AppendixR i s A l a t L a t i f a t u n J a m i ’a t u n f ! U s u l a l - F i q h a l - M u h i m a

I n t r o d u c t i o n t o t h e T r e a t i s e 728

All praise to Allah. We praise Him for what He possesses from His beautiful Names and lofty and perfect Attributes; and for His Judgment and Decree which encompasses everything that exists, and for His prescribed laws which encompass every field of legislation; and His Judgment through which he rec­ompenses: rewarding those who perform good deeds (al-muhsinin), and pun­ishing the criminals (al-mujirimin).

I testify that there is no deity worthy of being worshipped except Allah alone, who has no partner in His Names, Attributes, worship or Judgment. And I testify that Muhammad is His slave and messenger, who clarified the judg­ments and the rulings, made clear the halal (lawful) and the haram (prohibit­ed), and established the fundamentals and expounded upon them— until the Religion was completed and firmly grounded. O Allah send your blessings and peace upon Muhammad, and upon his family, his Companions and those that follow them, particularly the people of knowledge.

To proceed: This is a brief and light essay concerning usul al-jiqh (fundamen­tals of jurisprudence), easy in its wording, clear in its meaning, and useful in learning the rulings for whosoever reflects over its meanings. We ask Allah that He benefits the compiler and the reader. Indeed He is the M ost Gener­ous.

728 This translation is based on an existing translation o f this brief text that is widely spread on the internet. It has been edited and corrected based on the original Arabic.

A Commentary on Zad al-MuStaqni

S e c t i o n

Usul al-Fiqh: It is the branch of knowledge concerning the comprehensive ev­idences offiqh. Since fiqh consists of either masail (issues) o f which the ruling (hukm) by one of the five rulings (ahkam) is sought, or the dalail (evidences) upon which we extract these masail (issues).

Thus fiqh is actually the knowledge of masail (issues) and dalail (evidences). These dalail (evidences) fall into two categories:

1. Comprehensive evidences (kullayyatun) that encompass every ruling of a single kind, from the beginning offiqh to its end. An example being us saying, “Al-amr lil-wujub" (the command indicates obligation). Likewise, “An-nahi lit-tahrim (the forbiddance indicates prohibition), and there are further examples we could bring similar to these two. These are from usul al-fiqh.

2. Detailed evidences (tafsiliyyatun) that are to be understood in the light of the comprehensive evidences. W hen this task is completed, then the ahkam (rulings) can be derived. [We can see that] the ahkam (rulings) are dependent upon the detailed evidences, and the detailed evidences are themselves dependent upon comprehensive evidences.

Thus we can see the need and the requirement of understanding the foun­dations offiqh , and that it aids in the understanding offiqh , and that it is the foundation for inference and performing ijtihad in the ahkam (rulings).

S e c t i o n

The ahkam (rulings) upon which fiqh revolves around are five:

1. Wajib (obligation, normally translated in the main text as obligatory or mandatory): the one who performs it is rewarded whilst the one who leaves it is punished.

2. Haram (prohibition): this is the opposite of wajib.

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Appendix: Principles o f Fiqh

3. Masnun (recommended, also referred to as Sunnah, mustahabb, sunan, mandub): the one who performs it is rewarded and the one who leaves it is not punished.

4. Makruh (disliked): this is the opposite of a masnun.

5. Mubah (permissible): where leaving and performing it are equal.

The wajib (mandatory) is divided into two categories:

(i) Fard 'ayn (individual obligation), the performance of this is sought from every wz^tf/Za/Xresponsible), baligh (mature) ‘aqil (sane) individual. The major­ity of the wajib Shari'ah rulings fall under this category.

(ii) Fard kifayah (collective obligation), the performance of which is sought from the mukallifin collectively, but not from every individual specifically. Ex­amples being: the learning of beneficial knowledge and professions, the adhan, the commanding of good and forbidding of evil; and other similar matters.

These five rulings differ widely in accordance with the matter’s state, its levels and its effects. Thus, whatever consists purely or predominantly of maslaha (benefit), then the Lawgiver has commanded its performance through an ob­ligation or a recommendation. W hatever consists purely or predominantly of mafsadah (harm), then the Lawgiver has prohibited its performance through complete prohibition or making it disliked.

Thus this as/ (fundamental principle) encompasses all the commands and pro­hibitions [in the Shari’ah].

As for the mubahat (permissible acts) which the Shari’ (lawgiver) has per­mitted: at times they lead to good, and so they are attached to these matters which have been commanded. Likewise on other occasions they may lead to that which is evil, and so they become attached to those matters which are prohibited.

Thus arises a great as/, “Anna al-wasa'ila lahd ahkam al-maqasid." (The ruling of the means is that of its aim.) From this we learn that:

“M a layatimmu al-wajib ilia bihi, fahuwa wajib." (W hatever the fulfilment of

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a wajib act depends upon is itself an obligation.)

“M a layatimmu al-masnun ilia bihifiahuwa masnun!' (Whatever the fulfilment of a masnun act depends upon is itself recommended.)

“Ma layatimmu al-masnun ilia bihi,fahuwa masnun." (Whatever the fulfilment of a masnun act depends upon is itself recommended.)

“M a yatawaqqafu al-haramu ‘alayhi, fa huwa haram" (Whatever haram de­pends upon is itself prohibited.)

“Wasailu al-makruh, makruhatun." (That which leads to the makruh is itself disliked.)

S e c t i o n

The adillah (evidences) that fiqh is derived from are four:

The Book and the Sunnah, and these two are the foundation upon which the mukallafun (the morally responsible) are addressed, and upon which their religion is built. Then ijma (consensus) and al-qiyds al-sahih (sound analogy), these two are inferred from the Kitab and the Sunnah.

Thus fiqh— from its beginning to its end— does not leave the dependence upon these four usitl (fundamentals). The majority of the impo rtant ahkam are brought forth by these four adillah (evidences). They are indicated to by the nusus from the Kitab and the Sunnah, the scholars have ijma upon them, and they are indicated to by qiyas al-sahih (sound and correct analogy) because of their beneficial attributes, if it is a command, or their harmful attributes, if it is something forbidden.

Only a small number of the ahkam have been differed over by the scholars. The closest of them to the correct view are those who correctly refer back to the four usitl.

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S e c t i o n

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Appendix: Principles o f Fiqh

As for the Kitab: It is the Q ur’an al-AzIm, the Kalam (Speech) of the Lord of the worlds. It was sent down by the Ruh al-Amln upon the heart of M u­hammad, the Messenger of Allah This was to facilitate him in being the warner to the whole of mankind—in the clear Arabic language— regarding all the necessary matters that entail benefit to them in their religious affairs and worldly affairs. [The Q ur’an] is that which is recited by the tongues, written in the mus-hafs, and preserved in the chests. It is that which: {Falsehood cannot approach it from before it or from behind it; [it is] a revelation from a [Lord who is] Wise and Praiseworthy.}729

As for the Sunnah: It is the Prophet’s % sayings, actions, and his approval of the sayings and actions of others.

The Shariah rulings are sometimes taken from a text found in the Book and the Sunnah. It is a text possessing a clear meaning, without any other meaning besides this. Sometimes it is based upon the zahir (apparent) meaning [of the text]. It indicates towards the ruling, in a general manner, both through word­ing and meaning. Sometimes it is based upon the mantuq (literal meaning). It indicates towards the ruling through its wording. Sometimes it is based upon the mafhum (implied meaning). It indicates towards the ruling due to being in agreement with the text—where the mafhum is equal to or stronger than the mantuq. O r by a conflicting meaning if the mafhum differs from the mantuq in its ruling. This is because the mantuq (literal meaning) is linked to an attribute or condition, and the absence of these causes the ruling to change.

The dalalah (indications) in the Kitab and the Sunnah are of three types:

(i) Dalalah mutabaqah. This is where we apply the wording to indicate all of its meanings, (ii) Dalalah tadammun: W here we apply the wording in order to indicate one of its meaning, [iii] Dalalah iltizam : W here we apply the wording of the Kitab and the Sunnah to indicate the meaning which follows as a con­sequence of it, which completes it, and what the issue being judged or spoken about cannot be finalised except by it.

S e c t i o n

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A Commentary on Zad al-Musiaqni

The asl relating to commands in the Kitab and the Sunnah is that they indicate towards obligation, except if there is evidence indicating that it is recommend­ed or mubah. The asl relating to prohibitions [in the Kitab and the Sunnah] is that they indicate towards forbiddance, except if there is an evidence indicat­ing that it is makruh. The asl relating to kaldm (speech) is that it is to be taken upon its haqiqah (literal meaning). So it is not to be altered and taken upon the majaz (metaphorical)— if we accept this— except when the use of the haqiqah is not possible.

Al-Haqaiq (literal meanings) are of three types: (i) Shar’iyyah (defined by the Shariah), [ii] Lughawiyyah (defined by language) and [iii] ‘Ur fly yah (defined by custom).

So whatever ruling the Shari has designated, it is obligatory to return it to the definition legislated by the Shariah. However in matters where the Shan has ruled but not defined and sufficed with its apparent linguistic meaning, then it is obligatory to return it to its linguistic meaning. And that which is not defined— neither in the Shariah, nor in the language— then it is obligatory to refer it back to the habits o f the people, and their customary usage (‘urfi. The Shari' may declare the return of these matters to the ‘u r f Examples of this are matters such as commanding the good, living well with one’s wife, and other similar matters.

So memorise these usul as the faqih stands in need of them in all of his inter­actions with fiqh.

S e c t i o n

From the texts of the Kitab and the Sunnah are those which are ‘dm (general), which is defined as that word which is inclusive of many categories, types or individuals. The majority of the texts are of this nature.

From the texts are the khas (specific), which indicate towards only some cat­egories, types and individuals. W hen there is no conflict between the ‘am and the khas texts, then each of them are acted upon [independently]. However, if it is deemed that a conflict has arisen, then the ‘dm is specified by the khas.

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From them are those which are mutlaq (absolute) and muqayyad (restricted). It is restricted by a description or a reliable restriction. Thus, the mutlaq is re­stricted by the muqayyad.

And from the texts are the mujmal (obscure) and mubayyan (explicit). W hat­ever the Shari’ has made obscure in one place, yet made it comprehensive in another, then it is obligatory to return to what the Shari’ made mubayyan (ex­plicit). Many of the rulings in the Q ur’an are mujmal in nature, but have been comprehensively explained in the Sunnah. So it is obligatory to return to the bayan (explicit clarification) of the Messenger of Allah M as he is the clear explainer from Allah.

Similar to this are the texts that are muhkam (singular in meaning) and those that are mutashabih (open to more than one meaning). It is wajib to under­stand the mutashabih in the light of those texts that are muhkam.

Amongst the texts are the nasikh (abrogating) and the mansukh (abrogated) The abrogated texts in the Q ur’an and the Sunnah are few in number. W hen­ever it is possible to harmonise two texts, with the possibility of each one being acted upon in its own circumstance, then it is wajib to do so. One may not turn to abrogation, except with a text from the Shari’, 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 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 tarjih (deciding which text is preferential). For example, if it appears that there is a contradiction between the Prophet’s M 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 khasais (particular and unique rulings) pertaining to the Prophet $$ are actually based upon this asl. Likewise, anything he M performed from worship in which he did not give a command— according to the correct view—it is considered to be mustahabb. Anything he $£ performed as a habit is considered to be mubah. W hatever he M permitted from speech and actions is given the ruling as mubah or other than it, depending upon the specific manner in which it was permitted.

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/) Commentary on Zad al-Mustaqni

S e c t i o n

As for ijma: it is the agreement of the mujtahid scholars upon the ruling of a new matter. W henever we have certainty regarding their ijma, it is wajib to turn to it, and it is not lawful to oppose it. It is required for the ijma to be grounded in the evidences from the Kitab and the Sunnah.

As for qiyas al-sahih: it is an annex, joining a subsidiary branch with its root, due to a common "illah (reason) between them. Thus whenever the Shari’dic­tates a matter or describes it with a particular characteristic, or the scholars interpret that the ruling has been legislated because of that particular char­acteristic— if that characteristic is found to exist in another issue which the Shari’ has not legislated any particular ruling for, without their being a differ­ence between it and the nusits (texts)— then it is wajib to link the two in their ruling. This is because al-Shari’ al-Haklm (the M ost W ise Lawgiver) does not differentiate between matters equivalent in their characteristics, just as He does not join between opposing matters.

This sound qiyas is the Mlzan (the Balance) which Allah sent down. And it is inclusive of justice, and it is that by which justice is recognised. Qiyas is only resorted to when there exists no text. So this asl is turned to when there exists no other source. And qiyas corroborates with the text. Thus, all that the Shari has ruled regarding in the texts is in agreement with qiyas and not in opposi­tion to it.

S e c t i o n

The usuliyun (scholars of usul) have derived many usul from the Kitab and the Sunnah, upon which they have built many rulings; by which they have bene­fited themselves and benefited others. Amongst these usul are:

“Al-yaqin la yazulu bish-shakk." (Certainty is not invalidated by doubt.) U n­der this principle there have entered many acts of worship, muamaldt (social interactions) and huquq (rights). The one who suffers a doubt in any of these, he should return to the asl of certainty. They also say, uAl-aslu at-taharahtu f i kulli shay.” (The basis concerning all things is that they are pure.) And, “al-aslu

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Appendix: Principles o f Fiqh

al-ibahahtu ilia ma dalla ad-dalilu 'ala najasatihi aw tahrimihi." (The asl is per­missibility except when there exists evidence indicating its impurity or pro­hibition.) And, “Al-aslu baraatu adh-dhamami min al-wajibat, wa min huqiiq al-khalqi hatta yaquma ad-dalilu 'ala khilafi d h a lik a (The asl is freedom from accountability concerning obligation and from rights towards the creation, un­til a proof is established to the contrary) And, "Al-asl baqa'u ma ishtaghalat bihi adh-dhamamu min huquqillahi wa huquq 'ibadihi hata yatayaqqana al-bara’ata wal-ada'a." (The asl is the continuation of accountability concerning the ob­ligations to Allah, and to His servants, until there is certain proof of freedom and discharge.)

And from them is that, “Al-mashaqqata tailubu al-taysir." (Difficulty brings about ease.) Based upon this are all the rukhas (concessions) allowed during a journey, and takhfif (lightening) of acts of worship, mu'dmaldt and other matters.

And from them is the saying: "La wajib ma' al-’ajzi, wa la muharram ma'ad- darurah" (There is no obligation with inability, nor is there any prohibition with necessity.)

The Shari’ has not made wajib upon us what we are incapable of doing in to­tality. W hatever the Shari' has made obligatory but the servant is incapable of performing, that obligation is discharged. However if the servant 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 examples of this. Likewise, whatever the creation are in need of, then it has not been made haram to them. As for the khabaith (evil matters), which have been made haram, then if the servant is forced into it, then there is no sin upon him. This is because darurah (necessity) allows those matters which are fixed with prohi­bition. And darurah is measured by its need in order to lessen the evil. Darurah permits the use of what is normally forbidden from food, drinks, clothing etc.

And from them, "Al-umuru bi maqasidiha." (Matters are judged by their pur­poses.) ‘Ibadat and mu'dmaldt fall under this principle. Likewise, the prohibi­tion of employing forbidden hiyal (stratagem) is derived from this asl. Direct­ing those words which are kinayat (vague) to be sarih (clear and equivocal) is based upon this asl. Its types are numerous.

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A Commentary on Zad al-Muitaqni

And from them, “Yakhtaru ala al-maslahatayn. wayartakibu akhaffa al-mufsa- datayn ‘inda a l-ta za h u m (Choose the higher of the two benefits, or incur the lesser of the two harms when burdened with them both.) Upon this great asl many issues are built. W hen the benefit and harm are both equal then averting harm takes precedence over procuring benefits.

And from them is, “La tutimmu al-ahkam ilia bi wuiudi shurutiha wa in- tifa 'mawani ’iha.” (Rulings are not complete except with the presence of their conditions and the negation of their impediments.) This is a tremendous prin­ciple, and built upon it— from the issues, rulings and other matters— are many things. W hen there is an absence of a shart (condition) for ’ibadat, muamaldt, or establishment of rights, then it is not correct, nor is it established. Likewise, if its impediments are present, then it is not correct, nor is it valid.

The shurut (conditions) for ‘ibadat and muamaldt are: all those matters upon which the validity of such 'ibadat and muamaldt rest. And these shurut are known through detailed analysis of the Shari'ah. Through investigating this asl, the fuqaha calculated the fa ra id (obligations ) of the various 'ibadat, and their shurut (conditions). Likewise, by it they were able to determine the shurut and mawani' (impediments) for the muamaldt. As for al-hasr. it is establish­ing a ruling for something, whilst negating it from something else. Through the utilisation of hasr the fuqaha are able to determine the shurut of various things and matters, and that which falls outside of them, then the ruling is not affirmed.

And from them is their saying, "Al-hukmyuduru ma"illatihi thabutan wa ‘ada- man." (The ruling revolves around its reason in both affirmation and negation.) So when the 'illal at-tamah (complete reason)— that is known as what the Shariah has linked the ruling to— is present, then the ruling is present. W hen it is absent, then the ruling is not established.

And from them is their saying, “A l-aslu fi al-'ibaddti: al-hazru. ilia ma vjarada 'an ash-shdri’ tashnuhu. wa al-aslufi al-'adat al-ibahd. ilia ma warada ‘an al- shdri’ tahrimuhu." (The asl concerning acts of worship is prohibition, except what is related from the Shari’ regarding it being legislated, and the asl re­garding customs and habits is permissibility, except what is related from the Shari’ regarding its forbiddance.) This is because ibadah (worship) is what the Shari’ has prescribed, either as something wajib or mustahabb. Thus, whatever

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is outside of this is not considered to be an act of worship. And because Allah 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 Shari’ made haram for us.

From them, “Idha wuiidat asbab al-'ibadat wa al-huquq: thabatat wa waiabat ilia idha qdranaha al-m am .” (If the reason for acts of worship and huquq are present, they are confirmed and obligatory, except if it is connected with a prevention.)

And from them, “Al-wdjibatu talzamu al-mukallafin." (Obligations are bind­ing upon the morally responsible.) A l-taklif{moral responsibility) is attained with al-bulugh (attainment of maturity) and al-aql (sanity). Compensation for damages becomes wajib upon the makallafin and others. W henever a person reaches maturity and is sane, those general obligations of worship become required from him to perform. And those specific obligations of worship also become required from him, providing he possesses the qualities which ne­cessitate them. The nasi (forgetful) and the jahil (ignorant one) are not held responsible from the point of view of sinning, but not from the point o f view of compensating for damages.

S e c t i o n

The statement of a single Companion— defined as anyone who met the Proph­et jfe, having iman and dying upon iman— if it became widespread and was not objected to, instead being affirmed by the Companions, then it is a form of ijm a . I f 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 an authentic hujjah (proof). However, if other Companions have disagreed or contradicted it, then it is not a hujjah.

S e c t i o n [ G e n e r a l P r i n c i p l e s ]

An amr (command) for something, entails a nahi (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 dalil (evidence) indicative of its validity. And a command which

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A Commentary on Zad al-Mutiaqni

follows a prohibition returns it to what it was prior to this. And both an amr and a nahi necessitate immediate compliance. However they do not require repetition, except when linked to a specific sabab (cause). So it becomes wajib or mustahabb to comply whenever that sabab (cause) exists.

Matters in which choice is given are of varying types: If the choice was given with the aim of facilitating ease to the m akallajthen the choice is desirable and preferred. If the choice was given to achieve a particular maslahah (bene­fit), then choosing that which brings a greater benefit is wajib.

“A l- ’ibrahtu bi 'umumi al-lafz., la bi khususi al-sabab." (The lesson is in the gen­erality of the wording, not in its specific cause.)

The khas (specific) can mean the am (general) and vice versa, providing the existence of qara'in (signs) are indicative of this.

The khitab (address) of the Shari’ 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 indicating that it is khas (specific).

The asl concerning the actions of the Prophet ^ is that his Ummah is to take him an example to follow except when there exists an evidence indicating specificity to him.

If the Shari’ negates an act of worship or muamalat, then this indicates that it is invalid, or it is a negation of some necessary aspect of it. In this case the negation does not totally negate some of the recommended parts of it.

Contracts are bound or cancelled by whatever indicates this, from statements and actions.

Masd'il (issues) are of two types: [i] W here there is ijm a. So here it is required to gather and to establish the evidence upon it, then to rule accordingly, after gathering and deducing, [ii] W here there is khilaf 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 ijtihad) and the mustadil (the one able to employ inference). As for the muqallid (blind follower), his duty is to ask the people of knowledge.

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And taqlid is the acceptance of the saying of someone else without proof. The one capable of inference, it is upon him to exercise ijtihad and istidlal. As for the one who is incapable, then it is upon him to make taqlid and ask, as Allah has mentioned regarding both matters: {Ask the People of Knowledge if you do not know.}730 And Allah knows best.

May Allah extol and send the blessings of peace upon M uhammad the M es­senger of Allah, and upon his family, Companions and followers.

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