Usul al-fiqh

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As Usūl al-fiqh ( Arabic اصول الفقه, DMG Uṣūl al-fiqh  'Roots of Understanding'), in the Islamic system of science, the discipline that deals with the sources and methodological foundations of norm-finding ( Fiqh ) is called. The Usūl al-fiqh are opposed to the Furūʿ al-fiqh ("branches of understanding, legal applications "), which means the analytical and madhab-specific discussion of legal norms in the area of ​​worship ( ʿIbādāt ) and interpersonal relationships ( muʿāmalāt ) in social coexistence are. A specialist in the field of Usūl al-fiqh is called Usūlī (اصولي, DMG uṣūlī ).

Although strictly speaking form Usul al-fiqh and Furū' al-fiqh , the two parts of the Islamic jurisprudence, but is usually Usul al-fiqh cited as a discipline in addition to Fiqh. Regarding the relationship between the two disciplines, it was felt that fiqh was the result of Usūl al-fiqh.

To this day, the Usūl al-Fiqh are a core component of training in Islamic universities of the Madrasa and Hawza types. They are considered to be the most important scientific discipline in the training of a Mujtahid .

Subject area of ​​the Usūl al-fiqh

It is generally assumed that there are four canonical sources of norms in Islam, namely the Koran , the Sunnah of the Prophet, the consensus ( Idschmāʿ ) and the conclusion by analogy ( Qiyās ). Accordingly, the science of the Usūl al-fiqh deals particularly intensively with theoretical and methodological concepts that concern these four legal sources. These include the principles of legal text hermeneutics, the evaluation and evidential value of the hadiths , which are considered to be the documentation of the Sunna, methodical questions of Idschmāʿ and Qiyās, the doctrine of abrogration and the relationship of clarification ( bayān ) between the Koran and the Sunna. Text hermeneutics is once again divided into different sub-areas and also deals with the question of when the actual meaning of a text and when the transferred meaning must be taken as a basis.

In addition, there depending on the teaching direction for quite a number of other methods of standard determination as "fairness whereas" ( istiḥsān ), "orientation to the common good" ( istiṣlāḥ ), "blocking the agent (Forbidden)" ( sadd AD ḏarā'i' ), "acceptance of continuity "( istiṣḥāb ), consideration of" common law "( ʿUrf ) and the" weighing "( tardjīh ) of evidence. Some of the later authors summarize these secondary methods of norm- finding under the category istidlāl ("search for information") and regard them as the fifth source of law. Other important topics that belong to the Usūl al-fiqh are the various evaluation categories ( aḥkām ) of actions and the question of the binding nature of Ijschtihād and Taqlīd .

Various Muslim scholars of the premodern period have already established that Usūl al-fiqh is actually a conglomerate of various other sciences. For example, the Egyptian scholar Muhammad ibn Bahādur al-Zarkaschī (d. 1392) put forward in his relevant work al-Bahr al-Muhīt the view that Usūl al-fiqh contained almost nothing that did not come from the Kalām , the Arabic grammar or the Hadith science can be derived. The only genuine area of ​​this science is, if at all, the treatment of ijtihād, idscha, qiyās and internal contradiction ( taʿāruḍ ). But some of these subjects actually belonged to other sciences, such as Usūl ad-dīn ("Foundations of Religion") and Fiqh.

A topic that was initially considered a part of the Usūl al-fiqh, but then developed into an independent legal discipline, are the so-called legal maxims ( qawāʿid fiqhīya ). One of the first scholars to write a separate work on this discipline was the Egyptian Shafiite Ibn ʿAbd as-Salām as-Sulamī (d. 1262) with his al-Qawāʿid al-kubrā .

history

Beginnings

The Iraqi scholar al-Chatīb al-Baghdādī (d. 1071) credits the Hanafi lawyer Abū Yūsuf (d. 798) with being the first to write books on the Usūl al-fiqh. A "book on Usūl al-fiqh" ( Kitāb Uṣūl al-fiqh ) is also mentioned by Muhammad asch-Shaibānī (d. 805), a disciple of Abū Hanīfa and Abū Yūsuf . Since nothing has survived from the books mentioned, it cannot be said with certainty whether the two Hanafi authors have already used the term Usūl al-fiqh themselves or whether their books were only subsequently assigned to this discipline. In the circles of the Shafiites , Hanbalites and Malikites , asch-Shāfiʿī (d. 820) with his Risāla was considered to be the actual founder of the Usūl al-fiqh. Ash-Shāfiʿī deals with the subject area that was later subsumed under this term in the work mentioned, but he does not use the term Usūl al-fiqh himself.

The term Usūl al-fiqh only acquired terminological meaning from the middle of the 10th century, when the Hanafis Ahmad asch-Shāschī (died 955), Ahmad al-Jassās (died 980) and Abū Zaid ad-Dabūsī (died 1039 ) Wrote special works on it.

Usul-al-fiqh theological tradition

While the Hanafi tradition of Usūl al-fiqh, which reached its climax in the relevant work by al-Bazdawī (d. 1089), was more oriented towards practical legal applications, a new one emerged in Mu intazilite circles around the turn of the 11th century Tradition of Usūl al-fiqh, which was more oriented towards Kalām and logic and treated the relevant principles in an abstract manner. A particularly important topic of this theological Usūl-al-fiqh literature is the taklīf ("burden"), the question of why God has imposed certain duties on humans and how humans come to know about these duties.

Books belonging to this theological Usūl-al-fiqh tradition are at-Taqrīb wa-l-Iršād by the Ashʿarite al-Bāqillānī (d. 1013) and the Kitāb al-Muʿtamad by the Muʿtazilite Abū l-Husain al-Basrī ( died 1044). Abū l-Husain al-Basrī, however, saw the danger of mixing up the two disciplines and therefore explicitly delimited the Usūl al-fiqh as a separate subject area from the Kalām in his book. Imām al-Harmain al-Juwainī (d. 1085) wrote with his book al-Burhān a Usūl-al-fiqh work on an Ashʿarite basis, but in it dealt very critically with some of the teachings of Abū Hasan al-Aschʿarī.

The Usūl-al-fiqh literature of the various schools of law

In the 11th century, the Shāfiʿite school of law developed its own Usūl-al-fiqh literature. The foundation charter of the Nizamiyya , established in Baghdad in 1065 , explicitly stipulated that all lecturers in this madrasa had to be representatives of the Shafiʿite Usūl-al-fiqh tradition. The earliest works that can be assigned to this tradition include the book al-Lumaʿ fī uṣūl al-fiqh by Abū Ishāq asch-Shīrāzī (d. 1083) and Qawāṭiʿ al-adilla by Mansūr ibn Muhammad al-Samʿānī (d. 1096). Both authors distinguished themselves in their works from the Kalām-oriented Usūl-al-fiqh literature. The demarcation from the Kalām was less sharp in the works of the Shāfiʿites al-Ghazālī (d. 1111) and al-Āmidī (d. 1233). Al-Ghazālī explained in his book al-Mustaṣfā min ʿilm al-uṣūl ("The selected from the science of the Usūl") that earlier works on the Usūl-al-fiqh, depending on the interests of their authors, heavily with questions of Kalām, Fiqh or Grammar is mixed up and he cannot keep his work completely free from this mixing up, but wants to limit himself to the useful.

Significant Usul al-fiqh works of Hanbali teacher direction are the Kitab al-Wadih fī Usul al-fiqh of Ibn Aqil (d. 1119) and I'lām al-muwaqqi'īn'an Rabbinic al-'ālamīn of Ibn Qayyim al-Jawziyya (d. 1350 ). The former also contains a chapter on dialectics .

From the 12th century onwards, numerous Twelve Shiite scholars have dealt with the Usūl al-fiqh and wrote their own works on them. The book Mabādiʾ al-wuṣūl ilā ʿilm al-uṣūl ('Principles for Obtaining Science from the Usūl') by Jamāl ad-Dīn al-Hillī (d. 1325) is particularly well known . In the 17th century, however, a traditionalist reaction developed against the rationalism of the Usūl scholars in the Twelve Shia. The two groups of rationalists ( Usūlīs ) and traditionalists ( Achbārīs ) struggled for influence in the 18th and early 19th centuries until the Usūlīs finally won the day and the Achbārīs were marginalized.

20th century

Various Muslim reform thinkers tried in the 20th century to use the Usūl al-Fiqh as an instrument for modernizing Islam. In doing so, they resorted in particular to utilitarian legal concepts, such as the Nadschm ad-Dīn at-Tūfīs concept of the common good ( maṣlaḥa ) or the five universals (life, religion, family, reason and property) that are absolutely necessary and can be derived from the Sharia by analogy and to form the actual "purposes of Sharia" ( maqāṣid aš-šarīʿa ).

literature

  • Wolfgang Johann Bauer: Components of Fiqh: Core areas of 'Usul al-Fiqh (= series for Osnabrück Islamic Studies, Volume 10), Frankfurt am Main 2013, ISBN 978-3-631-62999-4 .
  • Marie Bernand: "Ḥanafī Uṣūl al-Fiqh through a Manuscript of al-Ǧaṣṣāṣ" in Journal of the American Oriental Society 105 (1985) 623-635.
  • R. Brunschwig: "Les uṣūl al-fiqh imâmites à leur stade ancien," in Le shîʿisme imâmite: colloque de Strasbourg (6 - 9 May 1968) . Presses univ. De France, Paris, 1970. pp. 201-213.
  • Norman Calder: Art. "Uṣūl al-fiḳh" in The Encyclopaedia of Islam. New Edition Vol. X, pp. 931b-934a.
  • Wael B. Hallaq : A History of Islamic Legal Theories. An Introduction to Sunnī Uṣūl al-fiqh. Cambridge: Cambridge University Press 1997.
  • Birgit Krawietz: The hierarchy of legal sources in traditional Sunni Islam. Berlin 2002.
  • George Makdisi: "The juridical theology of Shāfiʿī. Origins and significance of uṣūl al-fiqh" in Studia Islamica 59 (1984) 5-47. - Reprinted in George Makdisi: Religion, Law and Learning in Classical Islam Hampshire 1991.
  • Ulrich Rebstock: "Weighing up as a decision-making aid in the uṣūl al-fiqh: the beginnings of the tarǧīḥ method in al-Ǧaṣṣāṣ" in Der Islam 80 (2003) 110–121.
  • Ayman Shabana: Custom in Islamic law and legal theory: the development of the concepts of ʿurf and ʿādah in the Islamic legal tradition . New York: Palgrave Macmillan 2010.
  • Hans-Thomas Tillschneider: The emergence of legal hermeneutics ( Uṣūl al-fiqh ) in early Islam. Würzburg 2006.
  • Bernard G. Weiss: The Search for God's Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi . Revised edition. Salt Lake City: University of Utah Press 2010.
  • Farhat Ziadeh: Art. "Uṣūl al-fiqh" in John L. Esposito (ed.): The Oxford Encyclopedia of the Islamic World. 6 Vols. Oxford 2009. Vol. V, pp. 496b-499a.

Individual evidence

  1. ↑ Ignaz Goldziher : Materials for Knowledge of the Almohad Movement in North Africa. In: Journal of the German Oriental Society. 41, 85 (1887); Rüdiger Lohlker: The trade in Malikite law . Islamic studies. Volume 143. Klaus Schwarz Verlag. Berlin 1991. p. 132
  2. ↑ For example, in the deed of foundation for the Nizamiyya of Baghdad, cf. Makdisi 28.
  3. ↑ See Makdisi 39.
  4. ↑ Cf. Makdisi 38f.
  5. ↑ Cf. Krawietz 1–3.
  6. ↑ See Weiss 147f and Shabana 100-104.
  7. ↑ See Makdisi 39.
  8. ↑ See WP Heinrichs: Art. "Ḳawāʿid fiḳhiyya" in The Encyclopaedia of Islam. New Edition Vol. XII, pp. 517a-518a.
  9. ↑ Cf. E. Chaumont: Art. "As-Sulamī" in The Encyclopaedia of Islam. New Edition Vol. IX, pp. 812b-813b.
  10. ↑ See Makdisi 7.
  11. ↑ Cf. Ibn an-Nadīm : al-Fihrist . Beirut: Dār al-Maʿrifa n.d. page 288. Lines 8–9.
  12. ↑ See Makdisi 6.
  13. ↑ See Makdisi 9.
  14. ↑ See Calder 931a.
  15. ↑ See Weiss 19.
  16. ↑ Cf. Norbert Oberauer: Religious obligation in Islam: a basic ethical concept and its theological, legal and socio-historical dimension . Würzburg: Ergon 2004. pp. 255-306.
  17. ↑ See Calder 932b.
  18. ↑ Cf. Makdisi 15f.
  19. ↑ See Makdisi 45.
  20. ↑ See Makdisi 28.
  21. ↑ Cf. Makdisi 29, 35f.
  22. ↑ See Weiss 19f.
  23. ↑ See Makdisi 17.
  24. ↑ See Makdisi 43.
  25. ↑ . See Hallaq 112, 218 and Malcolm Kerr: Islamic reform. The Political and Legal Theories of Muḥammad ʿAbduh and Rashīd Riḍā. Berkeley 1966. pp. 66-79.