Stability & Reform: Does Usul al-Fiqh Need An Update (Part One) Sh. Mawlud al-Surari

A Discussion On Reviving Usul al-Fiqh 

In our current era, there is a widespread discourse on the necessity for scholars of Islamic jurisprudence to challenge traditional jurists and the ancient methodologies established for the study of fiqh (Islamic jurisprudence) and its principles (Usul al-Fiqh). This revival encompasses all matters related to deriving rulings, building upon, or applying those rulings, the conditions that ensure a rulings compliance, their specific subjects, that are derived using foundational principles, and systematically structured through human reasoning.

The proponents of this call for renewal, who widely discuss and publish on the subject, argue that such an endeavor is essential, citing several points:

Judicial Monopoly 

One of their arguments is that jurists have monopolized the examination of Islamic legal matters since the inception of the discipline of fiqh. They have dominated the study of its texts and principles, the definition of legal terminologies, and the establishment of ijtihad (independent reasoning) rules to be followed when deriving legal rulings from their sources. Additionally, they have set the conditions for ijtihad and the methodology for interpreting religious texts. This monopoly by jurists, they argue, was neither appropriate nor permissible, as it usurped a general right. The examination of religious texts and the intellectual effort to understand and derive rulings from them is a right that belongs to every individual in the community, regardless of their level of expertise in Islamic sciences.

According to this perspective, these jurists are seen as having unjustly usurped a position that belongs to the community and have monopolized religious authority without legitimate grounds. They have obstructed people from exercising this right by establishing complex conditions and stringent qualifications for ijtihad that many scholars, let alone laypeople, find impossible to meet. These stringent conditions and qualifications required to be deemed a mujtahid (one who exercises ijtihad) have led to a disconnection between the study of religious texts and the broader Muslim community, that 

has resulted in traditional jurists monopolizing the interpretation of Islamic law without contest.

Inflexibility & Arthritis

And there is more: Reformists not only accuse the classical Islamic jurists of monopolizing the right of  religious interpretation but also of l rigidness and inflexibility.  Ancient scholars  adhere strictly to outdated principles and do not consider other methodologies, as they are unfamiliar with them. Their rigidity is further exacerbated by their opposition to anyone attempting ijtihad through different methods, labeling such individuals as deviant or misguided due to those traditional scholars’ ignorance and limited understanding of the true nature of religious matters.

Scripture is Limited & Limiting

In the context of sources and methods, reformers claim that the rules and principles used to derive legal rulings from the Quran and Sunnah are antiquated and irrelevant, as they were suitable for past times and outdated contexts. The conditions of contemporary society and its needs have significantly changed, making these old principles inadequate and irrelevant. Therefore, all such (ancient) frames  should be discarded except for those that prove their relevance.

A Focus On Words

Furthermore, the traditional method employed by past jurists and scholars in deriving rulings from texts—focusing on the literal meanings of words and constructing rulings based on those meanings—is  unproductive. This approach dulls the senses, stifles intellectual growth, and limits the understanding of religious matters to one narrow perspective, neglecting the broader range of potential insights because strictly adhering to the literal meanings of religious  texts and ignoring their underlying purposes and wisdom prevents benefiting from the full scope of their guidance and applying them appropriately in contemporary contexts. This deprives us of significant knowledge and the benefits brought by religion.

Limiting Ijtihad

Reformists also blame classical scholars for limiting the employment of ijtihad, which those classica scholars restricted by invoking the principle of “blocking the means to harm  (sadd al-dhara’i), with the intention of preventing those with insufficient scholarly expertise from engaging in ijtihad. This decision needs reevaluation, removing unnecessary restrictions that are not essential for ijtihad.

An Irrational Platitude

Reformists critique the claim by classical legisits that divine revelation (i.e., the Quran and Sunnah) encompasses all necessary legal rulings for all times. This assertion has proven inaccurate in practice, highlighting the necessity of ijtihad in every era. Thus, the absence of ijtihad in any period is evidence of intellectual and jurisprudential stagnation and rot. The  use of analogical reasoning (qiyas) has often been misapplied, particularly in matters related to governance and public affairs, such as defining the roles and responsibilities of the ruler and the advisory council. This has led to legal outcomes that promote injustice, tyranny, and the abuse of power, contrasting with the intended principles of Islamic governance.

In summary, reformists claim that  the traditional methodology of usul al-fiqh (principles of Islamic jurisprudence), is disconnected from the realities of life, influenced by formal, ancient, logic, and overly restrictive of intellectual movement. This does not align with the current circumstances of Muslims. Ijtihad should be a quality possessed by all Muslims, allowing each individual to engage in intellectual effort according to their level of knowledge. This personal engagement ensures the correctness of the fatwas they follow, achieved through diligent search and study.

Ancient Fiqh Or Modern Fiqh

The  old jurisprudence was based on limited knowledge of the nature of things, universal truths, and social laws. Contemporary Muslims have the potential to understand these aspects better due to the modern advancements and expansion in various sciences. This necessitates a review and rebuilding of Islamic jurisprudence based on contemporary knowledge and insights. New sciences, such as sociology and natural sciences, should be integrated into the study of usul al-fiqh (principles of Islamic jurisprudence). These sciences can guide the mujtahid (jurisprudent) in fully comprehending the subjects of their ijtihad and uncovering aspects that may be overlooked without the aid of these sciences, while some  lesser-emphasized principles of jurisprudence should be reconsidered for deriving legal rulings for new issues, as they have proven to be fertile and productive sources.

In short: These are the primary reasons for the necessity of renewal in the fundamentals of jurisprudence claimed by the reformists, as understood within my scope of knowledge.

A Response To These Claim & Praiseworthy Reform

It is undeniable that some of these reasons are genuine and stem from a deep understanding of Islamic jurisprudence and its conditions. Hence, I will address them in greater detail later in this text.  Others, however, are baseless and often come from those who lack knowledge of Sharia and its methodologies. I will discuss them in the order they were mentioned and examine their validity.

First Reason: The Claim that Jurists Have Usurped the Right to Interpret Sharia, Which Belongs to the Entire Ummah

Anyone with even a basic understanding of Sharia sciences can see that this statement is nonsensical. How can the interpretation of Sharia be usurped as if it were a piece of land or similar tangible property? The interpretation of Sharia involves exerting effort and expending energy to acquire knowledge of Sharia, to understand its issues thoroughly, and to engage in ijtihad (independent reasoning). Who can prevent any of us from doing this, except for an unjust ruler or a tyrant oppressor? Many of these jurists themselves suffered greatly under such repression and injustice, as is well-documented in historical texts, and today, most of the great scholars of Islam, are underserved, ignored for exibitionlists and suffer from neglect and political abuse. 

Furthermore, who exactly is meant by the term “jurists”? Are they the diligent and distinguished scholars of Islamic jurisprudence, or are they those who exploit religion for personal gain, flattering those in power, and bending religious texts to please them?

If by “jurists” these critics mean the diligent, prominent scholars of Islamic jurisprudence who are zealous in protecting the sanctities of Allah, then these scholars universally abhor blind imitation (taqlid). Some even declared it forbidden and considered it an innovation in the religion of Allah.

However, those who attack the scholars and esteemed jurists of the Ummah are not concerned with the truth of their accusations. Their aim is to confuse Muslims, undermine the respect and authority of scholars in the eyes of the people, weaken educational institutions, and create an environment where they can spread their own misguided ideas without opposition.

Consider the example of Nasr Hamid Abu Zayd, who slandered Imam al-Shafi’i by claiming that he (Imam al-Shafi’i) collaborated with the Umayyads willingly and contentedly. This absurd accusation elicited laughter and ridicule among scholars who know that the Umayyad dynasty fell 18 years before Imam al-Shafi’i was born; the Umayyad state ended in 132 AH, while Imam al-Shafi’i was born in 150 AH. The baseless accusations made by these individuals against the leaders of Islam are akin to the slander propagated by Nasr Abu Zayd regarding Imam al-Shafi’i and the Umayyads. Such serious accusations  require conclusive evidence, yet these critics base their allegations on their own diseased imaginations, driven by malice and a desire to please their masters. This is not the place to delve into this subject extensively, but I mention it to highlight the relevance of this issue to our current discussion. The attacks on the scholars of Islam and the false accusations leveled against them are part of the same phenomenon, regardless of the different forms, era  and manifestations it may take.

As for the complaints about those who flatter and exploit religion for personal gain, if this is who the critics mean by “jurists,” then their criticism is misplaced. These individuals are not truly engaged in the scholarly examination of Sharia rulings; they are merely opportunists. It is important to note that those referred to as jurists in this context, who are characterized by flattery, are few in number, while the vast majority of scholars and jurists are genuine and dedicated to their craft. The Ummah should think well of them.

Second Reason: The Claim that Jurists Have Become Stagnant with Outdated Principles

Is there truly such a thing as outdated principles in Islamic jurisprudence and its foundations? How can they be described as outdated, and what evidence is there to support the claim that they are no longer suitable for developing new jurisprudential rulings?

I will address these issues in detail in the future, since this idea demands its own study..

Third Reason: The Claim that the Methodology of Past Jurists and Legal Theorists in Deriving Jurisprudential Rulings from Texts is Ineffective

This claim is overly broad when made in the context of specific accusation. The criticized methodology, according to these detractors, is essential for extracting rulings from texts and is unavoidable. Every form of speech, no matter how it is presented, conveys its intended meanings through the implications and connotations of its words. Understanding these requires knowledge of the linguistic context, the figurative use of language, and the circumstances under which certain expressions are used.

Understanding any text—whether divine or human—necessitates examining the indications, requirements, implications, and contexts of its words. Islamic legal texts from the Qur’an and Sunnah are interpreted according to established principles laid out by the scholars of the Ummah. These principles are documented in the books of usul al-fiqh (principles of Islamic jurisprudence) and are classified under the study of linguistic indications.

While human texts are also interpreted in a similar manner, they are subject to the limitations of human nature, such as forgetfulness, ignorance, limited understanding, and the tendency to intend meanings that differ from the apparent words. Despite these limitations, the same principles apply to understanding human speech within the bounds of these human characteristics, and everyone recognizes the limitations imposed by human nature on interpreting speech.

Thus, any statement made about the jurists’ methods being ineffective is unfounded. The methodologies employed by the scholars of the Ummah are comprehensive and account for the complexities of language and context.

If examining Sharia terms and divine texts to understand their meanings is flawed, then by what means can we comprehend the contents of the Book of Allah and the Sunnah of His Messenger, including their rulings, obligations, news, admonitions, and other aspects? If there is another method, what is it? If the claim is not that but rather that the jurists’ method is inadequate and should be replaced with a better one, then what is this superior method?

If the intent is to eliminate the authority of the text in favor of the authority of interests, what are these interests, and how do we recognize them? Every interest has a corresponding detriment. What benefits one person may harm another. As the saying goes, “One man’s misfortune is another man’s gain.” Whose interests and harms should be the standard for measuring benefits and detriments universally?

If it means disregarding the texts of revelation entirely, what would we become then? Abandoning the texts means following the directives of those who advocate for abandoning Allah’s revelations, essentially replacing divine guidance with the words of misguided individuals. What a catastrophe that would be.

Fourth Reason: The Claim that Literal Interpretation of Texts Prevents Utilization of Their Objectives

Firstly, literal interpretation of texts does not completely prevent consideration of their objectives. There is nuance here. Only the literalists (Zahirites) adhere strictly to the apparent meanings without regard for other causes and objectives. The rest of the scholars do consider these factors. They extract rulings from texts while considering the objectives, and each case is judged individually. I will discuss this further when addressing viable theories for jurisprudential application, Insha’Allah, and when discussing the features of renewal in the following chapter.

Fifth Reason: The Claim that the Conditions for Ijtihad are Excessive and Unnecessary

It is self-evident and a basic principle in the natural order that everything requires its prerequisites to be fulfilled. Anyone who claims that some of the conditions set by scholars for ijtihad (independent reasoning) are unnecessary must specify which conditions are being referred to. Once specified, these conditions can be re-evaluated, and we can attempt ijtihad without them. The truth of this matter will then become evident to all.

As for the argument that setting these conditions has led to the closure of the door of ijtihad, it is important to note that the conditions for ijtihad are not meant to prohibit it but to ensure the necessary level of competence. The conditions are essential for reaching the required level of expertise, not for preventing qualified individuals from engaging in ijtihad. In fact, the conditions for ijtihad have become more stringent over time due to the complexities of contemporary issues. I will  elaborate on when I address how to balance interests, Insha’Allah.

Sixth Reason: The Claim that the Qur’an and Sunnah Contain All Necessary Jurisprudential Rulings

This statement has been affirmed by many scholars, including Al-Juwayni, who mentioned it in his book “Al-Burhan.” He said: “The definitive and conclusive opinion among us is that no incident is devoid of a ruling from Allah, derived from the principles of Sharia. The basis that applies to all incidents is qiyas (analogy) and the various forms of reasoning and inference related to it.” This statement of Imam al-Haramaim clarifies the meaning of the claim above: that the Quran and Sunnah are the sole evidence of rulings, that some people ridicule because they do not understand its significance or scope, but understand it in a shallow myopic way.

Imam Ibn Hazm also mentioned it in his book “Al-Ihkam fi Usul al-Ahkam”: “There is no incident  that someone can say, ‘This is obligatory,’ except we respond: ‘If you bring evidence of its obligation from the Qur’an, the authentic words of the Messenger of Allah (peace be upon him), or consensus, or an explicit text, then obedience is mandatory. It is obligatory to follow such directives, and whoever denies this obligation is considered a disbeliever. If someone claims the obligation without any textual evidence or consensus, he is lying, and such a statement is not obligatory. Similarly, if someone declares something as forbidden, we say to him: if you bring evidence from the text or consensus prohibiting it, then it is indeed forbidden, and obedience is required. Whoever seeks to make it permissible in this case is sinful, lying, and disobedient. However, if there is no textual evidence or consensus prohibiting it, then it is not forbidden.”

I ask, Is there any action  in the world that falls outside of this framework? It is clear that the textual evidence, explicit or implicit, encompasses every ruling that has occurred or will occur until the Day of Judgment. There is no scenario that falls outside these three types of rulings. By Allah’s grace, this is the correct understanding.

The foundation of the normative position is based on the hadith narrated by Thalaba Al-Hushni, which states: “Allah has imposed obligations, so do not neglect them; He has set limits, so do not transgress them; He has prohibited certain things, so do not violate them; and He has kept silent about some things out of mercy for you, not out of forgetfulness, so do not seek them out.”

Undoubtedly, anyone who reflects on the words of the scholars supporting this view: there are explicit scriptural injunctions, just as there are those that are inferred, will not see a contradiction between this view and the practice of ijtihad (independent reasoning). Ijtihad is used to derive these rulings from the Book of Allah and the Sunnah of His Messenger, as is qiyas. Therefore, whoever thinks that this view prohibits ijtihad, and limits deriving religious rulings to the sacred texts exclusively, has a weak understanding.

The Seventh Reason: The Misapplication of Qiyas (Analogical Reasoning) in Matters of Governance

As I mentioned in the first section, the question is raised about how Qiyas (analogical reasoning) may have contributed to the emergence of unjust rulers who transgressed the limits set by Allah, oppressed the people, and spread corruption on earth, thereby leading to the destruction of both land and people through their immorality and tyranny.

If the intention is to suggest that jurists employing Qiyas paved the way for rulers to act tyrannically and oppressively, then this claim requires clear evidence. It does not seem that revolts such as that of jurists like Ibn al-Ash’ath or the stances of notable scholars and judges like al-Thawri, Tawus, al-Hasan al-Basri, al-Harith ibn Miskin, Ibn Abd al-Salam, Ibn al-Hajib, and al-Nawawi against the rulers of their time are unknown to those who have studied Islamic history.

However, if the intention is to suggest that early Islamic jurisprudence does not contain detailed legal rulings to regulate governance, impose restrictions on rulers to prevent injustice, ensure accountability, and uphold the public interest in accordance with the religion of Allah, then this is accurate. It appears that early jurists might have assumed that people would naturally choose the most pious and suitable leaders, and obviously, a righteous and pious person would not need external constraints as they would be self-restrained by their piety and righteousness.

If the people erred in their choice and the leader turned out not to be as they had believed, it would be the duty of the influential community members to depose him. This has indeed occurred repeatedly in Islamic history, though not always in the ideal manner prescribed by Sharia. The reliance of jurists on the piety and righteousness of leaders is evident in some of their legal opinions, which might have been suitable in the era those opinions were formulated. However, in the present time, this reliance must be re-evaluated due to the corruption of intentions and the malignancy of inner dispositions. Hence, on this issue, reform is warranted inline with the limits and norms laid out by the Shari’ah.

 The Eighth Reason: The Necessity of Ijtihad for Every Muslim

Every Muslim should engage in ijtihad to the best of their ability. This was a call made persistently by Imam Ibn Hazm, who reiterated it in his book “Al-Ihkam,” expressing strong disapproval of blind imitation (taqlid) and those who advocate for it, and urging for the practice of ijtihad, which he considered essential for true understanding and application of Islamic principles. He emphasized that it is obligatory for every Muslim, male or female, regardless of their status, even if they are lay people to engage in ijtihad. 

He explained how a layperson should practice ijtihad, stating: “If a layperson encounters a situation requiring a religious ruling, he should ask a scholar. If the scholar responds that this is the command of Allah and His Messenger, the layperson should accept it and is not required to investigate further. If the scholar says it is his own opinion or the opinion of a specific jurist, or becomes angry or remains silent, it is forbidden for the layperson to follow his ruling. The layperson must seek another scholar who will provide the ruling based on the commands of Allah and His Messenger. This ensures the layperson is following the true Islamic ruling and avoids any deviation.”

Shaykh Al-Fulani mentioned something similar in his book “Iqaz Himam Uli Al-Absar,” referring to Imam Ibn Daqiq al-Eid, who, during his final illness, wrote extensively against taqlid (blind imitation) and emphasized the importance of ijtihad.

The Ninth Reason: The Perceived Shortcomings of Usul al-Fiqh

Critics argue that the traditional methodology of usul al-fiqh inherited from previous generations does not meet contemporary needs because it was developed in isolation from real-life contexts and influenced by classical logic. This claim requires thorough examination and clear illustration of how qiyas (analogical reasoning) relates to real-life situations and how it can be adapted to address them effectively. 

There is no doubt that there is a similarity between ancient logic and qiyas in terms of form and structure, but is this similarity sufficient to prove that qiyas fails to achieve its intended purpose? That needs investigation and proof.

The Tenth Reason: Limited Knowledge of Natural and Social Sciences in Classical Fiqh

This is an important consideration. If it is true that classical Islamic jurisprudence is based on limited knowledge of the nature of things, cosmic realities, and social laws, then it is necessary to review and identify the areas where this is evident. 

The Eleventh Reason: The Rigidity and Constraints of Qiyas in Fiqh

Qiyas in fiqh is precise and bound by conditions that limit the scope of legal inquiry. These conditions are scientific and based on the nature of the subject matter. Anyone who has a better methodology should present it.

The Twelfth Reason: The Integration of New Sciences into Usul al-Fiqh

The emergence of new sciences should be incorporated into the study of usul al-fiqh to aid in more accurate and profound derivation of legal rulings. This is essential as it helps in bringing benefits and preventing harm, and in applying texts to contemporary issues correctly.

The Thirteenth Reason: The Reassessment of Certain Principles in Usul al-Fiqh

Some principles in usul al-fiqh have proven beneficial and therefore must be reassessed. This will be discussed further when addressing the theoretical frameworks that need reevaluation.

Twenty Discussion Questions on Reviving Usul al-Fiqh

1. What are the main arguments for the necessity of reviving Usul al-Fiqh in the contemporary era?
2. How have traditional jurists historically monopolized the interpretation and derivation of Islamic legal rulings?
3. In what ways do reformists argue that this monopoly is inappropriate or impermissible?
4. How do the conditions and qualifications for ijtihad set by classical scholars limit broader participation in Islamic jurisprudence?
5. What is the role of ijtihad in ensuring that Islamic legal rulings remain relevant to contemporary issues?
6. How do reformists critique the rigidity and inflexibility of traditional jurists’ methodologies?
7. What are the potential drawbacks of relying solely on literal interpretations of religious texts?
8. How can the integration of modern sciences, such as sociology and natural sciences, enhance the study of Usul al-Fiqh?
9. What are the challenges in adapting classical principles of Islamic jurisprudence to modern contexts?
10. How does the principle of “blocking the means to harm” (sadd al-dhara’i) impact the practice of ijtihad?
11. In what ways can new methodologies for interpreting Islamic legal texts be developed?
12. How can the concept of ijtihad be democratized to involve all Muslims, regardless of their level of expertise in Islamic sciences?
13. What are the potential benefits and drawbacks of a more flexible approach to deriving legal rulings from the Qur’an and Sunnah?
14. How can the objectives and wisdom behind religious texts be better understood and applied in contemporary contexts?
15. What evidence is there to support or refute the claim that classical jurists’ methodologies are outdated and ineffective?
16. How can traditional Usul al-Fiqh principles be re-evaluated to meet the needs of modern society?
17. What are the implications of the claim that divine revelation encompasses all necessary legal rulings for all times?
18. How has the misapplication of Qiyas contributed to issues of governance and public affairs in Islamic history?
19. What are the arguments for and against the necessity of ijtihad for every Muslim, as suggested by Imam Ibn Hazm?
20. How can the study of Usul al-Fiqh be reformed to incorporate contemporary knowledge and insights while maintaining fidelity to Islamic principles?

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