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Definition and Scope

Usul al-fiqh, or the roots of Islamic law, expound the indications and methods by which the rules of fiqh are deduced from their sources. These indications are found mainly in the Qur’an and Sunnah, which are the principal sources of the Shari’ah. The rules of fiqh are thus derived from the Qur’an and Sunnah in conformity with a body of principles and methods which are collectively known as usul al-fiqh.

Some writers have described usul al-fiqh as the methodology of law, a description which is accurate but incomplete. Although the methods of interpretation and deduction are of primary concern to usul al- fiqh, the latter is not exclusively devoted to methodology. To say that usul al-fiqh is the science of the sources and methodology of the law is accurate in the sense that the Qur’an and Sunnah constitute the sources as well as the subject matter to which the methodology of usul al-fiqh is applied.(Islamic Jurisprudence Books PDF For CSS)

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The Qur’an and Sunnah themselves, however, contain very little by way of methodology, but rather provide the indications from which the rules of Shari’ah can be deduced. The methodology of usul al-fiqh really refers to methods of reasoning such as analogy (qiyas), juristic preference (istihsan), presumption of continuity (istishab) and the rules of interpretation and deduction. These are designed to serve as an aid to the correct understanding of the sources and ijtihad. To deduce the rules of fiqh from the indications that are provided in the sources is the expressed purpose of usul al-fiqh.(Islamic Jurisprudence Books PDF For CSS)

Fiqh as such is the end product of usul al-fiqh; and yet the two are separate disciplines. The main difference between fiqh and usul al-fiqh is that the former is concerned with the knowledge of the detailed rules of Islamic law in its various branches, and the latter with the methods that are applied in the deduction of such rules from their sources. Fiqh, in other words, is the law itself whereas usul al-fiqh is the methodology of the law. The relationship between the two disciplines resembles that of the rules of grammar to a language, or of logic (mantiq) to philosophy. Usul al fiqh in this sense provides standard criteria for the correct deduction of the rules of fiqh from the sources of Shari’ah.(Islamic Jurisprudence Books PDF For CSS)

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An adequate knowledge of fiqh necessitates close familiarity with its sources. This is borne out in the definition of fiqh, which is ‘knowledge of the practical rules of Shari’ah acquired from the detailed evidence in the sources’. [Amidi, Ihkam, I, 6; Shawkani, Irshad, P. 3.] The knowledge of the rules of fiqh, in other words, must be acquired directly from the sources, a requirement which implies that the faqih must be in contact with the sources of fiqh. Consequently a person who learns the fiqh in isolation from its sources is not a faqih. [Cf. Abu Zahrah, Usul, p. 6] The faqih must know not only the rule that misappropriating the property of others is forbidden but also the detailed evidence for it in the source, that is, the Qur’anic ayah (2:188) which provides: ‘Devour not each other’s property in defiance of the law.’ This is the detailed evidence, as opposed to saying merely that ‘theft is forbidden in the Qur’an’. Knowledge of the rules of interpretation is essential to the proper understanding of a legal text.(Islamic Jurisprudence Books PDF For CSS)

Unless the text of the Qur’an or the Sunnah is correctly understood, no rules can be deduced from it, especially in cases where the text in question is not self-evident. Hence rules by which one is to distinguish a speculative text from the definitive, the manifest (zahir) from the explicit (nass), the general (‘aam) from the specific (khaas), the literal (haqiqi) from the metaphorical (majazi) etc., and how to understand the implications (dalalat) of a given text are among the subjects which warrant attention in the study of usul al-fiqh.

An adequate grasp of the methodology and rules of interpretation also ensures the proper use of human reasoning in a system of law which originates in divine revelation. For instance, analogy (qiyas) is an approved method of reasoning for the deduction of new rules from the sources of Shari’ah. How analogy should be constructed, what are its limits, and what authority would it command in conjunction, or in conflict, with the other recognized proofs are questions which are of primary concern to usul al-fiqh. Juristic preference, or istihsan, is another rationalist doctrine and a recognized proof of Islamic law.(Islamic Jurisprudence Books PDF For CSS)

It consists essentially of giving preference to one of the many conceivable solutions to a particular problem. The choice of one or the other of these solutions is mainly determined by the jurist in the light of considerations of equity and fairness. Which of these solutions is to be preferred and why, and what are the limits of personal preference and opinion in a particular case, is largely a question of methodology and interpretation and therefore form part of the subject matter of usul al-fiqh.

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The principal objective of usul al-fiqh is to regulate ijtihad and to guide the jurist in his effort at deducing the law from its sources. The need for the methodology of usul al-fiqh became prominent when unqualified persons attempted to carry out ijtihad, and the risk of error and confusion in the development of Shari’ah became a source of anxiety for the ulema. The purpose of usul al-fiqh is to help the jurist to obtain an adequate knowledge of the sources of Shari’ah and of the methods of juristic deduction and inference.

Usul al-fiqh also regulates the application of qiyas, istihsan, istishab, istislah, etc., whose knowledge helps the jurist to distinguish as to which method of deduction is best suited to obtaining the hukm shar’i of a particular problem. Furthermore, usul al-fiqh enables the jurist to ascertain and compare strength and weakness in ijtihad and to give preference to that ruling of ijtihad which is in close harmony with the nusus.(Islamic Jurisprudence Books PDF For CSS)

It may be added here that knowledge of the rules of interpretation, the ‘Aam, the Khaas, the Mutlaq, the Muqayyad, etc., is equally relevant to modern statutory law. When the jurist and the judge, whether a specialist in the Shari’ah or in secular law, fails to find any guidance in the clear text of the statute on a particular issue, he is likely to resort to judicial construction or to analogy.

The skill, therefore, to interpret a legal text and to render judicial decisions is indispensable for a jurist regardless as to whether he sits in a Shari’ah court or in a court of statutory jurisdiction. A specialist in usul al-fiqh will thus find his skill of considerable assistance to the understanding and interpretation of any legal text. [Cf. Badran, Usul,
pp. 37-38.]

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To what extent is it justified to say that al-Shafi’i was the founder of usul al-fiqh? One theory has it that usul al-fiqh has existed for as long as the fiqh has been known to exist. For fiqh could not have come into being in the absence of its sources, and of methods with which to utilize the source materials.

 This would in turn, imply that usul al-fiqh had existed long before al-Shafi’i. Numerous examples could be cited to explain how in early Islam, the Companions deduced the rules of fiqh from their sources. Usul al-fiqh, in other words, had substantially existed before the period which saw the emergence of the leading imams of jurisprudence.

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But it was through the works of these imams, especially al-Shafi’i, that usul al-fiqh was articulated into a coherent body of knowledge. Even before al-Shafi’i, we know that Abu Hanifah resorted to the use of analogy and istihsan while lmam Malik is known for his doctrine of the Madinese ijma’, subjects to which we shall have occasion to return. When al-Shafi’i came on the scene, he found a wealth of juristic thought and advanced levels of argumentation on methodological issues.

But the existing works were not entirely free of discordance and diversity which had to be sifted through by the standards which al-Shafi’i articulated in his legal theory of the usul. He devoted his Risalah exclusively to this subject, and this is widely acknowledged to be the first work of authority on usul al-fiqh.

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