THE BIRTH OF USUL-U FIKH

The Usul of Fiqh was born together with Fiqh. However, its codification was after Fiqh. Where Fiqh exists, the istinbat method will inevitably exist; when the istinbat method exists, the Usul of Fiqh will of course exist.

      Considering that deriving jurisprudential rulings (istinbat) began in the era of the Companions after the Prophet (SAW), jurists such as Ibn Mas'ud, Ali ibn Abi Talib, and Omar ibn al-Khattab, who were among the Companions, probably did not express their opinions without any restrictions or basis.

    For example, regarding the punishment of those who drink alcohol, Hz. Ali said, "When a person drinks alcohol, he becomes delirious, and when he becomes delirious, he commits Kazf (adultery slander), therefore, the person who drinks should be punished with Kazf", and he said that according to the result or the principle of Zariya.  He was using the ruling method. Abdullah b. Mas'ud says, "The waiting period of a pregnant woman whose husband dies is until she gives birth." and after presenting the verse, "The waiting period of those who are pregnant is completed when they give birth." (At-Talaq: 4) as evidence for his statement, he added that the smaller Surah An-Nisa was revealed after the larger Surah An-Nisa, and thus he wanted to explain that the Surah At-Talaq came after the Surah Al-Baqarah. With this, he was referring to a rule of Usul al-Fiqh. This is that the later nass esfa or appropriates the earlier nass.  

       Here, Ibn Mas'ud acted according to the principles of Usul al-Fiqh. Therefore, we must say that the Companions relied on such methods in their ijtihad, even if they did not always explain it.  

If we move on to the age of the Tabi'ites, we see that with the increase of new events, the field of ijtihad expanded, and a group of Tabi'ites such as Said b. al-Musayyib and others in Medina, Alqama and Ibrahim Nahai in Iraq devoted themselves to giving fatwas. They had the book of Allah, the Sunnah of the Prophet (SAW) and the fatwas of the Companions before them. Some of them used maslaha where there was no nass, and some used the method of qiyas. The secondary issues put forward by Ibrahim Nahai and his peers, who were among the jurists of Iraq, were directed towards determining the causes of qiyas and linking them to a discipline, and applying these causes to other secondary issues.

     In this era, methods are becoming more clear compared to before; schools of jurisprudence    As they diverged from each other, the methods of deduction of each school became more distinct.

If we pass the age of the Tabi'is and reach the age of the Mujtahid Imams, we see that these methods have become completely clear. In this era, the laws of istinbat, the limits of these laws have become clear and they have found their clear expressions in the language of the Imams. For instance; we see that Abu Hanifa determined his own istinbat methods and based them on the fatwas of the Book, the Sunnah and the consensus of the Companions, that if the Companions disagreed, he would follow the opinion he preferred from them, and that he could not always follow the opinion of the Tabi'is because they were all human beings like himself, and that he accepted certain methods of qiyas and istihsan. In fact, his student Muhammad b. al-Hasan al-Shaybani said about Abu Hanifa; "His students used to argue with him about qiyas; when he said he was making istihsan, no one could catch up with him."

Imam Malik, while accepting the deeds of the people of Medina as proof, while clearly asserting this in his books and treatises, while revealing the conditions in the narrations of hadith, while criticizing the hadiths like a skilled money changer, while rejecting the hadiths that contradict the rulings stated in the Quran or the definitive rules of the religion, acted clearly according to the principles of the Usul of Jurisprudence. For example; by following this principle, he rejected the hadith, “If a dog sticks its tongue into someone’s pot, he should wash it seven times…”, the hadiths stating that alms can be given on behalf of a dead person and the khiyar-i majlis. Imam Abu Yusuf also followed a clear method in his “Kitabu’l-Kharaj” and in the refutation he wrote in Awza’i’s “Siyer”. However, he did not compile the method of ijtihad either. (Prof. Dr. Muhammed Ebu Zehra, Usulü Fiqh, pp:19-24. Ankara-1990 Translation: Prof. Dr. A. Şener) A. AZİZ

    “The Birth and Development of Usul al-Fiqh. In the early periods of Islam, when Muslims wanted to learn the religious ruling of any issue, they would turn to the Messenger of Allah (pbuh) while he was alive, and to one of his companions after his death. The Prophet would answer these questions with the help of revelation and because he was the source of legislation. The companions would answer them both because of their closeness to the Prophet and their command of the Arabic language. They would refer to the Quran and Hadith to solve the problem they encountered, and they would present the ruling of the problem by deducing the rulings from them. They did not have much difficulty in obtaining this.

     Because of their mastery of Arabic and their closeness to the Prophet, they did not have much difficulty in deriving rulings because they knew the reasons for the revelation of verses and the emergence of hadiths. In addition, their piety and staying away from sins were a means of Allah’s help. The Tabi’un generation that came after the Companions followed the same path. Undoubtedly, they adhered to certain rules when deriving rulings from verses and hadiths. But they did not need written rules. However, in time, these generations passed to the hereafter. The foreigners who had recently entered Islam introduced some words and expressions from their own language into Arabic. Along with these, some views from their old religion and thoughts came. New problems arose. Different fatwas began to be issued from different segments in order to solve these problems. Among these, there were those that were in accordance with the spirit of the sharia, as well as those that were based on desires and passions, and those that were attached to political views. These factors necessitated the establishment of some basic rules in order to reach the correct judgment on issues. When the scholars identified this need, they began to establish the rules of this science.

     The birth of the science of usul al-fiqh coincides with the second century of the Hijra. As with every newborn, the science of usul al-fiqh was born small and weak. In the early period, the principles of this science were not collected in independent works. It was scattered among the subjects of fiqh. Because the mujtahids pointed out the evidence for the ruling they made and the way to benefit from this evidence. Moreover, they did not stop there; they pointed out the evidence of the opposite view and discussed it. These evidences and the ways to benefit from them were nothing but the rules of usul al-fiqh. Over time, this science separated from fiqh and became an independent science. It developed gradually and became a science with libraries full of resources. The first work in the field of usul al-fiqh belongs to Imam Abu Yusuf, according to the narration of Ibn Nadim. However, Abu Yusuf's work has not survived to the present day. The oldest work on this subject that has survived to our time is that of Imam Shafi'i. Therefore, he is known as the founder of the science of the Usul of Jurisprudence. This work of Shafi'i, called er-Risalah, is available in printed form. 

       Later, Islamic scholars paid great attention to this science and produced countless works. For example, Ahmed b. Hanbel wrote his works called Kitabu Taati'r Rasul, Kitabu'n-Nasih ve'l-Mensuh and Kitabu'l-ilel. (For bibliography, see Katip Çelebi, Keşfu'z-Zunûn, 1,110 ff.; Taşköprülüzade Ahmet Efendi, Mevzûatu'l-Ulüm, l, 503 ff.).

     Scholars who wrote works in the field of Usul al-fiqh used two different methods in their writing. These are the Mutakallimin (theologians) and the Hanafiyya methods.

a- The method of the Mutakallimin: The rules of Usul have been determined in the form indicated by the evidence. It is more of a logical and theoretical method. While establishing the rules, its representatives did not consider whether this rule was suitable for the secondary issue transmitted from the imam of the school of thought. Accordingly, this method is inductive. In the words of Zakiyyuddin Shaban, the Usul in this group is not a servant of the furoo-fiqh, but a Usul that dominates them. For this reason, in the works of the Usulists who wrote with this method, except for examples, there are not many rulings related to the furoo. The majority of the Usulists of Shafi'i and Maliki have produced works by following this method.

      Some of their well-known works are as follows:

1- Qadi Abdüljabbar al-Mu'tazila, his work: al-Umde,

2- Abu'l-Hasan al-Basri, his work: al-Mu'tamad,

3- Imam al-Haramayn Abdulmalik al-Juwayni, his work: al-Burhan,

4- Abu Hamid al-Ghazali, his work: al-Mustasfa,

5- Abu'l-Hasan al-Amidî, his work: al-ihkam fî Usûli'l-Ahkam

6- Abdullah b. Omar al-Baydavi, his work: al-Minhaj. Undoubtedly, there are many more books written with this method. These are the most prominent ones.

     b- Hanafi method: Since the scholars who follow this method are members of the Hanafi school, this method is called the Hanafi method. Instead of establishing general rules as a result of their own research, the followers of this method have chosen to derive general rules from the secondary issues put forward by the imams of the school. They have found the rule on which an issue put forward by the imam of the school is based and have systematized it. There are no theoretical rules in this method, there are practical rules from which the rulings of the imams are derived. For this reason, issues related to the furûa are frequently encountered in the books of scholars belonging to this group. The reason why these scholars have adopted such a method is that their imams have not left them with organized rules. Imam Shafi'i is not like this. He himself established the rules of Usul and determined them. There are many works compiled by scholars of this method.

    The oldest known of these works are:

1- “Al-Usul” by Abu Bakr Ahmed b. Ali al-Cassas,

2- “Taqwī-mu'l-Edille” by Abu Zayd Ubaydullah b. Omer ed-Debbūsī,

3- “Al-Usul” by Shamsu’l-Aimme al-Sarakhsi,

4- Fahru'l-Islam Pezdevî's "el-Ûsûl",

5- “El-Manar” by Hafizuddin an-Nasafi. . .

      Apart from these, there are many other books on the usul, and some commentaries and annotations have been written for these works. It is not possible to include all of them here. Those who wish can look at the works of Katip Çelebi and Taşköprülüzade mentioned above. There are also scholars who developed a new method by combining these two methods and produced works according to this method. While these people proved that the usul rules are based on solid foundations, they also served fiqh by connecting the rules of fiqh to the usul rules.

    The major works that were authored using this method are as follows:

1- Muzafferuddin Ahmed b. Ali al-Baghdadi's "Bedîu'n-Nizam al-Jami Beyne Kitâbey al-Pezdevî ve'l

 “Ihkam”,

2- Şadru'ş-Şerîa Ubeydullah b. Mes'ûd's "et-Tankîh". He himself wrote this work under the name et-Tawwîh.

  In this work, Pezdevî's Usûl, Râzî's Mahsûl and Ibn Hâcib's Muhtasar are compiled.

 has been done.

3- Tâcuddin Abdul-Wahhab al-Shubkî’s work called “Cem'ul-Jawâmî”.

4- Ibnul-Humam’s “et-Tahrir” (Şeyyid Bey, Medhal, l, 50 ff.; Şâkir al-Hanbelî, ibid., 34 ff.; Abdülvehhab Hallâf ibid., 15 ff.; Dönmez, ibid., 30 ff.)

     Apart from these works, it is necessary to mention the works of ash-Shatibi called al-Muwafaqat and al-I'tisam, and Shawkani called Irshad al-Fuhul, which have different characteristics. The classical sources written in the field of Usul are generally quite difficult, difficult to express. Especially the works of the Usul scholars after them were more oriented towards debate and discussion, criticism of each other, and verbal discussion. Many issues that had nothing to do with Usul entered the content of these books. Undoubtedly, these situations made it difficult to understand these books. For this reason, studies were made to understand these books and even refutations were written for them. For this reason, the science of Usul al-Fiqh became a science that was difficult or even impossible to understand. For this reason, contemporary scholars worked hard to make the rules of Usul easier to understand and produced new works.

    The usuls of Seyyid Bey, Shakir'ul-Hanbeli, Muhammed Hudarî Bey, Abdulvehhab, Hallaf, Muhammed Ebu'z-Zehra, Abdulkerim Zeydan, Muhammed Ma'rûf ed-Devalibî and Zekiyuddin Şaban can be mentioned here. Of these works, Seyyid Bey's is in Ottoman Turkish, the others are in Arabic. Some of the Arabic ones have been translated into Turkish. The usul prepared by Hayreddin Karaman for Imam-Hatib schools and the usul prepared by Fahreddin Atar are also works prepared in Turkish in our time. We should also point out that some subjects of usul al-fiqh were examined as master's and doctoral theses. The Subject of Usul al-Fiqh The subject of Usul al-Fiqh is the universal evidence of Sharia in terms of the proof of universal rulings. In other words, the Usulist takes as his subject, for example, qiyas and its being a proof, the meaning and its limitation, the order and its indication. (Hüseyin KAYAPINAR)

    NOTES:   In the second article above, some works and names that are said to have been written recently on Usul were mentioned. I wonder if the authors of these works really have any Usul themselves? How much do the works produced by people without Usul mention Usul? Whose Usul could the Usul they mention be? These are issues that need to be taken into consideration separately and examined with a Usul. Because almost all of the people mentioned are people without a madhhab. I wonder how much it would satisfy you if a person without a madhhab mentioned Usul!!!   Nizamuddin Demir