Principles of Law

by

Rumee Ahmed

• LAST REVIEWED: 25 October 2017
• LAST MODIFIED: 25 October 2017
• DOI: 10.1093/obo/9780195390155-0247

Introduction

Much of early Islamic literature concerns the science of fiqh, which is often translated as “Islamic law.” Books on the subject are full of rules and regulations, ranging from personal etiquette to international relations. For a couple of centuries following the death of Muhammad, these books of law flourished, leading some Muslim scholars to reflect on the underlying principles that animate Islamic law. Often, this reflection took the form of short treatises, but other times the reflections were systematic expositions that came to be called usul al-fiqh, or the “principles of law.” These works provided rules for reading foundational sources, guidelines for determining legal capacity, linguistic theories, and definitions for technical legal terms, among many other things. There is vigorous debate about whether the subjects covered in usul al-fiqh can be rightly called “principles,” or if the genre was even meant to provide principles at all. Some argue that true principles are found in other forms of Islamic literature about, for example, the role of human reason, the “objectives of the law” (maqasid al-shariʿa), or the “legal maxims” (qawaʿid) according to which law is to be derived and assessed. There is a plurality of approaches to the subject of the “principles of law,” and diverse opinions on how they are to be understood and studied.

Arabic Sources

It is necessary to provide a list of relevant texts in their original Arabic for two reasons. First, there are very few English translations of historical usul al-fiqh works, and certainly not enough to provide a representative sample. Second, many of the translations that have been produced contain stilted language that is difficult to comprehend. Thus, Arabic sources will continue to play a crucial role in the study of usul al-fiqh until more translations written in accessible language are made available, like those listed in the next section. Books of usul al-fiqh often claim to represent the thinking of an entire legal school. Therefore, the most common way for aspiring jurists to express their thoughts on “principles of law” was to produce commentaries on extant books within a legal school. These commentaries elucidate, sometimes disagreeing with or changing, the original text. The usul al-fiqh texts listed below are selected from different legal schools, and each—with the exception of Ibn Hazm 1996—contains both an original text and a commentary from a later scholar from the same legal school. The texts listed below were chosen based on four criteria: (1) authoritativeness within the legal school, (2) inclusion of commentaries from different time periods, (3) accessibility in libraries around the world, and (4) publication quality that makes for easy reading.

• al-ʿAttar, Hasan ibn Muhammad. Hāshiyat al- ʿAṭṭār ʿalā Sharḥ al-Jalāl al-Maḥallī ʿalā Jamʿal-Jawāmiʿ. 2 vols. Beirut, Lebanon: Dar al-Kutub al-ʿIlmiyah, 2009.

  This text was written by the renowned Shafiʿi scholar Taj al-Din al-Subki (d. 1340), and this version includes a commentary from Jalal al-Din al-Mahalli (d. 1459), and a supercommentary by Hasan al-ʿAttar (d. 1835).

• ʿAwtabi, Salama b. Muslim. Ḍiyāʾ al-Ḍiyāʾ. Muscat, Oman: Maktab al-Mustashar al-Khass, 2004.

  Written by the ʿIbadi scholar Salama b. Muslim al-ʿAwtabi (d. early 12th century), this work is based on a book by his predecessor, ʿAbd Allah al-Bahlawi (d. early 11th-century) and has become a standard book of ʿIbadi usul.

• Burujirdi, Husayn al-Tabatabaʿi. Al-Ḥāshiya ʿAlā Kifāyat al-Uṣūl. 2 vols. Qum, Iran: Mu’assasat Ansariyan, 1992.

  A gloss by one of the most prominent Jaʿfari Shiʿa scholars of the modern era, Husayn Burujirdi (d. 1961), upon a text written by his teacher, Akhund Muhammad Kazim Khurasani (d. 1911). This book is regularly taught in seminaries.

• Ibn Hazm, ʿAli b. Ahmad. Al-Iḥkām fī Uṣūl al-Aḥkām. 4 vols. Beirut, Lebanon: Dar al-Kutub al-ʿIlmiya, 1996.

  A foundational work by Ibn Hazm (d. 1064), this book is widely considered the most authoritative Zahiri work of usul al-fiqh.

• Ibn al-Husayn, Ahmad. Al-Mujzī fī Uṣūl al-Fiqh. 4 vols. San’aa, Yemen: Abdul Karim Jadban, 2013.

  This Zaydi text, whose author is also known as al-Natiq bi-l-Haqq (d. 1033), includes the thoughts of many Muʿtazili scholars of his time, especially Abu ʿAbd Allah al-Basri (d. 980), and was adopted by prominent Muʿtazilis thereafter, most notably Abu al-Husayn al-Basri (d. 1044).

• al-Iji, Abd al-Rahman b. Ahmad. Sharḥ Mukhtaṣar al-Muntaha al-Uṣūlī. 3 vols. Beirut, Lebanon: Dar al-Kutub al-ʿIlmiyah, 2004.

  The Maliki scholar ʿAdud al-Din al-Iji (d. 1355) penned this commentary upon a work by Ibn al-Hajib (d. 1248), which is itself a commentary on an earlier book, also by Ibn al-Hajib.

• Laknawi, Muhammad Amin Allah. Qamar al-Aqmār li Nūr al-Anwār fī Sharḥ al-Manār. 2 vols. Beirut, Lebanon: Dar al-Kutub al-ʿIlmiyah, 1995.

  Based on a central Hanafi usul work, al-Manar by Abu al-Barakat al-Nasafi (d. 1310), this text includes a commentary by Mulla Jiwan (d. 1717), and a supercommentary by ʿAbd al-Halim al-Laknawi (d. 1868).

• al-Mardawi, ʿAli ibn Sulayman. Muqaddimat al-Tahbīr Sharḥ al-Taḥrīr fī Uṣūl al-Fiqh al-Ḥanbalī. 8 vols. Riyadh, Saudi Arabia: Maktabat al-Rushd, 2000.

  A commentary by al-Mardawi (d. 1480–1481) on a Hanbali usul text written by Ibn Muflih (d. 1361).