al-Subki, ʿAbd al-Wahhab (d. 771). al-Ashbah wa al-Naza'ir.
- al-Suyuti, Jalal al-Din (d. 911). al-Ashbah wa al-Naza'ir fi Qawaʿid wa
Furuʿ Fiqh al-Shafiʿiyya.
- Ibn al-Shat, Qasim (d. 723). Idrak al-Shuruq ʿala Anwaʿ al-Furuq.
- Ibn ʿAbd al-Salam (d. 660). Qawaʿid al-Ahkam. Also: al-Qawaʿid
al-Sughra.
- al-Qurafi, Shihab al-Din (d. 684). al-Buruq fi Anwaʿ al-Furuq.
- al-Maliki, Muhammad ʿAli ibn Husayn. Tahdhib al-Furuq wa al-Qawaʿid
al-Sunniyya.
- al-Maqarri, Abu ʿAbd Allah (d. 758). al-Qawaʿid.
- Ibn Nujaym, Zayn al-Din (d. 970). al-Ashbah wa al-Naza'ir.
- al-Nadwi, ʿAli Ahmad. al-Qawaʿid al-Fiqhiyya.
- Ibn al-Wakil, Muhammad (d. 716). al-Ashbah wa al-Naza'ir.
- al-Wansharisi, Abu al-ʿAbbas (d. 914). Idah al-Masalik ila Qawaʿid
al-Imam Malik.
b) How were such principles established?
c) What evidences are they based upon?
d) How do these principles work (i.e. what is/are the conditions for
their application?
For instance, if we take the one about wajibaat, how
often can it be iterated? That is, say if it is juma. Can I say that if
without catching a taxi I cannot make juma, it is wajib to catch that
taxi? What if I can't catch that taxi unless I leave the meeting at work
10 minutes early, does it become wajib to leave that meeting earlier? And
I can't leave that meeting earlier unless I start work an hour earlier in
the morning, does it become wajib to do that then?
e) I thought that ahkam can only be ahkam if there is a khitab (address)
from the Legislator in the evidence, and a qarina (indication) which
shows whether the rule is wajib, mandoub, mubah, makruh or haram. Yet I
don't see where there is either a khitab or qarina when such principles
as mentioned above are used. Can anyone explain please?
c) Which works discuss such principles?
2) What is 'Ma'alat ul af'al'? (I think it is translated as 'the results
of actions'. Is it related to the last two principles above?
3) How does 'Sadd al-Dharai' work?
4) Is it true that usul have to be based upon definitive/conclusive (i.e.
qat'i) evidences?
a) If so, why?
b) Which scholars addressed this issue? And in which works?
c) I appreciate that usul such as Qur'an, Sunnah are based upon qat'i
evidences. However is it true that usul such as Sadd al-Dharai, Istihsan,
Ijma al-Ulema, and others, are not? And if so then why are they used?
That is, what is the justification for doing so?
GF Haddad ©
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