Preface to Bidayat al Mujtahid by Ibn Rushd
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Ibn Rushd's Bidayat al-Mujtahid wa Nihayat al -Muqtasib
The Distinguished jurist's Primer
Praise be to Allah with all due praise, and prayers and
blessings on His Prophet, Muhammad, his family and Companions.
My purpose in this treatise is to
lay down in it for myself, by way of remembrance, the issues (Masa'il) of
the Ahkam that are agreed upon and those that are disputed, along with
their evidences, and to indicate those bases of the disputes that resemble
general rules and principles, for the Faqih (jurist) may be presented
with problems on which the Shara' (law) is silent.
The issues are mostly those that are expressly stated
in the Manthuq (unstated text of the Nass), or are closely related
to those that are so stated. They are the issues agreed upon by the Muslim Fuqaha
(jurists) since the generation of the Sahabah (Companions - God be pleased with
them) till such time that Taqlid (following qualified scholarship) was
rampant, or those over which a difference of opinion among them became widely
known.
Before recording these issues we will
mention for you, as briefly as possible, the different channels through which
the Ahkam of Shara' were received, the various categories of such Ahkam,
and the causes that necessitated differences of opinion.
We say: The channels through which the Ahkam
were received from the Prophet (God's peace and blessings be upon him) are
three in classification: 1. Lafz (word), 2. al-Af'al (act), and 3.
Iqrar (approval). With respect to the Ahkam about which the
Lawgiver is silent, the majority (Jumhur) say that the method of
attaining them is through the use of Qiyas (analogy).
The Zahiri school maintain that analogy
in Shara' (law) is illegal and that about which the Lawgiver is
silent has no Hukm (rule or an injunction). They give the reason,
as the incidents among individuals are unlimited, while Lafz (words), Af'al
(acts), and Iqrar (approvals) are limited, and it is impossible to
compare the finite and the infinite.
The kinds of words through which the Ahkam
are received, by means of transmitted evidences, are four in number; three
are agreed upon while the fourth is disputed. The three that are agreed upon
are:
Lafzahun 'Amun Yuhmalu 'ala 'Umumihi
(the general word when applied to all its categories)
Lafzahun Khashshun Yuhmalu
'ala Khushushihi (the specific word
applied to its single case)
Lafzahun 'Amun Yuradu bihi al-Khushush
au Lafzahun Khashshun Yuradu bihi al-'Am
(the general word when its application is specific, and the specific word when
its intended implication is general.) Included
in this category is:
A. at-Tanbih bi A'la 'ala Adna
(the use of the higher meaning to denote the lower meaning)
B. at-Tanbih bi Adna 'ala A'la
(the use of the lower meaning to indicate the higher meaning)
C. at-Tanbih bi al-Musawiy 'ala al-Musawiy
(the indication of equivalent meanings.)
The example of the first (Lafzahun 'Amun
Yuhmalu 'ala 'Umumihi) is found in the words of the Exalted, "Forbidden
unto you [for food] are carrion and blood and swine-flesh" (5:3). The
Muslim Fuqaha agreed that the word swine (Khinzir) includes all kinds of
swine, unless it belongs to the category to which the name is not applied,
except by way of Ishtirak (similar vocal phrase), like the term "sea
swine".
The example of the general word implying the
specific (Lafzahun 'Amun Yuradu bihi al-Khushush) is found in the words
of Allah, "Take alms of their wealth, wherewith you may purify them and
may make them grow" (9:103). Based on this, the Muslim Fuqaha agreed
that Zakah is not obligatory on all kinds of wealth.
The example of a specific word having a general
intent (Lafzahun Khashshun Yuradu bihi al-'Am) is evident in the words of
the Exalted:
"Say not 'Ah!' unto them nor
repulse them, but speak to them a gracious word"
(17:23). This is the case of "at-Tanbih bi Adna 'ala A'la" as
the prohibition includes beating, abuse, and whatever is more grievous.
The authority demanding the commission of an act uses
either the form of a command (amr) or the form of an account (or
narration) implying a command. Similarly, the authority demanding omission of an
act employs the form of a 'Sighat Nahy' (prohibition), or the form
of an account implying prohibition. If words occur in these forms, is the demand
for the commission of an act to be interpreted as an obligation (Wajib) or
a recommendation (Mandub) - as is discussed under the definition of Wajib
and Mandub or is interpretation to be abstained from till another
evidence indicates either one of the two? There is a difference of opinion among
the Fuqaha in this, recorded in books on Usul al-Fiqh.
This is the same with the case with
forms of prohibition, whether they indicate Makruh (disapproval) or Haram
(unlawful), or do not indicate either? In this too there is,
recorded, a difference of opinion.
The entities to which the Hukm is
related are indicated by it either through a word with a single meaning (no
annotations attached to it), and this is known in the discipline of Usul al-Fiqh
as Nass (explicit) and there being no dispute about the obligation of
acting in compliance with it - or through a word having more than one meaning
and this is of two types:
The word may indicate an equal character toward the
different meanings and is known in Usul al-Fiqh as Mujmal (having
equal possibilities) and there is no dispute that it does not require a Hukm.
The word may be inclined toward some of these
meanings more than it is toward the others, and is known, as Dhahir (the
clearer one), and with reference to other possible meanings as Muhtamal (possibility
or probable).
If such a word is used in its Mutlaq
(unqualified sense) it is to be applied to its most apparent meaning, unless
another evidence indicates its application
to its Muhtamal meanings.
Thus there occurs a difference of opinion among the
Fuqaha about the Ahkam of the Lawgiver. It, in fact, takes place mostly
due to three reasons:
From the point of Ishtirak (similar
vocal phrase) of the word applied to a Masa'il (issue) with
which the Hukm is associated.
From the point of Ishtirak of the definite article
"al" accompanying the classification of the Masa'il,
whether the whole is hinted at or a part;
From the point of Ishtirak of the words used for amr
(commands) and Sighat Nahy (prohibitions).
A fourth way through which Ahkam are
received, is to know that from the obligation of the Hukm for an issue,
the negation of things besides it, and from the negation of a thing the
obligation of all things besides it. This is known as the Dalil al-Khitab (indirect
indication of the communication). It is a rule that is disputed, like
the words of the Prophet (God's peace and blessings be upon him), "In
the Sa'imah (pasturing) out of cattle there is Zakah". Some
have understood from this that there is no Zakah in cattle other than
the Sa'imah (pasturing animals) i.e. wild cattle are not subject to
Zakah.
Legitimate analogy (Qiyas) is
the assigning of the provided Hukm for an issue to another issue, from
which the Shara' is silent, due to its resemblance to the issue for which the
law has provided the Hukm or in other words due to the presence of 'Illat
(common underlying cause) between them.
It is for this reason that legal analogy is of two
types: Qiyas Shibh and Qiyas 'Illat.. The difference between legal
Qiyas and the specific word (Lafz Khas) implying a general meaning
is that analogy can be undertaken only in the case of a specific word that
implies just its single category. The other similar cases are then joined with
it, that is, those not covered by the text are joined to the one that is (Manthuq),
due to a resemblance between them ('Illat), not through an implication of
the word. This is so because the extension of the Hukm to Manthuq (unstated)
implied category is not analogy, but an indication (connotation) of the word
(Dalalah Lafz). These two kinds (of extensions of the Hukm to the Manthuq
condition) are very close as in both there is a joining of the explicit and
the implicit cases and is often a cause of confusion for the Fuqaha.
Examples of analogy are the joining of
one who drinks Khamr (wine) with the Qadhif (one who accuses
wrongfully others of Zina) as regards with the fixed punishment (Hadd),
and the joining of (the amount of) Mahar (dower) with the Nisab (minimum
scale) in the case of the cutting of the hand of the thief. The joining, on the
other hand, of things carrying Riba (usury) with food, things measured or
eatables, is the case of a specific word implying the general. So ponder over
this as it is a source of confusion.
It is possible for the Zahiri school to
dispute the first Qiyas, while they are not obliged to dispute the second
(specific word implying a general intent) for it is a case of authoritative
transmission (Dalil Bab as-Sam'u) and he who rejects this, rejects a
style of Khitab (communication grammar) employed by the Arabs.
The report of an act (al-Af'al),
according to many, is one of the channels through which the Ahkam are
received. Some have said that reports of the Prophet's al-Af'al (actions)
do not yield Ahkam, as they do not have linguistic patterns. Those who
accept that Ahkam can be received through al-Af'al differ about
the kind of Hukm indicated by them. Some say that they indicate
obligation while others say that they indicate Mandub (recommendation).
The preferred opinion of the learned scholars
(specialists) is that if they occur as an explanation, of a Mujmal (obscure)
obligatory act, they indicate an obligation, and if they occur as an explanation
of a Mujmal recommended act then they indicate recommendation. If they do
not occur as an explanation for a Mujmal act, but belong to a recommended
category, then they indicate recommendation. If they belong to the
classification of Mubah (permissible acts) then they indicate
permissibility.
Approval (Iqrar), on the other
hand, indicates permissibility. These, then, are the kinds of channels through
which the Ahkam are received.
Consensus (Ijma') relies on one
of these four classifications, except that when it takes place on the basis of
one of these channels, which is not Qati'i (definitive) the Hukm
that was considered zhan (unclear) is then considered Qati'i
due to predominant probability. Ijma', however, is not an independent
source in itself unless reliance is placed on one of these four classifications
(above). Had it been so it would have amounted to the establishment of
additional law after (the time of) the Prophet (God's peace and blessings be
upon him), as it would not have been based on one of the legally valid
principles.
The functional terms denoting the Ahkam derived
from these literal modes for the subjects (mukallaf - the act of the subject)
are, as a whole, either a command for a thing or a prohibition or a choice
between the two (Takhyir).
When the command is decisive and an omission (to do the
act) invokes punishment the act is called obligatory (Wajib). If there is
reward (thawab) for the act and punishment is absent it is called a
recommended act (Mandub). Similarly, when the prohibition is decisive and
the commission of the act invokes punishment, the act is prohibited (Haram), and
if there is an urging to abstain from the act without invoking punishment for
commission it is called disapproval (Makruh). Where a choice has been
given (between commission and omission) the act is permitted (Mubah or
Takhyir).
The kinds of Ahkam acquired
through these channels are five: obligatory, recommended, prohibited,
disapproved, and permissible. (Wajib, Sunnah or Mandub, Haram, Makruh or
Mahzur, Mubah or Takhyir).
The causes of conflict of opinion (ikhtilaf), by
classification, are six. (It is well known that there is no conflict between in
the evidences of the Shara', only that the conflict exists in the mind of the
Fuqaha that the Faqih seeks to resolve the Ikhtilaf using Usul- al-Fiqh)
The First is the fluctuating of the words between these
four modes:
that is between the Lafz 'Am meant as a specific
meaning,
the Lafz Khas implying generality,
Lafz 'Am which is sought for implies
generality, or that the Lafz is present, or absent with Dalil Khitab
(an indirect indication of the communication),
Lafz Khas, but what is needed is the specific
meaning, or there is present, or absent.
The second cause is the presence of Ishtirak
(similar vocal phrases) in words.
This occurs sometimes in Lafz Mufrad (the
individual word) like the word "period" (qurun) that is
usually applied both to purity (tuhr) and to menstruation (Haidh);
similarly, the word command (amr) whether it is to be given the
(initial) meaning of obligation, sometimes is given the meaning of
recommendation and the word prohibition (Nahy) whether it is to be
given the meaning of prohibition or of disapproval.
Sometimes it occurs in Lafz Murakkab (the
compound word) as in the words of Allah: "They are transgressing
save those who afterward repent" (24:4-5). It is likely that this
refers to the transgressing person (Fasiq) only and it is also
possible that it refers to both the transgressor and the witness. Thus,
repentance can remove the consequences of transgression and it can also
permit the testimony of the Qadhif (slanderer).
The third cause lies in the I'rab (different
probabilities of the) grammatical structure.
The fourth is the ability of the word to indicate its
literal meaning (hakiki), and an allegorical or metaphorical sense (majasi)
resulting from an implied omission or addition or from the reversal of the
normal order of the sentence by advancing or deferring a word from its
legitimate place, or it may be the vacillation of the word between its actual
application (hakiki) and the figurative meaning (Isti'arah).
The fifth cause is the occasional use of the word in
its absolute/unqualified (Mutlaq) meaning or in a qualified sense (muqayyad),
like the unqualified use, on occasions, of the word al'Itqu and then qualifying
it with the absolute Taqyid.
The sixth cause is the conflict between
two texts (Ta'arudh), in all kinds of words from which the law derives
the Ahkam. Moreover, the conflict may exist between reported acts (Af'al)
or approvals (Iqrar) or between different kinds of analogy themselves, or
the conflict may be between one of these four channels with another channel:
that is, the conflict of a word (Lafz) with a reported act, approval, or
analogy; the conflict of a reported act with approval or Qiyas; and the conflict
of approval with Qiyas.
The Qadi Ibn Rushd (God be pleased with
him) said: After this brief discussion, we begin with our purpose, seeking the
help of Allah, and to do so we start with the Book of Purification (Taharah as
is customary with the Fuqaha.
Bidayat al-Mujtahid Contents
Volume 1 Bidayat al Mujtahid About Ibn Rushd
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