Table of Contents. Ch. 2

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1 Table of Contents PREFACE Ch. 1 Introduction The Problem With the Meaning of Jurisprudence A Format for the General Theory of Law A Model for the Study of the General Theory of Islamic Law or Uṣūl al-fiqh The Subject-matter of Uṣūl al-fiqh The Scope of This Book Ch. 2 Uṣūl al-fiqh as Sources of Islamic Law and Uṣūl al-fiqh as a Discipline Distinguishing Between Uṣūl al-fiqh as Sources of Islamic Law and Uṣūl al-fiqh as an Independent Discipline is Crucial to the Understanding of Islamic Jurisprudence Describing Uṣūl al-fiqh as Sources of Islamic Law The Literal Meaning of Fiqh Earlier General Meaning of Fiqh Later Definition of Fiqh Analysis of the Definition of Fiqh Distinctions Based on the Definition Distinction between sharī ah and fiqh 43 1

2 2 Islamic Jurisprudence CONTENTS Distinction between mujtahid and faqīh Distinction between ijtihād and taqlīd Distinction between a muqallid and a faqīh A Wider Definition of Fiqh: Criticising the Narrow Definition What in reality is the dalīl tafṣīlī? The legal structure of the evidences (adillah) Identifying the defects of the narrow definition Redefining fiqh Rejection of the Narrow Definition of Fiqh and its Impact The Meaning of Aṣl The Final Meaning of Uṣūl al-fiqh as sources of law Describing the Meaning of Uṣūl al-fiqh as a Discipline Ilm Uṣūl al-fiqh (the Discipline of Uṣūl al- Fiqh) Defined Examples of the Qawā id Uṣūliyyah The Subject-matter of Ilm Uṣūl al-fiqh I THE ḤUKM SHAR Ī 59 Ch. 3 The Ḥukm: What is Islamic Law? The Three Elements of the Ḥukm Shar ī The Meaning of the Ḥukm Shar ī or the Meaning of Islamic Law The Ḥukm Taklīfī Obligations and Duties The ḥukm taklīfī from the perspective of the uṣūlī The ḥukm taklīfī from the perspective of the faqīh The ḥukm taklīfī according to the Ḥanafīs The Ḥukm Waḍ ī Declaratory Rules The Distinction Between the Ḥukm Taklīfī and the Ḥukm Waḍ ī

3 CONTENTS Islamic Jurisprudence 3 Ch. 4 Classification of Rules in Islamic Law The Meaning of Wājib (Obligatory Act) and its Different Types The ḥukm or rule for the wājib The Classifications of the Wājib (Obligatory Act) Classification based on the time available for performance: muṭlaq and muqayyad Wājib muṭlaq (obligatory act independent of time) Wājib muqayyad also called wājib muwaqqat (obligatory act limited by time) Classification based on the extent of the required act Wājib muḥaddad (determinate obligatory act) Wājib ghayr muḥaddad (indeterminate obligatory act) Classification based on the subjects who are required to perform Wājib aynī (the universal obligatory act) Wājib kifā ī (the communal obligatory act) Classification based on the identification of the object of the required act Wājib mu ayyan (the specified obligatory act) Wājib mukhayyar (the unspecified obligatory act or obligatory act with an option as to its performance) The Meaning of Mandūb (Recommended Act) and its Different Types Types of Mandūb Sunnah mu akkadah (the emphatic recommended act) Sunnah ghayr mu akkadah (nonemphatic recommended act) nafl, mustaḥabb Sunnat zawā id

4 4 Islamic Jurisprudence CONTENTS 4.4 The Meaning of Ḥarām (Prohibited Act) and its Different Types The types of ḥarām Ḥarām li-dhātihi (prohibited for itself) Ḥarām li-ghayrihi (prohibited for an external factor) Distinction between the two types The Meaning of Makrūh (Disapproved Act) and its Different Types The Meaning of Mubāḥ (Permitted Act) and its Different Types The Ḥukm Waḍ ī or the Declaratory Rule Sabab, sharṭ and māni Sabab (Cause) Sharṭ (Condition) Māni (Obstacle) Ṣiḥḥah, fasād and buṭlān (validity, vititation and nullity) Azīmah and rukhṣah (initial rules and exemptions) The Purpose of the Classification Ch. 5 The Lawgiver (Ḥākim) Allah is the True Source of all Laws The Fundamental Norm of the Legal System The Law and the Interest of Man Is Man the sole purpose of creation? Can we employ maṣlaḥah (interest) for new laws? Are the Sharī ah and Natural Law Compatible? 100 Ch. 6 The Act (Maḥkūm Fīh) Defining the Maḥkūm Fīh The Conditions for the Creation of Obligation (Taklīf ) The act to be performed or avoided must be known The subject should be able to perform the act The Nature of the Act (Maḥkūm Fīh) Classification of the Ḥukm Taklīfī on the Basis of Rights

5 CONTENTS Islamic Jurisprudence Classification of Duties: Original and Substitutory The Importance of the Classification of Rights for Islamic Criminal Law Human Rights and Other Classifications Developing the Islamic Theory of Rights and Duties The analysis of rights The nature of duties in Islamic law Natural rights and rights given by the law. 122 Ch. 7 The Subject (Maḥkūm Alayh) Ahliyyah or Legal Capacity The two parts of legal capacity Dhimmah and legal capacity The Underlying Bases of Legal Capacity Insāniyyah and Aql Mental maturity Legal capacity and liability Complete Capacity Legal effects of complete capacity The stages leading to complete legal capacity Deficient and Imperfect Capacity Cases of deficient legal capacity The unborn child (janīn) Capacity of a dead person Capacity of a fictitious person Capacity of the minor (ṣabī) Cases of Imperfect Capacity Legal Capacity of a Woman Slaves Ch. 8 Causes of Defective Legal Capacity Natural Causes of Defective Capacity Minority (ṣighar) Insanity (junūn) Idiocy ( atah) Sleep and fits of fainting (nawm, ighmā ) Forgetfulness (nisyān) Death-illness (maraḍ al-mawt) Acquired Causes of Defective Capacity

6 6 Islamic Jurisprudence CONTENTS Intoxication (sukr) Jest (hazl) Indiscretion (safah) Coercion and duress (ikrāh) Mistake and ignorance (khaṭa, shubhah, and jahl) II THE PRIMARY SOURCES OF ISLAMIC LAW 157 Ch. 9 The Meaning of Primary and Secondary Sources The Meaning of Source in Islamic Law The Classification of the Sources Agreed upon and disputed sources Transmitted and rational sources Definitive and probable sources Primary and secondary sources Grades of the Sources Ch. 10 The Qur ān The Qur ān as the Primary Source of Law Justification of the Qur ān as a source The recording and revelation of the Qur ān Legal strength and indication of aḥkām in the Qur ān The kinds of aḥkām in the Qur ān Can one text of the Qur ān abrogate another?. 178 Ch. 11 The Sunnah The Sunnah as a Primary Source Definition of the Sunnah Literal meaning Technical meanings Kinds of Sunnah Kinds of the Sunnah with respect to the channels of the aḥkām Kinds of Sunnah with respect to its modes of transmission Ḥadīth Muttaṣil Justification of the Sunnah as a source of law Justification of the different types of Sunnah 190

7 CONTENTS Islamic Jurisprudence Conditions for acting upon the muttaṣil ḥadīth Ḥadīth that is not muttaṣil Status of the Sunnah With Respect to the Qur ān The manner in which the Sunnah lays down the aḥkām Modern views about the relationship between the Qur ān and the Sunnah Ch. 12 Consensus of Legal Opinion (Ijmā ) The Meaning of Ijmā Technical or legal meaning Conditions for the validity of ijmā Types of ijmā Explicit ijmā or ijmā qawlī Tacit ijmā or ijmā sukūtī The legal force of ijmā as a source The binding strength of explicit ijmā The binding strength of tacit ijmā The sanad of ijmā Likelihood of the occurrence of ijmā Cases of ijmā transmitted in books of fiqh Role of ijmā in the modern world III THE SECONDARY SOURCES OF ISLAMIC LAW 215 Ch. 13 Maṣlaḥah and the Maqāṣid al-sharī ah The Meaning of Maṣlaḥah (Interest) and the Doctrine of Utility The Meaning of Utility and Bentham Maṣlaḥah in Islamic Law The Classification of Maṣlaḥah First classification: maṣlaḥah acknowledged or rejected by the sharī ah Second classification: maṣlaḥah according to its inner strength Third classification: definitive and probable interests

8 8 Islamic Jurisprudence CONTENTS Fourth classification: public and private interests The Doctrine of Maṣlaḥah and Maslaḥah Mursalah: Distinction Maqāṣid al-sharī ah or the Purposes of Islamic Law What is beyond the purposes? Maqāṣid al-sharī ah and the texts The Nature and Structure of the Purposes of the Sharī ah Primary purposes in the service of the Hereafter The two faces of the maqāṣid Primary and secondary purposes Priorities within the maqāṣid Rule 1: The stronger interest shall prevail Rule 2: The public interest is prior to the private Rule 3: The definitive interest prevails over the probable Maṣlaḥah, Public Interest and Human Rights 235 Ch. 14 Qiyās (Analogy) Definition of Qiyās Elements of Qiyās Examples of Qiyās Conditions Pertaining to the Elements Conditions of the aṣl or the case in the texts Conditions pertaining to the ḥukm of the aṣl Conditions pertaining to the far or new case needing a ḥukm Conditions pertaining to the illah and meaning of illah The meaning of illah (the underlying cause) Conditions for the validity of the illah Types of Analogy (Qiyās) The first type: probable and definitive or qaṭ ī and ẓannī

9 CONTENTS Islamic Jurisprudence The second type: classification according to the strength of the ḥukm established in the far Qiyās jalī and qiyās khafī or manifest and concealed analogy Justification of qiyās as a source of Islamic law Arguments of those who uphold qiyās Arguments of those who reject qiyās Ch. 15 Istiḥsān (Juristic Preference) The Meaning of Istiḥsān Istiḥsān is a method for looking at the consequences of a decision Examples of istiḥsān Types of Istiḥsān Distinction between the various types Justification of Istiḥsān Ch. 16 Istiṣḥāb (Presumption of Continuity) The Meaning of Istiṣḥāb The Principles That Form the Basis of Istiṣḥāb Types of Istiṣḥāb and Their Legal Validity Istiṣḥāb al-ḥāl Cannot Establish a New Rule Istiṣḥāb al-ḥāl and the Islamisation of Laws Ch. 17 Maṣlaḥah Mursalah (Extended Analogy) The Meaning of Maṣlaḥah Mursalah The Conditions for the Validity of Maṣlaḥah Mursalah Illustrations of Maṣlaḥah Mursalah The Process of Using Maṣlaḥah Mursalah Identifying Maṣlaḥah That is Gharīb Identifying Maṣlaḥah That is Rejected (Mulghā) Justification of Maṣlaḥah Mursalah Ch. 18 Sadd al-dharī ah (Blocking the Lawful Means to an Unlawful End) Types of Lawful Acts Disagreement of Jurists About the Legality of the Principle Ch. 19 Other Secondary Sources 283

10 10 Islamic Jurisprudence CONTENTS 19.1 Companion s Opinion (Qawl al-ṣaḥābī) Views of those who accept it as a source Views of those who do not consider it binding Opinions of the Followers of the Companions (Tābi ūn) Shar Man Qablanā (Earlier Scriptures) Types of earlier laws Reason why the earlier laws are not binding Custom ( Urf ) Types of urf Division into usage and practice Can the Western laws obtaining in Pakistan be treated as custom? IV IJTIHĀD (INTERPRETATION) 291 Ch. 20 The Meaning of Ijtihād and its Modes The Meaning of Ijtihād Ijtihād is not Independent of the Qur ān and the Sunnah The Task of the Mujtahid Basic Assumptions Made by the Mujtahid Texts That are not Subject to Ijtihād The Three Modes of Ijtihād The first mode The second mode The third mode The Complete Process of Ijtihād The Ḥukm of Ijtihād and its Types The Qualifications of the Mujtahid Who is a mujtahid today? Ijtihād a Legislative Function: The Need for an Islamic Theory of Legislation Ch. 21 The First Mode of Ijtihād: Interpreting the Texts The Concept of Bayān (Elaboration) Bayān taqrīr (complementary expression or elaboration) Bayān tafsīr (enabling expression) Bayān taghyīr (elaboration by exception).. 310

11 CONTENTS Islamic Jurisprudence Bayān tabdīl (conditional expression) Bayān ḍarūrah (elaboration by necessity) Literal Interpretation of the Texts The structure of interpretation The four general literal methods of establishing the aḥkām (dalālāt) Ibārat al-naṣṣ the plain meaning rule Ishārat al-naṣṣ the connotation of the text Dalālat al-naṣṣ the implication of the text Iqtiḍā al-naṣṣ requirement of the text by necessity The strength of the aḥkām proved by the four methods and conflict between them Literal methods of proving the ḥukm considered fāsid (irregular) by the Ḥanafīs, but practised by the others The literal methods of establishing the aḥkām practised by the Shāfi īs Dalālat al-ṣīghah or proving the ḥukm through the syntax Dalālat al-lafẓ bi-ghayr al-ṣīghah or proving the ḥukm through means other than the plain meaning Amr (command) and nahy (proscription): the nature and type of ḥukm established The command (amr) and its rules The proscription (nahy) and its rules The number or categories affected by the ḥukm: āmm; khāṣṣ; mushtarak; and mu awwal The specific word (khāṣṣ), its types and rules The equivocal word (mushtarak) The general word ( āmm) The clarity or ambiguity with which the ḥukm is established The effect of the use of words in the actual or metaphorical meanings

12 12 Islamic Jurisprudence CONTENTS Ch. 22 The Second Mode of Ijtihād: Reasoning by Analogy Moving From the First Mode of Ijtihād to the Second The Methods of Discovering the Underlying Cause (Masālik al- Illah) Discovering the cause in the new case: taḥqīq al-manāṭ Analogy and the Modern Jurist Ch. 23 The Third Mode of Ijtihād: Employing the Maqāṣid al-sharī ah Moving From the Second Mode of Ijtihād to the Third: the Illah and the Ḥikmah The Interplay Between General Principles and the Maqāṣid al-sharī ah A Value Oriented Jurisprudence Distinction between the value system in Islamic law and Western jurisprudence Maṣlaḥah and the Modern Jurist Ch. 24 Abrogation (Naskh) and Preference (Tarjīḥ) The Doctrine of Abrogation (Naskh) Examples of repealing and overriding laws The wisdom behind the doctrine of abrogation Distinction between naskh (abrogation) and takhṣīṣ (restriction) Types of abrogation The attributes of the abrogating and abrogated evidences Justification for the Doctrine of Abrogation Comparing the Impact of Abrogation and Restriction The Rules of Preference (Tarjīḥ) Reconciliation (jam )

13 CONTENTS Islamic Jurisprudence 13 V MADHĀHIB, TAQLĪD AND FATWĀS 359 Ch. 25 The Meaning of School of Law and Following a Madhhab The Views of Modern Scholars on Why a Particular School Should be Followed The Uṣūlī Argument for Following a Single School The Nature of the Qawā id Uṣūliyyah: the Basis of the Schools of Law Additional Qawā id Uṣūliyyah as the Basis of the Different Systems A School of Law Then is a Unique Body of Rules of Interpretation The Analogy of Portability and Moving Between Schools Ch. 26 Taqlīd and its Implementation Within the School Understanding the Meaning and Implications of Taqlīd The Literal Meaning of Taqlīd The Technical Meanings of Taqlīd Taqlīd in the Pakistani Legal System The Primary Function of a School of Law The Resources of the School: Jurists, Issues and Texts The Hierarchy of Jurists Within a School The Hierarchy of Issues Within a School The Hierarchy of Texts Within a School The Integral Bond Between the Four Sunni Schools Ch. 27 The Role of the Modern Muslim Jurist Is There a Possibility of Independent Ijtihād Today? Independent ijtihād is Theoretically Possible Today, but the Reality is Different The Highest Stature That a Modern Jurist Can Possibly Attain Today Inter-school Disputes Issuing Fatwās and Judgments

14 14 Islamic Jurisprudence CONTENTS The Need for Recording Reasoning With the Fatwā Sample Fatwā Question Response Select Bibliography Detailed Bibliography Glossary 445 Index 449

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