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F I Q H

ISLAMIC LAW

&

USUL AL-FIQH

Dr. Yusuf Ziya KAVAKCI

LLB,BD,Ph.D. ( Istanbul )

Ex-Professor ( Islamic Law ) and Ex-Dean of

College of The Islamic Studies,Erzurum,Turkey

Director of The Islamic Center,Richardson,Dallas,Texas

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To the Memory of Relatives

My Grandgrand Father Tahir Dede

MyGrandFather Mustafa Chishkaroghlu

My Father Ahmed Kavakci

My Mother Fatma Kavakci

My Sister Firdevs Kavakci

My Father in-Law Ibrahim Edhem Gungen

My Teachers

Terzi Ahmed Efendi ( Topaloglu )

Mahir Iz

Cevdet Simsek

Saban Bas

Bekir Haki Yener

M. Tayyib Okic

To the Future of my folk

Gulhan Kavakci

Merve Safa Kavakci / Abushanab

Ravza Kavakci

Elif Mina Kavakci

Fatima Abushanab

Maryam Abushanab

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Table of Contents

Page

Preface................................................. 7

Fiqh.................................................... 11

Ijtihad................................................. 37

Khilafiyyat............................................. 55

Imamah.................................................. 67

Hisbah.................................................. 87

Majalla................................................. 105

Modern Issues........................................... 125

Usul al-Fiqh............................................ 145

Adillah................................................. 165

Linguistics of Usul al-Fiqh............................. 181

Bibliography............................................ 207

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Preface

Islamic Law ( Fiqh ) is a very important discipline for muslims all over the world,especially for
muslims of the new world.It shows the way of life,how to live and how to abide by the Word of
Allah ( Wahy ).It is a set of rules and regulations based on the Qur'an and Sunnah.All muslims
are to abide by its rules from the point of Islam; they are fully binding.

Muslim scholars of the past produced immense amountof Fiqh literature. Thousands of books
have been produced in this area which are marvellous intellectual productsofthe islamic
scholarship of hundreds of ulama belonging to different nations.

Unfortunately we lack any center which can take care of this


branch of Islamic sciences in a modern advanced way.

We need to computerize all books and materials of Islamic Literature with all its barnches like
Tafsir,Hadith,Fiqh,Sirah and Fatwahs. So that whenever any body needs any thing,it becomes
available to him in seconds at the touch of a button.

Hundreds of books perished in wars ( mongolian invasionof Baghdad,wars in Muslim Spain


etc.),fires and we areleft with only the names of the books which are yet to be discovered.

By computerizing we may possibly fill the gaps and prevent the literary heritage from being
exposed to destruction and stretch what we have in our hands to the maximum level of benefit.

For that we need a good center for Islamic Studies with very strong financial sources which is
steady and enough.The best minds of the Ummah must be given a chance to study there and to
produce the books and codes the muslims need or will need in future.

A team work is necessary.Individualism must be left out.

All muslim states and organizations must cooperate with that center.

This center may host hundreds of muslim scholars who may contribute to the Islamization of
every thing we need and every

corner of the Globe we want.

Islamic Law is based on iman;that is belief in Allah,in His books,in His prophets,in the Hereafter
and so on,so forth.It is our life long belief and the commitment to practice His Word (Wahy).
The source of this law is Allah and His messenger.

No secular type of understanding exists here in this law.Human beings are not the main source of
law at all in Fiqh.

Fiqh is a universal and global system.It also has historic background and history of development.

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We muslims are suffering under the almost total ignorance of the

Islamic Law.One of the most dangereous movements is ignoring the Islamic Literature and
seeing onneself eligible to derive rules directly from the Qur'an and the Sunnah without prperly
being equipped with the necessary sciences (al-`Ulum al-Aliyyah) as well al-`Ulum al-
`Aliyyyah.

The English words need to be evaluated by muslim scholars who are well in linguistics of
English and Arabic.They must find ways of Fiqh terms to be expressed in English.It is necessary
to search those words which are accepted as equivalent to Arabic Fiqh words and are to be
covered by the same rules as in Arabic fiqh literature.Words have very significant status in Fiqh,
indeed.There is no consensus in the English words used in Islamic literature so far.Even the
English translations of the Qur'an have very wide range of words and terms which have no
common bases among them.

I did my best; but it is far away from being perfect.We do not have any team of scholars whom
we may consult with.Every body is busy with his own affairs.

What we are witnessing here,was the same in the past. Muslims accepted Islam and they adapted
their lives to all aspects of Islam.

I tried to cover a pretty broad literature in this field andcould not follow a unique transcript
system. Meantime, I had to endure the lack of some letters in English such as Cha,Sha in Turkish
or different accents in french words.

I intended to give a little broad view of Islamic Law to English reader,especially in the area of
the Methodology of Islamic Law

( Usul al-Fiqh ),which I believe maybean original

contribution to Islamic Sciences here in USA and dealt different subjects under the various
titles.

My attempt is a very humble one.I will be happy, if I get any kind of feedback to my humble
work.

Some Fiqh academies,Islamic centers and universities seem to be very traditional and slow in
motion.They look a little stagnant and not ready to catch up the speed of the problems rising all
around the muslim world. Sitting in the luxurous halls and having coffee, does not help stop the
course of life and solve the practical problems.

We muslims of today in general and responsible authorities and persons in special must get
lesson from the History and understand how our forefathers served to Islamic Sciences and
produced enormous amount of literature in each walk of life without any precedent.

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At the end, I must thank the brothers who encouraged me to produce this work and shared with
me a lot of troubles in finalizing the text.I am grateful to Ausaf Husain,who went through the
text several times.Jazahullahu khairan.

Wa mina Allahittawfiq.
Y.Z.K.
November 1989

Dallas USA

Correspondence: P.O.Box 833010, Richardson, Texas 75083 USA.

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FIQH

Generalities

Fiqh is a science of rules, laws and regulations drawn from Qur'an and Hadith based on
evidences and arguments accepted by muslim scholars in their capacities as religious leaders of
their communities and authorities in islamic sciences. It is a compendium of laws governing the
entire life of human

beings starting with conception in their mothers wombs to the

period after death. Shari`a (Shari`ah) is some times used in the same context,i.e. legal part of
religion. But in reality Shari`a means the way and the path; the way leading to Allah and the
straight path. It is mentioned in Qur'an several times,generally meaning religion (Din).

According to a very famous saying of Prophet Muhammad (p.b.u.h.), a muslim's recordings of


rewards won't stop with his death in the following categories: a) a continous charity which helps
the public, b) a contribution to knowledge and science in a way that benefits others, and c) a
good offspring who prays for him/her. This also applies in the realm of Fiqh.

Before dealing with the definition of Fiqh, a term of specific science, I must give literal meaning
of the Arabic word Fiqh

( al-Fiqh ); that is to understand,to perceive deeply, and to

manage understanding the meaning and core of something.

The word is mentioned in Qur'an with its different forms of derivations; i.e., " .. they have hearts
but theydon'tquite

understand.." ( al-A'raf,l79 ). The forms mentioned in Qur'an

are as follows: " yafqahun " (thirteen times), " yafqahuu "

( four times ), " tafqahuna " ( once ), " nafqahu " ( once ).

They are scattered over ten chapters of Qur'an. Their total is 19. In all of these citations the word
fiqh means, in its derived form, to understand something and to perceive something.

Of course, fiqh in this context deserves more semantical,socio-

psycological studies to be done by modern advanced techniques,following, for sure, the


historical linguistic and cultural data traceable in the History of Civilizationof Humanity.We
must not overlook in this type of studies the vast information provided to us by past muslim
scholars,and our new methods must be in compliance with the rules laid down by famous alims
in the past.Our modern findings and techniques must always be checked in terms of Usul al-

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Fiqh, Principles of Tafsir and the allied sciences.We can not underestimate the services rendered
by our fore-fathers to the Islamic Sciences otherwise it will be no less than of arrogance.

Thus it is very much necessary to re-evaluate the services rendered by the muslim scholars of
Arabic grammar, both Morphology

( Sarf ) and Syntax ( Nahw ),Diction and Semantics of Arabic

etc. along with modern ways and methods of interpreting the

historical texts in their conceptual cultural contexts.

Concept of Fiqh must be studied in detail from the point of human psycology, physico-chemical
mechanism and reaction ofFiqh,

namely process of " understanding" of human mind and related

organs of his body. Human understanding and thinking is very important aspect of human being
on which the address of divine revealation is based. In other words, the whole divine massages,
Qur'an and indirectly the Hadith are to be based on " undarstanding " in terms of logic
interpretations and rules and regulations to be drawn from the textual study of the sources.

That is why in Islam, faculty of reasonable understanding and logic power of human being are
very much necessary for being responsible and accountable in this world and hereafter. A person

who does not have the proper power of reasoning and a certain level of understanding may not
be charged with the address (khitab) of Allah and the message of Prophet Muhammad
(p.b.u.h.),i.e., wahy in total.

Modern studies are desperately needed in order to be able to communicate with the masses, to
reach their minds and understanding,and to inculcate the Islamic norms and values in the minds
of the new generation; both in terms of age and in terms of conversion to Islam.

As we see a little later, Fiqh is the legal aspect of the way of life in Islam. So it resembles other
legal systems in some points.The biggest difference among them are philosophical and creed
aspect of Fiqh. As a matter of fact, Fiqh stems ultimately from the word ( wahy ) of Allah,who is
the Creator, who is the ultimate Planner, who is Everlasting,Omnipotent, all Powerful etc. He
isthe real Legislator. He is the One Who willquestionall

human beings and even beings in the Hereafter.Every body's actions

and deeds will be weighed carefully and graded accordingly.The Hell

and the Paradise have been created by Him for reward or punishment.He

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is Ever-lasting and every-thing e;se is transitory.He is the main source for every thing,every
movement and every act. The sentences and articles of different legal systems, including worldly
ones, may look like each other and even may be exactly the same.But the philosophy of Islamic
Law is very different and perfect in all its aspects.

Its social aspect is very much interwoven with ethics,fear and concern of Allah,connected with
the complete perception of the Hereafter,the Hell and the Paradise. The sanction of Fiqh is belief
in Allah,the wholehearted acceptance of Him with free will and acceptance which is backed
with belief in the Hereafter, with its components such as weighing the deeds and actions and
accounting, etc.

Definition:

Fiqh is defined as "a persons knowing and understanding what is for him and what is against
him". This is the definition which is ascribed to Imam Abu Hanifah. That is the most general
definition of Fiqh as an independant social islamic science. It includes all types of rules and
regulations required by Islam, irrespective of it's content; wheather it is related with the belief
( Aqidah ) or it is related with ethics ( Khuluq, Akhlaq )

etc.
In Qur'an a word derived from Fiqh ( li yatafaqqahu fi'l-din ) is also mentioned in the context of
acquiring knowledge in religion

( Islam ). I think it is a meaning having nearest connotation to the legal concept of Fiqh. A.Yusuf
Ali translated the referred " li yatafaqqahuu fi 'l-din " as " They could devote themselves to
studiesinreligion " ( al-Tawbah,ix,122 ) and Marmaduke Pickthall's interpretation is as " they
may gain sound knowledge in religion " ( Reference: Same as above ).

A hadith which should be mentioned in this regard is " Man yuridi Allahu bi-hii khairan
yufaqqihhu fi'l-din "( Allah will let any body gain sound knowledge in religion if He wants for
him any good).This hadith is very important and basic for islamic studies in general and rules
and regulations of Islam ( Fiqh ) in particular.

As a pure legal science, Fiqh is defined " science of knowing applicable and practicable sharia
rules and laws ( al-ahkam ) together with their evidences and arguments in detail ." This
definition is really a comprehensive anddevelopedone.The previous definition refers to the
general type of knowledge in religion and it is a very early definition, dated as first half and
possibly first quarter of the second islamic century. The meaning of this general definiton is very
much reflected in the title of the book " al-Fiqhu 'l-Akbar ", the book which is ascribed to Abu
Hanifah ( d.l50/767 ).The subject of the book is not strictly depictable as judicial and legal in
terms of Fiqh,but it is generally in the realm of Aqidah including wide range of escatological
subjects and theological motos.

The definitionsgiven by different schools and scholars mayvary

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slightly because of the differences in understandings and conceptual states of minds stemming
from sociological elements traceable in the environments they flourished.This point may lead us
to the problem of sociological elements of the vast Fiqh literature.This is a very big debateable
issue for the scholars in the context of divinity of Fiqh rules and the unchangeability of Sharia
rules.They also debate as to what portion of Fiqh are purely divine and religious based on pure
revelation ( wahy ) and binding, and what parts are worldly and socilogical,thus changeable to
suite special circumstances. By tracing thisissueindetail, we might arrive at the roots of the
techniques which developed Fiqh in the early years of Islam without precedents and without
previous specimen of studies; based on Qur'an and Hadith to suite the conditions of the society
they were living in. Search of the lines,graphics and curves of divine and sociological elements
and their interactions with each other would give us the history of development in Fiqh and will
enable us to trace the routes of legal opinions and their influences on human minds and society
in general. It finally

will lead us to discover the methods of developing new techniques for the solutions of the
modern problems which we badly need. We need this sort of approach, at least from the
theoretical point of view, in order to find new theories to tackle current issues. Ijtihad with new
type of approach will gain strength and momentum possibly to the level necessary to prepare
conditions for further development of Islamic Jurisprudence in our modern centuries.

Islamic Law,Islamic Jurisprudence,Droite Musulmane,Islamisches Recht

and the like possible names in modern european languages are

debateablefrom the point of whether they reflect full connotation

and significance of discipline of Fiqh. One thing must be pointed out

that in all of these expressions we've got to put " Islam " in order

to exlude the profane nature of laws in related languages. Islamic

Law is in its very nature divine and not quite ready to be fully

adapted to exclusively worldly sources of legal systems which are based on " voix populi " as
parallel and equal to divine nature of the law contrary to Fiqh which is fully based on the real
source of Law;i.e., Allah.

Jurists of Islamic Law are faqihs ( plural is fuqaha' ); it is a word derived from same infinitive of
Fiqh.Faqih has to know Arabic to master Qur'an and Hadith.He should have proven his ability of
analyzing the cases promptly and properly.He is supposed to be healthy physically and mentally
and gifted with normal faculty of senses. Looking back at the History of Fiqh, the majority of
faqihs were not arabic speaking,i.e., Arabs; rather they were scholars who took the
responsibilities of being judges, mufties and imams of their communities and teachers in
different levels; directing the muslims to ma'ruf ( all types of

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good ) and enlightening them about munkar ( all sorts of bad;i.e; bad according to Islam, bad
according to logic and reasoning, and bad according to tradition ). They were actual gauardians
of the Word ( revelation,wahy ) in all fields of human life. Needless to say that faqih literally
means " one who understands and has full faculty of perceiving the cases and wahy ". This
shows that faqih in the past, contrary to his stand of today, was the most genius of the Muslim
Nation, cream of their societies. They received full support of their fellow brothers and were
provided with all types of facilities and conditions to encourage them to acquire all necessary
knowledge. The books, the facilities and the case studies were made available to them through
unbelievable variety of waqfs (foundations, dedicated to the cause of Allah). The entire muslim
society was with them with full cooperation and understanding.

Some of the faqihs and alims in general had / have official type of approach to the issues and
gave / give solutions furthering the official state position. They serve the sovereignity by this
approach and support some of the faults and mistakes made by the king,caliph or whoever is in
command. These scholars have power and some times invisible upper hand in the solution of
social issues, including the application of Islam in the country.

The credit and discredit must go to them at least in certain

issues. Some times they are tools of oppression excecuted upon real alims fighting boldly for
Islam. Quite a few of them even work as intelligent elements for their favoured state which leads
to spying on muslims and islamic activities of the related organizations and get their share of
credit. This game,I believe,is being played in many muslim countries.

Coverage:

Fiqh does not ascribe to the concept of the division of state and

religion. Western type of divisions are not favoured in the Islamic Law.All aspects of human life
automaticallyy are the subject of divine rulesand regulations.Worship and actofprayer are parts
of Muslim Law.They are located as first chapters of the literatures ofFiqh.The first chapter
generally ison cleanliness ( taharah ), physically as well as spiritually.AAn individual's cleaning
the body and heart in due process is very much the bottomline of obeying the divine word and a
must for a muslim in all walks of life.Islamic Law governs the individual from the period before
birth up to the period after death with no exceptions to its jurisdiction.

Itspower ofenforcement comes from the very natureof belief in Allah, from person himself
indeed.Notice the necessity of having belief, intention and resolution personally and individually
in all acts of worship,transaction etc.Any act of worship, lacking the proper intention and not
having been duly processed, may not be accepted according to the Islamic Law even if it lasted
and was observed years after years.

Ethics and morality are not considered outside the realm of Fiqh.Nevertheless, the subject, for
practical reasons, is dealt as a different discipline and divided into independent areas of
studies.All these areas may be perceived as chapters of the same book sincethe source of the

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word is one ( Allah ),the positive source is the same ( Qur'an and Sunnah of the Prophet
Muhammad )

atleast in belief,theory, and perception. No muslim may find any

moment and any place in his life in which he can feel himself a free to do whatever he wishes
without the bondage of Islam. Because of the comprehensive nature of the Islamic Law,
marriage

contract, for example, has a power of worship as the topic of marriage in Fiqh Literature is
generally located in the chapter of

worship (Ibadah).That is why marriage has rules and regulations, and individuals are supposed to
observe these rulesin detail.Marriage is not a personal privilege of an individual. Nobodyhas
freedom in deciding to marry or not to marryor to have free marital relationship with some body
whom he/she is not

islamically marriedto.Rules andlaws ofa marriage range from

optional,recommended and mandatory levels upto forbidden and not recommended types
etc.These are all Fiqh problems for sure.

Furthermore Fiqh is backed up on sound ground by being accountable in the Hereafter;thus it is


extended upto the lifeafter.This belief makes the Islamic Law strong, and self-powered and self-
sanctioned in the minds and hearts of the muslim citizens. Systematics of Fiqh Books:

I think, I must deal a little bit with the topic of arrangements of subjects generally followed in
Fiqh Literature.This will give us an idea of inner structure of Fiqh books in general, at least in
the Hanefite School of Thought.This is almost a standard

structure in this literature.I want to give the Table of Contents of a book which was almost a
standard text book in Madrasahs (universities)ofthe Ottoman Empire.

That is the book " Multaqa 'l-Abhur ",which is a compilation of the problems dealt in al-
Quduri,al-Mukhtar,al-Kanz,al-Wiqayah and some additional issues from al-Hidayah ( all
aretitles of reliable and renowned Fiqh books produced in different centuries). This book deals
with a wide variety of opinions

with special reference to the preferred ones ( al-arjah ) and the most accurate ones ( al-asah ).

The book was compiled by Ibrahim b.Muhammad b. Ibrahim ( Ibrahim son of Muhammad who
is son of Ibrahim ) .He was originally from Halab ( Aleppo / Syria ).He got his basic academic
education in his town,then moved to Istanbul and settled there. He functioned as an imam in
different mosques and was finally appointed as a khatib in Fatih Mosque and a teacher in Daru '-
Qurra' Madrasah.

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Fatih Mosque was a very important center for islamic studies and his job was one of the highest
positions of its kind.

His death occurred in 956/l549, when he was over nintyyears of age.I must add that his service
to Islam and the islamic sciences

coincides with the golden period of the Ottoman Empire and the Islamic Khilafah. I would like
to remind you that the first half of the sixteenth century is a period stamped by Sultan Suleyman
the Magnificent ( Kanuni Sultan Suleyman as he is called in Turkish History ).

Therefore, the book and its arrangement has a special type of significance and meaning andit
may rightly represent the literature it belongs.The book has been edited many times and is
translated in Turkish and has some commentaries.

Table of Contents of Multaqa 'l-Abhur:


Book of Cleanness : division ( fasl ) of Cleanness is

permissable,division: well is cleaned up;chapter ( Bab ) al-Tayammum ( Cleanness by dust ) ;


chapter of wiping on boots

( khuf ),chapter of menstruation,division of bleeding of illness

( mustahadah ),chapter of uncleanness.

Book of Salah ( prayer ) : chapter of call to prayer,ch.of requirments of prayer,ch.of description


of establishing the prayer,division of necessity on spiritual focus in
prayer,division of imam's recitation loudly,devision on : prayer in congregation is strong practice
of the Prophet ( sunnah mu'akkadah ),ch. on breaking the prayer,annulling prayer,Prayers of
witr,tarawih,makeup prayers,prayer of patient,traveller,Jum'ah,

two festival prayers,prayers of catasrophe and fear,funeral prayer and prayer inside the Ka'bah.

Book of Zakah ( Islamic Tax and sharing community expenses ):Tax and due on
animals,cattles,sheep,goat,horse,gold,silver,mine etc.Person in charge of collecting the tax etc.

Book of Fasting: ch.on things breaking fasting,a patient may not fast,pledging fasting,religious
seclusion in mosque ( i'tikaf ).

Book of Hajj( Pilgrimage ) d.put on ihram (special clothes), entering Macca,offenses against
pilgrimage,sacrificing animal etc.

Book of Marriage: ch. Peopleforbiddento marry,guardians,dowry,

marriage of infidels,justice among wives etc.

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Books ( only ): Breastfeeding ( suckling ),divorce,freeing slaves,vows and oaths,fixed
penalties,theft,international law,foundling,lostandfound,lost things,partnerships,foundation,

business transaction,exchange of money,guarantee,transfer the right and


debt,judgement,evidence,agency and representation,suit and litigation,confession,peaceful
setlment of disputes,lend and borrow,donation and gift,rent and lease,mukatab ( slave ),wala'

( specialrelationbetweentheoldowner and free slave ), coersion and threat,put under guardianship


and conservatorship,

slave permitted to make his own business,usurpation,preemption,

how to divide anonymous shares,sharecropping,sharing looking after trees,slaughtering


animals,things abominable islamically,

revival of no man's land,drinks,hunting,pawn,blood money,social

security regarding murders of which killers are unknown,wills

and testaments,persons whosesex ( whether they are males

/females), and law of inharitance.

Aswe observe, the system of Multaqa' l-Abhur has structure of a book,bab (chapter) and fasl
( division ) and last two are not consecutively following each other and greater/smaller than each
other.But it is fairly systematic and in detail.

As we see from the study of the table, Fiqh books and Fiqh Literature in general cover a vast
area. Actually all aspects of human life with all its flexible principles as Ijtihad,al-
maslaha,istishab,sadd al-zara'i,re'y,qiyas and the like are covered in these books.

Academicians in this field discussed which book is to be accepted as the first book in Fiqh in its
academical sense.Some of them are of the opinionthat " Muwatta' " by Malik b. Anas (d.l79 /
795),
founder of the renowned Malikite School of Thought,is the first.

When we study Muwatta`s content we observe that hadiths are arranged somewhat according
to fairly complete standard Fiqh book's Table of Content;however being very early document in
its own field the credibilty of being one of the first example may

go to this gorgeous book;there is no doubt about it.But I think the overwhelming feature of
Muwatta' is its being a hadith book.

There is another marvellous piece of literature earlier than this

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one;that is " al- Majmu' al-Fiqh " by Zaid b. Ali ( d.l22/740)

who is one of the descendants of Ali, who is son in-law of Prophet Muhammad (p.b.u.h.).His
grandfather is al-Husain,son of
Ali,husband of Fatimah,daughter of Muhammad (p.b.u.h. ).

Zaid lived in Kufah and died in the year l22 H/740 A.D. Zaidiyyah

School of Thought in Yaman is named after him. Ja'far al-Sadiq,

al-Zuhri,Shu'bah and Abu Khalid al-Wasiti are among those who narrated from him.

This book has been published in Milano/Italy in l9l9 as a critical edition by Eugenio Griffini with
notes in Italian.The full name is as follows: Corpus Juris di Zaid ibn Ali ( viii sec. cr. la piu
antica raccolta di legislazione e di giurisprudenza musulmana finora ritrovata testo arabo
publ.per la prima volta sui mss. iemenici della Biblioteca Amrosiana.

The Kitabs (Books,Main chapters ) are :

Book of Cleanness,Prayer,Funerals,Zakah ( tax ),Fasting,Kharaj

(taxgiven tomuslim state by non-muslim statein war ), Transaction ( selling and


buying ),Witness,Marriage,Divorce,

Severe Penalties,International Public Law,Law of Inheritance.

The book has further divisions as bab ( chapter ) only.

The credit must go to this book,Majmu' al-Fiqh,with regard

to systematics of Fiqh Literature,I think.However, whether

this book is purely first Fiqh book or it is a book related to

hadith literature,is debatable from the point of independence of academic disciplines.

Going back to the previously mentioned book Muwatta',for the purpose of comparison,the latter
has the systematics of book ( kitab ) only;the subdivisions are having no titles as chapter or
division.

Majmu' al-Fiqh is more developed from this point of view than Muwatta',an additonal credit to
its being earlier than the latter.

Problem of Influences on Fiqh:

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At this time I would like to touch upon the issue of influences on Fiqh allegedly made by
Jewish Law and Roman Law especially.These are two main systems of laws established before
Fiqh.

JewishLawhas foundations in the OldTestamentwhichoriginally was revealed from God,but


changed with time and lost its original

form in the language of Moses ( p.b.u.h. ).But still it has probably some elements shared by all
divine books.Therefore,some rules and orders of Old Testament and Qur'an and by that way
Jewish Law and Fiqh are common, in another word look like each other.

The murder,adultery,theft may be cited as examples.That is why

it is natural to see some resemblances in these two systems. But to

say that Fiqh was influenced by Jewish Law isasimple claim which

should be positively proven withsolid and soundevidence. Idon't

see any sound evidence shown in this regard.Goldziher,Fitzgerald,

Goitein,Nallino,Schacht,Sawa Pasha and others aired their views on

this issue.But the problem is there and it needs further research.

Prof.Dr.Muhammad Hamidullah made avery precisestudy on this issue

which may be recommended for further steps ( Hal li 'l- Kanun al-Rumi

Ta'thir `ala 'l-Fiqhi 'l-Islami ),edited by M.Hamidullah,second edition,

Beirut l973.

One can't prove that Fiqh borrowed from Jewish Law anything important neither from the point
of content nor from the point of

systematics.This, I think, is a claim put forward by biased

orientalists and christian missionaries.

Roman Law is a law which prevailed in the areas which have been conquered later by muslims
and some of their population converted to Islam.The Roman Law actually was/is historically one
of the

very strong, widely spread, and practiced law in the Middle Eastern

16
countries before Islam.

Beirut and Istanbul were two main centers of legal studies in

those centuries.That was the case even before Jesus Christ

( p.b.u.h.).This law was appliedin Eastern Europe,Middle Eastern Countries and North Africa for
centuries.Islamic Law

was developedin and around the Arabian Peninsula and was

widely applied in nearly all Roman Empire territories,especially,

during the later centuries.

All of Codex,Digesta,Novalae etc. were produced and applied in those territories.

It is worth mentioning that we have today a code consisting of l30

articles which was in force during the advent of Islam in Syria.

This was a Roman Code related with civil as well as penal rules.

It has Armenian,AssyrianandArabic versions. German orientalists

K.G.Bruns and E. Sachau worked on the text and prepared avery

scholarly critical edition of it and published the originals together with German translation and
commentary.

It is very much advisable to onewhois interested in further research in the area of influences and
originality of Fiqh to study

this text along with other scholarly books, and to compare contents,

ideas and systematics with early Fiqh literature in modern scientific

ways.It is a Code contemporary to our Prophet Muhammad ( p.b.u.h.).

Full reference is as follows:

" Syrisch-Roemisches Rechtsbuch aus dem fuenften Jahrhundert,"

ed.K.G.Bruns and E.Sachau,Leipzig l880.

17
This is a study which was done more than a century ago.Some one first time in Turkey,
possibly first time in Muslim World,after

a century from its publication, attempted to compare the Code with

Islamic Law and Modern Turkish Law briefly ( Y.Z.Kavakci,Suriye

Roma Kodu ve Islam Hukuku,Ankara l975 ).

Syrian-Roman Code was first discovered by a dutch orientalist, Land in British Museum as a
syrian text and published in Anecdota syriaca ( 1862 ).

The Code was applied widely in Midle Eastern countries through Middle Ages under the names
of " Statuta imperatorum ", " Libri

basilicon ", and " lages Constantin Theodosii et Leonis ". It was first mentioned in " Bibliotheca
Orientals " ( Rome 1717-1728 ) by J.S. Assemani and later Bickell mentioned it just as a name in
" Geschichte des Kirchenrechts ".The Code was studied first by

Rudorff,Roediger and Petermann,who were members of "Academy of Sciences ( die Akademie


der Wissenschaften ) in Berlin.All were linguistics specialists and lawyers.Rudorff studied the
aspect of law in this Code,and the other two worked on its Arabic and Armenian texts and
published it with Latin translation.But the study was to be accomplished by Bruns and Sachau by
going into the detail grammatically and from the point of liguistics.It bears all characteristics of
the Roman Law which was widely applied in the Midle East,Europe and North Africa etc.The
edition has three main chapters:

First chapter is onsyrian manuscripts ( London and Paris ), Arabic and Armenian texts are
published in their original characters.

Second chapter is on the German translations of those texts.

Third chapter is alloted to notes and annotations and evaluations of paragraphs.

The Arabic text is in Bodlean Library in Oxford / England, recorded under Thom.Roe 26,folio
338a-356a.

The Arabic text of this code has a trinity preamble,if you will,at the beginning.It means that is
not purely a piece of Roman Law, it is a code, affected by christianity.Its articles were named as
" bab ".

This code was very popular in Syria and Mesopotamia in the fifth century and after that in
muslim period compared with Justinian Corpus Juris, because muslim conquest crashed down
political leadership of nonmuslim areas and gave credit to the churches thereby the religious
leaders became powerful and the sole representative of the society and they prefered this

18
text.The text was available in Arabic and Armenian.This was,perhaps, another point of credit for
this text.

Here we see nearly all legal matters mixed up with each


otheri.e.Inheritance,slavery,bequaeth,will, guardianshipand

conservatorship,gift by the way of will,dowery,relation between father and his


children,theft,divorce,suit procedures,freedom of religion and religious
practices,marriage,engagement,propety systems in marriage,limits of marriages,children after
divorce,property rights,burglarism,and somepenalrules.Theseare main subjects of this Code.The
most frequently mentioned rules are rules related with wills,inheritance,different rules related
with slaves and marriage issues,I guess.

We do not have any evidence which shows that Prophet Muhammad and

any of his companions were involved with other than islamic legal literature or had some sort
of mental or practical attachments to any legal text pertinent to Roman Law and others.

As a matter of fact,none of the early faqihs are reported to have known and to have used any
term or expression of Roman Law

origin.We may mention among othersmembersof Madina,Macca,

Kufa,Egypt and Damascus Fiqh schools.None from the early muslim jurists who layed the very
foundations and grounds of the Islamic Law ( Fiqh ) are reported to have known any thing from
Roman Law,or used the codes pertinent to Roman Law. Abu Hanifah

( d.l50 / 767 ),Malik b. Anas ( d. l79 / 795 ),Imam Shafi'i

( d.204 / 8l9 ),Ahmad b. Hanbal ( d.241 / 855 ),al-Awza`i

Abd al-Rahman ( d.157 /774 ), Sufyan al-Thawri ( d.l6l / 777 ),

Dawud al-Zahiri ( d.270/883 ) etc. are to be mentioned in this regard.They have written many
books.None of these books have any word having Latin or Greek origin,unlike the philosophy
books which contain a lot of Greek words,like very word philosophy in Arabic is Falsafah.

Previous Laws:

I think it is proper to say a few words here about a very original rule in Islamic Law regarding
the laws and legal systems of the past.The rule runs like this: " All previous legal systems and
laws are acceptable and valid for muslims

unless they are,or the parts pertinent to them, annulled or modified in their context.Therefore, we
are all the time positive towards the past laws,no matter whether they originated from this or
that.Thisis because of the divine nature of laws and especially

19
when they emanate from revealed books and because the message revealed to all the prophets are
the same in general.The verse l3 of Surah al-Shura (no 42 ) possibly refers to this issue;the issue
of commonalities among divine laws;past and present.

Professor Hamidullah published a nice article in an issue of France - Islam,in which hediscussed
scholarly aspect of the legality and validity of laws in the Old Testament especially basing on al-
Ghazzali`s opinions in his " al-Mustasfa ".

Social conditions and common needs of human beings also lead to the adoptation of the similar
types of legal rules and even more to invent same measures and rules for their convenience.
This, I believe, is an undeniable view in all social areas.

First Written Constitution:

We all know that the humanity has always been in need of laws and legal systems to maintain
justice and equity.Constitutions come at the top of these sort of laws binding all other laws.The
humanity received for the first time in the History of Constitutions a written form of constitution
by the City State formed under the chairmanship of Prophet Muhammad (p.b.u.h. ) in Madina
fourteen centuries ago.

According to the new studies made in this area, this document contains more than 50 articles.It
is, at the same time, the first

text of a Social Contract in the History of Humanity;the parties

involved were muslims,jews and christians among others.These were

the signing parties.

Let's study the elements of the Constitution:

The land was the city land of Madinah ( Saudi Arabia ).The borders were same borders with the
city.

The citizens were inhabitants of Madina belonging to different tribes and religions.

The language was Arabic.

It was in reality a City-state of federative nature;in other words,constitution was a Federal


Constitution and the state was a Federal State.

The content of the Constitution contained, to the surprise of modern intellectuals, almost if not
fully, all types of human

rights,privileges,freedoms and responsibilities.

20
Further more it contained articles on military forces and

responsibilities, conscriptions,how to defend the City so on so

forth.

The state was headed by Prophet Muhammad ( p.b.u.h. ) and system of government was
presidential system;that is the president was the central authority with full authorization;the
ministers and other administrative position holders allderived their authority from the appointing
decree of the President, the Prophet.They all held the positions of being representatives of their
communities.

The form of government was based on representative election

made by natural and sociological representations of their groups,tribes or families.

Non-muslims had rights and privileges more than possibly what they have today.A full freedom
of conscience and religion, and

freedom of education were really very much favorite issues. They

had freedom of social security, especially regarding murders.

The subject needs further legal studies and analysis.The study on the Constitution made by
Muhammad Hamidullah may be referred:

The First Written Constitution in the World,Lahore l975.

Qur'an As a Legal Text:

Some people tend to call Qur'an Constitution of Muslims.Of course the term constitution has a
special meaning in the discipline of Constitutional Law;that is a main law passed by special
authority having been duly authorized;a law regulating the main structure of govornment,fixing
rights and responsibilities along main branches of State: Legislative,executive and judiciary.

But all constitutions according to modern Constitutional Law are stemmed from human
nature;source is human; not divine at all.No European writer on this area will accept this idea of
divine nature of the Constitution .According to them, people have original power and their
power equals God's power (vox populi,vox dei).This idea can not be accepted in Islamic concept
of constitution at all.It may even be looked at as totally anti- islamic and polytheistic.

All constitutions in one way or another, are changeable;no matter how rigid and strong they
might be, none of them are unchangeable and eternal.Even the strongest ones,like the
Constitution of U.S.A.,get dozens of amendments and those amendments some times are more

21
referred than the main text.Majority of contstitutions of states in the world have been changed
many times since their creations.

Qur'an is not like that at all.It is the world of Allah for sure;it has an eternal quality as the
Creator.It did not change and will never change.It is eternal.So it is different thanother
constitutions in terms of Constitutional Law.

Then what is the legal qualification of Qur'an? Let's touch this issue a little bit.

As academicians in this field have stated there are documents which

are groundsand foundations of constitutions.These documents affect constitutions and even make
constitutions;they are above constitutions.Documents on human rights,declarations made by
revolutionary committees in revolutionary regimes,state wise accepted leadership concepts and
ideas,documents of international agreements such as the United Nations Charter,doctrines
adopted by high command or leadership,such as Communism,Socialism .

Qur'an may be placed in such a position,if you will, as the documentwhich all
legislation,executive and judiciary mustrefer

to in all areas ; so a constitution may be drafted and put into force codified in modern way with
preambles,articles, paraghraphs,divisions,titles and subtittles etc.

Imust statethatQur'an is much more than any sort of constitution to a muslim.It is every
thing.His daily life is supposed to be dominated fully by it.All rules of Qur'an are binding on
muslims in every aspect of their life.

Qur'anis his credo,qur'an is his prayer book,Qur'an is hislegal manual,Qur`anis his text book ;it is
a book of recitation,reading,

chanting if you will.In short Qur'an is his body and soul book; allways will be with him,awaken
or asleep. As it is obvious in Fiqh, there is no separation of church and

state, in other words, no way to secularism or laicus in reality. A muslim is always tied and
bound with divine rules.This actually is his worldly mission.That is to follow Allah's word and to
disseminate it as much as possible.Furher more, can a person really be isolated from all his
feelings and emotions in his

dealings? Definitely not! This isthe Islamic perception of legalities and laws.

In Islam there is an interesting concept of death.That is expressed in a motto " Mutu qabla an
tamutu ( Die before you really die ) ". That means one must constantly remind himself about the
reality of death,accountancy and the Herefter life.In other words, he must die theoretically and
philosophically from time to time if not constantly and check his acts and deeds and review his
balances and not take the risk of any chance to loose in the Hereafter,which one will encounter
for sure.Sufically speaking onemust be some kind of Ibrahim Adham;left whatever he had as

22
position and wealth and purified himself from the dirt of the environment and worldly and
secular culture ( involvements ) and engagements.He died spiritually before his literal death
occured.

Very few orientalists were interested and concerned in this field. Late Joseph Schacht is one of
the best in this field as orientalistinlast few decades.His book, The Origins of

Muhammadan Jurisprudence is a scholarly important work.His last

book " Introduction to Islamic Law ", is a little manual,I believe,

in its field.Young orientalists seem to have no real interest in

this area. I can't remember any name worth mentioning now a days in

terms of producing scholarly works or even showing a keen interest.

23
I J T I H A D

24
25
Ijtihad

We haveinFiqh a very important institute,by whichIslamic Law adjusts itself to contemporary


muslim needs and finds satisfactory answers and solutions to social conditions.That institute is
Ijtihad.

The origin of Ijtihad is JHD ( Jahd ).That means literally to spend efforts to the best and highest
ability for some action.

But it means as a term of the Methodology of Fiqh, mujtahid's


spending all of his efforts to know the rules of shari'a by deriving them from authentic sources.

So Ijtihad has the following elements:a) spending all effort to the extent that one may not
increase any more; b)the person must be at the level of mujtahid; c) the purpose of this activity
must be to get in the core of rulings of Shari'a in that regard; and lastly

d ) this process must be by the way of deriving rulings and drawing

them from their evidences and justifying them with relevant arguments.

Mujtahid is a person who is eligible to make ijtihad and qualified to draw necessary rulings from
main sources ( Kitab and Sunnah ) and secondary sources ( qiyas,re'y,istishab ect. ). As a matter
of fact he is a higher level faqih in terms of having

authority of exercising independent research on original islamic

problems and finding solutions to them.These two words,faqih and

mujtahid, are closely interrelated with each other.There is a

relation of umum ( being more general and bigger surrounding

concept ) and khusus ( beig smaller concept included along

with others in previous content of term ),as they name it in

al-Mantiq al-Suri; that is Aristotlean Logic. So all mujtahids

are faqihs; but not all faqihs are mujtahids.Some of the faqihs

are mujtahids.The word faqih is wider and bigger and the mujtahid

is smaller among faqihs. Some of the faqihs are not mujtahids.This

is the logical interrelation between these two concepts.The

26
relation between these two concepts are mutlaq ( absolute ) relation. Ra'y: The very bottomline
of the institute of Ijtihad is mujtahid's own power of perception and understanding and
evaluation of the issue and evidences and others.This is a very personal abilitywhich he will
exercise in his jahd.That is called Ra'y, a concept which is equivalant to the term of oponio
(opinion) in Roman Law.That is the feature that makes one mujtahid dfferent from

another.Each mujtahid will have his own way of thinking,which

naturally will be different than the others.Some may go a little

further;some may stay behind.By the way, theHanefite School of Thought is generally named as
Ra'y School;even argued against them in the History of Fiqh.They are a school which used the
Ra'y technique vastly in their dealings with theFiqh issues. Muslim jurists applied their ra'y
processes in analogies especially and the door of Ijtihad rested ontheir abilties of using ra'y in
their studies.When the faqihs lost their abilities,door of Ijtihad closed by itself automatically;no
body

closed the door willingly.By this we mean that it is always a chance

to open it and activate its mechanism when we reach to that level.

Ijtihad has a little detailed conditions and reqirements which we will deal a little later.

Requirements of Ijtihad:

As it was stated earlier, discussing the definition in its short form, not all types of efforts are
being considered as Ijtihad in its legal narrow context.Thus there are conditions and requirements
for ijtihad and finally for mujtahid.

First ijtihad must depend on the knowledge of Arabic.Mujtahid must know Arabic either by the
way of nature and birth or by the way of learning.Since the sources are in Arabic,it is a must to
know arabic.

Second, mujtahid must know the Book,Qur'an, properly with all its possible content including
the knowledge of nasikh,mansukh,asbab al-nuzul and all allied sciences.

Third,knowledge of hadith, like wise, is a must together with its usul.

Fourth, knowledge of Usul al-Fiqh with its details.

In addition to these requirements there are some conditions such as knowing the positions of
consensus and natural capacity for ijtihad,knowledge of main goals and purposes of the
Shari'ah,the fields where ijtihad is possible and the areas where ijtihad is not acceptable.

27
I have to point out that ijtihad is by no means restricted with the time or place.It is valid for all
the times and places.In other words, there are no restrictions on ijtihad from the point of time and
from the point of geography so long as its requirements are met.

The process of ijtihad is a mandatory duty for an eligible mujtahid.

If he has the capacity and if there is a need for ijtijad hemust do

his best.But if there is no body at that level and the necessity is

there, ijtihad is the resposibality on the muslim community and on its

leadership;since there can be no community without leadership (Imamah) at least in theory.

Some mujtahids may be eligible in some areas and some not in others. According to some
scholars,this is acceptable,but according to others it is not,because ijtihad may not be divided.

To keep the rulings of ijtihad intact at all times is a must,so long as there is no necessity to
change.

The Problem whether ijtihad is binding or not and Taqlid:

To cut the topic short, the mujtahid himself must follow what he ruled.As for others, there are
two different points in this regard: a) every body is responsible to make some kind of ijtihad he
is in need of.He himself is mukallaf ( responsible ) in the presence of Allah; b) there is nothig
wrong for any body who

is not at certain level of ijtihad to follow other mujtahids.

To follow other mujtahids is called taqlid.It is not acceptable in Islam to follow others blindly
without knowing the process and evidences.

But it is some times inevitable, because of the ignorance prevailing inmuslimcommunities and
because all people may not practicallay reach the level of mujtahid. The purpose of being
responsible in Islam is to obey the commandments of Allah and to do good deeds ( amal
salih );this purpose may be attained at least at certain level by following the other
mujtahids.This is for sure a matter of human shortcoming,not being perfect

( kamil ) always as he/she should be.

How were the Schools of Thoughts established?

28
Ijtihadfinallyleads into the problem of the formation of Islamic Schools of Thoughts .It is true
that the process of formation of schools of thoughts of practice in Islamic History was not
intentionally and willingly meant from the beginning by any of mujtahids.They were muslim
scholars who did their bests for the betterment of the societies and communities they lived in
ahumble and quiet manner.They did not claim at all that they were the best and that they formed
or going to form schools of thoughts different than the others and that the people must follow
them.The schools of thoughts were formed per se automatically in the society after the mujtahids
passed away,practically, as a result of the services they rendered to the society and in return

they got respect and commitment from the fellow muslims in the country they served.

As we know school of thought is in Arabic madhhab ( plural is madhahib ).This word is derived
from the root DH H B which means " to go ".Madhhab means " the way to go " in its literal
meaning.That may be put into ways and methods of thinking and applying them in daily life,
being consistent in their logics and argumentations ect.This does not mean that they did not
change at all;no,they changed and developed with time. As a matter of fact, the faqihs and
mujtahids of same madhhab differed from time to time from the point of view of understanding
and appraising the

issues and cases.Once a preliminary study was reported in a book in terms of unanimity and
diversities of opinions of faqihs of same madhhab and some time of other madhhabs.It showed
that unanimously accepted opinions may not exceed 20 % of all issues

to be found in that particular Fiqh book.I mean that diversity

in opinions in Fiqh matter,generally speaking,is natural,practical,

useful and even necessary.Further, comperative studies, based on computerized data of Fiqh
Literature, will revealeven more

outstanding and astonishing facts,I believe.

Since the formation of madhhabs was a natural sociological phenomenon, to eliminate them or to
try to regulate them, taking away from their natural courses, will be an artificial matter which
might not be accepted by the society and might lead to new

chaos of ideas and practices and turmoils in the community.

So individuals who are against madhhabs are actually unknowingly

tryingtoforman artificial typeoftheir own madhhab and are

pushing the issue out of its natural course.Further more, it is

29
observed that opponents of madhahabs themselves are those who benefit from established
madhhabs; in other words, their knowledge and practice of Islam and even their appraisals of the
ideas and opinions on Islam are the product of some madhhab, practised in the areas they lived.In
reality they owe a lot to those madhhabs they even tend to criticize.

We know practically from Islamic History that in the beginning of the first islamic century there
were so many madhhabs.Even during the period of Rashid Caliphs and The Companions nearly
each sahabi supposedly had had the authority,theoretically if not in practice,of deciding on the
issues he was involved in;that is some kind of madhhab of his own.This was perhaps so
natural,because principles of madhhab were not yet layed down and

observed by others.

Some of the madhhabs which prevailed in early stages of the

History of Islam were absorbed by others and lost their identities by the time in a natural process
of development.Madhhabs ascribed to Ibn Jarir al-Tabari,Sufyan al-Thawri and al-Awza`i may
be cited as examples of this development.They were assimilatedin the Hanefite,Shafi`ite,

Malikite and Hanbalite Schools of Thoughts in due course of time.

The issue of commitment to madhhabs:

To be committed to madhahab is not at least theoretically a must;since the madhhabs were


formed later and they were not prevailing during the time of Prophet Muhammad ( p.b.u.h. ).
And also madhhabs are product of sociological process and contain predominantly human
nature.Therefore, no madhhab is binding on individuals,binding in the context of being at the
level of Kitab and Sunnah.But they are binding from practical point of view on one who is
muqallid (at the level of imitating madhhabs and being ready to have his own opinion and view
in each case and walk of life).

There is a concept of talfiq of madhhabs;that to merge them in one and to borrow from one
another one. This is theoretically

possible;but in practice it gives rise to a new type of madhhab.Of course,in case of need it may
be put into practice in limited issues and some decisions may be passed through this technique
( especially by mufti and muslim judges );perhaps this will give the related person to keep
himself in the tract of Islam,rather than to let him go away from any kind of shadow of Kitab and
Sunnah.

Taqrib of madhhabs movement is another newly favoured concept.That is to make different


madhhabs share common things and come near each other and finally perhaps make one or
eliminate some of them etc.Scholarly it looks possible; in practice it does not seem feasible.

30
To shift one madhhab to another is like wise academically and theoretically possible;but in
pratice it is not easy to be applied,even not advisable to the common type of muslims who have
no solid background for their own ijtihad.

Madhhabs in the Islamic History played an important role in producing a vast Islamic heritage
of literature .Some of them were backed by the states and sponsored better than the
others.Caliphs and heads of muslim states preferred one of them to be followed in public and
judicial issue,of course not interfering individuals freedom of applying in their personal
problems whatever they wished.Ottoman Empire period,Fatimid State and North African
Muslim States may be cited as examples of states adopting one particular madhhab at least in
practice. Qarakhanids in the Islamic History are ones who favoured Hanefite madhhab and
produced a tremendous amount of books on Hanefite School of Thought which today are first
hand Fiqh sources.

Madhhab, if studied well according to the principles of Khilafiyat

( Comperative Fiqh Studies ) in this continent, with proper vision

and flexibility in application, will possibly eliminate a lot of negative attitudes of the muslims in
this continent.And finally, it may lead us to better cooperation, integrity and unity as one
Ummah.

But to apply the principle of ijtihad today may be reconsidered and strenghtened by taking the
way of ijtihad by an eligible council formed for thispurposerather than by individuals. An
individual may not master the necessary sciences well enough in midst of modern anti-islamic
environment of daily llife;members of the council may accomplish what individuals can't do and
the best efforts of individuals may collectivly lead,if not to perfection,then at least to state of
less fault and shortcoming,insha Allah.So today it is mandatory for responsible leaders of the
communities to develop a way toward this direction;and pave the way to this important institute."
Allah's mercy and help is with jama'ah ( team work,cooperative work )." and affairs and things
must be run with Shura ( Council and group work ).

There is a term which I think is good to deal here in this chapter; that is al-Takhrij. This word
means literally to

take out,to bring some thing out and away.As a term it means to draw and derive the hukms from
the texts of mujtahids and imams of each madhhabs,contrary to Mujtahids who draw the hukms
from Nass ( Qur'an and Sunnah ).The one who does Takhrij is called Ahl al-Takhrij,sahib al-
takhrij and mukharrij.

The methodology of Takhrij is the same as Ijtihad.

Ahl al-Takhrij faqih must know the ijtihads of his madhhab,rules and regulations related with
that,must have the ability and capacity to ponder over dalils, to make research on them, and to
know the traditions and usages of his society.

31
al-Ifta'

A concept which may also be related to ijtihad is al-Ifta' ( to

give Fatwa). Fatwa is the shar`i answer to a question related

with an islamic issue. The plural is Fatawa,the person asking the

question is mustafti,and the one who gives Fatwa is mufti.

Mufti must, in reality, be a faqih at the level of ijtihad.So according to the Usul al-Fiqh, real
muftis are mujtahids and naming muftis the persons who are not at the level of mujtahids

is nothing, but allegorical way (majazi). Muftis,if they are not

at the level of mujtahids,are just naqils (narrators / reporter).

Fatwas are given by a. the way of Ijtihad, b.Takhrij, and c.reporting the view of mujtahid.

Each school of thouhgt has its own way of dealingwith the ifta institute with some requirements.

Hanefites have three types of sources:

a. Zahir al-Riwayah: Ijtihads and opinions of Abu Hanifah,Imam Abu Yusuf and Imam
Muhammad ( Abu Hanifah's students ).This group is the strongest of its kind.

b. Nawadir:These are not as authentic as Zahir al-Riwayah. c. Nawazil ( al-Waqi`at,al-


Fatawa ):These are the opinions of imams other than Abu Hanifah,Abu Yusuf and Imam
Muhammad.

Mufti in each case must mention the mujtahids name he is referring to and the name of the book
he is basing his fatwa on.Of

course, there are some rules and regulations to be followed by

muftis when he is to select one opinion from several opinions available on the subject in his
madhhab.The enormous amount of

literature already available in this area will help the mufti in his Fatwa.

The steps a mufti must follow in finalizing his fatwa:

First he must find unanimously accepted opinions of Faqihs.

32
Second he mus follow the opinion of Abu Hanifah if there is a conflict of ideas in Hanefism with
the following exceptions:

a. Abu Yusuf's opinions are to be preferred in Judicial Procedures and witnesses;

b. Imam Muhammad's views are to be based on Zawi 'l-Arham group in Islamic Inharitance
Law;

c. ABu Yusuf and Muhammad must be followed in traditionally changeable rules;

d. If there is any ijma` on these two imams,that must be followed;

e. If one of the opnions have been favoured by later faqihs, that opinion must be depended on;

f. Any rule based on Istihsan technique is preferred to Qiyas.

g. Any hukm of in which dalil and illah is mentioned is preferable to one which has none.

h. Zahir al-Riwayah comes first,then Nawadir.

Third he will give fatwa based on Abu Yusuf,then on Imam Muhammad

if no Riwayah is available from Abu Hanifah.In case,there is none reported from these three
imams,Fatwa must be based on Imam Zufar,Hasan b. Ziad.

Then comes Thahawi,Abu Hafs al-Kabir,Abu Ja`far and Abu 'l-Lays etc.

This is the prescribed way which must be followed by general levels

of muftis and qadis in general.

Muftis may also refer the books written in their areas.The different books adopted different
techniques of arranging the problems and provide special notes identifying which techniques are
important and which ones are good for them.These books and notes may help them immensely in
their profession.

There is a vast amount of literature which may help the students in approaching the
terminologies used in Fiqh Schools such Tilbat al-Talabah.al-Ta`rifat by Sayyid al-Sharif al-
Jurjani and many Usul al-Fiqh Books.

In each Islamic country hundreds of Fatawa have been produced.In Ottoman Turkish we have
marvellous amount of Fatawa Books which have utilized unique techniques.They treasure
enormous volume of

Fatawas in almost all areas of Fiqh.

33
Fatawa-i Ali Efendi,Fatawa-i Abussuud Efendi etc. are just some examples.Fatawas in Arabic as
Fatawa al- Tatarkhaniyyah are also very usefull sources to be referred.

The Ottoman Empire Archives and Sijills of Shari`ah Courts ( Archives where the recording of
Shari`ah Courts are kept ) are really inviting the real researchers in this field.

The Ifta Methods in Shafi`ism:

Three leves of sources are given:

a. Aqwal: the opinions and ijtihads of Imam al-Shafi`i.

b. Wajh ( plural Awjuh ): The hukms drawn by the method of Takhrij.

c. Tariq ( plural Turuq ):The issues and opinions which are not ascribable to al-Shafi`i and other
Imams.

Malikites and Hanbelites have their own methods and definitions and they also give some details
for correct way of giving Fatwa to the questions and issues raised during their times.

Tabaqat al-Fuqaha'

Faqihs ( plural Fuqaha' ) are graded by scholars in different categories.They classified them
according to patterns they used for them.This made it easy for every body to know the level
ofany faqih lived upto a given time.

Many authors compiled a good number of books in the Tabaqat field.Some of them following
special school of thought,while others taking some of the madhhabs,if not all of them.

`Abd al-Hayy al-Laknawi has written " al-Fawa'id al-Bahiyyah fi Tabaqat al-Hanafiyyah ".

Tabaqat al-Kubra by al-Subki.

Taj al-Tarajim fi Tabaqat al-Hanafiyyah edited by Flugel.

Each School has its own classification.

Hanefites:

Ibn Kamal Pasha classified faqihs as following:

l. Mujtahid in Shar`: One who never follows any mujtahid and is himself the source of methods
and principles to be followed by others.Like Abu Hanifah,al-Shafi`i,Ahmad b. Hanbal, Malik b.
Anas are in this category.

34
2. Mujtahid in Madhhab: These Mujtahids,although eligibleto act

independently, follow their leaders in shar` and they differ from

their imams on very few issues.i.e.,Abu Yusuf and Imam Muhammad etc.
3. Mujtahid in Mas'alah : These are eligible to do ijtihad on issues which have no precedence
in their School of Though,i.e.,as Abu Bakr al-Khassaf,Tahawi,al-Karkhi,al-Halwani( al-
Halwa'i ), al-Sarakhsi,al-Pazdawi and Qadikhan. This group does not oppose their imams in its
decisions.

4. Ashab al-Takhrij: This group does not have authority for Ijtihad.They just clarify what are not
clear in their madhhab books based on other texts of their imams.They very rarely draw some
hukms from the nas,when there is none,e.g. Abu Bakr al- Jassas and Abu Abd Allah al-Jurjani.

5. Ashab al-Tarjih : They are faqihs who just prefer those opinions which are better and more
accurate than the others among

the opinions and reports made in their School, e.g.al-Marghinani,

al-Quduri and Ibn al- Humam .

6. Ashab al-Tamyiz : This group is one who differentiates among Zahir al-Riwayah and
Nawadir,and strong views and weak opinions etc. Abau 'l-Barakat al-Nasafi,Taj al-Shari`ah and
Muzaffar al-Din b. al-Sa`ati are at this level.

7. Simply Muqallids: These are those who have no previously

mentioned authorities and they simply memorized the majority of

the hukms and problems and their solutions in their schools of

thought.Many faqihs after 800 A.H. are in this group.Ala' al-Din al-Khaskafi and Ibn `Abidin
are in this category.

This classification has been criticized by some scholars such as Muhammad Zahid al-
Kawthari,one of the important scholars who was DeputyShaikh al-Islam during the last stages of
the Ottoman Empire

and lived and died in Egypt.

Shafiites' Classification:

al-Nawawi,Jalal al-Din al-Suyuti and Ibn Hajar al-Makki and other shafi`i scholars classified the
faqihs in the following manner:

1. al-Mujtahid al-Mutlaq:

35
a. al-Mustaqil: He is a mujtahid in Shari`ah.The Leaders of the four madhhabs belong to yhis
classisfication and are experts in their fields.

b. al-Muntasib: He is free in the madhhab.He follows the methodology of his School,but is free
in al-furu` ( detailed issues ofFiqh).e.g. al-Qaffalal-Saghir,Imam al- Haramain,

Ghazzali,Abu Ishaq al-Shirazi,Abu Ali al-Marwazi are in this group. And if they disagree with
their imams and differ in their

views from them,their opposing opinions are not counted as part of their madhhab and are not
included in shafi`i books.

2. al-Mujtahid al-Muqayyad:

a. Mujtahid in madhhab: They make ijtihad only in their madhhabs.

b. al-Mujtahid fi 'l-Fatwa: This group of mujtahids are those who give fatwa by preferring one of
the opinions expressed in their

madhhabs.Shafiites do not come down to accept the other levels of

scholars as faqihs.

Some of the Faqihs of Imitation and Stagnation ( taqlid ) Period

of Fiqh ( The periods in which Ijtihad stopped because of non

existence of eligible mujtahids ):

Hanefites: al-Karkhi ( d.340 ),al-Jassas ( d. 370 ),Abu 'l-Layith al-Samarqandi ( d.373 ),al-
Quduri ( d.428 ),al-Dabusi ( d.430 ), al-Sarakhsi (d.483 ),al-Bazdawi ( d,483 ),Hakim al-Shahid (
d.

544 ),al-Kasani ( d.585 ),Qadikhan ( d. 592 ),Marghinani ( d.

593 ) and others.

Abu 'l-Barakat al-Nasafi ( d.710 ),Sadr al-Shari`ah ( d.747 ),

al-Zaila`i ( d.743 ),Ibn al-Humam ( d.861 ),Molla Khusraw (d.885) Ibn Malak ( d.885 ), Ibn al-
Nujaim ( d.969 ),Abussuud ( d.982 ),

Molla Gurani ( d.893 ),Zanbilli Ali Efendi ( d.923 ),Ibn Kamal

( d.940 ),Ibrahim al-Halabi ( d. 956 ) nd Ibn `Abidin ( d.

36
1252 ).

Shafiites: al-Qaffal al-Shashi ( d.336 ),Abu Ishaq al-Isfara'ini

( d. 418 ),al-Mawardi ( d.450 ),Abu Ishaq al-Shirazi ( d.476 ),

al-Juwaini ( d. 478 ),al-Ghazzali ( d.505 ) and others.

Ibn `Abd al-Salam ( d.660 ),al-Subki ( d.756 ),Ibn al-Subki

( d.771 ),al-Taftazani ( d.793 ),al-Firuzabadi ( d.817 ),Ibn Hajar al-`Asqallani ( d.852 ), Jalal al-
Din al-Mahalli ( d.864 ),

Jalal al-Din al-Suyuti ( d.921 ) and others.

Malikites: Ibn al-`Arabi ( d. 543 ),Qadi `Iyad ( d.545 ), Ibn

al-Rushd ( d.595 ) etc.

Ibn Hajib ( d.646 ),al-Qarafi ( d. 664 ),Ibn Farhun ( d.799 ) and others.

Hanbelites: Abu Bakr Ahmad al-Hallal ( d. 311 ),Ibn al- Qasim al-

Hiraki ( d. 334 ),Ibn Qudamah ( d. 620 ).

Najm al-Din al- Tufi ( d. 716 ),Ibn Taimiyyah ( d.728 ),Ibn Qudamah ( d.744 ),Ibn Qayyim ( d.
751 ) and others.

37
K H I L A F I Y Y A T

38
39
Ilm al-Khilaf

We have, among original islamic sciences, a subject which was

founded by a scholar at the end of thefourthislamic century/

tenth century A.D. This main scientific activity,most probabely,

bore its fruits around first quarter of the fifth islamic/

eleventh A.D.century.

The science of the subject is Ilmal-Khilaf ,a science of Comperative Fiqh Studies.Its main area is
the study of islamic rules and regulations according to all possible schools of thoughts and to
compare their evidences and argumentations ect.

40
Its founder is a central asian muslim jurist, Abu Zaid `Abd

Allah b. Umar b. `Isa al-Qadi.This is his full name. His title is

al-Dabusi.

al-Dabusi comes from Dabusiyyah;it is the name of a village in the area called Sughd between
Bukhara and Samarqand.Yaqut al-Hamawi

mentioned this place in his marvellous book Mu`jam al-Buldan as a


village in between Bukhara and Samarqand in Ma Wara' al-Nahr.

Le Strange gave some more information in this regard in the book

The Land of Eastern Caliphate.

We may understand from the title ( nisbah ) al-Dabusi that muslim people were named after
their countries as the case is with al-Bukhari, al-Sarakhsi,al-Bazdawi,al-Kasani, al-Marghinani
and others.These words are from morphological point of view nisbahs ( adjectives made by
adding suffixes showing the country,

village or place one is attached to either by birth, dwelling, work or some other affiliation).This
system shows that the places they were attached to were their favourites;they were proud of
those titles and it was not a matter of disgust or shame to feel bad about. These titles may be
like Dallas-dallasite,N.York-N.Yorker and California-californian.

Ma Wara' al-Nahr is the name of a region between the rivers Saihun and Jaihun in Central Asia
which lies today in USSR ( Russia ).These two rivers are named in English Oxus - It is known
as Amu Darya as well and it is a river flowing in Central and Western Asia from Pamir plateau
into Lake Aral and it is over l400 miles ( 2253 km ) long - and Nexsus -Syr Darya ( in ancient
Jaxartes ) a river in USSR Soviet Central Asia flowing from Tien Shan West ant Northwest into
Lake Aral and it is l500 miles ( 2414 km ) long -.

Ma wara al-Nahr means literally " beyond the river " ; that is

the region named as Transoxiana in Muslim Geography.

The word al-Dabusi ( some say al - Dabbusi which may be a wrong


pronunciation of the same word ) comes from Dabusiyyah ( al - Dabusiyyah ) which is the name
of a village mentioned above.The word is said to be from Turkish which is in modern Turkish
"topuz". Topuz in Turkish means a ball headed hammer type of an instrument to hit.But the
word being arabisized changed the meaning a little bit into " pin ". The word is mentioned of
course in different sources ; such as Tabari , Ibn Khallikan and others.Hamidullah has an article
on the subject published in "Islam Tetkikleri Enstitusu Dergisi",vol.ii/1 (Istanbul/Turkey ).
Ahmed Ates touches the subject as well: "Arap Yazi Dilinde Turkce Kelimeler

41
( x.YuzYilda)",Rahmeti Arat Armagani,Istanbul/Turkey. Actually this shows that al- Dabusi
came from turkish origin and that the area where he was born and lived in was aturkish dominant

region; however, one must admit the difficulty of determining the race and language used by
themuslimsof those days.The languages

and nationalistic elements were not favoured in those days;these ideas weere inflamed later by
the French Revolution in the last quarter of the l8th century. This is true for nearly all early
Islamic History; especially when muslim scholars produced a huge amount of books in Arabic
leaving no trace of their original language and culture and nationalistic elements in their
books.They learned Arabic and wrote in Arabic only.

This was the case in the areas where Abu Zaid `Abd Allah lived.

Qarakhanids:

Thearea he lived was the center of Qarakhanid Muslims.They are named also as Ilak-
Khans.These are the pioneers Turkish People who accepted Islam during the third Islamic
century and then established the first Turkish Muslim State in Central Asia.The State was one
of the first sunni states,if not the very first.All were sunni muslims adherent to the Hanefite
School of Thought with very few exceptions.

As a matter of fact, Hanefite School of Thought was very favourite amongthose muslims. Their
commitment to this school made them to

serve that school well by preserving the texts of Fiqh and by

commenting on them and by producing immense amount of literature

on Islamic Law.They were not Arabs,for sure,but their committment to Islam and their
involvement in the Islamic Law and allied sciences were so high and outstanding that they
produced around 400 Fiqh books in Arabic of which 99 % are in the branch of Hanefite
Fiqh.About 20 books are in the category of Fatawa (plural of Fatwa).

This is the category in which fiqh opinions and ijtihad of muslim faqihs on the day to day issues
and practical problems are expressed and the theoretical grounds for the practical solutions are
recorded.

This category is another gorgeous proof of sociological adaptability and practicality of Islamic
Law in different centuries and different areas and regions.Fatawa literature have been developed
in later centuries especially during the long period of OttomanEmpiretotheutmostlevelof quality
and accomplishment.It is a very rich source for socio-political practices,cultural and traditional
elements,islamizations and evaluations made by those muslims in their days.Further research
will reveal the methods of evolutions of Fiqh concepts and the techniques of solving the
problems in conformity with Wahy and reason and tradition,and adapting Islam to satisfy the
needs of societies in ways and means which are practical.

42
The number of faqihs who happened to live in the two centuries of xi - xii A.D. exeed 300.The
most famous one are: al-Halwa'i

( d.456/l063 ),Abu Bakr Muhammad al-Sarakhsi ( d.483/1090 ),

al-Bazdawi `Al ( d.482/l089 ),al-Sadr al-Shahid `Umar ( d.536/

1141 ),al-Nasafi `Umar ( d.537/1142 ),al-Samarqandi ( d.538/1143 ),Ibn Maza Mahmud


( d.570/1174 ),al-`Attabi Ahmad

( d.586/1190 ),al-Kasani Mas`ud ( d.587/1191 ),Qadikhan ( d.592/ 1191 ) and al-


Marghinani `Ali ( d.593/1196 ) and some others.

They produced marvellous literature of Fiqh not yet surpassed,

I believe.Their books are today's best reference sources still held in the hands of Arab and non-
arab muslim scholars all over the world.

The Qarakhanid faqihs wrote commentaries on the books of Muhammad b. al-Hasan al-Shaibani
( 132-189/709-805 ) who is one of the best productive students of Imam Abu Hanifah ( 80-150 /

699-767). ThiswaytheyservedFiqh really in a unforgettable

way, actually letting Fiqh develop and expand vastly to the needs of societies. Over 25
commentaries,spanning over two centuries,were written solely on the books of al-Shaibani. His
books were in reality dictations of his teacher Abu Hanifah,possibly the books main author is
Abu Hanifah himself. The books ascribed to al-Shaibani are mainly called Kutub al-Dhahir ar-
Riwayah and they are: al-Jami` al-Saghir,al-Jami`

al-Kabir,al-Siyar al-Saghir,al-Siyar al-Kabir, al-Mabsut and

al-Ziyadat.The majority of these books have been studied and edited as critical editions first
time in the History by a muslim scholar at OsmaniyaUniversity,Haiderabad-Deccan (India); he
is

al-Afghani;we owe him real thanks and we wish for studies of this natureto follow in the near
future by new generations capable of doing it. The commentaries, made on these books and
others, made Fiqh an independent applicable,workable,flexible and practical branch.Without
their commentaries we would have felt defficulty in understanding and interpreting the original
works of Fiqh literature; since they are concise and condensed texts and are not easily
understandable. The faqihs of this period made these texts understandable and accessible.They
rendered to the Islamic Law a most valuable and precious services by their works.We muslims
owe to them a lot.Their method of dealing the matter with

43
perspective of ra'y probably helped to the cause as well.Their books are still number one manuals
of Hanefite Fiqh. We need to turn to them,to study, and master their contents, in order to
promptly and properly apply them when we need them.

Abu Zaid `Abd Allah was born in Dabusiyyah at the year of 367/

987.

Al-Dabusi inherited his scholarly culture and traditon from the chain of Maturidi,al-Jassas al-
Razi ( 305-370/937-981 ),author of

the book " Sharh Mukhtasar al-Tahawi " and develped it himself and his students.This channel
was named by a modern scholar

( Hamidullah ) as " Asian School ".He is student of Abu Ja`far b. `Abd Allah al-Astrushani who
got his education under the auspices of Abu Bakr Muhammad b. Fadl and Abu Bakr al-Jassas.

al-Dabusi is a muslim jurist who was judge, on of the " seven judges" during his period.His
name was being repeatedly mentioned as an example for others . He is known as " one who
always challenges his opponent " and is even reported to have produced some
relevantpoemsinstatntly inpublicly followed scientific dialogues.

His death occured in Bukhara;there is no debate about it. But the dates about his death varies
according to the sources.Three dates are given for this occasion:430/1038,432/1040
and435/1043.One more date is recorded.That is 403/1012.I think,this may be ignored; there is
some thing wrong with this date.

We consider the first number (430/1038) correct;because no discrepancies are reported about his
birth date and it is unanimously given as 367/977 and it is stated that he was 63 year old when
he died;this note lets us to believe that the correct number about his death is solely 430/l039.

The foundation of the Comperative Fiqh Studies:

al-Dabusi'smain feature is his contribution to Fiqh studies by establishing an independent


discipline of Comperative Fiqh Studies,Ilm al-Khilaf or Khilafiyyat; with his book which is first
of its kind.This book will be discussed later.

The biographers mention that he is the one who formulated the

essantials of this science. " He is one who founded Ilm al-Khilaf (Huwa 'lladhi dawwana Ilm al-
Khilaf) ". The book related with this topic is " Ta'sis al-Nadhar fi Ilm al-Khilaf ".It is his unique
published work to the best of my knowledge.C.Brockelmann gives in his GAL its printing place
as Cairo . No date for the edition has been cited.It is a little book in volume,but its content and
role is very vast.

44
This book contains about 75 fiqh maxims and rules.They are named as ASL ( root,rule ).The
book is divided into 8 divisions.Its method of dealing with the issues is as follows: He mentions
firsta maxim or a rule under the heading " al- Asl ",then some practical examples on this rule is
applied under the title of

" wa `ala hadha masa'il " or " minha "; after thathe debates the different approaches and opinions
from different angles and argues their evidences in a very scholarly way.The author,in the

first introductory lines,states the reason why he compiled this work, what lack of scholarly
understanding and lack of knowledge

he observed in dialogues, as common deficiencies. Thus he shows how a very simple issue is
scholarly discussed and efficiently dealt with in a very developed manner in that early stages of
the Islamic Law.

This is a science which we desperately need now and in this

continent;the continent of new prospects and hopes in terms of Islam. Only by this science we
may overcome our nationalistic diversitiesand
conflicts,formal/informal,hiden/open,shaped/unshaped
or what ever it is; uprooting them all and planting instead a solid ground based on centuries of
long muslim experiences,common feelings and benefitting,if we can,from immense and huge
literature produced by highly respected scholars of the past muslim history.

Needless to say that this book opened an originalchapter in its

gender.

One must note with satisfaction the preliminary works done before al-Dabusi,the works which
paved the way to the final establishment
of the Khilafiyyat and played a precedental role in this new field.The works of al-Awza`i,Abu
Yusuf's " Radd " against him;the contribution to Fiqh which made scholarly debates and
publicly performed conferences and meetings can not be overlooked at all.

al- Ashbah wa 'l-Nadha'irs by al-Jassas and Ibn Nujaim have for sure benefitted from this type of
literature and especially from the Ta'sis al-Nadhar.

Ta'sis al-Nadhar is based primarily on Fiqh maxims and general rules

and it is the first attempt for a discipline to be based nearly totally on the maxims.In
codification, the maxims and general rules are very important in modern laws.The situation was
not different in the past.

Events are limitless and indefinite.Only very well arranged legal rules and codes may cope
properly with nearly endless disputes.The maxims are in reality backbones of codes in all
legalsystems,past and present.In Islamic Law this credit must go to al-Dabusi's work.

45
The Majalla ( the Ottoman Code,prepared and put into force at early years of the second half of
nineteenth century all over Ottoman Realm), has one hundred maxims and general rules which
are marvellous generalities applicapable to all conditions and situation.These rules and maxims
get their roots in the Ta'sis al-Nadhar by al-Dabusi, among others.

The Comperative Fiqh Studies must be revived particularly in this century and in this continent
to be able to meet the challanges of the modern necessities of the century and to find good
solutions

tothe contemporary issues;this will give us a new hope for the

future of Islam.

Of course, Qur'an and Hadith have a lot of rules and maxims and substances for them.

al-Dabusi also produced the following books:

l. al-Amal al-Aqsa.

2. al-Asrar fi 'l-Usul wa 'l-Furu`.This book was very famous in Muslim Spain,al-Andalus and it
was copied by Muhyi al-Din al-`Arabi in Baghdad and spread in Spain.A modern scholar
( Hamidaullah ) suggests that it affected the books and methods

of Ibn Rushd ( Averroes ),i.e., his book Bidayat al-Mujtahid wa

Nihayat al-Muqtasid.

3. Taqwim al-Adillah: the book is related with Usul al-Fiqh having an original method of
dealing the issues in a comperative way using the techniques of Islamic Theology ( Ilm al-
Tawhid ) and accordingto the remarks of a modern scholar no bookmay be matched with it.

al-Dabusi Has the following books of which no copies of the

manuscripts are knownexist today. They are yet to be discovered:

1- al-Anwar fi Usul al-Fiqh,

2- al-Nudhum fi 'l-Fatawa,

3- Sharh Jami` al-Kabir,

4- Tajnis al-Dabusi,

5- Khizanat al-Huda.

46
47
I M A M A H

48
49
The insitution is called al-Imamah al-Kubra and al-Khilafah in its literature.Imamah means
leadersip,presidentship, and headship;the adjective and title form of it is Imam ( leader, president
and head ). The plural form of Imam is a'immah.

The word al-Khilafah means successorship,vicegerency,representing the original position of a


real president or head;the adjective form of it is Khalifah which means
vicegerent,successor,deputy and representative.In English the word is caliph. It has plural forms
as Khulafa' and Khalai'f.

Both of these words,Imam and Khalif,are mentioned in Qur'an and the Hadith many times.The
word Imam is mentioned in Qur'an seven

times in singular form ( in this context: Surah al-baqarah -ii-

verse: 124;al-Furqan -25- verse:74; al-Isra' -xvii-71 ) and five

times in plural ( a'immah ) form ( al-Tawbah -ix- verse:1 2;

al-'Anbiya' -21- verse:73;al-Qasas -28- verse:5,4l;al-Sajdah -32-

verse:24 ).

It is very interesting to note that the words imam,imamah and a'immah are all derived from the
root AMM (Alif Mim Mim) whichis the root of Ummah ( plural form is Umam ) which is
mentioned in

Qur'an fifty one times in singular form and thirteen times in plural form.The literal meaning of
the word AMM is tolead,tobe leader. The word Amam is another derivation from the same root
and means front in English. Ummah means nation; thatis anation

which has a ledear; animam,a head; nation under the same

administration and regime.By this we may go to the necessity of

being under an imam,following a leader,in otherwords, being a

member of a muslim state etc.Itis worth mentioning, that imam is

50
used at the same time to signify a person who is in charge of

leading the regular prayers in congregation;that means that it is

the duty ofthe Khalifah to lead the prayers at least in theory.Imam

is also in Qur'an, in the context of main book.

The word Khalifah is mentioned in Qur'an in singularform two times ( al-Baqarah -ii- verse:30;
Sad -37- verse:26 ).And the plural form Khala'if is mentioned in Qur'anfour times ( al-'An`am
-vi- verse:l65; Yunus -x- verse:14,73;Fatir -xxxv- verse:39 ) and the form Khulafa' is mentioned
three times ( al- 'A`raf -vii-

verse:69,74; al-Naml -xxvii- verse:62 ).The root is KHLF from which derivedthe words of
Ikhtilaf'mukhtalif,takhallafa,khalf,

Khilfah,Khilaf,Khawalif etc.

The root KHLF means literally to succeed,to come after,follow

and to back up.The word ikhtilaf which is derived from same root has the meaning to disagree,to
have opposing opinion etc.Perhaps this hints us that Khilafah may not be without ikhtilaf,without
conflict,and the Khalifah ( caliph ) must bear and tacklewithall ikhtilafs ( conflicts ).Same is for
the word Khilaf.

The institution as a part of Islamic ConstitutionalLaw, the headship of muslim state,presidentship


of the Islamic State and Imam / Khalifa is the president and head of muslim state.For that it is
obvious that there must be an organized Public Muslim Community Entity,that is a Muslim
State,after that might be an Imam or a Khalifa heading the State.I think it might be a good
pointto note that the word Khalifah is used forthefirst human
being,fatherofhumanity,Adam,before his creation in front of the angels;so being caliph is very
muchdeep rootedqualification

and is engraved in the nature of human beings.This is the related verse: " Behold.your Lord said
to the angels: I will create a vicegerent ( Khalifah ) on earth.They said, will you place therein one
who will make mischief therein and shed blood? While we celebrate your praises and glorify
your holy name;He said I know what you don't know "( Surah al-Baqarah -ii- verse: 30 ).

Qualifications of an Imam:

l)Hemust have full walayah in Islam which means as follows:

a. He must be a male muslim.There are a few hadiths concerning this requirment: "People who
invest their administrations and affairs to a woman will never prosper " ( Sahih Bukhari,al-Fitan

51
wa 'l-Maghazi ).Of course the subject here is the presidentship of muslim state that is why it is
necessary to entrust the walayah

( authority ) to the srtongest ones in nature,in tarining,in tradition,in culture, physically and
mentally, and not to leave any gap for discrepancies.But in the specific type of areas, for
example the areas related to ladies, they must be entrusted to share with others the
responsibilities;as it was practised by the Prophet and his companions.

The stroy of Bilqis in Qur'an may be interesting to be dealt in this regard a litle bit.It is
mentioned in Surah al-Naml ( xxvii )

verses: 23 - 44.She was the qeen of Saba' ( Yaman );that is Sheba

in the Biblical concept and was contemporary to Prophet Sulaiman,

son of Prophet Dawud.She was the head of state,having a parliament or congress which she
consulted and put a theory of war by saying how devastating are wars to the people involved and
how the social structures of societies which are parties of war change upside down and every
thing gets affected badly from war's devastating effect.The problem here is that this lady is
shown as leader of state and her eligibility is not denied clearly by following texts of Qur'an.This
may lead some people to think that the meaning of hadiths quoted above may be referring to
some specific situations and at least in theory it is not clearly stated that woman may not be
given any just and fair responsibilty in the muslim public structure, including state.As it is well
known, woman are by no means excluded from being mukallaf and responsible from all the rules
and regulations in Islam;they are fully privileged and responsible from the point of Qur'an and
Sunnah.However they have their privileges for being different andenjoythose differences.

Some of the modern muslim writers tend to say that muslim women were denied,at least
practically, later on the privileges they used to benefit in the early years of Islam.

b. To be muslim.Leader of the community must be muslim;because he is entrusted to apply


Islam;for that he must be believing in Islam and practicing it. There is a verse in Qur'an saying

" Allah never grant to the unbelievers a way over the

believers " ( Surah al-Nisa' -iv- verse:141 ).This verse is an evidence that a non-muslim may not
be given any authority on muslims and islamic affairs;imamah is an authorization and trust.

c. He must reach to the age of puberty acceptaable in Islam.

d. He must be sane,not having any defect in his mental faculties.

e. Freedom.He must be free,not slave ,captive or any body else who lost his freedom one way or
the other.

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2) `Adalah;that is to have good islamic stand in public and private, accompanied withnice
islamic attitudes, and balanced physically and mentally.`Adalah means literally balance and
`adil

( adjective ) is balanced from islamic point of view. He must not have involvment in islamically
unacceptable attitudes and

behaviours.No fisq and no fujur.

3 ) Knowledge:He must be knowledgeable enough to run theaffairs of the people.Without


enough knowledge he may not properly run the country islamically.

4 ) Health: He must be healthy and no defects must be in his organs of senses.If some of his
sense organs are lost, he may be

deposed in some of the cases.

5 ) to be from Quraish: coming from the decendants of the Prophet

that is from Quraish is one of the requirements mentioned in literature based on a saying :"
Imams must be from Quraish " .

There are two views in this regard: A group of scholars are of the opinion that the requirement is
binding and it is necessary for him to come from Quraish and the others are of the opposite
opinion.The details are discussed and debated in literature and a scholarly study has been made
in a Magazine by a turkish professor ( Mehmet Hatiboglu,Ilahiyat Fakultesi
Dergisi,Ankara/Turkey).

Appointing an Imam / Khalifah:

As we all know, muslims established first state,City State under the leadership of Prophet
Muhammad ( p.b.u.h. ) in Madina by a social contract ten-eleven centuries before Jaen Jaque
Russeau who is known in western culture as the inventor of the idea of

social contract being a source of political power of state.The Prophets election to the job was so
nataral that no resistence and dissidency is reported.

The State of Madina got a written constitution which was binding on every body and it described
all necessary powers, privileges,and responsibilities.

The people took the pledge and gave the necassary consent to him.The process oftaking pledge
was called bai`ah ( Bi`ah ) a term which is mentioned in Qur'an and a practice which muslims of
Madina appealed before migration of the Prophet in `Aqabah meetings,the meetings ofthe
Prophet with madinan muslims in Macca.The muslims took pledge that they will be following
rules and regulations prescribed by Islam.

53
The root of Bai`ah is BY`AT.It has a common root with Bay` which means selling ( sale ) of
some thing.Perhaps this sgnifies that

social contracttoelect a president for the state and to form the

state requires the free will of the electors and that it is equivalent to the bargaining involved in
selling and buying some thing; in other words, complete freedom is granted to the eligible
electors and the process of election is a complete common concern of the members of the muslim
community,taking, giving, and checking .

The words derived from the root BY`A are mentioned in Qur'an fifteen times ( for example al-
Tawbah -ix- verse:111;

al- Mumtahinah -lx- verse 12; al-Fath -xlviii- verses:10,18 ).

The Process of Appointing an Imam is as follows:

1. He must be nominated by the Election Council who have the powerof binding and unbinding (
ahl al-hall wa 'l-`aqd ),being eligible for this job and represent members oftheir community

without any artificial political propaganga and clashes of parties.

Perhaps it is proper to note here that the caliph has the privilege andthe right to nominate, for the
next caliphate ( al-`ahd li

`l-khilafah ), more than one person as candidates only.This right is inherent and indigenous in his
capacity already approved by the due process.

2. Acceptance of the people by the process of Bai`ah;that is publicly accepting him as their
leader.This process took place in the Mosque during the time of Abu Bakr,`Umar,Uthman and
`Ali ( May Allah be pleased with them all ).

The process of nominating,electing and making Bay`ah is not fixed by rules and
regulations.They are very flexible.

The nomination may be made by the previous Imam or by an eligible council.But the natural
way of acceptance which will follow is important.Let's review what happened in this regard
during the Orthodox Caliphs.

Abu Bakr:

After the Prophet passed away,the people gathered in Saqifah Bani Sa`idah.Abu Bakr came later
and nominated one of the two companions, `Umar and Abau `Ubaidah `Amir b. al-Jarrah.But
`Umar

54
himself declined and nominated Abu Bakr and made Bai`ah to him.

Abu `Ubaidah and then thhose who were present in the meeting

took theoath of allegiance;then the people in the Mosque took their

allegiances publicly in the Mosque. So there were two bai`ah;one a

limited one;made by the elites,the Election Council,if you will;and

thesecond general and public one,in the mosque made by the people.

`Umar:

He was nominated by Abu Bakr,previous Khalifah ( Imam ) and accepted by the public with
General Bai`ah in the Mosque.

`Uthman:

He was nominated by six companions and got allegiance from the public

`Ali:

The process was the same for Ali. In all cases election was based on the acceptance and
allegiance of the great majority among muslim community.

Meantime may I suggest to regret what happened in thetime of those RashidCaliphs and the
following events which lead upto this day in terms of conflict and divisions as Shiism and
Sunnism and others.Wars of Siffin and Jamal,martyrdoms of Uthman,Hasan and Husains and
many others really were the germs of divisions which have a great deal of impacts on our unity
today.

Oneness of Khalifah :

The leader of the muslim community must be, as a general rule, one.

This is a rule;going back to Islamic History we observe that this

was not the case in so many situations.There were more than one

caliphs at the same time ruling their own parts of the world.

Some of the ideas of legitimizing this case,is based on the story of Musa and Harun ( p.b.u,
them ).We know that Musa, when missioned to go to Pharaoh, asked Allah to send with him his

55
brother Harun as "partner " .He said " make him share my task

( Wa ashrikhu fi amri )" ( Surah Taha -xx- verse:32 ).Now was that task some kind of leadership
of community to share with?

Of course Musa was the caliph of his people and sharing the task might mean some kind of
partnership in administration and government.

Thismightbe just an exception and the rule is oneness of

the leader,indeed.

Deposing the Khalifah:

If the Khalifah or Imam loses his commitment to Islamic rules andregulations and some of his
qualifications by goingastray or being involved in the mischievous affairs ( fisq and fujur ), he is
to be deposed from his position.But there are opposing views in this regard as well.However,the
mechanism by which a leader may be deposed, may be changed according to the conditions
prevailing in a particular region and a particular time.

Obeying the Khalifah:

Obeying the Khalifah / Imam is necessary and mandatory for every body,provided he himself
obeys and applies Islam,Kitab and Sunnah .The verse in this regard is clear enough: " O
believers,

obey Allah and obey his Prophet and those charged with authority among you ( wa uli '-amri
minkum );if you differ in any thing among yourselves,refer it to Allah and his messenger,if you
do believe in Allah and the Last Day;That is best and the most suitable for final determination. "
( Surah al-Nisa' -iv- verse:59 ).The leader must obey Allah and His Prophet and muslims,then,
must obey him.He is bound with Islam.He is actually missioned for that.He is made Khalifah to
follow the word of Allah andto apply it fully in the society.

Imama/Khalif must follow islam of course and must serve to the muslim community and every
body.The Prophet was like that.He was a manof people,not a man of protocol,in other words,he
was not whitecollar office-holder.Unfortunately even muslim scholars lost their previous
attachment and connection with the people.So they have no effect and no influence for the
betterment of the society they are living in.No body listens them.

Kalifah's Duties:

His duties in short are as follows:

a ) To protect Islam with rules and regulations, intact and activated, in the society as agreed
upon by Salaf ( early orthodox Muslims ),

56
b ) To solve the conflicts among the people by applying justice and eliminating oppression from
the society,

c ) To protect the order,public safety andto make the Islamic

System working and alive,

d ) To apply Penal Code of Islam and to execute the verdicts of the courts,

e ) To keep borders of muslim state safe and strong,

f ) War against enemies after following the duly islamically acceptable procedures,

g ) To collect taxes,

i ) To continously spend from the state budget whatever is necessary.

h ) To appoint officers and the necessary employees who are honest,pious,capable and
knowledgeable, and

k ) to check and control all affairs and work, and inspect and

supervise every thing promptly.

Walayah of Khalifah:

Imam / Khalifah has a walayah of running the state and all publicaffairsof muslim society.He is
the main person who hasful authority in his capacity as the president. All other authorities stem
from his delegation and are limited by the limitations he imposes.His authority is called
walayah;and his walayah in generalis limitless (of course limited by Qur'an and Sunnah). So his
walayah is Walayah `Ammah. The ones who are delegated by him have Walayah Khassah;that is
limited walayah and restricted with some limitations.

He would delegate wazirs ( ministers ) with walayah , amirs ( governors ),judges and others with
walayah which are resricted.

Wazirs are two types: First wazir whose walayah is general and

his authority stems from Imam / Khalifah.And it is a general type of delegation from the
Khalifah.

Other wazirs get their walayahs from Imam as well;but they are just like executors in their own
areas.Their walayah is Walayah Khassah ( Limited Authority ).

The Khilafah in the Last Stages in History:

57
As we all know, Khilafah has been in the hands of Umawids,then transfered to Abbasids.And
when Ottoman Empire conquered Egypt in 1517, the last person who had this tradition submitted
this task to Yavuz Sultan Selim making him the first Ottoman caliph.Sincethen it remained in
the Ottoman Empire until 1924.The modernTurkey abrogated this Khilafah and the last caliph
Abdulmejid left the country.It is interesting to note that the law passed by Turkish Parliament in
this regard stresses that the khilafah is being inherentin the Turkish Great National Assembly
( thatis turkish parliament ).What is the legal interpretation of this " being inherent " may need a
detailed study from the point of view of the pure Islamic Political Science,I believe.

Imamah / Khilafah,as is mentioned else where, has three functions

with one special job.The three are: Legislation,Execution, and Justice.These functions are
traditionally mentioned as powers and functions of all states.European Constitutional Laws give
a lot of detail in this regard.French writers and authors took the lead because of the french
revolution,then followed by the english writers.

But modern muslim writers add to these list the fourth muslim state's function:that is
Tabligh,convey the message of Allah to the Universe,to spread the word of God everywhere
possible.It is the natural result of being Khalifah / vicegerent,successor of Allah on the earth.But
this delivery has its own method,peaceful and compromising,not boring,no way to
doctrination,and dominating the minds and brains of others forcefully. It is true that today
having one person as a claiph is not feasible, but some international muslim organizations,like
Organization of Islamic Conference,can be perceived as a preliminary stage of collective
Khilafah at least theoretically,I

think. The idea needs to be developed further for the benefit of muslim Ummah.Yes there is a
need for Imamah Kubra,but let us initially have Imamah Sughra ( litle one ) which in time may
lead to Khilafah.But it is strange that,this issue also has many opponents,organized opposition
groups which keep eye on this issue and do their best, when any one of their interest is likely to
be hurt,to smash the whole system down.In this context they are

" people of fasad " and " the ones who prevent others from right path ( yasudduna `an sabil
Allah ) ",as it is mentioned in Qur'an in so many places.Thisgroup is terribly selfish and
dangerous.

Shura principle must be worked out nicely in modern terms satisfying the needs of our Ummah.

Khilafah must be looked at as strong religious attachment. According to some opinions, even
sufic attachment to a leader is very necessary.They say that real khilafah is by attachment and
connection.

Khilafah / Imamah is very important for this Ummah.It is a big trust ( Amanah ).No kingdom
may take its place and has the right to claim islamickhilafah or imamah.They don't havethe right
to distribute the positions to their descendants or their relatives.

58
Actually there is a big corruption in muslim administration.It is a bad treatement and dishonour
to the very concept of Ummah and khilafah when the positions are denied to tyhe eligible ones
according to Islam.We know very well that nearly all muslim countries are racists in terms of
keeping the best positions exclusively to their loyal citizens and royal family members.They kick
very experienced foreigners out when their native youngsters get their degrees and appointing
these youngsters at the top of their teachers just because they are from that country.Tell me is
this islamic? Hundreds of palestinians live here and there in divided and broken families without
getting the opportunity to get citizenship of the country. Where are those ulamas who have big
stomachs and big mouths in praising their kings and masters? Why do they keep quite? What do
they get by giving up their responsibility to eliminate this sort of evil ( munkar ) which is known
to every living creature.How can we follow these alims and qadis in their decisions and fatwas if
they do not do their prescribed duties and feel no remorse or shame for their actions.Finally how
can this type of administration claim to follow the concept of khilafah in its dealings and
titles.This is to be considered seriously, indeed.

Imamah is so important that it affects on our religious duties.As you know, there are some
religious funtions which are to be executed by real imam or caliph. He represents muslim
ummah and has the authority to do so.For example, Jum`a prayers.It is a muslim community
prayer,in other words, Jum`a prayer is an Islamic state prayer.It has state type of conditions and
requirements.Some say there must be forty people in order to pray Jum`a,somesay it may be
sufficient with three people.

The mostimportantrequirementperhaps is that theprayer must be authorizes by the Imam.Even


better if it is lead by him.If he doesn't want,he may delegate it to another person. Without that
type of authority no body may lead the prayer according to that view.Because jum`ah is a state
prayer,it obligates to form a muslim state;otherwise they will not be able to pray it.This is a
strong factor to keep muslim state intact at all times;if there isn't any, we should form one
immediately.

Does someone know that there are in some muslim countries mosques, in which jum`a prayers
are not established. Why? Because imam/caliph of that country did not give licence for that
prayer because of the fear of the people would thus gather in a big central musalla.I remember
the issue whether more than one jum`a prayers in one center are allowed or not, and the opinion
of unacceptability of more than one Jum`as prayed or commenced in a center or an area of
settlement or a city, and how some faqihs defend their views that the prayer which commenced
first is acceptable and the next ones are not; because of the necessity to pray one jum`a in a
center.

But if actual state is not an islamic state,even declared as a secular one, and if the prayers are not
lead in any way by the caliph or the imam, then are the prayers lead by imams of mosques
meeting the requirements of Jum`ah? It is a very important issue.Are the imams islamically
accepted to lead the prayers of Jum`ahs.Idhn ( permit or license ) is one of the requirements of
the Jum`ah prayers.If there is no idhn, because there is no political islamic leader ( caliph or
imam ), then what is the legal status of Jum`ah prayer?

59
According to the understanding provided above,the muslims who live in such a state have no
obligation, even no privilege and right of praying the Jum`ah,since they failed to establish a
political islamic entity under a caliph or an imam to whom they were supposed to take allegiance
( bai`ah ).Some mild type of understanding may accept perhaps this situation as de facto state to
be acceptable under those conditions, at least temporarily.

Ofcourse in a real Islamic system, the leader may properly delegate some others to lead the
prayers of Jum`ah.But if the leader is not interested in islam,even officially opposed to Islam,are
the imams of mosques appointed by him or his regime,administration or governmet,count as
islamically acceptable imams of Jum`ahs or not? In this case does passage of time legalize this
situation and makes it islamic? In other words, does the passage of time affects positively on
requirements and makes them unrequired or fulfilled?

This is an important Fiqh Issue which must be dealt with in a scholarly manner and at least
theoretically some solutions must be aired by contemporary knowledgeable personalities.
Another aspect of the issue is the following: If certain heads of states are not acceptable as
equivalent to islamic caliphs,then the authorized persons leading the prayers of Jum`ahs don't
seem to meet the requirements.Then how can one evaluate the actual situations in nearly all the
muslim countries.

That is why, possibly, some people pray, after two rak`ahs of

Jum`ah, four more rak`ahs individually by the name of Zuhr Akhir

(last Zuhr prayer),bearingin mind that if the requirements of

Jum`ah were not met and,therefore,the prayers may not be accepted, then the remaining Fard of
that Zuhr prayer is perfomed,anticipating that Allah may accept it, instead of the Jum`ah prayer.

In this regard, I personally, must say " Allahumma,illa "; the

expression used by old muslim scholars at the end of paradoxical and unsolveable problems.

Imamah must be a center for unity among all muslims.But it is unfortunatethat muslims even in
a very small area can't uniteon almost all main issues.They pray under the leadership of an imam
in a quite well disciplined way;but after salams,watch surprisingly their conflict and other side of
the coin. What a sad situation is that!

To stick to one Imam,or shaikh and ignore others and even degrade other leaders, supporting non
-islamic parties or organizations against good islamic activities,are some of the real barriers to
islamicunityandimamah. I wonder, if their action lead to disunity and prevent unity,what would
be their answer in the Hereafter to the question,which would be posed, in this regard? If every
group goes thinking that it is the best,its leader is the best shaikh and does not seek any
opportunity to create an environment for further steps in this regard,even some times to work as
informants against those who strive for this cause, how one can reach to unity, How?

60
Even some of them are of the conviction that a person of the lowest level and a new
unexperienced one among their co-followers of certain shaikh,is much more better than the
muslim leaders of other groups and orders etc.In modern history of the islamic activities, we
have seen a lot of discrepancies happened in this

area and damage occured by such groups at the cost of Ummah,here

or there.

People among muslim ummah carrying masks years after years and bending in the direction the
wind blows and hiding their islamic personalities,melting their islam in modern cocktail parties
and even selling their histories and social interests and every thing possible for the benefit of
their personal gain, all are indeed,very dangerous hinderances for the cause of unity among the
muslim Ummah.

No matter,how high positions they hold,Islam has its own values

and systems.One ought to measure by those criterea,I believe.

The importance of imamah is obvious in the case that dissidency in the public order is not
allowed in Islamic Law and dissidents are to be punished according to the penal rules which exist
in Islam. This principle was so much important that in the History

of a Muslim State ( Ottoman Empire ) the dissidents,even potential ones, including princes,were
killed to prevent any disorder and split in the Muslim Nation. Muslims are one nation ( Ummah )
only.

Let me point out that no state or country is hinted or meant here in this subject or any where in
this book.Simply religious and historical observances and opinions are made for a freely
thinking minds.

61
H I S B A H

62
63
Hisbah

We have an insitution in our history of vigilance which deals


with the proper application of Islamic Law,duly observance of rules and regulations for
betterment of common interest of the community,acceptable tradition of the society,guaranteeing
the proper distribution of all privileges and rights among muslim and non-muslim citizens of
the community,keeping things to and work in the right way,and not letting any kind of
discrepancy occur in the society by which in short or long run any harm may inflict the society
and lessen the sovereignity and application of Islamic Law.

The meaning of Hisbah:

64
The word al-Hisbah ( Hisbah ) stems from the the verb of which root is HSB.It has some
variations. al-Hasb form signifies " to be enough ", and al-Hasab means " to count " and " value "
.

al-Hisbah ( Hisbah ) means "reward "," burying a body in kafan or stone ". This form also has the
meaning of " administering and disposing the affairs in a nice way ".

As a verb it has different connotations with different prepositions as well as in different wazns
(patterns andscales). When the derived word from HSB is used in the first bab it means

" to count ",if it is in fourth and sixth bab,its meaning is "to guess" and if it is in fifth bab it
means " to be from a noble and aristocratic family ".

The form Ihtisab has almost same connotations.But its meaning changes by diffrent prepositions
with " ala " it means " to declare the badness of something ",with " bi " "to be satisfied"

andwith " `an " "to abstain".If it isused without any preposition its meaning turns to " guessing
and examining ".

Definition of Hisbah:

Nearest literal meaning to the terminological content is " to seek the reward for any act solely
from Allah ",and " tomake something only for the sake of Allah ".

But its terminological definition is as follows: It is an institution of enjoining Ma`ruf when it is


neglected and to prevent Munkar when it appears ". Shaidhari adds to the definition the element
of " improving the relations among the people ". Even the books written on the subject do not
mention the elements of Ma`ruf and Munkar.

We see two main elements of the definition: Ma`ruf and Munkar. Both of them are qur'anic
terms;mentioned numerious times in Qur'an and also in Hadith.So we observe the roots of this
institute being rooted in Qur'an and in the practice of Prophet Muhammad ( p.b,u.h. ).

a ) Ma`ruf: This word is derived from the root `ARF;it is ism al-maf`ul ( past participle ) and it
means literally " known,

recognized " and " accepted ". In general it has the meaning of good. Ma`ruf terminologically
means " good act ,word and purpose

according to Shariah ."

The word " ma`ruf " is mentioned in Qur'an 39 times.

b ) Munkar: the word munkar is ism al-maf`ul from inkar which comes from NKR;It signifies
just opposite of ma`ruf;that is

65
" not accepted,not recognized " and " bad ". It means terminologically " bad action,bad word and
bad purpose according to Shari`a ".

The word " munkar " is mentioned in Qur'an l7 times.

Some verses:

" Let there arise out of you a band of people inviting to all that is good,enjoining what is right
( ma`ruf ),and fobidding

whatis wrong ( munkar ); they are the ones to attain felicity "

( Surah Al Imran - iii - verse: l04 ).

" You are the best of peoples,evolved for mankind.Enjoining what is right ( ma`ruf ) and
forbidding what is wrong ( munkar ) and

believing in Allah..." ( Surah Al Imran - iii - verse: ll0 ).

" Hold to forgivness;command what is right ( `urf which has the same connotation with
ma`ruf;both stem from same root );bur turn away from ignorant. " ( Surat al-A`raf - vii - verse:
l99 ).

" Curses were pronounced on those among the children of Israel who rejected faith,by the
tongue of David and of Jesus son of Mary: Because they disobeyed and persisted in
excesses.Nor did they usually forbid one another the inequities ( munkar )

which they committed :evil indeed wre the deeds which they did."

( Surat al - Ma'idah - v - verses:80-81 ).

" When they disregarded the warnings that had been given them,we rescued those who forbade
evil ( munkar );but we visited wrong-doers with a grievous punishment,because they were given
to transgression ." ( Surat al- A`raf - vii - verse:l65 ).

" The hypocrites,men and women, have an understanding with each other: They enjoin evil
( munkar ) and forbid what is just ( ma`ruf ) and are close with their hands.." ( Surah al-Tawbah

- ix - verse:67.)

" The believers,men and women,are protectors oneof another: they enjoin what is just ( ma`ruf )
and forbid what is evil ( munker )

They observe regular prayers,practise regular charity,and obey Allah and His messenger.On
them will Allah pour His mercy;for Allah is exalted in power and wise " ( Surah al-Tawbah - ix -

66
verse: 7l ).

There are very many verses in the Qur'an related with these two concepts,some of them are
directly involved with them and someof them are indirectly involved with the subject;but not
less important at all as it is the case in the content of Surat al-Asr

- ciii - and others.

Hadithes of the Prophet:

" All words of human being are against him;exept his enjoining ma`ruf and his forbidding
munkar and his rememberance of Allah ( zikr Allah )" ( Tirmizi,zuhd 63; Ibn Majah,fitan 12 ;

Ghazali,Ihya',II,231 ).

"Whoever see from you any munkar,let him eliminate it with his hand;if he can't, by his tongue;
and if still can't, by his heart;the last one is the weakest stage of Iman " ( Muslim,Sahih and

al -Nawawi,Riyad al- Salihin,p.103 ).

" By the One in whose is my soul,either you will definitely enjoin ma`ruf and forbid munkar or
Allah will let you get in nearest position to the severe punishment;then you will pray a lot,but
none will be accepted " ( From Tirmidhi; RiYad al- Salihin,l07 ).

" The best Jihad is the word of justice to the oppressor head of state " ( From Abu
Dawud,Tirmidhi; Riyad al-Salihin,p.l07 ).

" What a bad nation is a nation that does not enjoin justice; What a bad people are the peole who
do not enjoin ma`ruf and forbid munkar " ( Ghazali,Ihya',II,p.231 ;Bukhari,isti'dhan,2 and
others).

" The ones who do not enjoin ma`ruf and forbid munkar are not from us " ( Tirmidhi,birr 15;
Ahmad b. Hanbal,Musnad,i,257 ).

There are nearly fifty different sayings of the Prophet related with ma`ruf and munkar in
Hadith compendiums along with the punishments when this job is neglected especially as a
community.

Muhtasib and His Requirements: The person in charge of Hisbah duty is called muhtasib.There
are some qualifications and requirments to be eligible for this job.All people may not be
appointed to this position.

These qualifications are:

67
a ) Being muslim;to be muslim is necessary because of the nature of the duty and its
comprehensive structure which extends to pure religious duties.This has been discussed a little
bit in detail later.

b ) Being adult;that is to attain the status of puberty accepted in Fiqh.Seriousness of position


makes it necessary to be of certain age.

c ) To be male.But it is known that second Caliph Umar appointed a lady Shifa Bint Abd Allah
to control and inspect the markets and even another lady by the name Samra bint Nuhaik used to
walk in the streets of market and to enjoin the good and forbid the bad with a whip in her
hand.Some scholars are opposed to this idea of a public position being held by a lady.But it
might be thought that perhaps the job they held were related to ladies, and to appoint the ladies
to the positions which are directly attached to their nature are not deniable.

d ) Being Just and balanced;righteous attitudes;to call others to the rightpath, one must himself
be right.Those whodo not have straight attitude may not hold this position according to some of
the scholars.Some scholars have the opposite opinion. e ) Being auhorized by central auhority:
The position held here
isanofficial position and has the powerstemming from the state.

So it is necessary to be duly and properly authorized for this job. However, there are some other
types of volunteers and private sort of enjoining good and forbidding the bad,in those
stages,where state power is not represented, this requirement is not to be searched.

f ) To know good and bad: Muhtasib must know goods and bads he is involved in.His level of
knowledge may not reach to the level of ijtihad.

g ) Being practising muslim.

h ) His purpose must be for the sake of Allah.

i ) To have taqwa and fear from Allah.

k ) Having a good standing in the community.

l ) Ability to fulfil the job in a proper way: unqualified person may not do this job. If the job is
not done properly,then it will loose its effectiveness.

There are diffrent levels of hisbah funtions: If thehisbahissupposed to be effective, to activate


it,inthis

case,is necassary and mandatory for that specific situation. If there is no benefit and no
harmvisibleinthe doing that job, the

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necessity is uplifted; so it is not binding in that particular position. But still hisbah is better than
nothing;by this way the

dignity of the job is being kept. And if execution of hisbah function is going to harm the
functioner and munkar will be finally exterminated by this act,performance of the job of
Hisbahis not mandatory;but recommended.

To sacrifice oneself is not bad;it may even be good.Measuring the harm must by a normal
criteria of justice and reasonability.The concept of anticipating any threat may be directed to the
mental,physical aspects,or to property,honour and dignity.

They are all valid;even when these are directed to the relatives

of the practitioner of Hisbah function.

Origin of Hisbah Intitute:

The origin of this institute was Qur'an and Sunnah. As we see in previous praghraphs, there are
so many ayahs in this regard especially those that presribe the necessity of a group whowill
enjoin ma'ruf and forbid munkar ( Surat Al Imran - iii - verse :

104 ).This verse for example is the germ and core of this institute where Hisbah emerged from.

We know that the Prophet himself walked in the market and public places and inspected the sales
and materials for the community andstate.Even it is reported that he warned the sellers to be fair
and not to put best ones at the top of sacks and the bad ones at the bottom.Sellers were not to
cheat and deceieve the client by any means at all.

Umar b. Khattab is reported to walk at midnights in disguise and inspect and gather genuine
information about the real needs of the

society he headed.He is reported that oncehe himselfcarried a

sack of flour and a jar of oil to a widow's home after hearing that they had nothing to eat and
their mother was trying to let her children sleep in hunger. But this shows the importance of this
baby institute in those days and how caliphs and the Prophet himself were involved.

The Prophet appointed in his time Umar b. Khattab as muhtasib of Madina and Sa`d b. al- `As in
Macca after its conquest.The Prophet prevented the people from going out of the city limits to
meet those who brought their goods tothe market from rural areas and to puchase the material
there and,thus deprive the people of the city from getting in contact with the producers.In other
words, middle men were not allowed to make excessive profit.

Umar b. Khattab appointed during his caliphate period Sa'ib b.Yazid

and `Abd Allah b. `Utbah to inspect the Madina market and to make ihtisab.

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Thisis a clear evidence showing that Hisbah was officially formed during the time of Caliph `
Umar .Some of the theories stating that it was established during Abbasids is not acceptable,I
believe,in the presence of this early practice and verses and Sunnah related to this subject.

We observe in this institute, the way the Prophet and his companions dealt with verses and
activated them and istitutionalized them.In this process we see them basing and gathering all
points and germs applied during the time of the Prophet and his companions and did not miss
any point out of them;so that they managed to develop a purely islamic institute,as they did in
other relate4d areas,whichcared for the

interests of public as well as individuals in its integrity.


Islamicity of Hisba institute:

Some scholars,especially orientalists,tend to be of the opinion that Hisba was a continuation of


either byzantine " city prefect "

who was bound with the Book of Prefect or agoranomos of hellenistic period.They also say that
there was in Alexandria an

inspector ofthe city marketwho used his whip during the time

of Saint John the Almsgiver ( d.619 ).

There were some rules about the uniformity of professionals and their work places and markets
which possibly looked like byzantine ones and even the Book of Prefect was referred in muslim
literature.But all this won't eliminate the islamic originality of the institute ,I believe.

The Historical Developments:

The Institute developed vastly in Islamic History along with Umawids ( both in the East and in
The west -Spain-), Abbasids,Fatimids,Saljukids amd Ottomans ect.In some of these

states ihtisab ( Hisbah ) was the duty of Qadi-Walis ( Judges-

Governors ),but in some of them it was an independent job.

In some of them it was as high as at a ministerial level.It is

reproted that about half century ago the muhtasibs were functioning in muslim states in Central
Asia and some years back the muhtasib, were functioning, for example, in Fez / Morocco,
perhaps having lost most of his vast power into other organizations and possibly just in name.

The Literature on Hisbah:

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The books concerned with the institute of Hisbah are in two categories:

a ) Theoretical books: these are ones which deal with the institute from the point of theory.The
most important one in this category is Abu 'l-Hasan `Ali b.Muhammad b. Habib al-Mawardi's

( 364-450 / 975-1058 ) al-Ahkam al- Sultaniyyah.It has an independent fairly detailed chapter on
the subject. Abu Ya`la Muhammad b. al-Husain b. Muhammad al-Farra' ( 380-458/990-1065)
hasabook by the same name and this book also has an independent chapter on the subject.But I
am of the opinion that this book is not a different book and even may not be accepted as the book
of Abu Ya`la,since the text is virtually the same with very few differences.

The Siyasat-nama of Nizam al-Mulk and Qabusnama and al other books on


Siyar,Wazarah,Idarah ect. contain some chapters and information on the topic.

b ) There are some practical books which are produced as manuals to be referred by the
muhtasibs in exercising their duties.These books give almost all sorts of practical definitions of
all materials being displayed and sold in the public.They tell as to how they are produced,what
are their ingredients,how to ascertain their freshness;and what kind of tests to be performed in
the laboratories to determine their qualities.

At the top of this class comes the book Nihayat al- Rutbah fi Talab al- Hisbah by Shaidhari
`Abd al-Rahman ( d.589 / 1193 ).It is the earliest one in this category.

Ibn al-Ukhuwwah ( Ikhwah ) Muhammad ( 648-729 /1250-1330 )`s Ma`alim al-Qurbah fi


Ahkam al- Hisbah is the next book in this category.

Some Other Elements of Hisbah:

The subject of Hisbah must be munkar which is active at that point and its being publicly
discerned without any type of spying to discover its presence.And lastly, it must be a kind of
munkar

which doesn'tneed any special type of effort (ijtihda) to determine its qualification.

The addressees of Hisbah are human beings;not necessarily adults, sanes or muslims ect.

Office of Hisbah:

During the periods of the Prophet and Orthodox Caliphs no seperate office of Hisbah was
created.Later on we see a special office in the state structure for muhtasib,for administering all
his affairs. This office is called Dar al-Hisbah or Majlis al-Hisbah.Muhtasib called the
professionals and business people to his office and controlled and checked their scales and
measures. Ayyubids, Mamlukids and Fatimids periods are known to have Hisbah offices.

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The Legal Qualification of Hisbah:

Hisbah asaninstitute has some common points withthe justice systems pertinent to Madhalim and
Police and Security forces and yet it has its own independence as an institute of Public Islamic

Law and History of Muslim Culture and Civilization.

There are quite a few views on the legalities of Hisbah institute:

a ) Hisbah is a public law institute,a part and parcel of state structure.Its location in Islamic
Public Law Literature is a sign of this fact. Individuals are only to be charged and duly

authorized.

b ) Hisbah is a general duty prescribed to any muslim;it is the dutyof each indivadual ( fard
`ayn ),non-transferable to others.

c ) Hisbah is a religious duty to be performed by a person in-charge having religious nature as is


the situation in the systems of justice

and Fatwa.

d ) Hisbah is the social duty of some members in the community ( fard kifayah ).

e ) Hisbah is propogation of Islam and conveying the message to the masses.

We clearly observe that Hisbah has a religiously deep rooted nature and it hasbacking of the
states. It is a Public Law

institute in its developed form;there is no doubt about it.

Inmodernsystempublic law, Hisbah issimilar to municipalities,

distric attorney'spositions,Policeandpublic safty organizations,

protection of environment units,some financial,commercial,industriel

andeconomic departmentsof states.

Hisbah is governed by the following principles:

1 ) Fear of Allah,

2 ) Justice among the people,

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3 Protection of personalities,properties and dignities of the people,

4 ) Establishment of honest business,

5 ) Tradition and usage, and

6 ) Shari`ah.

Sanctions of Hisbah:

The methods of eliminating and sanctioning the effect of muhtasib's functions are graded as
follows;each of them may be applied to the case and the person who violated the rule:

a ) To establish the fact: The fact must be established easily and publicly without any spying or
listening to the close doors.Muhtasib has no right of smelling the person's private piece of cloth
or dress.

2 ) Explaining the nature of fact to the relevant person and telling his role in it.

3 ) To admonish him and to be fearful from Allah.This is for the people who insist on doing
wrong things although they know that it is not good.

4 ) To act a litle bit harsh.If previous methods don't work then this sanction is
applicable;provided two following principles are observed:

a ) There must be a need of harshness and mild ways must have been tried first;

b ) Harsh words must not take long time and the truth must be kept intact.

5 ) To correct the case with force.First an attempt must be made for making the addressee change
the situation and correct his fault; and second the necessary level must not be tresspassed and
must not oppress him in any way.

6 ) to fore-warn him that if he doesn't abstain from his action he would bepunished.Warning
must be reasonable and lawfull.

7 ) To beat him without using any tool and instrument.

8 ) To use fire arms.Muhtasib might need in very rare casesthe use of fire arms,guns and rifles
and he even may need the assistance of his aides.Some times a fight may occur and it may
become inevitable to fight with belligerent,terrorists and rebelious peoples.

The authority is given to muhtasibs by the Caliph,imam or amir depending on his power of
codifying any rule and regulation for the muslim community.His authority passing the laws and
enforcing them is named as power of TA`ZIR.

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Influence of Hisbah:

It is known that Hisbahinfluencedsome non-muslim environments

and communities during the time of the crusades and later in

different circles.

Muhtasib should be experienced,honest,knowledgeable in his profession, pious in his dealings,


and of good standing in the community. He has `arifs as his aides in each profession.He usually
gets periodic reports from his aides and follows the issues promptly and finalizes them in an
effective way, working as a judge and penalizes and executes the verdict on the spot publicly, to
assure the efficiency of the state.He should be cognizant of the public safety and security issues
and be in direct contact of and understand the state affairs. He should be well versed with
effective mechanisms of socio-economic, political justice, and equities in the country.

Muhtasibs in the city:

Nearly all items of public interests are in the realm of ihtisab

and under their mandate.We would like to give a precise list of

the content of a practical book to be refferd by muhtasibs in

their exercising the job:

Markets,streets,coins and money units,scales,all kinds of measures and weights,sales,prices and


monopolies,commissioners.

Foods and drinks: crop merchants,millers,bakeries,butchers and restaurants;friers of meat,friers


of heads of livestocks,fisheries,sausages makers,grocers,pastries,merchants of livers and
milkmen.

Clothings: Textilers,taylors,merchants of cotton,silk merchants,thread producers,cloth


colourers,shoemakers.

Health:juiceproducers,pharmacists,parfume merchants,physicians,

blood takers,bathing houses and sauna owners,horse feet care takers.

Gold and silver merchants and money changers,jewellers,merchants of copper and


iron,merchants of tiles and china and porcelain.

Muhtasibshavesome other jobs;suchas trainers of children , nonmuslims in muslim


community,mint and mint houses,governors and officials,judges,men in charge of religious
affairs and secretarial staffs.

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Muhtasib had enough aides to manage efficiently the job he was entrusted with.He had a whip
made of leather which was a symbol of his authority.

He used to wear a turban and a long coat as his uniform which

slightly changed during different periods of the Islamic History.

Hisbah was an institute of taking care of community,awakening all potential forces and dynamics
for Islam,letting mechanisms work for all people of the muslim society,not leaving any gap to
any anti-islamic disrepancies to affect the society,keep the privileges of disabled and retarded
members of the community, and look after all elderly people,destitutes
poor,homeless,patientsandsick members,safe-guardingthe public safety and order and interest
etc.

Muslims were very strong when they used to have strong Hisbah Organizations in their states
and they got weak when they neglected this instute.

Muslims of today desperately need this institute.

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M A J A L L A

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77
Majalla

Majallah is an Ottoman Code of Obligation prepared and put into force at the second half of the
nineteenth century in the areas

of the Ottoman Empire.Its actual name is "Majalla - i Ahkam-i


Adliye".

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There was a movement of improving the status of non-muslim citizens of the Ottoman Empire at
the middle of nineteenth century. Especially french influence was felt in the Sublime Port (Bab-i
Ali) where they wanted to translate french Civil Code of Napoleon Bonaparte and put into
force.Turks who were educated in christian missionary schools or schools of minorities in
Istanbul supported this idea.Ali Pasha was one of those turks.They are allegedly attached to some
western clubs and undoubtedly backed in oneway or
anotherbyoutsiders;christians,missonaries,business,

people and statemen,etc.

The Background:

There was an actiont to introduce reforms into the Ottoman Empire at the first half of the last
century.European powers gathered and started to exercise their united influence on the Ottoman
Empire.It is oneofthe great world wide state in the History of Humanity,similar to the states
established before the Middle Ages such as the Greek Empire established by Alexander the Great
or the Roman Empire.The last one,includes the Byzantine Empire,the capital of which was
Constantinople (modern Istanbul) and the Roman Empire,the capital of which was Rome.

The Ottoman Empire may even be counted as the greatest empire in

the Human History. It was the greatest at least as a state in

Middle Ages.Ottoman Empire declared its commitment to the principles of justice and rights by
a text called Gulhane Hatt-i Humayunu which was publicly displayed in the coutyard of Topkapi
Palace. A high official of the Palace read the text at the courtyard in the presence of the
representatives of the western embassies.

The text runs and contains,I believe,nearly all elements of the Magna Carta which has been
passed and declared in England in l215;a text of solving conflicts between aristocrats of England
and the king. Nevetheless,when Gulhane Hatt-i Humayun was adopted, no coflict was visible
and reported between these two elements.

In Magna Carta the goal wasto limit andrestrict the absolute power

of the King and to secure the privileges and rights of the public and prevent oppression on
them.Europeans claim that this was

the beginning of the constitutional era in the History.But this was not the case in Eastern part,in
other words,muslim part of the world.Kings,caliphs, and head of states didn't have a sovereignty
without limits and restrictions.They did not enjoy immunities and were not being exempted from
the obligations and duties of Islam.This was the case at least in theory.

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It will be interesting from the point of academics to compare the elements of Magna Carta with
the content of Gulhane Hatt-i Humayunualittle in detail.Perhaps it will give some surprising
results to see similar ideas and concepts in both of them and even to notice the sequences of
principles looking like each other.

Ifthis is true,then we might think some mechanisms working in this regard and affecting whole
structure of the Ottoman Empire managment.

Everybody had the right to meet the head of state;because he lived among them attending the
regular prayers and leading them without having any balcony or special location seperated from
the public.

We know that Abu Bakr asked the people in congregation to correct him and remind him when
he made any mistake.Some one stood up and pulled his sword and said if you were to make any
mistakes we will correct you with this.This was the situation in muslim world.

Comingback to the Ottoman Empire the people and common membersall were happy and had no
big issues to be noticed.But a few intellectualseducated and brainwashed in westen ideas
andconcepts were willing to change the structure of the Empire in favour of western civilization
and culture and powers.

They were a bunch of people, who genarally speaking, had no strong attachment to Islam,to
Qur'an and to the Hadith.What they got as islamic elements were the effect of Islamic Culture
they lived in.Their cultural and intellectual commitments were to the western opinions and
concepts even in the field of religion.Some of them were fond of christanity,even though they
were not christian;were posessed and some times were obsessed with the Greek-Christian
thinking.

They were mixing the religion of Islam with the religion of Christianity.They were familiar with
the ideas of french writers such as Jaen Jaques Rousseau,Voltaire, etc. They were a litle more
attached to the french civilization thanto othereuropean ideas asFrench was known by the
intellectuals more than any other

european language. We must not forget that none of today's muslim states existed before the
second decade of the twentieth century.I mean there was one big muslim state at the beginning of
this century which comprised nearly of all the Middle Eastern muslim countries and North
African Muslim countries,namely Syria,Lebanon,Jordan,Saudi
Arabia,Yaman,Iraq,Egypt,Sudan,Libya, Algeria, and Morocco etc.There were some others in
Europe such Greece,Bulgaria,Romania,Yugoslavia,Austria,Hungaria etc.A few of the muslim
countries out of the 45 members of the Organization of Islamic Conference were not under the
Ottoman Empire. But more than 50 % of them were part of the Ottoman Empire as recently as 60
to 70 years ago.

The unity we seek today was in one way or another present less than

a century ago.But what happened,some thingwent wrong and people

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wanted and worked and succeeded in dividing and getting their shares. Possibly some
intellectuals were sold to some ones or to some cultures.They were engaged in ideas and
opinions foreign to real Islam.Some of them went to the extent of being agents and perhaps some
times traitors for their countries,cultures,traditions and religion also.

Some of them were traitors if not actively,perhaps passively or negatively;in otherwords,they sat
back and watched without daring

to say any thing or having couarege enough to prevent the evil.

This was because they wanted to secure their furure promotions.They sold their culture,service
and religion for their

worldly benefit.They were hypocrites,using double,triple, perhaps, plural standards in managing


to keep their positions.

Onemaythink that nothing important happens in the human history without the consent if not the
order from one of the three elements: a) military forces,b) powers of money,3) clubs and
clandestine organizations.This was / is the case in this regard of course.Muslims are suffering
from the same desease today partly,if not totally,I believe.

The western type of groups received the help of foreign active clubs andassociationsand worked
to detach the nation of Islam from one another.They brought some nationalistic ideas and
movements in their circles and made it them work in a way that finally led to set the order up
side down and non-muslim elements became so influential that they deposed and dethroned
some of the sultans ( for example Abdulhamid ) and pushed the country into turmoil.
The discovery of the oil in the majority of muslim countries led them to divide into small states
and to manage according to
their national interest.This fudamental change in the socio-political and economic structure of
each muslim state led finally to the changes in the main concepts,culture and system of the
muslim societies.This transformation is one which affects every muslim from a to z.

Young Turks ( Jeun turcs ),who wre educated in western type of


schools, were the supporters of these pioneers among muslim citizens and carried on the mission
in their own style.

Codification of Majallah:

This was the situation in those days which made the conditions ready to prepare a Muslim
Code.Previously there were no muslim codes and laws with western concept among muslim
states.Judges were not bound to certain texts in their dealings with the issues.They themselves
were free in applying the main first hand sources into the facts and conflicts.Now they got
opportunity to have a Code Law which was binding and very handy and useful manual.

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There was one group with the opinion that French Civil Code (l804) must be received and
translated and put into force in the OttomanEmpire area.Even some of them attempted totranslate
some part of the general articles into Turkish and tried to convince others to accept that code.But
muslim scholars under the leadership of Ahmed Cevdet Pasa ( Ahmad Jawdat Pasha ) defeated

that group and challanged them by producing this Code,Majallah ,

based onpurely IslamicLaw ( Fiqh ) and putting it into euorpean

style and method of codification.

But it is peculiar to note that the Ottoman Empire had already received the western influence in
legal field by previously receiving the Italian Penal Code and some commercial codes of
western Countries.

But this attempt never lasted too long;about half a century later modern Turkey accomplished
this trend by receieving nearly word bywordthe SwissCivil Code as a whole and put into force
which is today in force in Turkey.So it was a matter of a littledelay fromthe point of
Turkey.Even some of our turkish brothers say that this was the wish of early turks before Islam
to come down from Central Asia to the West and be a member of that western culture. Their
wishes were accomplished.Perhaps some more steps will be taken in due span of time.

Majallah Committee:

Afterdue process and fights among the proponents and opponents of

various ideas,a committee was formed and the chairmanship was finally taken by Ahmed
Cevdet Pasa, a very notable historian and stateman and scholar.The Committee members were:
Sayyid Khalil,Sayyid Ahmed Khulusi,Saeyfeddin,Seyyid Ahmed Hilmi,Mehmed Emin and Ibni
Abidin-zade Alaeddin.

The Committee accomplished its work in a few years time and got the approval of Khalifah
Sultan Abdul Hamid Khan ( who was deposed later from his throne because of his resistance to
yield Palestine to Jews.The Committee submitted its work to the Sublime Port by a Report dated
l869.

The date of high ( Royal ) approval of the Palace is 1293 / 1876.

The Report Which was written in this regard:

It explains the reason why this code was produced. It mentions

that western countries have modern civil codes along with developed independent commercial
codes because of the high development in this field. And muslim countries did not have a unified
code in this regard.

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The judges in commercial areas were not to refer to Fiqh Literature in order to solve a problem.

Then it goes to the sources of this code and different opinions of schools of thoughts on the
subjects and their reconciliation in one text.Mean time it debated some conditions of specific
transactions of the code and their way of arranging the contents

of the definitions of the transactions etc.

The Sources of Majallah:

Qur'an and Sunnah were main sources indeed.Ta'sis al-Nadhar fi

`Ilm al-hilaf by al-abusi,discussed in another part of this book,was one of the sources especially
when the subject is related to general articles.

Ibn Nujaim's al-Ashbah wa 'l-Nadha'ir is another sort of source for this code.

Many scholars wrote commentaries and books of notes on this code.They counted the sources of
the subjects dealt in it.They mentioned among the sources the following book: Hashiyah by
Hamawi on al-Ashbah,Sharh al-Majami`,Fatawa al-Hindiyyah,Fatawa al-Tatarkhaniyyah,Fatawa
Qadikhan,Durr alMukhtar and Radd al-Mukhtar,Multaqa al-Abhur,Majma` al-Anhur,Fatawa
Anqarawi,Surrat al-Fatawa,Jami` al-Fatawa,Bada'i` al-Sana'i`,Durr al-Muntaqa,Muhit Burhani
and Quhustani ect.

Theseare really the books and sources always referred to in

Fiqh literature and very famous and reliable sources.

The Content of The Code:

It has 1851 articles,and sixteen books.The most comprehensive book is the book of trade and at
the beginning of the code has a very good amount of legal maxims applicable to the cases.

General maxims are 100.I will try to give most important ones later.

The books of the Code:

1 ) Sales, 2 ) Rent and lease, 3 ) Guarantee, 4 ) Transfers of credits and debts, 5 ) Insurance and
mortgages, 6 ) Deposits and trusts, 7 ) Gifts and donations, 8 ) Usurp, 9 ) to put under the
custody,to force and preemption, 10 ) Types of Partnerships,

11 ) To be agent and to represent others, 12 ) To settle peacefully and to acquit the debtor, 13 )
To confess and admit the debt, 14 ) Suits and litigations, 15 ) evidences and taking the oath, and
16 ) Judges and Code of Procedures.

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These are general contents of the books.The systematics of each book is as follows:
Book,introduction,bab ( door ),Fasl ( division,seperate room ) and then articles ( with
consecutive numbers from the beginning all the way down the Code ).

But at the beginning the Code has an Introdution and two Words related with 100 legal
marvellous maxims.

The most voluminous and basic book is the first book on sales,on which other subjects are
generally based or frequently referred to. These maxims especially were previously studied and
elaborated by
Abu Zaid `Abd Allah al-Dabusi in his Ta'sis al-Nadhar fi `Ilm al-Khilaf about 430 islamic date
and in al-Ashbah wa 'l-Nada'irs by both Ibn al-Nujaim and al-Suyuti Jalal al-Din and of course
some other books in the field ofFiqh,Khilafiyyat,History of Fiqh,Jadal in Fiqh and allied
sciences.Ofcoursesome of them are

directly taken from the verses of Qur'an and texts of Hadith.

Some of them are the product of human mind and logics and even from what we may call
natural law;that is why nearly in all laws and codes there are similar types of general rules and
maxims as is the situation with Roman Law.Roman Law is/was really a big law.It hasa lot of
good features including legal maxims,for example "lex specialis derogat lex generalis" ( special
law modifies or annuls general law ).

Some of the Maxims in Majallah:

1. Acts are due to their purposes.All actions and transactions get their appraisal and values based
on what is meant in them.

2. Contracts are due to purposes and meanings not to the words and structures.

3. Surety and conviction may not be eliminated by doubt.

4. The rule is to leave every thing as it is and was before.

5. Old will be left as it was in the past.

6. Harm and damage may not be old.

7. Innocence is the rule and fundamental.

8. Qualifications which came into being later and are transitory are basically nonexistent.

9. Any thing established once is counted as unchanged unless otherwise proved.

10. Any occurence is ascribed to the latest span of time.

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11. The rule in words is literal meaning.

12. If the sentence is clear,there is no way to contextual and allegorical meaning.

13. No way to ijtihad ( personal interpretation and ruling ) against the Nass ( text of Qur'an and
Sunnah ).

14. Any thing established exception to the rule,may not be precedent to be based on in another
thing.

15. Ijtihad won't be annulled by another ijtihad.

16. Difficulty leads to easiness.

17. Difficulties get licence and comfort.

18. No legality can be given to one sided damage and contre-damage ( mutual damage ).

19.Damage is to be eliminated.

20. Necessities legalize illegal things.

21. Necessities are to be allowed upto their level of necessity.

22. Any thing allowed because of some excuse,will be void by the disappearance of that excuse.

23. Whenever barrier goes away,the barred status que comes back.

24. Damage is not to be compensated by its kind o damage.

25. Low level of damage is to be preferred against the public

( great ) damage.

26. Heavy damage is to be eliminated by lighter one.

27. When two damages meet,the lesser one is to be taken.

28. The lesser evil between two evils is to be preferred.

29. Eliminating bad and damage comes first ,then comes benefitting from good.

30. Damage will be eliminated as much as possible.

31. Need,be it general or special,is to be counted as necessity.

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32. Being under force majeur doesn't annul the right of third person.

33. Any thing which is forbidden to be received,is also forbidden to be given to others.

34.If some thing is forbidden to act or to operate,it is automatically forbidden to be asked for.

35. Tradition and usage is the judge and to be looked at in judgements and arbitrations.

36. Usage of public is an evidence which is necessary to act on.

37. Any thing impossible traditonally is also impossible really.

38. No body can deny the changes in rules by the span of time.

39. Literal meaning of a word is neglected if tradition shows other ways.

40. Tradition is acceptable if it is consistent.

41. Commonly acceptable by the majority is to be counted as valid,not some thing exceptional.

42. Any thing known by tradition ,is counted as mentioned condition.

43. Any thing known among business people is to be counted as declared condition.

44. Any thing established by the usage is exactly like some thing established by the text ( Qur'an
and Sunnah ).

45. If barrier and factor clash on same point,barrier will be counted first.

46. If a part is stuck to main body in existence,it is under same rule de jure.

47. Any thing which is a part of some main body, doesn't need any special ruling.

48. Any body who owns some thing will automatically own every thing follows that body.

49. When capital and main body is acquitted,its parts also are acquitted.

50. Any thing acquitted never comes back.

51. If some thing is void,all things contained by that are void.

52. If returning back to the original is impossible,the equivalent thereof must be payed.

53. Any thing not legal by itself,may be legitimate being a part of another thing.

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54. Some thing not lawful in the beginning may be lawful at the end.

55. To stay and to be permanent is easy from the beginning.

56. Gift is complete with the holding it.

57. To dispose on citizens is tied to the public interest.

58. Authority in particular is stronger than authority in general.

59. To operate a word is better than neglecting it.

60. If literal meaning is impossible,one may go to allegorical meainig.

61. If operating a word is not possible,then it may be neglected.

62. Mentioning a part of a body which can be broken into pieces,means mentioning the whole
body.

63. Any word without adjective, denotes unrestrictedly.

64. Any qualification present is void,and qualification on absent is valid.

65. Question is counted as repeated in its answer.

66. No word can be attributed to the one who is silent.

67. Any kind of evidence to some thing in their private hidden matters, takes its place and
represents it.

68. Communication in writing equals to addressing.

69. The understandable signs of a deaf person are as satatements by tongue.

70. The words of interpreter are acceptable in all cases.

71. No guess is valid,if it is proved having clear defects.

72. There is no evidence with a guess based on document.

73. No basing on doubtful guess.

74. Any thing established by an argument is like some thing established by the sense of seeing.

75. To prove is the burden of plaintiff,and to take oath is the responsibility of one who denies.

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76. Prove is to establish the opposite of clear cut meaning,and oath is to leave the original as it is.

77. Evidence is of a transitive nature and confessing is of defective ( intransitive ) nature .

78. Every body is bound by his confessing.

79. There are no evidences if they clash;No damage occurs to the ruling against opposite.

80. There are cases where main body is not established;but its part or fruit can be established.

81. If conditon takes place, the rule attached to it is bound to be counted.

82. It is necessarry to observe the conditions as much as possible.

83. Promises are binding with the realization of the condition they are connected to.

84. Benefitting from some thing is against its compensation.

85. Salary and compensation never meet at the same case.

86. Damage is against the benefit.

87. Trouble is by the benefit.and benefit is by the the trouble.

88. Consequences of an action is to be attributed to its actor;and it is not to be ascribed to the


instructor thereof unless thelatter is the forcer.

89. If the actor of an action and the one who caused the action meet at the same
point,responsibilities go to the actor thereof.

90. If some thing is lawful in terms of Shari`ah,there may be no compensation thereof.

91. The actor is responsible even if it had no intention thereof.

92. The one who caused is not responsible if he had no intention.

93. No responsibility for any body if an animal damages and harms by itself.

94. To insruct any body to dispose upon a thirdperson's belongings is void.

95. To dispose on the property of some body without his permission is invalid.

96. to hold any one's property without any lawful cause is not permitted.

97. If the cause of the ownership changes in some thing,that means the change of that particular
thing.

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98. Whoever hurries to benefit from some thing before the proper time,he is to get deprivation
thereof.

99. Whoever tries to undo what he himself accomplished,his trial is to be rejected.

These are general maxims of Majalla,translated in a general way to give an idea.Translation


was / is not easy.Their turkish forms and further more Arabic bases have marvellous
wordings.None of them may be traceable in my translation.Especially when the translation is
made by one who is not the best in this profession.

As for numbering the English articles,they are numbered with real numbers which are one
number ahead in the original;that is the first English article,is the second in original.The first
article in original was skipped,because it has a general character of Fiqh definition.It was felt
unnecessary to deal with it in this regard.In other words, if you want the number of any artcle in
the original Turkish form,you must add number 1 to its English number. Not all of them are
related and applicable to same subjects;every one is applicable to different area and field.

Hundreds of comments are made on them and they were applied in a very wide region of
Ottoman Empire.A few years back, they were reported being applied by Israel to the muslims in
the occupied territories.It is possibly applied today as well.

As a system the books have first an introduction which gives some sort of rules and definitions
and terms to be used in the following parts.

Majallah was a team work,of course, basically motivated by one or two members as is the case in
all team works of today in muslim world.The one who deserves a lot of credit is Ahmad Cevdet
Pasa;no doubt about it.

Muslims, centuries ago, produced some other team works in India by Fatawa Alamgiriyyah ( or
Fatawa al- Hindiyyah ) which is a gorgeous Fiqh Compendium which deserves an immediate
detailed publication with english translation together with notes and necessary explanations.

There is a contemporary code on personal status in Islamic Law in


Egypt;that is " Code of Personal Status " ( Qanun al-Ahwal al-Shahsiyyah ) by Qadri
Basha,which has been arranged in eurepean type of code with articles and every thing.

Of course, muslims need more activities and efficiencies in this field to day, much more than any
time else.One can't deny the attempts spent and are being spent to prepare some draft Islamic
Civil Code;but nothing visible yet.We appreciate the eagerness shown in this regard;but it looks
that actions have not fit the words so far.

Someattempts have been made to improve and to codify some more areas in Islamic Law in
Ottoman Empire's last decade;but no product came out worth mentioning.The archives of the
Ottoman Empire is waiting to be uncovered by the worthy hands and to be benefactory to all
around the world.

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Majallah is a very important code from the following points:

a ) It is a product of purely islamic sources.

b ) It is an evidence of muslim scholar's capability of producing a code arranged in western type


of codificational system.

c ) Today it is a monument of practicality and applicability which has been applied,perhaps still
being applied indirectly at least,in a wide area of Islam.

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M O D E R N I S S U E S

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Moon

As we all experience every year at least once,muslim world experiences a problem associciated
with the sighting the moon.According to the following verses,fasting in Ramadan must begin by
shahadah ( sighting and seeing the moon ):

" O you who believe! Fasting is prescribedto you as to those

before you,that you may learn self-restraint.Fasting is for fixed

number of days; but if any of you is ill or on a journey,the

prescribed number should be made up from days later.For those who

can do it with hardship is a ransom,the feeding of one that is

indigent.But he that will give more,of his own free will,is better

for him.And is better for you that you fast if you only knew."

"Ramadan is the month in which the Qur'an was sent down as aguide to mankind,also clear signs
for guidance and judgment.So every one of you who sights ( sees / shahadah ) the month should
spend it in fasting;but if any one is ill,or on journey,the prescribed period should be made up by
days later.Allah intends every facility for you;He does not want to put you to defficulties.He
wants you to complete the prescribed period,and to glorify Him in that He has guided you; and
perchance you will be grateful."

( Surat al-Baqarah -ii- verses:183-185 ).

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Here we observe the word " shahida " in the text which means " to witness,to see,to sight ." This
is a key word in our case;actual sighting of moon.Some commentators interpreted it as " to be
present " in their Commentaries on Qur'an,Yusuf Ali is one among them, which is not shared by
this author. This comment may be testified by the interpretation made by Hujjat al-Islam Abu
Bakr Ahmad b. `Ali al-Razi al-Jassas ( d.370 / 980 ) in his splendid book "Ahkam al-Qur'an" that
this "shadah" is actual sightingthe moon;this comment with some more detail is given in the
commentary of the verse mentioned above in which the word

" shahida passed."

A very strong hadith narrated in this regard is supporting the above mentioned point: " Lunar
month is 29 days;don't fast until you see it ( taraw-hu ),don't break your fasting until you see it.

( taraw-hu );if there is cloud then you calculate it ".Here in this saying we see the nature of
sighting the moon and that it must not be based just on rough type of counting.Another saying
of the Prophet in this context is reiteration of the same principle: "You fast when see it ( li-
ru'yati-hi",same connotation and same meaning.

These are the evidences as to why the muslims give so much importance to sighting the moon
with actual seeing (by naked eyes).

Here is another crucial point worth mentioning.That is,not to base fasting on al-Hisab
( counting ),which I will discuss in detail later on.I think, to establish the actual content of al-
Hisab in the days of Prophet Muhammad ( p.b.u.h. )and to define the concept of al-Hisab in that
environment scholarly is extremely important for us today in order to approach the issues of
modern nature now a days.

Simple and naive method of counting must not be taken as equal to computerized kind of
developed calculations and its allied sceinces.That will be a big mistake and misconception
andwill mix the concepts with each other.

A saying of the Prophet on " We are a nation of illiterates;do not write and count ( Inna ummah
ummiyyah;la-naktubu wa la-nahsibu )"

is to be studied vis-a-vis modern sciences.For detail ref.

al- Nawawi,Sharh Sahih Muslim,vol.7.( ed.Dar Ihya al-Turath al-`Arabi ,third edition
l984 ).pp.192 etc.

About other related sayings of the Prophhet refer al-`Asqallani.Fath al-Bari Sharh Sahih al-
Bukhari,vol.4,ed.Dar Ihya ' al-Turath al-`Arabi,second edition l402,Beirut,pp.95-99. al-
Bukhari,Sahih,vol.3,ed.Dar al-Jail,Beirut,pp.34-35.

Because of the importance to be given to the words of the Prophet and the necessity of taking
them in their literal meanings,unless

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otherwise is hinted or any kind of adverb or other modifiers are put the text which shows that the
real meaning is not meant here in the specific sentence, the meainings are to be taken in their
literal context;one must never never go to twist the clearly understandable meaning.

The Problem:

Muslims,all over the world,generally have a big problem each year,some times twice a year.Each
muslim state and some times groups and communities watch the moon individually and do not
believe each other's testimony.Quite often they do not sight the moon in their regionthe same
day and this finally leads to conflicts in their communities.Some of them establish the eid prayers
and festivals and others belonging to the same neighbour and even same family do not.This is the
situation so far.

Since there is no central authority to tackle the issue the problem can not be solved
easily.Although Organization of Islamic Conference has a special committee for this issue and
several times the committee has met and deliberated this issue,still no prompt outcome is visible.

As the political differences among muslim countries affect the religious affairs as well and as
some of them think that the issue is an internal issue, the unity among political powers is not

achieved.

Another difficulty in this regard is that there are not enough flexibilities among muslim scholars
to interpret the word ru'yah (sighting) in modern way.Some say that watching the moon by
instruments is also a sort of sighting by eye even better and stronger,and the researches made by
the science and computer etc.are to be counted as equal to sighting with eyes.They consider
calculations,tables and almanacsprepared inthisregard

acceptable as accurate and as substitute to sighting with naked eyes.

The Mechanism of ru'yah:

What is the theoretical and practical situation in muslim countries?In theory, if some reliable
individual sees the moon and a judge establishes the fact and decides on it,thesighting the moon
gets established and fasting is to begin. In practice this is what muslim countries generally
follow.

The problem here is the reliability of witnesses and the person himself.They are not all the time
experts in sighting the moon.Generally some one from rural area sees it.

There are many requirements of witnesses mentioned in the Fiqh books.But those requirements
are not easily met by the people in question.

The issue of whether one witness is enough or not and other detailed requirements of witnesses
are dealt in detail by al-Jassaj in his Ahkam al-Qur'an and Ottoman Fiqh book Multaqa

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'l- Abhur by Ibrahim al-Halabi.Among the requirements of acceptable witnessesarethe
following: not to bea singer or involved in music,not a man of alcohol,a person who plays with
birds, plays a musical instrument,who misses the regular daily prayers,who makes some crimes
to be punishable by Hadd in Islamic Penal Law,who takes interest,who enters the bathroom
without any clothes on his private parts,or urinates on streets or eats in public places or
disrespects the early muslim scholars etc.

( Ref.Multaqa.Kitab al-Shahadat ).

There are some other conditions for witnesses such as any testimony which is denied or deniable
are not to be acceptable.(For this one may refer to:The Majallah of Ottoman Empire,article
1697).

Judge himself is not possibly a judge to be fully accepted because his mandate and capacity does
not stem from a real caliph/amir or imam established by the rules of Islamic Law.No head of
muslim state may be looked as real muslim leader of all muslims in the world.As a matter of fact,
they are possibly usurpers of the rights of the people who got and maintain their positions with
illegitimate means and ways and forces.

Saudi Arabia,Egypt,Kuwait,Pakistan and other muslim countries follow the sighting mentioned
above.Turkey is not following this

system for more than three quarters of a century.In Turkey Tables and calendars prepared by the
scholar and astronomer Fatin Hojais followed by the public.Individuals may be following actual
sighting or following neighbouring countries.

It is peculiar to note that all muslim countries have their own calendars prepared according to
almanacs perhaps years ahead and applied and followed state-wise in all issues,but when it
comes to the beginning of Ramadan and its ending they follow actual sighting but they do not
correct and change their calendars by the sighting.

Their actual sighting the moon does not coincide all the time.Two neighbouring states announce
different days as their sighting.

Although moon is astronomical and physical and its course is well known,followed and
established along centuries we muslims still disagree in establishing the actual sighting.

`Abd al-Rahman al-Jaziri gives a very good summary of different opinions of Islamic Schools of
Thoughts in his nice book " al-Fiqhu `ala 'l-Madhahib al-Arba`ah,Qism al-`Ibadat - Juz'i, ed.Dar
al-Kitab al-`Arabi bi-Masr,pp.432-435.Here it is clearly mentioned that according to Hanefite
School,it is necessry for the moon to be sighted by a large number of people so much that their
information may be a source of undeniable knowledge (Jama`ah Kathirin yaqa` bi-khabarihim al-
`Ilmu ).

The issue of judge's verdict:

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The judge must be duly appointed and delegated with authority and capacity covering the issue
of sighting the moon and the area in which the witness lives in order for his decicion to be
binding on the peole living in that region.Otherwise judge's desicion is not binding.As we all
know, there is this type of procedural rule in Islamic Procedural Law ( Adab al-Qadi ) as it is
thecase in modern procedural laws.TheMajallaofthe Ottoman Empire established this principle
very firmly.In other word, a judge who is not duly appointed by a duly authorized leader with a
clear cut walayah,his verdict is not fully binding on muslims.

A leader of state or community who got the position by war,aggression,inheritance and


someother means cannot be turned by the passage of time into legal lawful position;because
sharr doesn't become khair by the passage of time,I believe. There are three views on the subject
of whether the particular sighting of the moon is binding on the people of other areas:

First of all a hadith is related in this regard.A person by the name of Kuraib was sent to
Damascus by Mu`awiyah;he sighted the moon of the begining of Ramadan together with others
on friday.He was asked when he returned to Madinah about the begininig of Ramadan.He
answered that he himself saw the moon on friday and the people of Madinah sighted the moon
saturday.`Abd Allah b. `Abbas,the other party of dialogue,said they will complete the month
upto 30 not taking into consideration the sighting of Damascus here in Madinah because this was
what the Prophet ordered them.

a ) The sighting of one area is not binding on the people of other regions.Each region must sight
the moon on its own.

b ) The sighting of another area is binding if approved by great imam (that is head of
state,caliph);since the country is under his authority,

c ) If the regions are near each other it is binding,and if not it is not binding.

There are following views about distances:

1- if there is Ikhtilaf la-matali` ( differences of rising and setting the moon and and the sun ),

2- the distance of shortening the parayers,( Shafiite School gives 24 farsakh as the criteria;if the
region is far than this,it is different matla` and the people over there are not supposed to follow
the sighting of a person far away from his region. ( Ref.al-Fiqhu `ala l-Madhahib al-
Arba`ash,juz'i I.p.434 ).We are warned not to follow astrlogists ( munajjims ) in this regard.
3- Regions are different,

4- If two regions are so near that the sighting in one is not hidden from the other,

5- if two regions are different in altitude having mountains and


plains, each part is to be counted as independent. ( al-Shawkani, d. l255 /l839 ),Nail al-
Awtar,vol.iv,pp.269-269

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ed.Dar al-Jail,Beirut ).

How to solve the problem?

First of all, we must accept that sighting the moon is a physical event (not a social
phenomena),the evaluation of which is not left

to the discretion of the human beings.

We must have a committee who will study the issue scholarly and make observations and hire
some firms in this field to point them on proper time and proper places the expected location of
the moon and show the crescent to their naked eyes on the earth.

It is necessary to benefit from modern almanacs and reports in this regard and not to discard the
new findings of research centers.

Of course, all activities must be shared by all important muslim

states such as Saudi Arabia,Egypt,Pakistan etc.The muslim countries

are locatedin the Middle East,so they have the privilege of

benefitting from the experiences of the muslims in the Far East and helping the muslims in the
west by cooperating with them.As for muslims in USA,we are 8-10 hours west compared with
Saudi Arabia for example, so we might benefit from their sighting the moon and may base our
eid on their observation.Moon is the same;it is a physical event;it will never disappear and never
be born again;if it was seen,then it is there.

Muslims in this country,are from different back groundsThere are emigrants from different
muslim countries with different cultures and traditionsand there are new native
muslims.Therefore,in this country we must find an original waywhich is acceptable to all

muslims here.To follow any given country blindly will not satisfy the muslimshere.We need an
original,satisfactory, scientifically

explainable and open type of methods to sight the moon.

Todays highly developed communication system has made all the worldas one unit;none may
ignore any other's concern and suppress it at all .

Let us not forget that sun and moon and all other stars and planets are created by Allah,the
creator,maitained by Him,planned by Himin their courses as He wishes.Look at what
doesAllahsay about them in the following ayahs: " It is He who made the sun to be a shining
glory and the moon to be a light and measured out

stages for her (in other words, fixed for her stops and courses);

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that you may know the number of years and the count of the time

( al-hisab ).Nowise did Allah create this but in truth ( bi 'l-

Haqq );Thus he explained His signs in detail,for those who understand ". ( Surat Yunus, -x- verse
5 ).Brothers who are concerned about Qur'an must take care of this verse in modern
understandable context. "And the moon;We have measured for her mansions to traverse ( fixed
for her stops and courses ) till she returns like old lower part of a date-stalk " ( Surat Yasin,

- xxxvi - verse 39 ). " It is not permitted to the sun to catch up the moon,nor can the night
outstrip the day;each just swims alongin itsown orbit according to the law " ( Same Surah,verse

40 ).What the benefits may we get from these ayahs in modern terminology? "The sun and the
moon follow courses exactly computed"

( Surat al-Rahman, -lv- verse 5 ). What is the meaning of this

ayah? How a moon fixed like this in its course and orbit may be in

one country existent and not in other countries?

What about sighting the moon in all the lunar months including Dhu'l-Hijjah,in which we pray
Eid Salah? The fasting is haramin

those days ( Eid days ),So it is practically necessary to fix the

real Eid,and to be sure about the beginning ofDhu'l-Hijjahinthe

prescribed areas.That may not be overlooked for any reason what so ever. A recent book by a
specialist in this field can be consulted:Mohammad Ilyas,A Modern Guide to Astronomical
Calculations of Islamic Calendar,Times and Qibla.

Interest

One of the modern issues to be touched here is the interest.Interest is widely practiced and is
howan unavoidable problem in the muslim communities in modern history.It is named as al-Riba
( Interest and usury ).And that is clearly forbidden by Qur'an and Hadith.

The capitalist system is based on interest.The biggest economic institutes work with interest.All
credits are based on interests.

Mortgages depend on interest.

Of course the interests had / has different variants and forms in practice.But the principle is the
same and,threrefore,that is

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forbidden.No twist of interpretation may exempt the person from

interest which has been forbidden.

This is a big afah ( catastrophe ) which seems very difficult,next to impossible, to be totally
avoided.The change of name,not the nature,such as commission,renumeration etc.,won't affect
the legal aspect of the core issue.

Marriage to a nonmuslim person

a. Amuslima ( muslim woman ) can not marrya nonmuslim man.

b. A muslim man can only marry a lady from Ahl al-Kitab ( People of Divine
Scripture ),practically christians and jews.But in this case the lady must be a real christian ora
real jew.I mean believing in ba ) God,not necessarily unity of God.But

she must believe in God and must not be an atheist.Trinity doesn't

annul the marriage,since it is mentioned that the christians during the early Islamic period had
that belief.

bb ) A christian lady must at least believe in the prophethood of

Jesus Christ,the New Testament ( Gospel ),and in the Day of Judgement.

Ithink these are minimum requirements to call someone a christian

and thereby meet requirements established for the al-Nasara' (christians) of Qur'an and of the
time of Prophet Muhammad ( pbuh ).

This is to be considered in each case carefully,because christians of this continent are so


different,some do not believe

that real Jesus Christ lived in a span of time;some deny his

prophethood etc.Even there are many who do not believe in any

supernatural Being at all,althought they carry christian names.

As it is obvious no atheist woman may marry a muslim man islamically.

bc ) She must not have any kind of involvement in adultery and free relations with another man
she was not married to;for to marry any one who is involved in adultery is clearly forbidden and
it is against the descent and faithful family structure and is strictly forbidden in Islam.This is a

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very importantissue in this country,since free raltion and sex is widely practiced and believed
as a basic right of a person.

All these rules are applicable to Jewish women indeed.

Green card marriages must be accepted as real marriage,I think.That is, marriage just for the sake
of visa and to get green card without having any real marriage intention.Why is it like that?
Because there is a special Hadith saying that marriage

( Nikah ) is a transaction in which joke and serious words are the same.They have same legal
effect.So because of this exceptional situation, I believe,green card marriage must be considered
as legal marriage fron the point of Fiqh.

The marriage to nonmuslim woman is allowed in Dar al-Islam ( Muslim Country and State )
unanimously. But when it come to marriages in nonmuslim countries the faqihs considred itat
least makruh (repugnantandnot recommended) at least;some of them considered it as haram
( totally forbidden and not acceptable ).

Dar al-Harb or Dar al-Kufr or al-Siyar ( International Islamic Law )is translated as a non-muslim
conuntry.But which countries of today are really a part of Dar al-Islam ( Muslim State ) is a very
big controversial problem,I guess.

Theoretically speaking even extremists may look atsome muslim

countries as agents and extensions of nonmuslim countries,since

theyexecute what they get from westandeven trust their secrecies

and confidential military plans and others to their intellegence

services etc.I need here to say "Allahumma illa" , I belive.

Children must be raised in accordance withIslam inanymarriages.No way of leaving them with
christian mothers,in case of separation or allowing them to raise the children as christians.Father
will be responsible for any inconvenience in this regard.The practical problems caused by
inconveniences in the field of children and their pitiful situations in the hands of christian
mothers after the seperation and dissolution of marriages are really heart paining issues which
moust be considered very carefully.

I must say in islamic terms " Wa Allahu a`lam bi'l-Sawab ( Allah

knows the best ) ".

A proposal:

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In order to do our best in securing the future of marriage according to Islam and push the door to
be opened a litle more for applying Islamic Law in this country, wecan benefit from the freedom
of contract and religion,and develop an Islamic Marriage Contract.A text on the subjec is
enclosed here.Perhaps this may lead to bigger opportunities for the application of Islamic Law in
this country.The text is self explainatory and satisfactory.

Marriage Contract

Believing that Islam is our way of life,binding us in all aspects of our lives,WE AGREE AND
DECLARE THAT:

a) All relations between us;

b) Validity,voidity,voidability,dissolution of our marriage contract and suit procedures and


jurisdictions thereupon;

c) Rights,duties,powers and liabilities of each one of us;

d) Property rights and liablities of each one of us;

e) Parent-child relations in all aspects including custody,conservatorship possession,support and


adoption;

f) Bringing up the children and raising them up as muslims only;

g) Inheritance of our estates and assets,and wills to be made by each one of us;

And in all cases and matters mentioned or not mentioned above,the QUR'AN,the SUNNAH of
Prophet Muhammad (pbuh) and the Islamic Law (Fiqh) will be applied.

Any conflict which may arise between us will be resolved according to the Qur'an,the Sunnah
and the Islamic Law by Fiqh Committee consisting of three faqihs (Muslim Jurists and
Scholars); two of them to be appointed by spouses (each one by one of the spouses),the third
being appointed by these two.The last one will head the Committee.The apponitees will not
represent the parties in conflict and the Committee will apply solely the Islamic Law on the
dispute and its decision will be final.

In case of any conflict to be solved by any court in State.... of or in USA or in any country
outside of the USA,the court will solely apply the Qur'anic rules,the Sunnah of Prophet (pbuh)
and the Islamic Law (Fiqh) on the case.The law of the land will not be applied in these conflicts
at all.

Date of Contract The Location Institution (Address)

BRIDE (Name,address) GROOM (Name,address)

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Witness (Name,address) Witness (Name,adress)

IMAM ( Religious Leader of the Community)

Aftergetting this contract, done it might beadvisableto let it be notarized legally for future
reference.This might be

useful for the couple and their children and kins in future,esapecially when they leave the state
they married and go

away and have relatives here and there in diffrent parts of the

world where jurisdiction differs too much.

There is no doubt that the law of the land and the court may interfere in some points,especially
where it is thought to be infringing the fundamental principles and rules accepted for that
particular country such as public order or public safety.But generally speaking the freedom of
contract is widely respected and observed by the laws all over the world.

There is no doubt that it will push the doors to be open a little more in favour of Islamic Law and
religious freedom and may lead too establshing some good precedents in favour of muslim
generation.By this way muslims possibly may be less accountable in the Hereafter.

Meat

The meat slaughtered orsold by a nonmauslim may be eaten by muslims if the conditions below
are met:

a ) The slauhgterer must be either christian or jewish;but they must be real christian or jew,not
just the name.They must not be atheist or without religion at all. b ) Animal must be
slaughtered,not killed in any way.Any tranquilizer which affects just a little,not leading to
deathby itself at all,won't change its lawfulness.

To slaughterthem by hand or by machine does not affect on the legality as long as the machine is
under the control of eligible person and run by him.

One of the crucial points here is a chicken or any animal bred and fed by any material which is
haram,such as blood or any food made from blood,can not by itself be halal ( lawful ) even if it is
slaughtered properly. "Allahumma,illa.. ".

Materials Having Alcohol

Alcohol is haram.But in the continent hundreds of materials contain

either alcohol,pork or animal fat.Are they halal(lawful ) to eat? Unequivocally " No ".But what
about business involving these goods?I think,business may not be acceptable and legal at least

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from the point of taqwa and being accountable.So many grocery shops

run by muslims are perhaps not doing the righ thing from this point.

"Amuslim must not be a tool or an aide to any munkar and sharr,

indeed ". Is this not a golden rule? Why twist it?

Work for Nonmuslims

Worknot involvingany haram,even though it involves anonislamic organization or under the non
muslim authority may not be fully haram (unlawful),so long as it does not involve in any
cheating,abusing or any thing not acceptable by Islam.But even in this situation,there must be a
good intention accompanied with tawbah (repentance) and it should be temporary necessitated
by some non-extenuating circumtances." Wa Allahu a`lam bi 'l-sawab ".

Citizenship of nonmuslim country

If we had a real islamic state which fully abided by the rules

and regulations of the Islamic Law and if all muslims had access to

citizenship to this muslim state,then perhaps that would lead to

the unlawfulness of acquiring citizenshipofanonmuslim country.

But actual situation is different.Muslim countries have so many restricions and do not accept
new citizens.Even the most

religious ones base their principles on racial and loyalty ties.

In such a position citizenship of choice in a nonmuslim country isjustified but our intention has
to be the representation and spread of Islam and to safeguard the future generation of muslims.

Recitation of Qur'an by Money

Reciting Qur'an for money is haram and forbidden.Teaching it for money is acceptablefor
practical reasons.Securing the teaching

is much more important.

Reading and recitation of Qur'an may not be the subject of selling and buying.

Reading and reciting the Qur'an may be beneficial to the persons

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passed away,I think.But the real reward is when the person recites it himself or his relatives or
students recite the Qur'an on his behalf.This is included in what is mentioned in a hadith as a)
sadaqah jariyah,b ) praying good descendants, and

c ) useful knowledge,the three principles which continue to reward a person after his death;the
book of a`mal will be kept open

and working as long as the practice goes on.

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107
U S U L A L - F I Q H

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Usul al-Fiqh

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Usul al-Fiqh is a science of studying the sources of rules and regulations,the
evidences,argumentations together with all sorts of allied subjects such as words,their
meanings,literally and allegorically and contextually.

It is a methodology of Islamic Law,and Roots of Islamic Jurisprudence.

But academically it is not feasible to match any western legal and law disciplines to Usul al-
Fiqh.As a matter of fact,it is not possible,I think,to find a discipline in western colleges which
may

be considered as equal to this science fully.

The definition and its components will be dealt later.Now I want to give a little detail on the
situation during the time of Prophet Muhammad ( p.b.u.h. ) and his companions.

The Time of the Prophet:

Prophet Muhammad ( p.b.u.h. ) wasthe source of wahy ( revelation and inspiration ) during his
23 year long prophethood.

He was the real leader of the community statewise,religiously,

socially,judicially,politically etc.He had direct access to Allah,

the real legislator;the Creator,the selector of prophets,the sender

of revelation to whom He wishes.

Since he was a messenger of Allah and commissioned by Him,he was

kept innocent and away from all kinds of faults and defects so

that the humanity may follow him feeling fully comfortable that all his deeds and actions and
behaviors are binding and made under Allah's protection.This is one of the qualifications of the
real

prophethood.

His words,actions and approvals (explicitly or implicitly) all were/ are binding for every body.

These are a few verses from Qur'an showing the bonding of his Sunnah on every body: " O you
who believe,Obey Allah and obey the messenger,and those charged with authority among you.If
you differ in any thing among yourselves,refer it to Allah and His messenger if you do believe in
Allah and the last day;that is best and most suitable for final determination " ( Surah al-Nisa'

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-iv- verse:59 ).

" By the star,when it goes down,your companion ( Muhammad ) is neither astray nor being
misled.Nor does he say aught of his own desire;it is no less than revelation ( wahy ) sent down to
him.

He was taught by One mighty in power,endued with wisdom."

( Surat al-Najm -liii- verses:1-6 ).

".. So take what the messenger assigns to you,and abstain from that he witholds from you.And
fear Allah;for Allah is strict in punishment. " ( Surat al-Hashr, -lix- verse:7 ).

There are few more verses in Qur'an denoting the necessity of obeying the messenger of Allah
along with Him.The word in this regard is " ta`ah " ( obey ) and in so many places its derived
forms are used in same sentence such as " obey Allah and His messenger ";so obeying both
Allah and the Prophet are provided the same status, if you will.As a matter of fact,there is a verse
in Qur'an stating " whoever obeys the Prophet he obeys Allah indeed" ( Surat l-Nisa' -iv-
verse:80 ).The number of verses in this regard are nearly 30 ;the majority of them are in the form
of imperative ( sighah 'amr al-hadir ) for example " obey Allah and His Prophet ( 'Ati`u Allah
Wa 'l-Rasul ; Surat Al `Imran -iii- verse:32 ).

There are some other verses in which other sorts of words imperative are being mentioned such
as " Tabi`a,'ittabi`.. " meaning followed or follow etc. " Say: If you like Allah,then

follow me;if you follow me Allah would like you and he would
forgive your sins.. " ( Surat Al `Imran,-iii- verse:3l ).This
type of expression occures in Qur'an at least four times ( Surah
Al`Imran -iii- verse:31;Surah Taha -xx- verse:90;Surah al-'An`am

-vi- verse:153; Surat al-'A`raf -vii- verse:158 ).

Outcome of Those Verses:

We may deductthe following points from the verses above:

l. What Prophet Muhammad said or did or approved are of binding nature.

2. They are some what revelation ( wahy ) with respectto their content.

3. He represents in all his actions and behaviors divine message.

4. Obeying him is necessary; if not Allah also will be disobeyed.

5. No true religion and submission to Allah without the messenger's role.No way of eliminating
him from the scene of religious practices in Islam.

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But one must clearly state that the prophet is a human being;he is not having any god-man image
of christianity.He issolely a human being,entrusted with the mission of prophethood .His duty is
to convey the message he gets from Allah to the humanity.There is no concept of god in flesh in
Islam,as it is in christianity.

The Establishment of Usul al-Fiqh:

Many companions of the prophet along with him contributed to Fiqh by teaching and by
deciding in conflicts.They all in their activities had some principles and logics which they
applied in formulating their descisions after establishing the factsproperly. Subsequent
generations got the heritage of the companions and worked

on them and developed them.The scholars participated in dialogues

with each other in publicand were concerned and interestedin different ideas and opinions.

Even they wrote some treatises carefully evaluating and sometimes

rejecting each other`s ideas in written forms.There was a good

deal of scholarly activities in those days.

Imam Abu Yusuf has written a book rejecting the theories and opinions of Imam al-Awza`i,a
very early faqih who lived in the

second century of Hijrah.Imam Abu Yusuf's book is al-Radd `ala Siyar

al-Awza`i.Its subject is international relations,war and peace;

that is InternationalLaw.It is obvious that even at this very early

stage of Islam the muslim faqihs were discussing issues dealing with the international law issues
unlike the western world who waiteduntil the seventeenth century A.D.

Similarly, muslims were very active in other areas such as the field of Qira'ah,Tafsir,Hadith
etc,as well.The imams of Qira'ah and Hadith of those days are all very much respected today and
their works and rules and regulations are being observed as rules and regulations in those fields
since then.

Muhammad b. Idris al-Shafi`i:

Muhammad b. Idris al-Shafi`i ( l50-204 /767-819 ) was a great scholar of Fiqh.He is the one who
first wrote a book on a very original science of Fiqh named as Usul al-Fiqh.His book in this field
is al-Risalah.

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By this book, he contributed to Fiqh studies an independent science,science of methods and
principles and arguments and evidences and so on so forth.This is a pioneer book on this
methodology.

The book of al-Risalah is not a very voluminous book.It is one volume book consisting of just a
few hundred pages.

There were oral traditions transfered to the author from his predecessors and teachers.He found
himself in a very active scientific era and involved in all studies and activities.So the principles
were orally and scholarly the product of previous scholarship,I believe;some of them being
invented and developed by him for sure. His pioneers must be who are counted in the chain of
his teachers such as Imam Muhammad b.al-Hasan al- Shaibani,Imam Abu Yusuf Yaqub,by this
channel Imam A`dam Abu Hanifah,going back from that channel to Hammad b.Sulaiman and
`Abd Allah b. Mas`ud and others. So some of the credit in the Usul al-Fiqh area must also go to
the previous activities and to others at least in theory,even if it is hardly proveable practically.
al-Shafi`i has another more voluminous book " al-Umm " -( The

Mother )". But the previous book is the one based on Usul al-Fiqh.

After al-Shafi`i, Usul al-Fiqh was further developed extraordinarily

by the faqihs of different schools of thoughts, especially Hanefites.Muslims from the Central
Asia,Qarakhanids and Ilak-Khanids etc. were fond of this sceince and developed it with their
marvellous works along the history of Fiqh.aL-Sarakhsi.al-Bazdawi,`Abd al-`Aziz al-Bukhari
etc. are some of the examples in this field.Theirworks are very much favoured since they were
produced in muslim world.They are the main sources in that field

today as they were in the past.

Some of the modern faqihs are of the opinion that the first work in this field was produced by
Imam Abu Yuasf Yaqub,teacher of al-Shafi`i;but that book is not in existence today.

The authors in this field chose different ways and methods ( method of Kalam and method of
Fiqh, seperately and jointly ).

Al- Burhan by `Abd al-Malik al-Juwaini al-Shafi`i (d.413 H. ),

al-Mustasfa by Abu Hamid Muhammad al-Ghazzali ( d.505 H. ),

al-Mu`tamad by Abu 'l-Husain Muhammad b.`Ali al-Basri al-Mu`tazili (d.413 H. ),al-Usul by


Abu Bakr Ahmad al-Jassas

( d.370 H.),al-Tanqih by Sadr al-Shari`ah `Ubaid Allah (d.747 H.),al-Tawdih by Sa`d al-Din al-
Taftazani ( d.792 H. ),al-Tahrir by Ibn al-Humam ( d. 861 H. ),al-Taqrir by Muhammad al-
Halabi

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( d.879 ) and many others.

Hundreds are still kept neglectedly on the shelves of centuriesold

state libraries of Istanbul,Konya,Kayseri ( Turkey );Damascus and

Halap ( Aleppo ) Syria;Baghdad,Basra (Iraq),Cairo ( Egypt ),Macca and

Madinah ( Saudi Arabia ) and so on so forth.Some manuscripts are,perhaps,untouched by


scholars for decades,if not for centuries.

The budgets of modern muslim world allocated to this field is miniscule in comparision to the
defense items. They are all busy with other things which prevent them from
formingcentersforUsulal-Fiqh, publishing all books,

computerizing all Usul al-Fiqh books and others etc.

It is a pity not to have a single Intitute where one may find all Usul al-Fiqh and Fiqh books
computerized and a cadre of scholarsdedicatedto this field,picking the pearlsof this ocean

and producing joint ventures of Fiqh for the benefit of the Ummah.

There are hundreds of studies and works in muslim libraries in regional languages ( not in
arabic ),that is Urdu, Turkish,

Persian, Bengali, Malaysian ect.Thistype of literatureistobe

studies from sociological pointof view at least.These are

sociological aspects of Islamic Law and its perception and

applications by different muslim nations are important for the study of Fiqh.

Definition of Usul al-Fiqh:

Usul al-Fiqh is a science of knowledge,basic rules,and evidences in short,by which one can reach
to draw Fiqh .

This is the terminological definition.

This term Usul al-Fiqh is consisted of two words:

The word of Fiqh has been dealt in detail in the early part of this work.

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As for Usul it is the plural form of Asl which means root,main part of some thing and base of
some structure;in other words,basic rules and regulations.

This is a science of methodology of Islamic Law,Islamic Jurisprudence.I will give a little


detailed content of this branch of science.I think,at that time,we will agree that there is no full
equivalence to this science in western colleges of laws.

Content of this science:

Rules and regulations of Qur'an,and Sunnah;Legislator,subject of those rules;addressee of the


revelation;capacities and their defects;evidences andsources of rules;The book:Qur'an,Sunnah,

Ijma` ( Consensus ),Qiyas ( analogy ),Istihsan,al-Maslahah al-Mursalah,Sadd al-


Dhara'i`,Tradition and usage,words of the companions of the Prophet,the laws of the
past,Istishab,methods of drawing and deriving rules and regulations from the sources;vocabulary
meanings of words,denoting of words on their meanings,the ways of denotings.Main purposes
and goals of Shari`h,if evidences clash between the texts of sources,which one is tobe
preferred,the problem of abrogation annulment;Ijtihad

and taqlid ( imitatation ).

These are general contents of Usul al-Fiqh which will be discussed later in little detail.From this
we may gather that no independent academic discipline can be matched to it in non-islamic legal
studies.So this science is very special to Islamic

Jurisprudence indeed.

These are the subjects which make a lawyer an efficient legal man;these are the rules and
regulations used in nearly all the

legal disputes,suites, and court procedures.The plaintiffs and defendants use these principles and
concepts in all their statements and arguments. It must be realized that the absence of

this science will create a void in legal studies.

Rule ( al-Hukm ):

The plural of al-Hukm is al-Ahkam.Hukm is very important in this branch and it is defined as " it
is the address of Allah related to the acts of islamically responsible people ( al-mukallaf ) asking
them to do or not to do something,leaving them free in their chices.

It is divided into two:

a. Taklifi: An address which calls for an act,or forbids an act or leaves one free in doing or not
doing it.

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b. Wad`i: Some thing is made factor,condition or barrier for another concept.

al-Hukm al-Taklifi has some subdivisions:

aa ) al-Wujub:It is the action wanted by the real legislator

( al-shari` ) to be performed in a way that the neglector will be rebuked and punished and doer of
that action will be praised and rewarded.

Some of the wajibs are not restricted with a time;they may be done whenever possible;it is
preferable to make it as early as possible,for example,make -up fasting for missed days of
Ramadan.

Some of them are to be done on time,for example five times daily prayers.

Some are measured and patterned and others are not.Some are fixed

by Shari`ah and some are not. Some are to be executed personally,the

others may be done by any body who can do it most efficiently.

ab ) al-Nadb :

Nadb is calling addressee to do something without any bondage;the doer will be praised and
rewarded and the neglector won't be reprimanded and punished.

The imperative forms in the text denotes Nadb if there is word in the text showing that
bindingness is not meant by this imperative.

Nadb or mandub has some other terms: al-Sunnah,al-Nafilah,al-mustahabb,al-Tatawwu`.The


sterngth of each one of them varies according to the degree and consistency it occupies in the
text and the practices of the Prophet.

Mandub is from one point a part of a circle for Wajib ( wujub ) protecting and assuring the
application of it and easing it to the addressees.It is,for sure,a part of complete system which can
not be ignored as a whole.

ac ) al-Haram / al-muharram:

Haram is an action from which the addressee is mandated to refrain; the refrainer will be
rewarded and the neglector from

abstaining will be considered rebellious and disobedient.

Generally speaking things are made forbidden because they have element(s) of corruption and
evil in them, someof the evils are

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inherent in them,some of the evils emerge from outside.Sosome

harams are harams by themselves and some are harams for reasons

external to them.

Some time harams become lawful if a necessity arises.There are two ways regarding the
practice of Haram under necessities:

`Azimah is to stick even when there is a necessity to do haram and to sacrifice oneself;and al-
Rukhsah is the opposite to it;that is to take the easiest way out benefitting from the flexibility,if
needed.

al-Rukhsah is pronouncing haram and kufr word,neglecting a wajib act etc. in case of necessity.

To take rukhsah aspect is some times left to the discretion of the individual;but sometime it is
mandatory to be taken in order to protect life such as eating just enough forbidden meat to
survive.

ad ) al-Karahah/al-Makruh:

al-Karahah is an act which Shari`ah qulifies as better not to be performed,but it is not mandatory
to refrain from it;this is to be understood from the source text.The actor won't be sinful,but may
be reprimanded and the one who does not do that is rewarded and praised.

Hanefites divide al-Makruh in a) Tahriman makruh,which is

nearer to Haram,decisively forbidden and b) Tanzihan makruh,

which is nearer to Halal,decisively lawful and permitted.

af ) al-Ibahah / al-Mubah:

It is an area in which resposible person is left free with choice

of doing it or leaving it;there is no praise or reprimand in doing it or not doing it;some use for
this the term Halal ( al-Halal; lawful ).

The text, context and the practice of theProphet denotes its

qualification.

ag ) al-Sabab ( Cause ):

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Sabab is the thing which made necessary by Allah for some thing else as hukm;in other words,
some thing made reason and cause for an other action.For example,adultery is the cause and
sabab for its punishment.

Some of the sababs are actions under the choice of actor,some others are not,they are beyond his
capacity and will.Sababs will necessarily lead to the consequences.For example,relation is
necessary for being heir to some body;for actual inharitance death of the related person is
condition.

ah ) `Illah:

Illah is some what similar to Sabab;If relation between sabab and the outcome is not easily
understandable by human mind that cause is sabab only;but if relation between two concepts is
easily understandable that cause is called `Illah and also Sabab.In both of them, the cause is
made a sign by Allah for hukm (outcome-rule).In `illah, cause is really affecting the outcome and
this

is clear.But in Sabab;the case isjust the opposite.Sighting the

moon is sabab for actual obligatory fasting in Ramadan;and

relation is not easily understandable.

ai ) Shart ( Condition ):

Shart is a condition which another concept is based on and the condition is not a physical part of
it;and its existence does not necessitate the existence of that thing;but its non existence leads to
thing's nonexistent. For instance, ablution is shart for the salah and two witnesses are conditon
for marriage contract.

The necessity betwee two concepts here is legal ( shar`i ) not physical. By the way, charter must
be English word for shart derived

from arabic.

Al-Rukn is a condition which is a part of the conditional concept.

For example ruku` is a rukn not shart for salah.

Sabab's existence,unlike the condition, necessitates the concept

for which it causes, and it leads all the times into its existence.

Sharts are divided in conditions for sabab and condition for musabbab ( the concept which a
sabab is stuck );also shart for legal issues and shart for the issues of choice of the human being
based on his will; conditions put ina contract are examples

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of the last type of shart.

ak ) al-Mani` / barrier:

Mani` is a concept on which existence or non existence of a rule

or sabab is atributed.This impedes the rule ( the outcome ),

although the condition is there;fatherhood is abarrier for execution

of qisas in a murder case. Nisab in zakah is shart,but if the person

is full of debt,this is the impediment for zakah.

The muslim jurists discussed whether mani` is a part of wahy (words of Allah and expressed by
Him) or not.Mani` is thought as

being not included in the message-address ofthe real Legislator

( Khitab Allah ).

Validity and voidity:

When conditions and requirements are met,the act is valid;that means Islamic Law is attached to
those rules.

If requirements are not met and some of them are lacking then the act is void,no legal
consequences.

Valid is sahih;void is expressed as batil / fasid ( the nouns are butlan / fasad ) in this field.
Hakim:

Hakim in this context means the source of hukm,law and legality.It is obvious that in Islam hukm
belongs to Allah;He is the only and sole source of law and legislature.But of course, Prophets
have the power of interpreting and applying the revelation and human beings are entrusted with
Khilafah to fulfill Allah's laws in this world and to uplift His word.

And by the way of Ijtihad and ijma`,qiyas and others,human contribute to the legislature which
at its best are secondary sources of Shari`ah.So human elements are always there.

The issue leads to whether the divine rules and regulations are perceivable with human minds or
not?In other words, whether wahy is necessary to understand the rules of wahy or not?

This is a part of husn-qubh ( good-evil or beauty-ugliness ) problem.

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Some say acts recommended by Allah have in themselves quality of being good or bad and
human mind is able to understand

and perceive them.So the people are responsible to understand and to appraise them even if the
voice of any prophet does not reach them. This is the view of Mu`tazilites and some others.

Second view is that human mind can not understand them and the messengers'messagesare
necessary.There is no beautyand ugliness

in the acts.Beautiful is what Allah wants to be performed and bad is what Allah prohibited to do
and asked to refrain.Ash`arites are of this opinion.The majority of Usul al-Fiqh specialists are
followers of this view.

There is a third opinion ;that is the majority of acts have beauty and evil inheritently and human
mind may understand them,but does not lead to be iuncluded in the revelation.They conclude
that commandments of Allah can not be attained without

messengers' roles.This is the opinion of Maturidites and Hanefites

and some of the people of Usul al-Fiqh.

The subjects of the Commandements of Allah:

The subject is always an act and work to do or to refrain.

Acts need some requirement:

a ) they must be definitely known by the responsible person;he must be able to know about it at
least;

b ) Actions must be with the capability of the persons,not

beyond their capability.This means that impossible acts are

not to be commanded and the acts beyond the will and choice of

human being are notto be asked.The criteria of capability

and impossibility may need some more words which are beyond the scope of the subject.

Some of the acts are purely the rights of Allah,some of them are the rights of human beings and
some are of mixed nature.

The Addressee / Responsible Person:

Human being is the addressee.He must have the power to understand

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the commandment.He must be sane,sober,and must have reached to the age of puberty.

Capacity and its Defects:

Capacity is a quality by which the person can be the subject of deed for / against him from the
point of Shari`a.That is legally acceptable quality we are talking about.

Capacity is divided as perfect and defectful ones.

The different stages of human being are discussed begining from fetus to baby,chidhood and
adolescent and others.Each stage has a special character and its own rules and regulations.

Some of the defects of capacity are:

a ) Insanity.Insane is not capabale from the point of responsibility in Islam.He is to be put under
guardianship by the

court verdict.

b ) Being confused minded and poor in understanding and administering the affairs.

c ) Forgetting and not remembering in general.

d ) Sickness:It affects human transactions and thequantity of performance.

f ) Death is one of the effective element in this regard.

These are classified as heavenly defective elements.

We have another set which are human factors,opposite to heavenly ones.These are shortly as
follows:

a ) Ignorance: As a rule it is not accepted as excuse.But still it has some effects on the
transactions.

b ) Fault. Mistakes and unintentional activities affect acts quite a bit.

c ) Drunkenness,unstability and force and others may be cited as some humanly elements
defecting the capacity of persons.But all of them have a little detailed conditions and
requirements to be met under the variety of acts and deeds.

Epilogue:

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Usul al-Fiqh is a totally original Islamic Science.And it is very much needed in all muslim
communities to facilitate the application of Islam in our daily life.Our forefathers did their
best.Now it is our turn to do some thing.

As we will see this science is related with the meanings of words,sentences etc.The sentence and
words used in contracts and others have differen hukms according to their meanings.

That is why in English speaking muslim communities evaluation of some main English words
according to Uasul al-Fiqh is very important.There are many Arabic words evaluated in Usul al-
Fiqh and given some rules and hukm whether they are Khass or Amm or Mushtarak,whether
they denote clearly or not.What about English equivalents of those words and sentences? Are
they the same or different.So it is a must for muslims here to have a group who will evaluate
those English versions and give some hukms to them.Forthis the knowledge of perfect English is
of course necessary.

Usul al-Fiqh must be improved by benefitting from modern researches and sciences.Sociology
and linguistics may be thetop sciences needed to be include in Usul al-Fiqh.We do not need an
antique science which is not understandable and is inapplicable like Logics of Aristotles and
Rhetorics of old days. We want

Usul al-Fiqh to be alive,applicable and comprehensive enough to

be useful in ahkam of contemporary issues in modern times.

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124
A D I L L A H

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126
Adillah

Adillah is plural form of Dalil.Dalil literally means "evidence" and a " sign and hint " which
signs and hints a nother thing.

Its terminological meaning in this field is as follows: " It is a text whose careful and thourough
study leads to a wanted information; that is shar`i rule.This is decisive.

Ifit leads to a doubtful and suspect way,then it is called Amarah,

not Dalil.

Dalil, is terminologically equivalent to " source ",I guess.This is what I will stick,insha' Allah.

Types of Dalils:

All muslims agree on

a ) al-Kitab: Qur'an ,and b ) Sunnah.

Majority of muslims agree upon

a ) Ijma` ( Consensus ),b ) al-Qiyas , al-Istishab,al-`Urf etc.

Some other classification is as a ) al-Naqli ,and al-`Aqli.

The main source is,for sure,al-Kitab ( Qur'an ),and by its

virtue Sunnah.

It may be proper to mention here the types of Dalils according to

their strength in authenticity and power ofsignifying the meaning.

They are four in this regard:

a. Qat`iyy al-Thubut,qat`iyy al-Dalalah : Its connection to its source and its denoting to the
meaning is very clear and strong;no way to suspicion at all.

b. Qat`iyy al-Thubut,Zanniyy al-Dalalah:Connection is also strong here,but its denoting to the


meaning is ambiguous.

c. Dalil's connection is not strong ( Zanniyy al-Thubut ),but the meaning is clear-cut and without
any ambiguity.

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d. Zanniyy al-Thubut,Zanniyy al-Dalalah:Both are are weak and have some ambiguities in them.

Each one of these groups has its own consequencesanddetailed results stemming from its
structure and definition.

al-Kitab / Qur'an

al- Kitab in this Usul al-Fiqh means Qur'an.Wheneverit is mentioned,definitely Qur'an is meant.

Definition :

" Kitab is the collection of miraculous texts revealed to Prophet Muhammad,written down as
Qur'an,narrated to us from him in an undeniable way ( mutewatir ) and being used as text in
worshipping ".

Some elements of definition:

Text: First of all it is a sentence,a lafdh and nadhm in arabic.So Qur'an consists of words and
meanings,both.The meaning

and translation may not be called Qur'an at all;no matter how

good it is.

Revelation to the Prophet: There must be revelation involved.So Hadith qudsi is not Qur'an,
Torah,Zabur or Injil.This group does not meet the requirements.

Undeniable report/narration: this is called tawatur. It is a report and narration of a number of


people who may not be
imagined to lieintentionally in an open and collective manner.

No reasonable mind may accept their plots.

The entire Qur'an is narrated to us through all the centuries via

that strengh. Scholarly speaking there are only a very few small

pieces which do not meet these requirements.

Mushaf: This is mentioned in arabic wording of the definition.The book got its form under the
guidance of the Prophet;copied later on,andwas publicly recited and followed by all muslims
with some scholarly variations of pronunciationsand recitation.

The various recitations areknownas Qira'at Sab`ah or `Asharah ( Seven or ten types of
recitations ).They are very developed,but are rarely known in the western world and the

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American Continent. The knowledge and use of these various forms should be highly
encouraged,especially in Europe and America.

The style of letters and ways of writing them have some specialities,different than the other
texts.These were introduced during caliph Uthman's period.

These specialities in dictation have been kept through the centuries which is a sign of keeping
the text intact,a sign along with full memorization of the whole text of Qur'an by hunderds of
thousand of muslims of all nationalities,cultures and states.About 85 % of the muslims who
memorize Qur'an are non-arabs, their mother tongue is not Arabic and they do not understand
Arabic.Of course, since its revelation,Qur'an has been repeated every day duringfive times daily
prayers publiclyandprivately all over the world.Actually Qur'an is recited continously in every

part of the world byhundredsofmuslims,because of the movement

and shape of the world.There is prayer time every second of the day at some point on the Globe
and a number of people are always praying.As a matter of fact all points on each meridian are
parayer time at the same times;and it goes on and on as long as the globe rotates.

Miracles of Qur'an: Qur'an itselfis a miracle with its style,recitation,meaning,grammar,


eloquence , predictions related with scientific discoveries and its accounts of the past.

Qur'an is a real source of legislation and it isthe real evidence for every thing.Some of the rules
are explained in summary,some in detail;some in general principles and some in specific
ways;some are clear in their meaning and some aren't.

The rule and regulations in Qur'an are a. related with credo

( Belief ),b.Ethics and moralities and c.Legal-Practical ones.

Practical rules of Qur'an are either a. Related with worship,and b.Actions including Personal
Law,Family Law,Administrative Law,Penal Law,Contracts and Propety Law,International Law
( Public and Private ),Financial Law,Procedural Law and Inheritance Law etc.

All these are some type of classification in which rules of Qur'an may be placed.

Hundreds of books have been produced on different aspects of Qur'an:

al-Itqan fi `Ulum al-Qur'an by al-Suyuti is a very authentic and fairly comprehensive book on the
generalities of Qur'an

Manahil al-~irfan fi `Ulum al-Qur'an is a recent and but useful literature in this field.

Zubdah al-Irfan and Tayyibah are two manuals on different versions of recitations of Qur'an.

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Tajwid rules of Qur'an is also a very much favoured subject which the muslims dealt with in the
past.

Some acceptable musical rythms and styles drew the attention of the muslims.

Qur'an has an aspect of art;that is a person aught to be trained properly and he must get enough
experience to apply the rules and regulations to Qur'an.During the Ottoman Empire period, the
Qur'anic sciences received a very high respect in all studies.I hope,the muslims will give the
same importance to the Qur`ainc studies in due time.

By this way the marvellous audeo-visual heritage of Qur'an will survive and future genarations
will be able to get a picture of maqams,recitation techniques etc. and understand what they look
like. al-Sunnah

Sunnah is the sayings,actions, and deeds of the Prophet and his approvals of thing done in his
presence.This subject has already been covered in detail elsewhere.

Sunnah is a source of Islamic Law based on Qur'an,Ijma`,and reason.There is no doubt or


controversy about it.

The texts of sunnah ( Hadith ) have two parts: a. Chain of narrators ( rawi,a person who makes
riwayah ) and b. Matn ( The text itself,the words of the prophet or the companions ).

Requirements of Rawi:

a. Islam.He must be muslim. b.Mental stability. c.Islamic balance and justice in his behaviours
and attitudes,d.Consistency

( Dabt ) That is having power of understanding the text,listening to it properly,not to miss any
part of it,and memorizing the text. Hadiths are divided according to the numbers of the chains of
narration to a. Mutewatir ( very strong,undenieable level of numbers narrate it ),b. Mashhur,less
than mutawatir hadith,c.Aziz,narrated by two rawis ,and d.Khabar Ahad,narrated by one rawi.

Accordingto the connection made hadith are a. Muttasil/Musnad, all rawis are mentioned and the
text is connected to the Prophet.

b. Munqati`/Mursal.Some of the rawis are not mentioned in the text.

Scholars debated the binding quality of each one of these hadiths.

Hadiths are divided according to their power of authenticity a. Sahih ( strong ),b.Hasan,c.Da`if
( weak ) and d. Mawdu` ( fake ).

There is a special science called Usul al-Hadith where all these topics are dealt with in detail.

Nukhbat al-Fikar by `Asqallani is a very famous text book in this field.

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The biographies of rawis including companions of the Prophet,their followers ( Tabi`in ) and the
followers'followers ( Atba` Tabi`in )

are written down and recorded in the following books:

a. Usd al-Ghabah fi Tamyiz al-Sahabah, and b. al-Isabah and some others. In these books they
were studied critically and evaluated from the point of eligibility to be an acceptable rawi.

There are quite a few books on fake hadith:

a. al-La'ali al-Masnu`ah, b. al-Mawdu`at by `Ali al-Qari

Orientalists paid a lot of attention to this field.Ignaz Goldziher is one of those who studied this
field.His book " Muhammedanische Studien " is very important in this area.

al-Ijma`

al-Ijma` is from jam` and means to resolve and to have a strong will and decision.

As a definition in this Usul al-Fiqh the status of mujtahids of a century on a shari`ah rule after
the death of the Prophet Muhammad ( p.b.u.h. ).

Ijma` is called " Consensus " in English.But it is a consensus of sui generius,I guess.

There must be some mujtahids in the subject.And they must agree on a rule
unanimously.Without an exception.All mujtahids must, of course,be muslims.And the rule must
be shar`i hukm,some thing fard,or wajib,or nadb.This ijma` must occur after the death of the
Prophet.This last note is put by some specialists of Usul al-Fiqh.

Is Ijma` binding?

It is binding on Ummah by virtue of the following verse for example: " If any one contends
with the messenger even after the guidance has been plainly conveyed to him,and follows a path
other than that becoming to men of faith,we shall leave him in the path he has chosen,and land
him in Hell.What an evil refuge."

( Surat al-Nisa' -iv- verse:115 ).

This follows that the way of unanimously accepted way is binding on others.

All sunnah and practice were such as that muslims in all centuries applied this rule.

Hadiths " whatever muslims see as good,that is good in the presence of Allah " and " My
Ummah will never agree on being astray " are bases of the consensus in Sunnah.

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Mujtahids must depend on shar`i dalil in their decisions not on their own wishes.

Types of Ijma`:

a.Clear ijma`: if all mujtahids declare their opinions openly and clearly without any
vagueness.This type is the strongest consensus.

b. Implicit and silent Ijma`:If some of them declared their view and the others being informed
kept quite,but do not oppose it clearly,it is implicit Ijma`. Some of them say it is decisive
evidence and source,some are of the opposite opinion and some say it is an evidence of suspect.

Evaluation of the institute of Ijma`:

Thereare different views about the nature of Ijma`:Some say it is impossible in reality.And some
are of the opinion that Ijma` may be based on another previously established ijma` or
qiyas;some say no to this problem.There are also different views regarding the right to differ
from an established Ijma`.

Modern Mechanism of Ijma`:

It isrightly suggested that a Fiqh Academy must come into existence and all necessary facilities
and conditions must be provided to the best faqihs of this Ummah.After due deliberations they
must give their verdicts on related issues, given that all faqihs of the muslim world be informed
of the content and granted a chance of airing their views in proper ways.

I hope this dream will become a reality one day.

al-Qiyas

al--Qiyas literally means to measure and weigh some thing with another.It also means to
compare and match one thing with another.It became noun for making two things equal and
paralell.

Faqihs of this field define it as " to annex some thing for which

there is no evidence (nass) to another one which has a dalil being mentioned regarding the hukm
based on the common cause of that in that hukm ( rule )".

Qiyas may be translated as analogy in English.But the the requirements, which are necessary in a
Fiqh Qiyas, are to be taken into consideration all the time.

Qiyas is not in reality a constructive transaction,constructing the concept and hukm;but it is


manifestatory action,discovering what is already there.

Elements of Qiyas:

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1. al-Asl: the original,the pattern and measure which has nass

( evidence ) for its hukm.

2. Hukm for that Asl: Hukm and rule of the Asl which is needed to be extended to the secondary
topic.

3.The new topic which needs to be measured by Asl.This one which has no dalil.

4.`Illah: Cause of hukm mentioned in Asl which is already in secondary ( new ) topic.

Each one has alittle detailed conditions to be mentioned shortly.

An example for Qiyas is the meaning of "khamr " in a verse of Qur'an. " O you who
believe,intoxicants ( khamr ) and gambling,dedication of stones,divination by arrows,are an
abomination of Satan's handiwork: Eschew such abomination that you may prosper ".The word
khamr is originally wine made of grape,but its meaning is extended to all types of intoxicants by
Qiyas / Analogy;for other intoxicants are not mentioned in the texts,this one is mentioned,all
have same quality common among them,that is the cause and factor of prohibition of intoxicants.

Another example : Allah says "O believers,whenever adhan is called on friday,hurry to the
rememberance of Allah and leave off business ( al-Bay` );that is best for you if you but knew ".

( Surat al-Jum`ah, -lxii- verse:9 ).

The word al-bay` here literally means taransaction of sale; it does not include for example
renting,leasing,even gift process etc.They are not mentioned specifically.So the hukm ( rule ) of
this bay` has been extended to all types of " business ".

Coditions of al-Qiyas:

First Asl: It must be hukm of shari`a established by Kitab or Sunnah.Further more its meaning
must be understandable by human mind,such as what is the cause of that commandment etc.The
cause ( `Illah ) must be realizable in secondary ( far`i ) rule ( hukm) and the hukm of Asl must
not be some thing special and confined to specific addresee,as is the situation in marriage of the
Prophet with more than four wives simultaneously.

Second conditions of Far` ( Secondary hukm ): Hukm of this must have been pronounced in the
text.There must be same cause common with Asl.( If this cuase is not there,then this qiyas is
called qiyas ma`a 'l-fariq; analogy with some differences ).

Third Conditions of `Illah: Illah ( reason and cause ) is very important.Shari`ah is based on
reasons,purposes and causes.

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al-Hikmah is different than `illah.Hikmah is the benefit of individual by getting some benefits
and removing the harm;that is the purpose the legislator ( Allah ) wanted to be realized.But
Hikmah is not always clear.That is why illah is visible part of it.

The maxim here is like this: hukms are connected to their illahs,not to their hikmahs.

`Illah must be clear quality,definable and compatible with different positions,not contrary to the
nature of hukm,transitive type of quality,not annulled by the shari'ah.

It was just recorded that `illah must not be contrary to the nature of hukm,in other words, it must
be convenienttoit.This convenience must be effective and real.

How to understand `illahs? Text may refer it using proper letter,such as li.. ( for.. ) etc.Ijma` may
find out the illah.Mujtahids may use the technique of al-Sabr and al-Taqsim.This is a " Process
of Elimination " technique.

Illahs may be understood by purifiying and clearing up `illah from the qualities which are
ineffective.

Types of Qiyas:

1. Preferred Qiyas ( al-Qiyas al-Awla ): `Illahin far` is stronger

than it is asl.

2. Equal Qiyas:Illah is at same strength and level in both of asl and far`.

3. Illah is weaker in far` than it is in asl.

Analogy is very detailed type of dalil ( source ) of Shari`ah.There are pros and cons regarding its
being evidence.But it is a very original and alive islamic insitute worthy of further development
to accomodate new developments and needs of the Ummah.Repeating the old words wthout
putting them in their real context has no use,I think.

al-Istihsan

Istihsan literally means to bueautify some thing and to like it.

It is a term to resort to Qiyas Khafi ( Implicit Analogy ) leaving Qiyas Jali ( Explicit Qiyas ) or
excluding an issue from the generalanalogybecauseofan evidence necessitating it.

An example for that: rigth of water,passage and channal in agricultural lands are not included
automatically in the Sale Contract,if it is not clearly specified.This is hanefite view.But what is
the situation in establishing a waqf( trust,foundation ). Analogy won't give you the way;but
istihsan is just opposite.

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Types of Istihsan : Tyeh may be based on Qur`an,or Sunnah,ijma`,

tradition,necessity etc.

al-Maslahah

al-Maslahah means bringing the benefit and keeping away evil and bad.Keeping away the
corruption first,then bringing the benefit.

Valid Maslahah : The purpose of hukms fixed by Shari`ah such as

a) protecting religion,b) protecting the life,c) protecting reason and mental status,d) protecting
dignity and chastity,and e)protecting the property.These are main goals and for which many
shari`ah rules have been legalized.

Banned Maslahah:Some maslahahs are banned.The equal inheritanceof a woman with her
brother is in her interest;but it is annulled by Allah in the verse " Allah directs you as regards
your children's inheritance:to the male a portion equal to that of two females " ( Surah al-Nisa'
-iv- verse:11 ).So this maslahah may not take effect.

Maslaha Mursalaha: These are the areas other than previous ones.Since no restriction is made
and there is benefit to be broughtandevil to be eliminated,this is the real area in which this
Maslahah technique is widely applicable.

This source never works in the area of worship.It works in the area of deed and acts.

There are opponents and proponents among faqihs to this source.Some of them put strict
conditions to it.

Sadd al-Dharai`

This means literally closing the canals to the evil and the corruption.Some of the actions
generally lead to the evil,that is forbidden;some of them rarely and hardly lead to the evil such as

looking at the would-be spouse. Some of the actions that may lead to the evil,are counted in this
field.Why? because the person uses it intentionally, such as tahlil marriage of the divorced
woman with three talaqs.

Tradition

al-`Urf ( tradition ) is what the community and society got acquainted with, used it,and lived on
it in his life.This may be a saying or a deed.

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Some of the traditions are general,some of them are restricted and local. Some of them are
correct and acceptable such as the amount of dowry in each region,and some of them are
forbidden,some of the acts related to the interest.

Of course there must not be any text ( Qur'an and Sunnah ) against it.The tradition mus be
consistent.The tradition must actually be existent.There must not be any word or action
nullifiying it.

Tradition is referred in Qur'an and Sunnah as source for transaction.T aransactions and rules
based on traditions may certainly change with the time.

al-Istishab

Istishab means to accept or reject what was in the past.It allows us to keep the past traditions
which are consistent.Fo example, who was known as living we accept him living as long asan
evidence suggests that he was dead.

Some rules related to the principle of Istishab: The rule is freedom and and every thing
lawful,unless otherwise is stated.

Every body is innocent,unless proven otherwise.Strong knowledge

may not be eliminated by suspect.

There are some evidence and sources mentioned in the literature.For example sayings and deeds
of the companions of the Prophet ( pbuh ),the legal systems of divine origin of the
past,international treaties and contracs etc. Some of them have been dealt in different places and
some of them are left without

further detail information.

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LINGUISTICS OF USUL AL-FIQH

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138
Linguistics of Usul al-Fiqh

Lafz according to its make-up for maeaning

Lafz is any kind of utterance,words comprised of letters pronounced by a person.The utterances


are classified as Khas,`Amm and Mushtarak.This classification is based on the words make-up
for their meanings.

al-Khass

al-Khass literally means special and individualized.And it is the word structured for one meaning
only.

Types of Khass:

a. Personal khass such as personal names ( Zaid,Ahmad );

b. Kass of gender ( naw` ) such as man,woman.horse;

c. Khass of family ( concept bigger than gender ) such as human being.

Some of the Khass words denote the spiritual and emotional aspects, such as
kowledge,science,ignorance etc.

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The bottom linehere is that these words have exclusively one meaning;no matter whether it is
surrounded by more than one individuals and may denotes many units.For example, three,four
and five all are khass in Arabic; words such as insan ( human being );man and woman are also
Khass having one meaning.

What is its effect?

Its meaning is clear;it is not vague;no ambiguity;Its reference is decisive and sharp;no other
interpretation.For example,the word three in "Whoever does not find other means,then three
days of fasting " ( Surah al-Ma'idah, -v- verse 89 ).It means only three days.

Khass may be used in a sentence either as Mutlaq or as Muqayyad

Each has its own speciality.

a ) Mutlaq: The Khass word is used without any defining or restricting words such as
adjective,adverb etc.It is a word that denotes one unspecified and unpersonified entity in its
gender;e.g. Rajulun,rijalun ( man,men );kitabun,kutubun ( book,books ).These words are
mutlaq,anyman or anybook is included.They are indefinite words.

Mutlaq must be understood as one is without any resriction denoting all entities vastly meant.

b ) Muqayyad: it is a word having same conditions as mutlaq but with some restrictions to
narraow its meaning.e.g. Rajulun sa`udiyyun ( saudi man ),kitabun jadidun (new book).These
words are muqayyad;their meanings are restricted.

Muqayyad must be taken in its restricted context with its adjectives etc.e.g." Fa-tahriru raqabatin
mu'minah " ( Then to free a mumin -believer- slave.The word " mu'minah " is taqyid,adjective
and " Raqabah " is muqayyad word.

If same word is mentioned in different part of the text some times as mutlaq and some times as
muqayyad,there are some requirements to limit the mutlaq with limitations of muqayyad such
that they convey the same common reason among them.If they differ in the hukm and factors
( reason ) then each one will follow its context.

al-'Amr

al-'Amr is imperative. The word is of course a derived one and it is formed to denote
instruction,commandment and order given by some one holding higher position than the
addressee. It may be in arabic grammar in the form of 'amr al-hadhir ('amr al-mukhatab),or

'amr al-gha'ib or another form by which an act is commanded.For example " 'Aqim al-Salah
( Establish the Salah ) " or " fa-lyasumhu ( let him fast ) ". Both of them are imperative.

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" Wa l-walidatu yurdi`na awladahunna ( mothers breast feed their children ) ". This one although
is a sentence of khabar,but its context is imperative.

What is the Hukm of 'Amr?

Is it always binding or some kind of recommendation,threatening or to reprimand etc.?

The majority are of the opinion that al-'Amr simply used connotes just imperativeness;that is
binding ( wujub );Its structureis for that bondage.This is the original.Its denotingto Nadb and
Ibahah ( free,neither commanded nor banned;kind of grey area ) is not original,but allegorical
and contextual.

'Amr after a Ban: Faqihs disagree on whether this Amr is binding or not.Hanbelites are of the
opinion that it will be for Ibahah ( free area ).Hanefites say it is binding ( wujub ) as general
amrs.

Does Amr mean repetition of acts and deeds? Mutlaq Amr dosen't denote repetition;this is the
preferred opinion.If there are some notes showing the opposite,that is fine.

Is Amr in need of immediate action or is it delayable?

If the act and deed is not limited with any kind of time element, then it is delayable;if there are
time restrictions then those must be observed.

Any additional act or deed which is necessary part(s) of commanded action,that additional part(s)
is also necessary ( wajib ) and binding,given this part(s) also is in the power of human being.

al-Nahy

Al- Nahy is negative type of imperative;that is forbidding and bannig form of action is wanted by
a person in a higher positioned.Such as " don't kill "," don't eat ".In Arabic imperative with
nagative context is different than imperative form with positive context.

Some times the sentence means like that." Allah commanded you..,Allah banned and forbade
you..,It was forbidden to you etc." are some example.

This form is used to express ban ( haram ),Karahah ( repugnant,recommended to abstain ) or to


call to negate an action. Which one is original consequence of Nahy is discussed.Some original
meaning is Karahah and some haram.But majority is of the opinion that it signifies tahrim
( haram,forbidden ) originally,provided thare is no Qarinah ( any word denoting other way is
meant ).

It is necassary to abstain from that? But does it have to be immediate action? Different views
have been brought on this issue.It is an immediate type of abstaining and is repeatable;that is one
Nahy means repeated types of abstaining by itself without any hint or any thing like that.

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Does the Nahy mean evil and corruption ( fasad ) of that act? Generally and globally speaking
yes.The ban means the action is fasid and batil ( void ) and its existence is legally unacceptable.

al-`Amm

`Amm means literally comprehensive and surrounding and comprising.

It is an utterance of letters denoting by itself all of the content without excluding any one of
them.

Amm is a kind of opposite concept to Khass,detailed above.

`Amm words:

l.The words of " Kull " and " Jami` " meaning " all " are in this category.

2. Jam` which has al ( definite article ) at the top or is mudaf in an Idafah Tarkib .e.g. " Wa l-
walidat yurdi`na awladahunna ".

al-walidat here is Amm word. The word " awladikum " in " Yusikumallahu fi awladikum li-
dhdhakari mithlu hazzi 'l-unthayayn ". This one is a part of idafah .

3. Mufrad ( singular ) with Arabic al ( definite article ) signifiying all elements in the content.

4. Mufrad being mudaf of an Idafah phrase.

5. al-Ism al-Mawsul: words making relative clauses such as alladhina,ma,allati etc.

6. Ism al-Istifham ( question words ) such as Arabic " Man

( who ) ".

7. Ism al-Shart ( word of conditions ).e.g. Arabic "man,ma,aina "

8. Nakirah ( indefinite word ) word coming after Nahy or negative expression.

The Content of Amm word: Feminine is meant by masculine words; but with a provision
denoting to that.If there is no condition met,then masculine words signifies only men and
feminine means women folk only from the point of liguistic structure.

The Prophet himself is included and meant in the general addresses of Allah as " o believers "
etc. according to the majority of Faqihs.

Limiting and Restricting the content of Amm:

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There must be a dalil to restrict and confine the meaning of a general concept to some of the
individuals.These restricting dalils may be

a ) Aql ( reason ).Reason restricts the meaning to only responsible and eligible ones,excludes the
children,insanes etc.

b ) Tradition: The word arabic " ta`am ( food ) " may vary in its content from one area to
another,and one period to other.

c ) An independent sentence,restricting the general content of Amm.e.g. " Hurrimat `alaikum al-
maitatatu ( Dead animals were forbidden ".al-Maitah ( dead animals ) was restricted by dead
animals of the sea with independent sentence.That is " It is clean its water and lawful its deads ".
( Saying of theProphet )

d ) Some times these retsrictive parts are not independent sentences,but adjacent words,being
parts of the main amm sentence.This category may be as follows:

da ) Exceptions with related words such as " illa,ghair,`ada,ma `ada,ma khala etc."

db ) Some of the adjectives .

dc)al-Shart ( conditions)like Arabic " in,idha,mahma,man,

haithuma. "

dd ) Words denoting the end such as Arabic " ila,hatta ".

Is Amm decisive ( qat`i ) in its significance or suspectful? Its dalalah to all its entities are qat`i
( decisive ) according to some faqihs including Hanefites.The majority are of the opinion that its
meaning is suspect ( danni ) in terms of all its content.

Can Qur'an be restricted by Hadith?

Qur'an can be restricted by Qur'an and by Mutawatir hadith.But whether that can be limited by
Khabar al-wahid is debateable among faqihs.Some of them say yes;some no.

Types of `Amm words:

a ) `Amm words which signify their content decisevly.

b ) `Amm whose meaning is restricted by a resrictive element.

c ) `Amm which are mentioned without any restriction.


al-Mushtarak

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Mushtarak is a word structured from the beginning to signify double,or tripleor even more
independent meanings.Itmighthave been put into different meanings in different periods.e.g. the
Arabic word " al-qur` " has two different meanings;comprising of opposite concepts: a.
menstruation period ( ladies ); b ) cleannes period( the period without menstruation ).Example
for triple meanings the arabic word " al-`ain ". It means a.eye,b.spring of a water,and c.thing.

What is the reasons of the existence of Mushtaraks:

l. Different dialects,2.Change of meaning with time,3.Being put into different meaning from the
beginning and 4.the meaning had one literal meaning and another allegorical meaning.

Conclusion:

a. If the word mentioned in Kitab or Sunnah has one literal and one terminological meaning the
latter one will be preferred.

b. If all meanings are literal menings,one of them must be meant with the restricting
evidence.For instance the word talaq in " al-Talaq marratan " etc.al-Slah in " aqimu al-Salah ".

Is it possible to mean all meanings at once?

The views vary from yes to no.

al-Jam` al-Munkar

This is the plural word which is without definite article including words which are singulars but
their meaning are plural such as qawm,raht etc.

These words signify also more than two entities;andtheycontain them without specifying anyone
of them.

Lafz according to the Usage in the Meaning

al-Haqiqah

Haqiqah is the word used in its meaning,no matter whether it is literal or terminological.

So haqiqah may be a. lughavi ( literal ),or b. Shar`i. ( some other ) c. al-`urfi ( traditional ).

Consequence:

The meaning commonly understood by the addresser and the addressee is valid and binding.

al-Majaz

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al- Majaz is the allegorical meaning of the word. This meaning is different than haqiqah
meaning.The Majazi meaning is meant by an evidence or hint hindering the haqiqah
meaning.For instance the usage of Arabic word " Asad ( lion ) " for a man.

The hints or evidences may be a. resemblance,b.the quality previously carried,and c.cause and
reason.

The Qarinah ( hints ) may be a.sensible,b.usage and traditional and c.shar`i.

The Hukm of Majaz:

a. Majaz meaning is valid and is in force.

b. Majaz meaning is not permitted,if Haqiqah meaning is possibly meant.Generally speaking


both of the meanings may not be accepted at the same time,contrary to some of opposing views.

al-Sarih

al-Sarih is a word whose meaning is clearly understandable because it is used frequently either in
Haqiqah or Majaz meaning.

Sarih word's hukm is that its meaning is meant withot any need of intention and will.Will and
intention won't be looked for.

al-Kinayah

That is a word by which a meaning is meant.But this meaning is not its Haqiqah or majazi
meaning.The meaning is covered,it may

be understood with the help of a Qarinah.

The hukm of Kinayah is that its kinayah meaning is meant but by supporting intention or
denoting of the actual position.

The Dalalah of the Word and Its Meaning

Dalalah means significance and denoting to the meaning,its way of denoting.This signifying and
denoting may be clear or ambiguous.

The Words With Clear Dalalahs

al-Zahir

al-Zahir means " clear ", " understandable ". That is one with clear meaning without any need to
any thing else.

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" Ahallallahu 'l-bai`a wa harrama 'l-riba ". In this verse al-Bai` and al-riba is being understood
clearly.

The Hukm of al-Zahir:

1. There is possiblity of signifying the meaning other than Zahir.

2. It is incumbent on every body to follow clear meaning unless otherwise is mentioned by any
evidence or qarinah.

3. Naskh ( annulment and abrogation ) was possible during the Prophet's life,not after.

al-Nass

al-Nass is a word which denotes to its meaning without any thing else.The meaning here must
be its original meaning.It is clearer than the Zahir. Its hukm nearly the same as Zahir.

Differences between al-Nass and al-Zahir:

a. al-Nass is clearer than al-Zahir from the point of denoting its meaning.

b. The meaning in al-Nass is clear,while in al-Zahir meaning has a secondary status.

c. The ta'wil in al-Nass is much more far than al-Zahir.

d. If the two clash,al-Nass will have upper hand.

al-Ta'wil

Ta'wil is leading the word into meaning out of its clear meaning because of Dalil with a
possibility of al-Zahir is meant. There is Sahih ( genuine ) ta'wil with two conditions:

a. Word must be compatible with ta'wil;that is Zahir or Nass,not Mufassar or Muhkam.

b. Word must be possible to mean other than its real meaning.

c. Ta'wil must be based on a dalil from aql,kitab,qiyas,ijma` etc.

d. Ta'wil must not be in conflict with Sarih Nass.

Some of the ta'wils are easy to understand,some of them involve a little deeper concepts and
need to be thought.

al-Mufassar

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Mufassar comes from FSR which means literally to uncover,to discover and to open.

Mufassar is a word made clearer than it is by additional words and texts,so that no way to be
interpreted ( ta'wil ) in another context. For example, the Prophet made clear the meaning of
Salah,Hajj etc. with his sayings and deeds. The word al-Mushrikin

in " Qatilu al-mushrikina Kaffah " is made mufassar by " kaffah "

So it is clearly meant what it means.

al-Muhkam

Muhkam is a word which has a meaning clearer than Mufassar.So thereis no possibility in its
ta'wil or annulment (abrogation), contrary to al-Mufassar.These are original rules of Islam;such
as articles of Iman.

Its hukm is to do what it means decisively.No room for doubt.

Which one to be preferred,if they clash?

There are some grades among terms mentioned above based on their clearness in the meaning.

This is the list going from strongest to weakest : al-Muhkam,

al-Mufassar, al-Nass and al-Zahir.

In case of clash the stronger one must be preferred to the next in strength according to the list
given above.

The Words not Clear in Dalalah al-Khafi

al-Khafi is a word having clear meaning in its own context,but some of its content may need
more thought about it in order to be included.For example the word " al- Sariqu " in its proper
verse

meaning " thief " literally is clear;but its significance to gravestealers and graverobbers is not
clear.So to include them in this hukm,one needs to give thoughts about it.This word al-Sariq is
khafi from this point.

al-Mushkil

Al-Mushkil is a word more ambiguous than Khafi;it may be understood only with help of
Dalil.In other words, it is a word having more than one meaning,and one of them is meant,but
that one needs evidence to be cleared up from ambiguity.This Mushkil has a very close relation
to al-Mushtarak words ( words denoting more than one meaning with its structure ).

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Consequence of Mushkil word is to think about it;and to search for qarinahs and evidences to fix
real meaning.The word "al-qur' is an example for that.

al-Mujmal

It is a word which can not be understood without the addressors clarification.There is no qarinah
for that.

Ijmal ( being covered in meaning ) may come because the word is al-Mushtarak ( having more
than one meaning ) or the word is unfamiliar to the people,like the word " halu ` " in the verse

nineteen of ( lxx ) Surat al-Ma`arij .

The Consequence of Ijmal is to stop doing it,because it is not understood and do not hesitate in
spending any effort to understand it.When it is clearly explained then it becomes Mufassar.

al-Mutashabih

al-Mutashabih is a word for which there is no way to clarify it, because there is no
qarinah,nothing to undo it.

The letters at the beginning of some Surahs such as ALM,Q,Taha etc.These are called " Huruf al-
Muqatta`at ".No body exactly knows their the meaning. Ways of
Dalalah of Words on Their Meanings

The ways and methods of leading to meaning and connoting the contents vary in the
words.Some of them denote their expressional structures,some of them denote the way of hinting
etc.

`Ibarat al-Nass

This is a way of denoting to the meaning whichis easily understandable from the
text,expression.Ibarah ( the expression and wordings ) itself means that. For example " La
taqtulu

`l-Nafsa llati harama Allahu illa bi 'l-haq ( Do not kill any person ;it is forbidden by Allah except
if there is a reason for that." Here the ban of killing is understood from the expression itself.

Isharat al-Nass

This is the case where the word doesn't denote its original or secondary types of meanings,but it
signifies the meaning which is being necessitated from the context.This a way of pointing and
hinting the meaning,because of logical connection between two meanings.For example " wa `ala
'l-mawludi lahu rizquhunna wa kiswatuhunna bi 'l-ma`ruf ( Surat al-Baqarah -ii- verse 233 ) "

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" Upon who ( man ) the birth is given for,is their food and

clothing on equitable terms ".From this Arabic structure it is understood by the way of Isarah that
a. supporting financially the wives ( mothers of children ) is the resposibility of the male

( husband ); b. the relation connection is to the father rather than mother;c. Father may pick
whatever is necessary for his child from child's property. For the deduction of these rules one
need to take into consideration the arabic text and structure.

English structure may not be satisfactory in this regard.

This is a technique which enriches the meaning of the text enormously.

Dalalah al-Nass

This the way of understanding the text in a way that the pronounced wordings ( al-Mantuq )
denote to entities not declared

and being kept in silence ( al-maskut `anha ).This may be perceived without any further effort to
understand.Two concepts share same illah ( cause,reason ).The technique of preferability
( Awlawiyyah ) is applied in this area.

For example ;The word " uff " in the verse 23 of ( xvii ) Surah

al-Isra " Do not say to them ( parents ) uff ". Uff is a word pronounced against unwanted
situation as some thing showing that he is sick of it.Now is the other types of letting down
included in it? The answer is an ephatic yes.All types of painful actions,attitudes,and
beating,blaspheming etc. are meant here by the way of Dalalah al-Nass method.These other
things are not mentioned in the text;they are kept in silence,but they are treated as they were
mentioned clearly.Another example : "Innalladhina. ya'kuluna amwal al-yatama zulman innama
ya'kuluna fi butunihim nara" ( Those who unjustly eat up the property of orphans,eat up a fire
into their own bodies ). ( Surah al-Nisa -iv- verse l0 ).To eat up the property of orphans is
forbidden,but what about destroying it by burning etc? That is also forbidden by this technique.

Iqtida' al-Nass

This is a technique of adding a meaning to the expressed one in order to make it work
properly;without that the silent part of meaning may not be truly executed and straightly
perceived.

For example " Hurrimat `alaikum ummahatukum ( Your mothers have been forbidden ).But the
meaning here is " marriage with your mothers " by the way of Iqtitida' Technique. A Hadith of
the Prophet: " Mistakes and forgetful acts of my nation have been lifted up and forgiven ".Here
their hukms and sequences are meant by this method.

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Mafhum al-Mukhalafah

The opposite of the pronounced meaning is called Mafhum al-Mukhalafah.This is contrary to


what is mentioned and meant as the mentioned one is called Mafhum al-Muwafaqah.Some of the
literature also called the former one " Dalil al-Khitab ".

These techniques have several different forms:

a ) Mafhum al-Sifah: this is the oppsite of what is meant by a word having a restrictive
complementary words such as adjective,adverb,phrase except the ones which will be dealt below
independently. For example " Fi al-sa'imah zakah " ( There is zakah for sa'imah -left free grazing
the grasses -).Mafhum al-Mukhalafah of this is " there is no zakah on non sa'imah ".

" Faman lam yastati` minkum tawlan an yankiha 'l-muhsanati 'l-mu'minati famin ma malakat
aymanukum min fatayatikimu 'l-mu'minat

( Whoever is unable to marry believer ladies,then for him to marry believer slave girls ).Mafhum
al-Mukhalif of this hukm is that marrying believer slave girls are lawful after being unable to
marry free muslim ladies.

b ) Mafhum al-Shart:

Its opposite is the opposite meaning of a word with shart (condition);That means hukm is there
when shart is there;no hukm when there is no shart.E.G. " al-wahiba ahaqqu bihibatihi idha lam
yuthab `anha " (Gift giver is more eligible to his gift,if he didn't get any thing against it) ".That
means that gift giver has the right to cancel his gift and get it back,if he was not paid any thing
before.

c ) Mafhum al-Ghayah:

It is the opposite meaning of the word, a meaning which is put as condition terminating the
action. For example, " kulu washrabu,hatta yatabayyana lakumu l-Khaitu 'l-Abyadu mina l-
Khaiti 'l-Aswadi mina 'l-Fajr " ( Surat al-Baqarah, -ii- verse 187 ). " And eat and drink until
( hatta ) the white thread of dawn appears to you distinct from its black thread ".That means it is
lawful to eat and drink in the nights of Ramadan;its opposite is it is forbidden in day time to eat
and drink in Ramadan. Another example " Fa qatilu llazi tabghi hatta tafi'a ila amrillah ( Fight
with the party who rebels until he returns to the order of Allah).Mafhum al-Ghayah implies no
fight after his retur to the order of Allah.

d ) Mafhum al-`Adad:

It is opposite of number which is mentioned in the text.That means if there is no such


number,that means no rule and hukm. For example, " Faman lam yajid fasiyamu thalathati
ayyam "

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( Whoever can not find it,then three days fasting ). That means in this method no fasting for
more than three days.

e ) Mafhum al-Laqab:

That means that if there is no such title mentioned in the text,then there is no adherence to such
rule or hukm. "Muhammadun Rasulullah (Muhammad is the MessengerofAllah)". Mafhum. al-
Laqab is " any one other than Muhammad is not messenger ". Hurrimat `alaikum
ummahatukum..(Your mothers.. are fobidden). Opposite is other than the mentioned ones are not
forbidden.

Conditions of Operation in Mafhum al-Mukhalafah:

In order to operate Mafhum al-Mukhalafah the restrictive and confining part of it must not have
any other meaning than negating the consequence of the pronounced word from the
unpronounced,when the restriction is not there.For example, if the restriction is some thing
showing the majority situation,Mafhum al-Mukhalafah won't work. " O believers,don't eat
interest piled up ".The word piled up " ad`afan muda`afah " is a restritive type of phrase
showing the majority of case.So the contrary meaning won't be taken.That is interest not piled up
is not lawful either.Another example : " O Prophet,you repent for them,or don't repent;even if
you repent seventy times for them,Allah won't forgive them at all ".The word " seventy times "

is just to denote the bigness of number and kind of exageration.

So any number is not acceptable;big or small.

When Can Mafhum al-Mukhalafah be an evidence?

Mafhum al-Laqab can not be taken as evidence.Mafhum al-wasf,al-Shart, al-Ghayah, and al-
`Adad are acceptable unanimously in non-shari`ah areas. And in Shar`i areas also with the
exception of the Hanefites.

This leads into situations that some of them neglected the restrictive expression in the text to
avoid the conflict.

Maqasid al-Shari`ah

These are general goals and targets to be observed in the rules and regulations of Shari`ah.These
are drawn from the texts,Qur'an and Sunnah by the human mind.

As a general rule keeping the interests of public intact is the main goal of the Shar`i system.

a) al-Daruriyyat/Necessities:

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These are the main principles; to protect the human life and society in good form and not to leave
any gap to upset any point.

These principles were valid in all systems with different tastes.They are : religion,human
life,aql,progeny,property and so on.

The rules of Jihad and to secure real knowledge of Islam are related to the protection of the
religion.

Life is protected by the ban on murder,looking after the health and safety of the people, etc.

Progeny is controlled by marriage institute,prohibition of adultery etc.

Property is protected by the laws related to steal,usurp or damage etc.

b ) al-Hajiyyat / Needs:

These are not at necessity level.They satisfy the needs of the people and ease the life
individually and socially.

In worshipping area a patient is allowed not to fast,to shorten the prayer,tayammum etc.

In transactions many flexiblities are being legalized and the door was left wide open to
accomodate all kinds of new needs,provided some genaral guidelines are followed.

Even in penal code, some principles such as suspect will help the accused and one is
innocent,unless otherwise proven quitely, are operational.

c ) al-Tahsiniyyat/Beautifying elements:

Ethics,moralities,good traditions are in this area.

In worshipping field to behave nicely,to wear nice clothes at prayer times,to pray additonal
prayers etc.;and in transactions preventing to sell filthy things,to prevent spending lavishly and in
the daily life to stick to ethical rules and moralities and even in Penal code not to kill
children,woman,men of religion etc.

Each one from these three groups has some wider circle protecting rules and deeds which aare
not at the obligatory level,but are recommendary type (better to do it kind).Keeping them doing
keeps the person directly from falling short in mandatory area without any warning.Adhan is like
that.To avoid any kind of help in alcohol is also like that.

The Grading of The three Groups:

Necessities come first,then needs and then enhancing ones.This is the proper grading.So if some
of them clash the above principle must be applied.

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There are some maxims derived from these goals.And they keep these goals activiated in all
fields of human lives.

Conflicts of Laws and Sources

Conflictsof laws and sources and evidences mean that two different sources and evidences might
have independent and varied type of rules on the same subject.Theoretically it is not possible to
have that,since the source is revelation and the main source is Allah or his messenger.But in
practice there are cases like that.And mujtahids may have different views and their views do not
always fit each other.Some time this conflict is just a matter of interpretation, and sometimes it is
a little more deep rooted issue.

al-Naskh / Amendment, Annulment

To eliminate the conflict of laws and evidences we might benefit from the technique of al-Naskh.
Al-Naskh is a subject of all legal systems and a very popular and tricky issue among lawyers old
and contemporary.

al-Naskh means to remove,to eliminate and to transfer some thing.Its terminological meaning is
to eliminate a shari`ah hukm by virtue of another evidence which came later than the former.

al-Naskh is amendment of the text,its total annulment or modification by another text which is
revealed later.

In a Naskh there must be two texts related with the same subject having different hukms.The one
which ammends is al-Nasikh,the one which is amended is al-Mansukh.

Whether is it possible or not?

Yes it is possible.And it occured in Qur'an.For instance Naskh of direction of Qiblah from


Masjid al-Aqsa (Jerusalim / Palestine)

to Masjid al-Haram ( Macca / Saudi Arabia ).Some of the Naskhs are total changes;some of
them are just modifications and amendments.Another example from Qur'an: Allah mentioned
that twenty muslims may defeat two hundred and one hundred muslims may defeatathousand
men army.But then He said that He lightenedthe task and lessened the burden to one hundred
against two hundred and one thousand against two thousand.(Surat al-Anfal,viii,verses:65-
66).Another clear evidence for Naskh is the following verse: " None of our revelations do we
abrogate or cause to be forgotten,but we substitute some thing better or similar " ( Surat al-
Baqarah, ii,verse 106 ).Here in this veres the word " Naskh " is clearly mentioned.

Its reason is the protection of the interests of the people.Gradual development in religion can not
be denied.

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Types of Naskh: Some of the Naskhs are explicit;mentioned clearly. For example, the Prophet
said:" I have previously prevented you from visiting graveyards; Now vist them;that is a
reminder of the hereafter to you ". Some times it may be implicit;not mentioned clearly.

Naskh must occur during the time of the Prophet.And it occurs onlyinthesecondary level of
hukms ( al-Ahkamal-Far`iyyah );

not in the area of Aqidah.

Nasikh must be stronger than Mansukh and it must have been revealed after Mansukh.

Qur'an may be amended by Qur'an and by Sunnah Mutawatir and vice versa.Ijma and Qiyas may
not Naskh Kitab or Sunnah.

Ijma` can not be nullified by Naskh made by Kitab and Sunnah, because both of them are earlier
than Ijma`.Ijma` may be changed by another ijma except Ijma based on Kitab, and Sunnah or
Qiyas. Qiyas also may not be amended by Qiyas;because both of them are product of
ijtihad.Each one of them is binding on mujtahid only.

If two qiyas are originated from one person;the person may change his own qiyas one way or
another.

Specifying and restricting the meaning and Naskh:

There is a problem; Takhsis ( specifying ) of Amm and Naskh which functions partly may
resemble to Tkhsis.

In case of Naskh there are two different hukms based on two different evidences,one of them
revealed after the other.Mansukh versecomprisedof all entities right from the beginning,then the
second verse lifted the judgement from some of them.

But in case of Takhsis the hukm of Amm concept was confined to some of the content just from
the beginning and second dalil

( specifying one ) made clearto us that the intent of the legislator from the begining was like
that.The second dalil here functions like discoverer and clearer of the real meaning.
Conflictsof Evidences andWhich to be Preferred

This called "Ta`arud al-Adillah " and " al-Tarjih ".Here the situation is different than al-Naskh.In
Naskh, the two dalils were revealed at different times and one of them is stronger than the other.

In Ta`arud two dalils are equal;on same subject but different hukms.In reality this conflict is not
possible from the point of thje legislator.But it is an issue of human beings' understanding.

154
For instance,in one verse of Qur'an the waiting period (`iddah) for a spouse whose husband died
was mentioned as one year ( Surat al-Baqarah -ii- verse : 240 ) in a verse and four monthsand ten
days in second verse ( Same surah,verse 234 ).

The revelation date of the second verse is later,so the first one is abrogated and the rule of the
second verse is perpetuated.

In this kind of cases,if the dates are not known then we have encountered the issue of Tarjih.

The Problem of Tarjih:

The rule is that the strongest one in its status que will be preferred to the less strong one. That is
al-Nass will be preferred over Zahir,Mufassar over Nass,Muhkam over Zahir,Nass and
Mufassar;Ibarat al-Nass to Isharat al-Nass,the latter one to Dalalat al-Nass and Dalalat al-Mantuq
to Dalalat al-Mafhum.We have many instances in our Usul Literature which may be referred by
the interested in getting more detailed data in this field.

Al-Jam` wa l-Tawfiq:

If the two dalils clash and the rules of Naskh and Ta`arud do not function;then we may resort
into operating both of them and acting according to them at once.Ta'wil is one of the techniques
in compromizing the two concepts.

Al-Tasaqut:

The conflicts between two dalils can be eliminated by going to hadith,thus neglecting both of
them, if the conflicts are in hadith,then going to Qiyas.

" Faqra'u ma tayassara min al-Qur'an (Recite what iseasyfrom Qur'an )" and " Wa idha quri'a l-
Qur'anu fastamiu lahu wa ansitu

( When Qur'an is recited listen and keep silent ) " conflict with each other.So we may go to
hadith and pick " reciting of Imam is counted as recitation of followers " and leave both of the
verses.

155
156
B I B L I O G R A P H Y

157
158
Bibliography

(Here are some selected literature and books mainly in Islamic Law, alphabetically arranged
according to the authors).

`Abd al-Razzaq al-Sanhuri Basha, Le Caliphate,Paris 1923.

___,Masadir al-Haqq fi 'l-Fiqh al-Islami,I-VI,Cairo 1954-1959.

Abdur Rahim, The Principles of Muhammadan Jurisprudence,Lahore 1958.

Abu Dawud,Sulaiman,al-Sunan,Cairo 1952.

Abu 'l-Fida, Isma`il, al-Mukhtasar fi Ahwal al-Bashar, I-II, Cairo 1325.

Abu 'l-Su`ud,Muh. Tafsir,Istanbul 1307.

Abu `Ubayd,Ma`mar,Majaz al-Qur'an,Cairo 1354.

Abu Yusuf,Ikhtilaf Abi Hanifah wa Ibn Abi Laila.

___.K.al-Athar.

___,K.al-Kharaj.Also: Le Livre de l'impot fancier ( trd. par F.Fagnan ),Paris 1921.

Abu Zahra,Muh. Tarikh al-Madhahib al-Islamiyyah,no place,no date.

159
_____, Usul al-Fiqh,n.p.,n.d.

Adams,C.C.,Islam and Modernism in Egypt,London 1953.

Aghnides,N.P.,Mohammedan Theories of Finance,New York 1916.

Ahmad b.Hanbal,al-Musnad,Cairo 1957.

Ahmad Mahdi al-Khidir,al-Tashri` al-Jina'i al-Muqaran,Kuwait 1965.

Ali Haydar,Durar al-Hukkam Sharh Majallah al-Ahkam,Istanbul 1333.

Anderson,J.N.D.,Islamic Law in Africa,London 1954.

___,Islamic Law in the modern world,London 1959.

Anvar,Ahmad Kadri,The Debt of European Law to Islamic Law,The Islamic


Review,vol.55,nos.4-5 ( April May 1967 ),Woking/UK.

Arabica ( Review-cont. ).

Arnold,Thomas W.,The Preaching of Islam,London 1913.

Aristarchi Bey,G.,Legislation ottoman,Istanbul 1881-1888.

al-`Asqallani,Ahmad b.`Ali,Lisan al-Mizan,Haiderabad-Deccan l329

-1331.

____,Tahdhib al-Tahdhib,Haiderabad-Deccan 1325-1327.

Aziz Ahmad,Islamic Law in theory and practice,Lahore 1956.

al-Baghdadi,Isma`il Basha,Hadiyyat al-`Arifin,Istanbul,I ( l951 ),

II ( l955 ).

____,Idah al-Maknun fi 'l-Dhail `ala Kashf al-Zunun,Istanbul,

I ( 1945 ),II ( 1947 ).

al-Baghdadi,Safiyy al-Din,Qawa`id al-Usul,Dimashque,no date.

Baillie,N.B.E.,A Digest of Moohammadan Law,Lahore 1958.

160
___, The Moohummudan Law of Inheritance according to Aboo Haneefa and his
followers,London 1874.

al-Baidawi,al-Qadi Nasir al-Din,Anwar al-Tanzil wa Asrar al- Ta'wil,Istanbul 1296.

al-Ba`li,al-Qadi Abu 'l-Husain,Tabaqat al-Hanabilah,n.p.,n.d.

Barthold,W.,Turkestan Down to the Mongol Invasion,second edition,

London l958.

Baz,J.,Essai sur la fraude de la loi en droit musulman,Paris 1938.

al-Bazdawi,al-Usul.

Bellefonds.Y Linant De, Des Donations en droit musulman,Cairo and Paris 1935.

Bergstraesser,G.,Zur Methode der Fiqh-Forschungen,Islamoca,IV/3

( 1930 ),pp.283-294.

Brockelmann,Carl,Geschishte der Arabischen Literatur,Liden I ( 1943 ), II ( 1949 ).

____,Supplement,Leiden I ( 1937 ),II ( 1938 ),III ( 1942 ).

Bousquet,G.-H.,Du droit musulman et son application effective dans le monde,Algiers 1949.

___, Precis de droit musulman, Algier 1960.

Bouvet,R.,De la Faillite en droit musulman,Paris 1913.

Bruno,H.,Contribution a l'etude du regime des eaux en droit musulman,Paris 1913.

al-Bukhari, Muh.b.Ism.,Sahih al-Bukhari,Istanbul 1909.

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