1

Abu Bakr Ahmad bin Ali al-Razi

Known as:Known as:Known as:Known as:

AlAlAlAl----Jassas, alJassas, alJassas, alJassas, al----Razi, alRazi, alRazi, alRazi, al----Hanafi Hanafi Hanafi Hanafi

(305/370/981)(305/370/981)(305/370/981)(305/370/981)

‘A Brief account of his life and work,

His influence upon Islamic Jurisprudence,

With a concise introduction.’

By

Ghulam Nabi Falahi

School of Oriental and African Studies

(University of London) UK

14th September 2004

2

CONTENTS

Cheptar-1 Introduction

Pages

1:1 General Background of Islamic Law 4

1:2 Definitions of Usul Fiqh 5

1:3 Difference between Fiqh and Usul Fiqh 6

1:4 Unity and Diversity in Shari’a Law 6

1:5 Development of Shari’a 7

1:6 Early Works before al-Jassas. 8

1:7 Old Manuscript of Hanafi school 9

Chapter 2 Abu Bakr Ahmad bin Ali al-Razi al-Jassas

2:1 Brief Historical Background 11

2:2 Al-Jassas, Abu Bakr al-Razi 12

2:3. His prominent teachers. 15

2:4 Among his famous students. 15

2:5 Al-Jassas among the Hanafie’s 16

2:6 His political view 16

2:7 The Works of al-Jassas. 17

Chapter- 3 Predication of Usul al-Fiqh.

3:1 Method of deducing the Usul among the Hanafi School. 19

3:2 Introductory work and General plan of al-Jassas 19

3

Chapter-4 His legal treaties, (Akkam al-Quran.)

4:1 Ahkamul al-Qur’an. 22

4:2 Features of the Ahkamul al-Qur’an in brief 22

4:3 The Structure of Interpretation. 24

4:4 The alluded meaning (isharat al-nass). 25

4:5 Ratiocination (ta’lil) and Qiy’as in the Qur’an. 27

4:6 The Problem of Basmalah being a verse of the Qur’an 31

4:7. Ambiguous verses, which are liable to superstitious interpretation. 32

4:8 Ta’wil (Allegorical Interpretation) 33

4:9 Words of the Qur’an 34

4:10. Specification of the Qur’an by Qur’an. 36

4:11 Specification of the Qur’an by Sunnah 36

4:12 Specification of the Qur’an by Ijma 37

4:13 Specification of the Qur’an by Rational argumentation. 37

4:14 Specification of the Qur’an by the Kabar al-Wahid. 37

4:15 Elaboration of the theory of obligation 38

4:16 The Authoritative position of ijma by nass(text). 41

Chapter –5 Conclusion:

Features of his legal Theory and his great contribution. 43

Bibliography. 47

4

Chapter-1 Introduction

1:1 General Background.

“Obey God and his messenger”1 The whole Islamic ideology and theory is based upon

these words, in other words it will be interpreted Order or Law, which is central to

Islamic piety.’ Islamic law or Shari’a has the character of a religious obligation to be

fulfilled by the believer. ‘The law of God remains the law of God even though there is

no one to enforce it’2 the Muslims, where ever they reside, are bound by the law to

secure order in society, Islamic shar’ia charges mankind with dual responsibility: One

to serve God and the other in relation to society, which results in a law of duties.

But is not so easy to say when school of law came in to its existence, because none of

the school of law is associated with anything like a present world datable charter. Ibn

Khaldun (d.806/1408) is a notable exception, devoting a chapter of his prolegomena

to the origins of the various schools of law.3 That is why the modern scholars often

bear the impress of his discussion. He begins with the jurisprudence of Iraq and the

Hijaz, the former skilful at analogy (qiyas) the later knowing much hadith.4 Goldziher

most closely to Ibn Khaldun, formulated his theory that Islamic jurisprudence

developed primarily from ra’y, and not from Qur’an and sunnah, in his article

“Fiqh”5. Which is very close to Joseph Schacht’s explanation of how the old regional

schools became personalised, as the followers of Abu Hanifah?6

1Theis verse is in the different chapters of the

Qur’an, see for example 3:59, 3;80, 2:32, 2:132,

2 Fitzgerald, Nature and Sources of Shari’a, Law in the Middle East, p. 85

3 Ibn Khaldun al-Muqaddimah Beirut: Dar al-Qalam, 1978. 3 vol.

4 Melchert, C , The Formation of the Sunni School of Law, 9th-10th Centuries C.E. Brill Leiden, 1997 Introduction, pp xviii.

5 Encylopaedia of Islam, Leiden/London 1927 article Fikh, pp.101-105

6 Joseph Schacht, “ The Schools of Law and later Development of Jurisprudence,” Law in the Middle East, Washington DC: The

Middle East Institute, 1995) p,63

5

1:2 Definition of Usul Fiqh7

The Muslim Jurists and theologians frequently refer in their treatises to the fact that

the pre-theoretical sense of the word fiqh is “the understanding of the speaker’s

intention”8 Conceptually, the human attempt to understand divine law (shariah).

Whereas shariah is immutable and infallible, fiqh is fallible and changeable. Fiqh is,

the method of legal interpretation and analysis.9 Or “the perception of concealed

meanings”(idraku l-ashya’I l-khafiyyah).10

This reference indicates that the essential

purpose in Islamic jurisprudence is “to grasp successfully the intentions of Allah and

His messenger via the qur’an and Sunnah”11

To introduce al-Jassas’s Usul al-fiqh, for

the definitions of fiqh and usul al-fiqh.it is useful to quote ‘Abu l-Yusr al Bazdawi,

who begins his treatise Ma’rifatu l-hugaga al sar’iyya with the definitions of basic

notions occurring in the work, such as fiqh, usul al-fiqh, ‘illa, and burhan.’ This is the

lexicon of technical terms we usually find on the first pages of such writings from

about the 4th century. “Fiqh,” says abu l yusr “is the name given to a specific

religious the sari’a’s legal rules (al-ahkam al-sar’iyya): it is found in the Qur’an,

sunnah and ijma, usul fiqh is the science of those three roots, and it is so called

because fiqh is (contained) within them.”12 ‘This is a most significant conception of

Usul al-fiqh. The basic postulate assumed by Abu l yusr was expressly formulated by

al-Jassas. Although the priority of nass and scriptural sources is adopted by al-jasas, it

7 The bridge term was in the main preferred by muslim bio-bibliographers and historians. It is sometimes difficult to say whether

it is meant to refer to usul al-fiqh or to kalam , since the same word, al usul, was also used to abbreviate usul al-din, one of the

term designating Islamic theology.

8 See Yunis,A. Medieval Islamic Pragmatics

, Introduction , pp. 1

, quoted

Al-Basri,, 1:4; al –Razi, 1/9.

9 On line Oxford English Dictionary. Search word Fiqh

10 Medieval Islamic Pragmatics, pp 1

11 Ibn Taymiyyah, Fatawa, 20/496.

12 See for details

,Bernand

, M, Hanafi Usul al-Fiqh JAO S, Vol. 105, No. 4 (Oct-Dec., 1985), 623-634

6

is obvious that the plan of the treaties is organized around one main principle:

huggatu l-aql’s efficacy when applied to the scriptural sources.”13

1:3 Difference between Fiqh and Usul Fiqh

Usul al-Fiqh has got two components –Usul and Fiqh. Usul literally means the

fundamentals. Technically, it means the science of the precepts that prescribe a

defined code of principles for deducing rules from available evidence.14

. And fiqh

literally means understanding, and technically, ‘the knowledge of the classification of

the laws of God, which concern the actions of all responsible Muslims, as obligatory,

forbidden, recommendable, disliked or permissible. These are derived from the

Qur’an and the Sunnah (traditions) and from the evidence (that) Muhammad (pbuh)

has established.15

Accordingly, Usul al-fiqh would mean ‘the principles that make

explicit the method of deducing rules from elaborate evidence the Qur’an, Sunnah,

Ijma and Quiyas.16

We may accordingly render Amidi’s definition of fiqh as follows:

“Fiqh is the knowledge, resulting from reasoning and demonstration, of that divine

categorization of human acts that are mediated to us through revealed or divinely

sanctioned indicators and thus constitute the Shari’a.”17

1:4 Unity and Diversity in Shari’a Law.

For, Ibn Khaldun, (732/1332-808/1406) the distinguishing feature of a school was a

body of distinctive juridical opinions. A school was formed when a body of opinions

was collected and ascribed to a particular teacher.18

The mechanism by which four

13. Ibid.

14 Abu Zahra, Usul al-Fiqh,pp6-7

15 Muqaddimah, Eng.tans. by Franz Rosenthal,, London. 1967, 345

16 AbuZahrah, Usul al-Fiqh. Pp.7

17 Al-Amidi, Kita al –ihkam fiusul al-ahkam, 4 vols. (Cariro:Dar al-Kutub al-Khidiwiya, 1914) 1:6 -10

18 al-Maqaddimah, pp448

7

schools came to be was taqlid, ‘speaking on some ones else’s authority, whereby one

does not search the sources for one’s own answer to a question (ijtihad) but merely

repeats the opinion of a former jurisprudent.’19

“Taqlid in the great centres came to

rest on these four; those who spoke on the authority of others died out.”20

George

Makdisi’s remark seems to be quite close to this opinion, stressing “a school died out

at the point when advocates for it were no longer to be found.”21

Four schools of law

only have survived in Sunnite Islam since the fifteenth century they were given the

name by their founders as–the Hanafis, Malikis, Shafi’is, and Hanabalies.22

This was

as natural result of their circumstances of original schools of Medina and Kufa,

1:5 Development of the Shari’a

The word (Shari’a or Shar.) Originally means ‘the path or the road leading to the

water’ which is a way to the very source of life. The verb shara’a means literally ‘to

chalk out or mark out a clear road to water’. In its religious usage, from the earliest

period it has meant ‘the highway of good life’, i.e. religious values, expressed

functionally and in concrete terms, to direct man’s life.23

Form the above we learn that it is: The Way, ordained by God, as the word Shari’ah

occurs in the Qur’an, God addresses the Prophet, “Thus we gave you a Shsri’ah”

(Q45: 18) wherein man is to conduct his life in order to realize the Divine Will. It is a

practical concept having to do with conduct as such. But it includes all behaviour,

spiritual, mental and physical activities. We may find this definition in classical

Islamic theory, which in agreement with Modern Islamic theory that ‘Islamic law is

19 Melchert, S. The Formation of the Sunni School of Law, 9th-10th Century C. E,Broll, Leiden 1997. pp xviii

20 al-Muqaddimah, 448.

21 George Makdisi, The Rise of colleges, Edinburgh: Uiversity Ppress. 1981, 4

22For further details see, Encyclopadia of Islam 2nd edition, pp123, 124, 181,182,320,321

23Ibn Man.zur, Mu.hammad ibn Mukarram, Lisanul al-arab, Vol 8, Word root (SHAR) Bayrut : Dar .Sadir, 1955-56

8

the revealed will of God, ‘a divinely ordained system preceding and not preceded by

the Muslim State, controlling and not controlled by Muslim society.24

In the Islamic

concept of Shari’a (Islamic Law) embodies the will of God Who is the Sovereign and

the source of law and to Him is due the obedience of man: “He is the sovereign of the

Heavens and the earth and unto Him (all) things are brought back”25

because of this,

the early Muslims were concerned with the explication of the concept of a divine

categorization of an act than with the explication of the concept of the shari’a as such.

1:6 early works before al-Jassas

Ibn Khaldun, in his remarkable book Muqadima26

differentiates between two kinds of

writings on Usul fiqh, first includes works written by theologians and second by

jurists (fuqah) in first kind complied by rational methods and second are closer to the

subject of jurisprudence.27

As Kamali has mentioned that the, ‘three of the most important works, which adopt

the theoretical approach, were later, summarised by Fakhr al-Din al-Razi (d.606) in

his work entitled Al-Mahsul, and Sayf al-Din al-Amidi’s larger work, Al-Ihkam fi usul

al-Ahkam is an annotated summary of the three pioneering works referred to above.28

Al-Karkhi (260/863-340/952) and Isa b. aban (d.221/836) the two jurists of hanafi

school are ever often mentioned in legal treatises but the al-Fihrist attributes to al

Saybani (d. 189/804) a Kitab usul al-fiqh.29

Even though it is considered that the

Risala of al –Shafi’ (d.204/819) is the first treatise on usul al-fiqh, but it can’t be

affirmed that no other work concerning this subject was written by other scholars.

24 Coulson, History of Islamic Law, p.1

25 Qur’an. 57:5

26 al-Muqaddima English trans, Vol 3, pp23-34

27 Ibid pp. 28-32

28 Kamali, M, Principles of Islamic Jurisprudence. P 11.

29 Seefor details, Fihrist, Tagaddud, 258-259

9

However we may find two type of books in early hanafi scholarship, one is that were

written in a very precise fashion, because their authors knew both the principles and

their application. Examples of this type are: Ma'khadh al Shar' "The Approach of the

Shari'ah" and al Jadal "Argument" by Abu Mansur al Maturidi (d 333 AH)30

."The

second, dealt very carefully with the meanings of words and was well arranged,

owing to the concern of their authors with deriving detailed solutions from the explicit

meanings of narrations.

1:7 Old Manuscript of Hanaf School.

It has been said that, no Hanafi Usul al-fiqh manuscript older than that of al-Jassas has

been found.31

It is likely that the Hanafi School knew, before al-Jassas’s Usul al-fiqh,

as we learn from above that some works anticipating it. Since the development of the

science of fiqh needed to have a solid basis, it is conceivable that Hanafi authors were

compelled to meditate on the questions of Usul al-fiqh. Now it is clear, that the

development of Usul al Fiqh, as a specialized discipline, had been completed, and that

had defined its issues and academic parameters by the fourth and fifth century A.H.

Indeed, by that century, the scholars of every school of thought had recorded their

own interpretations and understanding of Usul al Fiqh.

Approaches to the study of Islamic jurisprudence in this essay will be systematic and

topical; focus will be upon the writings of a single author, the eminent hanafi

jurisprudent, Abu Bakr Ali al-Razi. Al-Jassas, (370/981) by devoting one’s research

time to a single author, one is able to explore the entire range of topics dealt with in

this important Muslim discipline and to discover how ideas on these topics fit together

to form an integrated whole. But it is not possible to explore the whole work of the

30

: Muhammad ibn Muhammad ibn Mahmud Abu Mansur al-Samarqandi (d. 333) known as the Imam of Guidance

,see,

www.sunnah.org/history/Scholars/al_maturidi.htm

31 JAOS, 105.4 (1985) pp 624

10

author in this concise research paper; however discussion will be very limit, as it

follows in to two parts, the first one being about his first systematic work Al Fusul Fi

al Usul 32

as an introduction to his Ahkam al Qur'an "Legal Interpretations of the

Qur'an"33

. This is the other part of this dissertation.

In the pages that follows a brief history of the political transformations, along with a

short description of the religious rivalries, in order to understand the intellectual

milieu in which al-Jassas was born and led his life. Biographers and historians have

not been able to provide us from their accounts, any detailed information about the

life history of Abu Bakr Ahmad ibn ‘Ali al-Razi al-Jassas. However, an attempt has

been made to sketch briefly the life of Abu Bakr al-Jassa from the information

available scattered here and there. It will open the way forward for those who wants to

carry further studies in this field.

I am extremely thankful to SOAS library staff that helped me in collecting the data

from Washington DC congress Library. I am also thankful to Dr Mustafa Shah, who

supervised and guided me. It was his love and affectation, which encouraged me to do

this work. Finally to my wife and my kids’ incipit their younger age, who released me

of my household obligation in order to enable me to complete the dissertation, I wish

them all success and a happy life.

Ghulan Nabi Falahi

London, 14 September 2004.

32al-Jassas, Usul al-fiqh al-musammá bi al-Fu.sul fi al-u.sul; dirasat wa-ta.hqiq `Ujayl Jasim al-Nashami. al-Kuwayt. Wizarat

al-Awqaf wa-al-Shu'un al-Islamiyah. Idarah al-`Ammah lil-Ifta' wa-al-Bu.huth al-Shar`iyah, 1994

33 Al Jassas's, Ahkam al Qur'an, presently being translated, along with detailed annotation, into English. (Ed.)

11

Chapter -2

Imam Abu Bakr Ahmad bin Ali al-Razi (305/370) AH

2:1 Brief Historical Back Ground

In the third century A.H., the Muslim history is witnessed a great influx of ideas from

classical antiquity. Differing schools of thought arose, some remaining close to the

original faith, and others wandering away from it. It was in this period that the

problem of the created ness vs. eternity of the Qur'an arose, exposing the revelation to

the relativization of history. Under the leadership of Ahmad ibn Hanbal34

the view of

created ness was defeated and the threat removed, which naturally affected juristic

thinking. 35

Al Shafi'is Risalah evoked numerous thinkers to write for or against its

views. Isa ibn Aban36

(221/836) rose to the defence of liberalism, Al Nazzam

(221/836)37

added a dialectical argument against ijma' and its possibility; and Asbagh

ibn Faraj (225/840)38

wrote a defence of the Shafi’i view. The raging controversies

did not fail to bring about a conservative reaction. Dawud ibn 'Ali al Zahiri wrote

against both parties, pleading for the sanctity of the letter of the revelation and hence

34 Ahmad ibn Muhammad ibn Hanbal, (d. 241).

The founder of Hanbali school of Law.

35 See, Theology, Jurisprudence and Constitutional Theory, Darf Publication Ltd, London 1985 pp91-117

36 A Hanafi scholar and judge, 189/805) see. Bedir, Murteza, An Early Response to Shaf’I , Islamic Law and Society, 9, 2002,

285-311

37 Al-Nazzam, Abu Ishaq Ibrahim b. Sayyar b. Hani', Mu'tazili theologian, (d 220/835 and 230/845) see Encyclopedia of Islam

2nd edition, leiden,

38 Asbagh ibn Faraj: the mawla of 'Umar ibn 'Abdu'l-'Aziz., faqih of Egypt , died in 225/839

12

the meanings that attach to it. His work, Al Wusul ila Ma'rifat al Usul 39

remains to

this day the best defence of the literalist interpretation. The law itself was being

developed by the disciples and followers of Abu Hanifah, such as Sufyan ibn

'Uyaynah (198/814), Muhammad 'Abdul Rahman ibn Abu Layla, Supreme judge of

Kufah (148/756), 'Abdul Malik ibn Jurayj (1 50/768), 'Abdul Rahman al Awza'i

(157/775), and al Layth ibn Sa'd al Fahmi (175/792), all of whom took advantage of

the pragmatism and liberal rationalism of the Hanafi school and operated under the

intellectual impetus its methodology provided.

2:2 Al-Jassas Abu Bakr al-Razi, (370/981)

The History of Islam is witness that the 4th

century Hijar, rivalries among Sunnis and

Shi’as were high and shaking the foundation of the ‘Abbasid society as a whole. It is

known, that the Persians enjoyed great political influence in the establishment of the

‘Abbasid Caliphate. They were consequently entrusted with important positions in the

administration of the state. But whenever any caliph showed signs of mistrust or lack

of confidence in them, they never hesitated in getting rid of him. The ruthless

executions of Abu Muslim Khurasani, Baramiks, and Ibn Sahl are a few instances of

it. 40

Influence of Turks in the affairs of the Abbasid Kalifhat rose also rapidly. They

not only tried their best to usurp all power of the Khulafa’, but also made incessant

efforts to oust Persians from responsible positions.41

This was the age when Al-Jassas

was born, but there is a little dispute about his name and legacy in which he born.

It seems that the confusion was present at the time of 19th

century Indian author and

biographer Mawlana ‘Abd al-Hayy Lacknawi, (1304/1868) in his Fawa’id al-Bahiyya

39 See, Wiss, B

. G. Studies in Islamic Legal Theory, article by Stewart, Devin ,pp99-158

40 Ahmad Amin, Zuhral Islam, pp49

41 Ibid.

13

42quotes the following statement of Muhammad ‘Abd al-Baqi al-Zurqani from his

Sharh al-Mawahib al-Laduniyya: “The name mentioned by al-Zarqani is actually not

Abu Bakr al-Jassas he is rather another scholar from Naisabur, whose biography has

been recorded by al-Dahahabi in his Tadhkirat al-Huffaz,, and who died in 315 A.H.

Mawlana ‘Abd al-Hayy seems to have mistaken Ahmad ibn ‘Ali ibn Husayn for

Ahmad ibn ‘Ali al-Razi al-Jassas.43

Actually there are three persons who bear the name of Abu Bakr al-Razi: one is Abu

Bakr Ahmad ibn ‘Ali ibn Husayn who died in 315 A.H.44

the second is Abu Bakr

Ahmad ibn Ali al-Razi al Jassas who died in 370 A.H., and with whom we are mainly

concerned here.45

The third is Abu Bakr Ahmad ibn ‘Ali al-Razi al- Isfara’ini, who

either died at the end of the first, or beginning of the second, quarter of the fifth

century A.H.46

Abu Bakr Ahmad ibn ‘Ali al Razi al-Jassa was born in al-Rayy47

in 305/917.

Characterized by Zirikli as fadil ahl al-ra’y48

He came to Baghdad in the year 325/937

when he was 19 years old, and joined the lectures of Abu al-hasan al-Karkhi.49

From

Baghdad he went to al-Ahwaz perhaps for acquiring knowledge. From al-Ahwaz he

came back to Baghdad and started attending lectures of Abu al-Hasan al-Karkhi, and

many other scholars.50

42 Qazi Seedullah, Principles of Muslim Jurisprudence, Al-Maktabat-el-Ilmiyyah, Lahore, 1981, pp23

43 Al. Dhahabi, Tadhkirat al Huffaz, Vol 3 s.n 781

44 ibid,

45 See Qazi,S, Qarshi, al-Jawahir al Mudi‘a, 84-5.

46 Tadhkirat al-Huffaz, Vol,3 serial no 988.

47 Khatib Baghdadi-although he has not been able to determin the place of al-Jassa’s birth –has reported that “He come down to

Baghada in his youth, and attended the lectures of Abu al-Hasan al-Karkhi.. See Qai Seeduallah, pp24

48 Ibid, A’lam 1,165.

49.Islamic Studies, 1977, p 131-141

50 ibid

14

After some time his teacher, Abu al-Hasan al-Karkhi,51

asked him to accompany Abu

‘Abd Allah al-Hakim al-Naisaburi and study in Naisabur under his guidance.52 Abu

al-Hasan al-Karkhi died in 340/952 and was succeeded by Abu ‘Ali Ahmad ibn

Muhammad al-Shashi. However, in 344/956, when al-Shashi fell seriously ill, Abu

Bakr al-Jassas, left Naisabur for Baghdad.53

Al-Jassas travelled to Ahwaz and

Naisabur, in about 344/955 and died in 370/981.54

After the death of al-Shashi55

in the

year 344 the responsibility of teaching was entrusted to Abu Bakr al-jassas by time he

had grown into a great scholar and acknowledged leader of the Hanafi School of

jurisprudence. He started teaching his students in the mosque of Abu al-Hasan al –

Karkhi. He had studied Fiqh and Hadith with distinguished scholars. He wrote many

important books mostly on jurisprudence.56

Abu Bakr al-jassas was a pious man; so

much so that when once he was offered the post of a qadi he declined.57

Reference to

al-Jassas in Ibn al-Mutrtada’s Tabaqat is quit significant. He reminds his readers that

the Hanafi Usuli, whose Mu’tazili affinities are obvious, refused to fulfil the roll of

the office of qada in Baghdad after having initially accepted it. He then mentions that

although the task of al-Jassa was to produce books of fiqh, he used to compose kalam

treatises for himself, arguing that it was the best way to get near to God.58

Ibn Kaldun

51

See, his prominent teachers.,

p.15

52 Kataib al-Baghdadi, Tarikh Baghdad, vi, 314

53 Ibid. see al-Dhahabi, Kitab al-Ibar, 370 A.H.; Ibn Kathir, al-Biddaya wa al-Nihaya, pp 266. al-Fihrist, 307-8

54 Mari Bernand, JAOS, Vol. 105, No. 4 (Oct-Dec., 1985), 623-635.

55 Abu ‘Ali Ahmad Muhammad al-Shashi. See. Islamic Studies, 42:3 (2003)pp.415-436

56 Hajji Khalifa, in his Kashf al-Zunun, states: (In the field of Ikhtilaf al ‘Ulama many people wrote books. One of them is Imam

Abu Ja’far Ahmad ibn Muhammad al-Tahawi who died in 321 A.H; and his work is called Iktilaf al-riwayat, which is in more

than 130 parts. And it was abridge by Imam Abu Bakr Ahmad ibn ‘Ali al-Jassa al-Hanafi who died in 370 A.H. 38)

57 Khatib al-Baghdadi,iv, 314.

58 JAOS (Oct-Dec., 1985), 623-635.

15

in his Muqaddima mentions, “Al-Dabusi, but not al-Jassas the article “al-Djassas”

reflects the brevity of the sources.59

2:3 His Prominent Teachers

1. Abu al-Hasan al-Karkhi

‘Ubaid Allah ibn al-Husain ibn Dallal ibn Dalham, Known as Abu al-Hasan al

Karkhi, was born in Karkh Juddan in 260 A.H. He lived in Baghdad and after Qadi

Abu Hazim and abu Sa’id al-Barda’i, became as head of the Hanafi school of Fiqh.

He was considered to be one of the best mujtahidein of resolving the most

complicated problems, for which no provision could be found in the Holy Qur’an and

Sunnah of the Holy Prophet. He died on the 15th

of Sha’ban, 340 A.H.

2. Abu Sahil al-Zujaji.

Al-Jassas’s second teacher was Abu Sahl al-Zujaji, the pupil of Abu al-Hasan al-

Karkhi. A prominent fuqaha from Naisabur attended his lectures. He died in

Naisabur, leaving behind him a famous Kitab al-Riyad.60

2:4. Among his famous students were.

1. Al-Jurjanin. Abu ‘Abd Allah Muhammad ibn Yahya Mahdi al-Jurjani, lived

in Baghdad, He died 20th of Rajab, 393, and was buried near the grave of Abu

Hanifah.

59 Article “Hanafiyya.” J.Schacht does not mention al-Jassa, In vol 111, pp.166-67

, although in G.Maqdisi’s Ibn Aqil, we find

the great usuli mentioned several times.

60 For the detailed biographies of these jurists, see Murteza Bedir, “Early Development of Hanafi Usul al-Fiqh”(Unpublished

PhD Dissertation, the University of Manchester UK 1999)

16

2. Al-Khawarizmi. Muhammad ibn Musa Muhammad al-Khwarizmi, He died

on Friday, the 18th

of Jamad al—Awwal, 403 A.

3. Al-ZA’frani, Abu al-Husain Muhammad ibn Ahmad ibn Muhammad ibn

‘Abdus ibn kamil al-Dallal, known as al-Za’frani, (d 293) A.H

4. Abu Ja’far al-Nasafi, Abu Ja’far Muhammad ibn Ahmad ibn Mahmud al-

Nasafi was one of the leading jurists of his time. (18th

9-414) A.H

5. Ibn al-Maslamah. Abu al-Faraj Ahmad ibn Muhammad ‘Umar ibn al-Hasan,

known as ibn al-Maslamah, was born 337 A.H, Lived in Baghdad, died in 11-

415 A.H.

6. Kamari, abu al-Husain Muhammad ibn Ahmad ibn Tayib ibn Ja’far ibn

Kamar al kamari. He died in 417 A.H.61

2:5 Al-Jassas: Among the Hanafi’s.

Muslim jurists or Ulma have divided jurists in several categories and grades. Hanafi’s

have divided their own jurists in seven different grades; it is through these grades that

Islamic law implements its system of following precedents.62

Legal theorists draw a

sharp distinction between mujthids and non-mujtahids, the latter being commonly

known as the “followers” or “imitators” muqallidun,(pl.of muqallid) of the former. Al

jassas subscribed to the Hanafi school of thought, and is considered to be a mujtahid fi

al-masa’il, though his opponents consider him as one of ashab al-takhrij. However,

no one can deny the fact that Al-Jassas has been acknowledged as a very competent

hanafi scholar; and the irrelevant remarks about him of his opponents should not

mislead us towards underestimating his grand personality.63

61 ibid also see Encyclopedia of Islam 2nd edition. for the entries of the names,

62 See,

Al-fusul fi-usul, , Preface .Vol. pp 17-20

63 Al-fusul fi-usul, , Preface .Vol.1. Also al-Mahallawi Tashil al-Usul, 325. Abu Zahara, Imam Abu Hanifa-,3rd edition , pp.443

17

2:6 Political View

Al-Jassas does not consider the khilafat of Mu’awiyah as valid. He is often the

opinion that Ameer Mu’awiyah and his successors superseded khilafat from its

rightful claimants. Khalafa four Ali and Imam Husain.64

There are some other

differences we may find them in coming pages about Punishments in the Grave,

Magic (Sihr), and life after death.

2:7 The Works of Abu Bakr al-jassas.

Al- jassas compiled many works, on the topic of fiqh & Usul fiqh, his work al-Fusul fi

al-Usul, known as Usul al-Jassas, is the first systematic which treats comprehensively

the principles of Hanafite jurisprudence. This consists of more than 105 chapters,

excluding the one that are missing in the beginning. Recently an Arabian scholar has

edited the book.65

His second work Ahkam al-Qur’an, in three volumes, is another

important contribution not only to the science of legal treatises, but also to the science

of the Islamic jurisprudence, the main characteristic of this work will be discussed in

coming pages, author has reported not only the views of the Sahaba and Tab;iun and

others but ‘also those of al-Awaza’i, al-Thawri, ‘Uthman al-Batti, Ibn Abi Layla,66

Ibn Shubruma,67

and the like. As no independent separate accounts of the views of

these scholars are available to us, we can confidently refer to Ahkam al-Qur’an,

where their views regarding different problems have been recorded. Al-Jassas

mentions himself in the beginning of this monumental tafs’ir that his book al-fusul fi

64 Usul al-Jassasa. Vol 2/ 228

65 Usul al-fiqh al-musammá bi al-Fu.sul fi al-u.sul; dirasat wa-ta.hqiq `Ujayl Jasim al-Nashami. al-Kuwayt. Wizarat al-Awqaf

wa-al-Shu'un al-Islamiyah. Idarah al-`Ammah lil-Ifta' wa-al-Bu.huth al-Shar`iyah, 1994.

66 Muhamed bin Abdulrahman bin Abi Layla the jurisprudent, the judge of Kufah, died in 148H, and it is known that Ibn

Qutayabah was born in 213H, after the death of Ibn Abi Layla by 65 years

67 ibn Shubruma (a judge in al-Kufa during the rule of al-Mansur

)

18

usul is the introduction of al-Ahkamul al-Quran.68

In 198, Dr Saeedullah Qazi edited,

introduced and annotated two chapters of al-Jassas’s usul al-fiqh (qiyas and

ijtihad),69 with an introduction, in which he presents al-Jassas, assigns him a place in

the Hanafi School and points out the importance of Abu l Husan al Karhi influence on

al-Jasas’s thought. A list of books mentioned by biographers and historians are about

twelve in numbers. Earliest work of Hanafi school on Usul al-fiqh is Kitab fi al-Usul

by Abu al-Hasan al-Karkhi (d.340) which was followed up by Usul al-Jassas of Abu

Bakar al-Razi al-Jassas (d.370) Fakhr al-Islam al –Bazawi’s(d.483) well-known work,

Usul al-Bazdawi, is also written in conformity with the Hanafi approach to the study

of this discipline. This was followed by an equally outstanding contribution by

Shams al-Dine al-Sarakhsi (d.490) bearing the title, Usul al-Sarakhsi.70

1. Sharh jami al-Kabir of Muhammad ibn Hasan al-Shaybani;

2. Sharh jami al-sigeher of Muhammad ibn Hasan al-Shaybani

3. Sharh jami al-manacik of Muhammad ibn Hasan al-Shaybani

4. Sharh Mukhtasar al-Karkhi;

5. Sharh Mukhtasar al-Tahawi

6. Sharh al-Asma al-Husan;

7. Jawabai ‘an masa’if waradat ‘alayh;

8. Sharh of Khassaf’s Adab al-Qada71

9. Mukhtasar of Tahawi’s Ikhtilaf al-Ulma /Fuqaha.

10. Sharh adbil qazi, Lil khasf

68 See Ahkamul al-Quran, vol 1,p.1

69 Al-fusul fi –I usul . Ed Saeedullah Qazi. Peshawar. Nov 1981, I could not locate this work except the University of

Edemburgh , Main Library, Coll 27999 Jas.

70 Principles of Muslim Jurisprudence, p. 11.

71 Kitab adab al-qa.di / ta'lif Abi Bakr A.hmad ibn `Umar ibn Muhayr al-Shaybani al-Kha.s.saf ; wa shar.h Abi Bakr A.hmad ibn

`Ali al-Razi al-Ja.s.sa.s ; ta.hqiq Far.hat Ziyadah

19

11. Usul al-Jassas,

12. Ahkamul al-Qur’an

Chapter-3 Predication of Usul al-Fiah

3:1 Method of deducing the Usul among the Hanafi scholars.

The Hanafi scholarship developed from debates among early Islamic groups

concerning the legitimacy of the opinions of conflicting local authorities that lived at

the end of the second century. After that the method of writing on al Usul involved

defining the principles of Usul from the details of legal issues with which their earliest

predecessors had already dealt, which is going back to the authority of the prophet as

the model interpreter of the Qur’an. Thus, the basis for their studies of al Usul was

derived from the details of previously settled legal issues, and not the other way

round. The construction of this epistemology and the method requires soiled bases for

practice of Hanafi scholarship, which al-Jassas provide by his legal treaties, by using

the Sunnah as the medium through which to derive the definitions. Therefore, one

who studies Usul al Fiqh according to this method will gather the details of issues

concerning which the Hanafi Imams have already given Fatawa, and then analyse

them. Through this analysis he will decide the basis on which these Fatawa were

given. As there are no early resources available, we may refer confidently to al-Jassas

as an authoritative source for Hanafi school of thought. This methodology could be

found in al-Jassas’s producer in deducing the ahkam.

3:2. introductory work and General Plan of al-Jassas

It is important to look at four volumes of usul al-Jassas, before approaching to

Ahkamul al-Quran as it is his introductory work for his monumental tafs’ir, and

because of it, it is not possible to explore any thing from of his Ahkam al-Quran.

20

Author in his first part Usul, examines the divine speech (nass) its different modes,

and its linguistic aspects, which are:

1. The general and particular declaration (al-amm wa-l-khass) and different ways of

particularizing the general declaration.

2. The general concept (mugmal).

3. The linguistic function of the particular of negation (harf al-nafy);

4. Real meaning and metaphoric meaning (haqiqa wa magaz)

5. Clear and obscure concepts ((muhkam wa mutasabih.)

6. Defines bayan (elucidation), indicates its different modes and determines those

cases in which we must have recourse to it.

7. Having elaborated the linguistic framework, the author examines a special mode

of location, the importance of which is easy to understand in this context:

command (amr), its qualifications and temporal determinations72

8. Then come the problem of abrogation (nask) and the question of the relationship

between the Qur’an and sunnah from the point of view of abrogation.

9. In the fourth chapter, the notion of kabr (report) is examined: the reliability of the

khabar al-wahid (one transmitter’s report), conditions of such reliability, the

problem of a mursal report (transmitted by an incomplete chain of trustworthy

transmitters), particular case, and especially the problem of the Prophet’s tradition

(sunna).

10. The ijma73

is examined after which comes the question of taqlid (reliance on the

teaching of master), which is censured (damm) in favour of nazar, except for the

sahabi’staqld if nobody contradicts it. But if contradiction appears, it is important

72 ibid 625

73 usul al-Jassas, Vol 3, pp.255-328

21

to notice that the sahabi’s qiyas and igtihad make knowledge triumphant. This

section ends with the definition and the status of the naïf (the denier who discusses

rational or scriptural proofs.)74

11. Rules of qiyas, and discussion of the problems which these question raises.

12. Qiyas and Ijtihad and their legal position.75

13. Istihsan on which al-Jassas have devoted a long chapter. Which will be discussed

in following chapter?

Among the different modes, which al-Jassas applied to interpret the Book of God, is

as follows:

1. Specification of the Qur’an-by-Qur’an, A Qur’anic general declaration can be

specified by another Qur’anic verse.

2. Specification of the Qur’an by the Sunnah.

3. Specification of the Qur’an by ijma.

4. Specification of the Qur’an by rational argumentation.

5. Specification of a general declaration by the kabar al-wahid (one transmitter’s

report) where al-Jassas agreed with Isa b. Abban, as we will see following pages.76

6. Kulu mugtahid musib (the soundness of the specialist’s opinion)

7. Dalil al-hitab is not valid among the Hanafi scholars; as for al-Jassas dalil al hitab

means nothing other than fahwa I-hitab. 77

,

74 al-Jassas , al-ahkam, vol.2. Pp.375.

75 Qazi, Seeduallah has editied these two works of al-Jassas, known as Principles of Muslim Jurisprudence, Lahore, 1981,

76 all the relating matters regarding this issues see, Usul al-Jassas, Vol 3, pp173-141

77 See for details, usul al-Jassas vol 1-2-3.

22

Chapter- 4

His legal treatise (Akkam al-Quran.)

4:1 Ahkm al-Qur’an

The question of the origins of Islamic law and the development of Jurisprudence up to

the beginnings of the classical schools of law has occupied Islamic studies intensively

since the second half of the last century. It would be no exaggeration to suggest that

tafs’ir literature mirrors Muslim religious and social thought at its best. The real

genius of the Muslim mind has expressed itself in its unceasing efforts to understand

and interpret the word of God as enshrined in the Qur’an and as exemplified in the

Sunnah of the Prophet (peace be upon him). The history of tafsir has traditionally

been seen to begin with the Companions and Followers, who were in closest contact

with the Revelation. Arabic quotes from all of the ‘rightly guided’ caliphs, Abu

Bakar, ‘Umar, Uthman, and ‘Ali, as well as from A’isha, one of the Prophet’s wives.

The discussion here will be only about Ahkamul al-Qur’an of al-Jassas, its features,

and some aspects of his Tafsir in connection with al-ahkam.

4:2 Features of Ahkamul al-Qur’an in brief

1. Bearing in mind that Al-Jassas as a celebrated Hanifi jurist and writer78

of the

famous Taf’sir called ‘Ahkam al-Qur’an, does not interpret the Qur’anic verses, as

is done by other commentators. He explains the verses, which have directly, or

indirectly a connection with the subject with which he is dealing. He wrote his

Tafsir as if it is book jurisprudence. He often discusses various points of view held

by jurists. He also used another kind of material that is the variant readings of the

Qur’an, but since, as he explains himself, he has dealt with this subject of his

work. By doing so let us see what he has produced on different topics. He divided

78 Al-Baidawi, Anwar al-Tanzil, ed. H. O. Fleischer,i. 64: Dumyari, 11. 214

23

all the sura’s of the Qur’an under different sections and under theses sections,

there are the different chapters which are nearly more than four hundred.

2. Al-Jassas is famous for having attained an exceptional degree of knowledge of

Qur’anic text and its interpretation, He was also a renowned expert in pre-Islamic

history and the early genre of biography of the Prophet known as mghazi.

3. He explains obscure expressions or unusual grammatical construction in his al-

monumental tafs’ir work al-Ahkamul –al-Qur,an.79

Al-Jassas cites, among others,

a Tradition from Zaid b. Thabit which gives an account of the compilation of the

‘official’ codex of the Qur’an under ‘Uthman in which Zaid played a major role.

4. The material which al-Jassas quotes falls three kinds: the Traditions from the

Prophet of tafsir and ta’wil, Ijma, and Faqah (although the later of these two

terms to denote a more allegorical style of interpretation than the former, al-Jassa

use them as synonyms, as the very title of his commentary indicates), which are

cited with full isnad; and the opinions of grammarians, which are usually quoted

some times anonymously and some times by as coming from a Basran

grammarian’ or ‘ a Kufan grammarian.

5. The exegetes and interpreters he quotes are, for the most part, Companions of the

Prophet, of whom the most important in Ibn Abbas, or Followers-those, mostly of

the next generation, who never met the Prophet but knew one or more of the

Companions; and the Basran and Kufan grammarians are usually Abu ‘Ubaida

and al-Farra’ respectively.

79 See ahkamul al-Qur’an, Chapter , al-qawl-fi Basmallah, vol 1.6.

24

6. Al-Jassas usually expresses his teachers as al-Sarkhasi80

and other hanafi’s

preferred opinion in the form of a paraphrase of the whole, or part, of the few

verses in question, and he always give systematic reasons for his preference.

7. Al-Jassas have divided his tafs’ir in to two hundred fifty seven Sections and these

sections’s contains nearly three hundred and sixty five chapters, which are related

to the ahkam, there are also several chapters of the Qur’an where he has not given

any section or any subheading.

8. Al-Jasass used the terms came to tafs’ir and ta’wil interchangeably. In time,

however, the two terms came to designate two distinct branches of the general

science (‘ilm) of the Qur’an. Taf’sir means uncovering or unveiling, Tafs’ir is

therefore the illumination of the various meanings or designations of a Qur’anic

verse or passage. It includes the elucidation of the occasion or reason for the

revelation of a verse, its place in the surah, to which it belongs, and its story or

historical reference.81

4:3. the structure of interpretation.

The primary task of the jurist is to discover the ahkam from the nass (text). This is

accomplished through a reading of the texts. Depending on the text, the jurist adopts

several methods through which the ahkam are established. In hanafi scholarship they

are four broad methods, as al-Jassas have called them dalalat or mudlul (indication)

the implications of the text. Theses are as follows:

80 For example see ahkamu al-Qur’an pp,8

81 seeZarkashi, 11, p. 148

25

1. Ibarat al-nass,82

the ahkam are established through obvious meanings reveald

through a plain reading of the text.

2. Isharat al-nass, the ahkam are established through the connotation of the texts.

3. Dalalt al-nass, the ahkam are established through meanings implied by the text.

4. Iqtida al-nas, the ahkam are established through meanings required by the texts of

a necessity.

Because of the space, discussion will be only limit to “Isharat al-nass” (alluded

meaning) what he mean by this and how he have applied it to deduce the ahkam is as

follows:

4:4 the alluded meaning (isharat al-nass):

The connotation of the text in which the hukm is established through an indication of

the text by focusing on a meaning accompanying the primary meanings that are the

main object of the text is called Isharat al-Nass. Thus the hukm established is not the

main object of the text, but becomes evident in its complete form after a little

reflection. To put it in more literally, the meaning “at which the utterance is driven” it

should be noted, however, that it is very frequent in principles of jurisprudence’s

terminology to speak of ‘expression’, ‘utterance; or ‘text’ as being driven at some

meaning, but driven to somebody.

Likewise the ahkam established by “ibarat al-nass and isharat al-nass” that is, both

are established by the same text. Al-jassas has applied this method in ahkamu al-

Qur’ân. For example:

In the Qur’an وعلي المولود ررقھن وكسوتھن بالمعروف“But he (to whom the child is attributed)

shall bear the cost of their food and clothing “(Q: 2:233)

82

Usul al-Jassas, fc, fi Sifat al-nass, pp 59

26

In the first Qura’nic passage, he said that ‘this verse indicates through a plain reading

or ‘ibarat al-nassthat the maintenance of a wife weaning a child is on the husbad. By

the indication of the text several ahkam are established; two of these are mentioned

below:

a) That the child is attributed to the father. This is obvious from the word.

b) These same words also indicate indirectly that the father has a right

over the child, his possessions and wealth. This is further affirmed by

the words of the Prophet (peace be upon him) انت ومالك �بيك (you and

your wealth are for your father). This also means that the father cannot

be subjected to qisas (retaliation)

In order to illustrate these different forms of meaning another passage he quotes in his

Ahkam is for example: “Say not ‘uff to them” in the Qura’nic verse. “Your Lord has

decreed, Do not worship any but Him, Be good to your parents; and should both or

any one of them attain old age with you, do not say to them even ‘fie’ neither chide

them, but speak to them with honour, and be humble and tender to them.”83

The stated meaning of this passage is the prohibition of saying uff (Fie) to parents, a

meaning that is encoded in the conventional wording of the utterance. But this clearly

stated meaning amounts to something else, that is, the probity of striking them,

insulting them, and so forth. Al-Jassas has this to say about them:

Every discourse (khitab) that comes from God, exalted be He, and the prophet, upon

him be peace, cannot be devoid of significance (fa’ida). The meaning (ma’na) of

some (such discourse) is sometimes grasped with the intellect (ma’qulan) through the

utterance (lafz). Others signify (yufid) a judgement (hukm) and a meaning whose

explanation (bayan) may come in a second (significant discourse). Of the discourse

83 al-Qur’an 17/23.

27

whose meaning is grasped with the intellect through the utterance some signify by

way of indication (min jihat al-dalala) a meaning for which the utterance is not put

(laysa mawdu’an lahu), as when God, exalted be He, says: ‘And don’t say uf (an

expression of anger and displeasure) to them (your parents). This signifies by way of

indication the forbiddance of what is above that –shouting at, beating, and killing

them.84

Al-Jassa adds: There is plenty of this kind (of discourse) in the Qur’an, the

Sunnah (traditions), and people’s habits of speaking. This is (what is called) the

indicant of a discourse whose indication of what it indicates should be attentively

considered (wa hadha huwa dalil al-Khitab al-ladhi yajibu I tibaru dalaltihi ala ma

‘alayhi al-ahkam)85

He then adds that this is what his teach Abu’i’Hasan al-Karkhi

(b.260/873-.340/952) used to say in claming that it is the viewpoint of the Hanafis.86

4:5 Ratiocination (Illa) and analogy (Qiy’as).

Illa and Qiy’as were two another tools, al-Jassas applied for Ahkam, it seems good to

quote here the ‘famous argument between Dawud al-Zahri and al-Jassas, by Refuting

Dawud Zahri’s statement in which he declares that no ruling should be based on

analogy and that legal discretion (istihsan) must not be allowed.’87

Abu Bakar al-Jasas

enlightens us further on the sense of the word “indicant” as used by Dawud, and says

in a cryptic sentence in which he addresses Dawud: “Tell us about the necessity of

professing (the doctrine of) the indicant which you calm takes only one meaning”

(khabbirna ;an wujub al-qawl bi’l-dalil alladhi za’amta annahu la yahtamil illa

84 Usul-al-Jassas, pp290

85 Ibid:pp291-294

86 Ibid. pp292

87 Medival Arabic sources consider Abu Sulayman Dawud ibn Ali ibn Khalaf (200/815 or 202/818 270/884) as the founder of

the Zahiri (the apparent or the literal) school of law. See for Instance al-Baghdadi (d.463/1070) Ta’rikh Baghdad (cario,1931),

VIII, pp.369

28

ma’nan wahidan)88

In the context in which the above statement is made no

explanation is given of the alleged doctrine. However, al-Jasas clarifies it in another

place and context89

this is where he lists the accepted judicial judgments that are not

stated in the legal sources. Al-Jassas classifies these judgments according to the

method used in obtaining them. One such category of judicial judgments includes

those that we derive from the established legal sources by extracting (istikhraj) from

such sources an indicant (dalil) that takes only one meaning. An example is when Ibn

Abbas (d.68/687 or 69/688 or 70/689) inferred from statements in the Qur’an that a

woman can give birth to a child after no more than a six-moth period of pregnancy.

This he did by putting together two verses from different chapters in the Qur’an that

have a clear-cut meaning. These are: “His (i.e., the child’s) bearing and his weaning

was in thirty months”90

; and “His weaning was in two years”91

on the basis of these

two verses he regarded it as legally valid to speak of a six-month pregnancy92

. In

another, not quite parallel, example a judicial judgment is extracted from a single

Qur’anic verse. The Qur’an says: “If he (i.e., a man) has no children, and his heirs are

his parents, a third (of his inheritance goes) to his mother.”93

This indicates in a

definite way, al-Jassas goes on to say, that the father receives two-third of his son’s

inheritance in that particular circumstance. According to al-Jassas, the method used in

case as the above is not called ijtihad (exercising one’s own judgment with

discretion).94

88 al-Jassa, Usul al-Fiqh, 11,

89 Ibid, Dawud’s name is not mentioned here.

90 Al-Quran 46:15

91 Ibid 31:14

92 Usul Al-Jassas , 1994, pp107

93 Ibid. 4:11.

94 Ibid

29

Al-Jassas mentions four types of judicial judgments that are not given in the

authoritative legal sources, divided according to the method used in obtaining them.

1. The first includes the judgments obtained through a common ‘illa (reasons or

cause) which they share with those judgments that are given in the authoritative

legal sources.

2. The second includes the judicial judgments that we derive by rational means

without resort to the authoritative legal sources, such as when we use the stars to

determine the direction of the Sacred Mosque before praying or when we try to

decide the best tactics to be used in a holy war. Such judgments are determined by

the nature of the situation involved and the rational devices we develop to handle

them, and not by consulting the legal texts.

3. The third includes the judicial judgments that are indicated by the authoritative

legal sources (al-istidlal ‘ala al-hukm bi’l-usul). For instance, the Prophet orders

us to wash a pot seven times if a dog licks it. This indicates (dalla) that such a pot

is to be regarded as defied (najas), because the legal sources speak of cleanliness

(tahara) in connection with the pots when they are considered as defiled.

4. The fourth type includes the judicial judgments that are derived from the legal

sources through an indicant that takes only one meaning. According to al-Jassas,

only the processes employed in obtaining the first three types of judgments are

called ijtihad. In the list no mention is made of analogy by similarity (qiyas al-

tashabuh). Elsewhere in his book, al-Jassas refers to any inference by analogy.

We may conclude that the list was meant to include only the methods he himself

approves of in obtaining judicial judgments. If so, then the method of extracting

an indicant that takes only one meaning is acceptable to him. It seems, then, that

30

for Dawud a judicial judgment should be stated fully in the established legal

sources or else be based on a textual indicant whose meaning is clear-cut.

Arguing this Shehaby Nabi,95

expressed his view that ‘One problem remains. It

concerns the meaning of the word ma’na as reportedly used by Dawud. In legal

theory, the word may have either the dictionary meaning or that of illa (reason or

cause)’. Added that96

‘one may argue that perhaps Dawud used ma’na in the sense of

‘illa; and therefore al-Jassas’s statement could be interpreted as showing that Dawud

advocated a strict and narrow process of analogy by ‘illa in contrast with a freer one

(where different reasons for enacting the same judicial judgment could be suggested)

used by al-Jassas.97

Al-Jassas in his book ahkam, tells us that early Jurists supporting

analogy claimed that there is a definite indicant (dalil) established by God for each

judicial judgment covering an event (haditha), since for each event there is but one

textual basis that has only one single ‘illa. And it is this ‘illa that we take as a basis

for analogy. This seems to mean that every legal case that is not treated in the legal

sources can be compared with only one case that is to treated by bringing out the

signal ‘illa they both share. When such an ill is discovered, the judicial judgment

given to the second can be extended to cover the first as well. Al-Jassas attributes this

doctrine to al-Asamm, (Ibrahim ibn Isma’il) ibn ‘Ulayya (151/768-218/833, described

by al-Baghdadi.98

This is the method by which al-Jassas, deduced the laws or usuls from text (nass) we

my turn to some other aspects of his tafs’ir where his approach is not only near to

hanifi school of thought, but some times using a strong argument against the other

schools. To do so let us examine some of them.

95

Shehaby,N , JAOS, Vol.102, No. 1 (Jan-Mar., 1982), 27-46

96 Ibid

97 Ibid p30

98 Ibid

31

4:6 The Problem of Basmalah being a Verse of the Qur’an:

Al-Jassas has devoted twelfth pages for this chapter, saying that there is disagreement

among the jurists about tasmiyah or basnmalah (“In the name of Allah, the

Compassionate, the Merciful”) in the beginning of the surahs whether it is an

independent verse like other verses of the Qur’an. (Qala abu bakr la khalafa banal al-

muslimeem)99

Al-Jassas argued that, Muslims are agreed that the tasmiyah in verse

27:30 is an independent verse of the Qura’an. The disagreement that exits relates to

basmalah when it occurs in the beginning of the surah. There are three opinions that:

1. Tasmiyah is a verse of the Qur’an in the beginning of each surah or along with the

first verse of the surah except in Surat al-Tawbah(9th

surah) this view is held by

al-Shafi.

2. It is not all a verse of the Qur’an when it occurs in the beginning of the surah. This

view is held by Maliki’s, and among the Shafi’s by al-Baqallani.

3. It is verse of the Qur’an when it occurs in the beginning of the surahs. It is not a

part of Surat al-Fatihah or any others surah. It was revealed to separate the surahs

from one another. This view is held by Abu Hanifah and Ahmad b.Hanbal.

The approach of al-Jassas: He holds that basmalah in the beginning of the surahs is

part of the Qur’an. It was revealed to separate the surahs from each other, as the

Prophet (peace be upon him) could not know the beginning of one surah and the end

of another before the revelation of basmalah. Further more, there is no consensus that

what is contained between the two covers of the copy of the Qur’an is a Divine word.

Thus, basmalah is a part of the Qur’an for it was recorded in the copies of the Qur’an

99 Ahkamul al-Qur’an, vol 1. pp, 8

32

by the Prophet’s command and reached us in the same state. The Companions usually

avoided to record in the copies of the Qur’an, things that were considered not to be

part of it.

The problem is that there is no consensus on its being a verse of a surah, as it was

revealed to indicate the separation of one surah from the other. Al-Jassas and other

Hanafi’s are of the opinion that the criterion to determine whether something was a

Qur’anic verse or not is that it should be so established by tawatur, that is, it should

have been regarded as a part of the Qur’an all though and should have been, in actual

fact, always included in the text of the Qur’an.100

4:7 Ambiguous verses, which are liable to superstitious interpretation:

The ambiguous verses explained by al-Jassas in the light of Arabic poetry and usage,

and by reference to clear statements in other parts of the Qur’an and to authentic

sayings of the Prophet.

By doing this he avoided the mistakes made by other commentators, the verse

(Q.2/102) has been thought by some commentators to constitute a proof of the

existence of sorcery. But Jassas says that there is no such thing as sorcery, and that it

is merely a form of trickery. He says that the word Sahr applies to every thing or

action used for the purpose of deceiving and misleading others. It is something, which

just does not exist.101

Explaining the verse at first he gives a full linguistic description

of the word (sehr). Arabic poetry, Qur’anic verses, and sayings of the Prophet are

quoted in his explanation of the word. Stories of Jewish origin suggesting that

Solomon had practised sorcery and the tradition saying that the Prophet had been

100 For details, see ahkamu al- Qur’an ,Vol -1 pp 4-18

101 Ibid, vol-1

. p.49.

33

affected by a Jewish witch, and had been rejected by Jassas.102

It is quite hard for the

Sunni authorities to reject a tradition and said: ‘unbelievers have fabricated it.103

His

long and excellent discussion can be summarized as follows:

The so-called Sihr (sorcery) does not exist. The word (Shitan) is also used for wicked

people who practised sorcery during the days of Solomon.

Traditions suggesting that a witch had affected the Prophet are baseless. The Qur’an

itself made it clear by stating (wal yaflih ..hais ata) (Q.20/69) that sorcery has no

reality. Al-Jasas does not believe in magic as others people do. According to him

every act which is confusing, and by which is intended deception, and exposition of a

thing unreal to appear as real is called Sihr(Magic)104

Explaining his point further, al-

Jassas says that every thing has got two meanings-implicit and explicit; and these

meanings are comprehended only by those who have the knowledge of it. Those are

ignorant the implicit meaning of a particular thing appears to them as beyond the

grasp of human understanding. For instance when a man appears to be travels in a

boat, the trees and the buildings on the seashore appear to be travelling alongside with

him. For supporting his argument he gave some more examples.105

4:8 Ta’wil (Allegorical Interpretation) in Ahkamul Al-Qur’an

Ta’wil which means the final end (‘aqibah) of a matter, as the Qur’an says: “On a day

when its (the Qur’an’s) ta’wil (that is, fulfilment) shall come” (Q.7: 53); Ta’wil is the

science of elucidating the general as well as particular meanings of the words of the

Qur’an. The difference between tafs’ir and ta’wil, according to some commentators,

is that tafs’ir is concerned primarily with the deeper comprehension (dirayah),

102 Ibid, pp.55, 63.

103 Bukhari,vii.27, (chapter on Sorcery)

104 Ahkam al-Qur’an, Vol 1, pp. 42, 43

105 Ibid , pp, 43.58

34

whereas inner meaning of the sacred text. As for example, during tafs’ir of the verse

(And speak not those who are slain in Allah’s way as dead. Nay, they are alive, but

you perceive not), Q1: 154) al-Jassas writes that people will be resurrected, and will

be given sustenance in their graves. Likewise, the polytheists will also be raised in

their graves, and will be punished there for their wrong deeds.106

But the question is

how would that dead bodies are resurrected from their graveyards while they are

decayed bones in the dust? Replying this question al-Jassa proceeds two ways.

1), Insana (human being) is actually the name of Ruh (soul) which is a little invisible

body; and the comforts and tortures are given to it, and not to the physical body;

secondly, Insana is the name of visible solid body; and Allah selects from amongst its

various organs a few such major parts as on which its life depends; and comforts and

punishment, whatever the case may be, are given to them in accordance with what

they actually deserve. Then Allah would destroy them as He would destroy the rest of

the creatures living and non-living before the actual Hour of Resurrection comes.

Then Allah would raise them again for final interrogation on the Day of

Judgement.107

Supporting his viewpoint, he quotes a hadith (the soul of a Muslim is a

bird that flies above the Tree of Paradise till its reunion with its former body.)108

4:9 Words of the Qur’an:

The Qur’an was revealed in Arabic. The words of the Qur’an are words of Arabic.

This attested by the Qur’an itself in following verses:

“Surely we have sent it down as an Arabic Qur’an that you may understand” (12:2)

106 Ahkam al-Qur’an. Vol –1. 93,94

107 Ibid

108 Ibid

35

“A book whose verses are explained in detail, an Arabic Qur’an for a people having

knowledge” (41:3)

Since the term Qur’an may not be applied to its translation, One’s prayer will not be

valid if one were to recite its translation, nor will the command to recite the Qur’an

will be considered to have been fulfilled if one were to recite the translation of the

Qur’an. Like wise, any argument on the basis of the translation of the Qur’an will not

be taken into consideration in deriving rules of law.

Keeping it in mind, this verse constitutes one of the arguments adduced in support of

Abu Hanifah’s initial opinion that if some one recites the Qur’an in translation in his

Prayer, the Prayer is valid, As reportedly that he allowed a person, who could not

pronounce the Qur’an in Arabic, to recite it in his Prayers in Persian.109

According to Abu Bakr al-Jassas, the basis of this argument is that he also said what

God says in the Qur’an in previous Scriptures for, quite obviously, these were not

delivered in Arabic. Hence, to translate its teachings in any other language does not

exclude it from being a part of the Qur’an.110

The contention is not tenable, for it is

the themes of the Qur’an as such. Moreover, the Qur’an itself indicates Arabic as one

of its characteristics. The view of al-Jassas also conflicts with the majority opinion

about the Qur’an on this point.

However the weakness of this argument is self-evident. Whether it is the Qur’an or

any other Scripture, the text of these sacred Books was not so revealed to the Prophet

with meanings, which the respective Prophets expressed in their own words. Rather,

both the text and the meaning came together, and their source was God Himself.

There fore, the teaching of the Qur’an which were part of the earlier Scriptures were

not couched in human words but in God’s Words and, hence, no translation of these

109 Islamic Studies 38:4 (1999)

110 Ahkam al-Qur’an, Vol. 3, p.348

36

Books can be called the “Book of God” it has been said with great emphasis, over and

over again, that it was revealed in “clear Arabic”: “We have revealed it as a Recitation

in Arabic that you (the people of Arabia) may fully understand” (yusuf 12:2) al-Ra’d

13:37, al-Zumar 39:28.

The ascription of this view to Abu Haifa is not correct, for the reliable authorities of

the Hanafi school have reported that he subsequently abandoned this view, which he

presumably held in some earlier period of life. Ibn Abi Maryam has transmitter the

report of his withdrawal.111

Abu Hanifa codified his position and accepted the

standpoint of Abu Yousf and Muhammad ibn al-Hasan al-Shaybani.112

4:10. Specification of the Qur’an by the Qur’an.

A Qur’an general declaration can be specified by another Qur’anic statement. فجاءر ان

فانكحوا ماطاب(يكون تخصيص عموم القرآن بقرآن مثله كقوله تعالي God says in iv,3. “Marry such

of the women as seem good to you….” This is a general declaration whose literal

meaning implies license to marry all women. But, in Qur’an 1V. 23. God says,

“Forbidden to you are your mothers. Your daughters, your sisters…” We can infer

then that verse 3 must be understood as excepting among women. Mothers, daughters

and sisters.113

4:11 Specification of the Qur’an by the Sunnah114

. كون تخصيص القرآن بالسنة الثابةوي

Qur’an 1V, 12 says. “A half of what your wives leave belongs to you.” But the

Prophet said, “The Muslim cannot inherit from the kafir, nor can the kafir from the

Muslim.”

111 Islamic Studies 38”4 (1999)

112 for further details see, Ibid

113 Usul al-Jassas, pp.142-152

114 ibid pp144

37

4:12 Specification of the Qur’an by ijma,115

Qur’an, says, “the fornicates and the

fornicator, scourge each of them with a hundred stripes.”116

The community then

decided that the punishment for the slave should be fifty lashes, according to general

Qur’anic prescriptions concerning slaves.117

4:14 Specification of the Qur’an by rational argumentation ويجور تخصيصه بد�لة

(dalalatul-aql) العقل118

or rather, rational indication. This means of taksis is so

important for al-Jassas that he confines upon ‘aql as much dignity as he does the

Qur’an and sunnah, pointing out that the Qur’an is nothing but God’s revealed

arguments. Which are fundamentally rational? The author quotes Qur’an, “Oh ye

people!”119

Explaining that it would not be reasonable to address a speech to children

or mad people; it would be foolishness (safah) to do so. We may consider then that

the verse can be specified by reason of the nas means only reasonable people. The

purpose of the aya is elucidated (tabyin) by rational arguments. There is no difference

indeed. Concludes the author, between rational specification and specification by the

Qur’an or by the sunnah 120

4:15 Specification by the Khabar al-Wahid

General declaration can be specified by the kabar al-wahid 121

(one transmitter’s

report). Abu Baker quotes Isa b. Aban,122

to whom he attributes, in a further chapter

115 Ibid,147

116 Qur’an .11: 24

117 al-Jassas, Usul-al-fiqh. Pp. 146.

118 Ibid.

119 Quran, 1V, 1

120 Usul al-Jassaas, pp.147.

121 Ibid , pp/155

122 See introduction of this article.

38

the book Al-radd ala Bisr al-Marisi fi l-ahbar.123

According Bernad, Wiss, it seems

that ‘Al-Jassas agrees with Isa b.Aban on specification by kabar al-wahid, as by

qiyas, and distinguishes two possibilities: كل امر منصوص في القرآن فجاء خبر يرده او يجعله

فان ذلك الخبر ان لم يكن اھرا قد عرفه الناس ). تفسير المعاني(خاصاو عام بعد ان يكون ظاھر المعني � يحتمل

124و علموا به حتي � يشذ منھم ا� الشاذ فھو متروك

Literal meaning (zahir) whose purpose is obvious and does not need elucidation

(bayan)125

Literal meaning of the Qur’an and sunnah which is equivocal and can be interpreted

in different ways (kana fi-l-lafz ihimal al-ma’ani). In such a case particularization by

kabar al-wahid is reasonable (ma’qul) this rule is based on a principle clearly

expressed and repeated several times in the treatise: “Whatever is established by

means which necessitates ascertained knowledge (ilm) cannot be rejected in favour of

that which does not necessitate it”126

.

4:16 Elaboration of the theory of obligation in al-Jassas’s treaties:

Among the several topics treated by Al-Jassas in his Tafs’ir al-ahkam was the

obligation to wage war on God’s behalf against His enemies. Prescriptions relating to

Holy war are a case in point. For Jassas the obligation to fight in the way of God was

derived not from Q. 2:216, but from Q.2: 190. وقاتلو في سبيل هللا الدين يقاتلونكم و� تعتدوا ان هللا

Fight against those who fight against you in the way of Allah, but do) � يحب المعتدين

not transgress.)127

123. That Bisr was a disciple of Abu Hanifa and that he agreed with the Mu’tazili’s on the creation of the Qur’an but he accused

them of infidelity (akfafr) for their belief in the creation of the act.

124 Usul-al-jassas 158.

125 Ibid

126 Ibid. pp. 172

127 Translations ,Towards Understanding the Quran, Vol 1, pp150

39

Commentators have differed128

in interpreting this verse. According Tabari that this

was the forts verse that commanded the Muslims to fight against those of the

associates who waged war against them, but it was later abrogated by (Q 9:36)129

. Al-

Jassas hold the claim that this verse is ‘in which was stressed the exclusively

defensive character of combat imposed upon Muslims.130

Precluded by its terms were

thus non-combatants, such as women, children, and hermits/ monks. ‘The real intent

of the verse is to stress that force should be used only when only its use is

unavoidable, and only to the extent that is absolutely necessary’.131

A different

qualification was that made between infidels and scriptures (ahl-al-kitab) as liable, by

divine decree, to attack by believers. Of the four verses (Q.2: 191 and 4:91, 4:89 and

9:5) adduced to support the progression from defensive to offensive warfare and from

selected targets to a general declaration of hostility to non-Muslims, Q 9:5 became the

scriptural prop of a formulation designed to cover any and all situations which might

arise between the Muslim community and its enemies, and included lingering

compunctions about clauses attaching to the sacred months (ashur hurum) and the

sanctuary at Meca (masjid haram) called in the exegetical tradition the sword-verse

(ayat al-sayf), Q. 9:5) الخ.........لمشركين فادا انسلخ ا�شھر الحرم فاقتلوا ا (But when the sacred

months expire, slay those who associate others with Allah in His divinity wherever

you find them; seize them, and besiege them, and lie in wait for them. But if they

repent and establish the Prayer and pay Zakah, leave them alone. Surely Allah is All

Forgiving, Ever Merciful.)132

128See for example Ibn Kathir, 1,p.400, Tabarsi, II, p.139, Wahidi, PP.49-50

129 Tabari, Jami al-Bayan ‘an Ta’wil Ay al-Qur’an .III, pp. 561-662

130 Ahkam al-Qur’an I, 256-63 : Bab Fard al-Jihad’

131 Towrads Understanding the Quran, pp151-152

132 Ibid, Translation, Vol 111, pp 190,

40

Quoting Ibn ‘Arabi, John Wonsbrough, remarked that ‘achieved a quite extraordinary

status in the elaboration of Islamic jurisprudence, as the alleged arrogant of 124

Qura’nic Verse. Theses included all passages in scripture, which could be interpreted

as recommending leniency (safh wa-afw; cf. Q 2:109, 5:13) towards unbelievers. The

range and Varity of such were equally extraordinary, at least as set out in what

became the classical work of Qura’nic abrogation, the Kitab al-nasikh wal-mansukh

of the employment of exegesis traditions in the ahkam literature was not limited to

precision of juridical niceties.133

As in the much-disputed problem of reference in Q

5:33) “Those who wage war against Allah and His Messenger, and go about the earth

spreading mischief indeed their recompense is that they either be done to death, or be

crucified, or have their hands and feet cut off from the opposite sides or be banished

from the land.”

Jassas provided two hadiths: one from Ibn ‘Abbas applying the verse to polytheists

(mushrikun), and another from Ibn ‘Umar identifying ‘those hostile to God and His

prophet’ as the clan of B. ‘urayna (Uraniyyun) Summing up the evidence additional

hadiths from Ibn ‘Abbas, conflicting and with different isnads) as offering a choice

between polytheists and apostates, Jassas found himself constrained to reject both on

the grounds that whatever the occasion of the revelation, its semantic content was

clear: reference was to all transgressors of God’s law. The principle thus enunciated

was that juridical application could not be based upon an ‘occasion’ (presumably a

historical accident) but only upon the general validity of the scriptural expression: �ن

م عندنا لعموم الفظ� حكم للسب عندنا وانما الحك .134

John Wansbrough, pointed out that ‘the manner in which this kind of argument cut

across earlier exegetical method based on the chronological arrangement of scripture

133 Wansbrough, J

. Quranci Studies, pp 185.

134 Ahkam al-Quran II, 406-8.

41

emergence from a comparison of Jassas, with Abu ‘Ubayd, who reported that the

incident involving B. Urayna had taken place in the early years of Islam.135

4:13. The Authoritative position of Ijma by nass (Text)

Classical jurists were agreeing that the ijam is fourth bases of Islamic Law, along with

the kitab an khabar al-mutawatir as the conclusive proofs of law. How important is

this among the classical jurists let us look the Jassas’s theory?

According to Jassas the prime justification for the authority of ijma136

comes from the

Qur’an, whereas the Prophetic reports play a secondary supportive role. The latter, by

emphasising the infallibility of the command as well as adherence to the community,

endorses the idea of a chosen narrative, which is introduced by the Qur’an. But this

view has been refuted that, ‘there is no room in al-Jassas’s justification of the

authority of ijma for reason, for it is rationally plausible that a group of people may

agree on error, though it is less possible than the plausibility of error in the reasoning

of an individual.’137

The case of ijma however, exceptional due to the fact that reason

cannot be utilised for justification. Another striking fact is that treatment of

justification of authority by al-Jassas stresses the communal aspect of ijma.’ For him,

the authority of ijma is derived not only from the convergence of opinions but also for

substituting the authority of the Prophet (peace be upon him)138

The exclusion of reason from having a say in ijma is vigorously upheld by Jassas In

Qur’anic verse (2:143) Jassas first draws attention to the point, which stresses the

special relationship with the idea of the community, then further substantiates this

relationship with the idea of the community taking the place of the Prophet in

135 see Qura’nic Studies, Cf, Principles of Exegesis, pp 150-190

136 The topic of the authoritativeness of ijma is discussed in Jassas, al-Fusul, 3:257-267; In Ahkam Vol 1. Pp. In Dabusi,

Taqwim, ff./ 8-10. in Pazdawi, Usul, 3:971-82.

137 Bedir, M. The Problem of Usul Al-Shashi, Islamic Studies, 42:3 (2003) pp 415-436.

138 See. Al-Jassasa Ahkamul al-Quran, Vol 1. Chapter, Ijam, (Q 2:143)

42

religious matters. The sunnah further advances this status of the ummah by

introducing the notion of infallibility of the community as a whole. Those Qur’anic

passages and the Prophetic reports which enjoin the believers to follow the path of the

community are apparently regarded as of secondary importance when compared with

the idea of special status of ummah. In other words, these ideas constitute the rationale

on which the authority of ijam is based. Later Hanafi jurists tried to keep the question

of the justification of ijma within the confines of the Islamic dogma, thereby denying

reason a role in this matter.

Chapter-5

Conclusion

Feature of his legal theory and his great contribution.

A brief analysis of this text enables us to draw a few conclusions concerning the text

of Ahkamul al-Quran, and Usul al-Jassas as are follows:

First of all its brevity as we conciseness makes it closure to a style of writing which, is

a mature development already elaborated in the tradition in a way that satisfied the

immediate needs of not only the Hanafi School of law but as whole Islamic

Jurisprudence system.

Secondly, Al-Jassas has already presented his Ahkam in such development manner

which new age required, it is not possible any body by passes his scholarship, who so

ever wants to carry further investigation in Islamic jurisprudence system.

Thirdly, the prominent features of the work are total control of material from begging

to the resulting in conciseness and rogation.

43

Fourthly, It seems that, al-Jassases Ahkam payes the way for the scholarship of

Islamic Jurisprudence to dunce the usuls from The Qur’an and emergence of

madrassahs (traditional Islamic centres learning) seems to coincide with this change

in writing style, which al-Jassas marks the beginning of this style in Hanafi usul

tradition.

Fifthly, Al-Jassas does not put his vast knowledge as Tabari at the disposal of his

students and those who solicited his legal opinions. Evidently, he sought no high

office for himself and refused any he was offered. His professional life was one of

persistent scholarship, dedicated teaching, and prolific writing.

Seventhly, it is clear that al-Jassas’s contribution to legal theory was not confined to

the theory of Prophetic reports, but extended it with companions, jurists,anology and

fataws of precedents, all most all references to his name in latter tafs’ir or Quran’ic

interpretation scholarship touch upon an issues concerning legal transmission rules.

Eighthly, Being Hanafi jurist, al-Jassas defended his mahab hanafi and appears in his

commentary as a Hanafi commentator who has to defend his own school of though.

The question of whether or not a man may take a girl for his wife as with whose

mother he has committed adultery is a disputed one among the jurists. After giving

the different views he described the Shafi’i views as follows: ‘It is quite clear that

what is said by Shafi’ empty and meaningless’.139

In spite of the harsh language used

by al-Jassas against other schools of thought and his tendency to sympathize with the

Hanafi School, his commentary is an excellent work to sympathize with the Hanafi

School. It is valued highly by Muslims, particularly by Hanafis. But, Muhammad

Husain al-Dhahabi, has not appreciated his approach of rationalism. Al-Dhahabi says

139 Ibid,11 143

44

that the Mu’tazilla140

influenced Jassas in his views about sorcery. Jassas’s criticism

of Mu’awiya that he had revolted against a lawful Caliph, Ali, al-Dhahabi says that it

would have been much better for Jassas to leave this matter to God.141

This sort of

criticism, however, dose not detracts from the value of Jassas’s work. But if al-

Jassas’s successors had continued their research with the same spirit as he had, a great

many of the stories of Jewish origin and superstition would have been removed long

ago from the face of the Qur’an.

Finally, His great contribution towards the Usul fiqh in general, particularly which is

regarded as a part of hanifi scholarship142

is Istihsan, Some writers have used the

word ‘urf (custom) to indicate that this one method of employing istihsan. Care has to

be exercised in using such concepts, al-Jassa explains that one meaning of istihsan is

where the shari’ah is asking us to follow what is good and has left the determination

of this ma’ruf to our opinion. For example, the words of the Qur’an: (A gift of a

reasonable amount is due from those who wish to do the right thing)143

so also the

words: (But he (to whom the child is attributed) shall bear the cost of their food and

clothing.)144

In such cases, the principle is that we follow what the shari’ah would

consider to be good, that is, we determine it in accordance with the general principles

of the shari’ah. It does not mean following each and every custom in accordance with

what the people have been practising.145

Supporting hanifi view on istihsan, Coulson,

N.J expressing his view that the ‘freedom and flexibility of legal reasoning is the

140 See also, , Studies in Islamic Legal Theory, Mutazilism and Maturidism in Hanafi legal Theory, Part three, Edit, Bernard

G,W. Leiden. Boston. 2002, pp235-

141 Al-Mufassitun, Cairo, 1962, 1331/1912.

142 Encyclopadia of Islam, IV, 256-258.

143 al-Quran 2:236

144 Ibid: 2:233

145 for details Al-fusul fil usul, vol 4 pp 233-256

45

keynote of the Hanaf’i principle of istihsan, or “jurisprinciple”146

Al-Jassas expressed

his view that the best proof of this necessity is that one who denies the validity of

rational arguments is he obliged to resort reason to justify his denial. This assertion,

which is typical of the ahl al’ilm wa-l-nazar argumentation against traditionalism and

scepticism, appears in the chapter entitled Al-qawl fi wugub al-nazar wa damm al –

taqlid, in Usul fiqh.

Anyway the greatest contribution of al Jassas, however, laid in his refutation of

Shafi'is arguments against istihsan and his establishment of it as the necessary

condition of all creative legal thinking. Under Shafi'i, the ability of the jurist to attend

to the welfare of the community was reduced, and that of responding to novel

problems with novel solutions as inspired by the ultimate purposes of the Shari’a was

eliminated. Without istihsan, Islamic law stood condemned to fossilization. However,

istihsan is not to be equated with juridical license, for the purposes of the Shari’a

guard it against any possible aberration.

146 Coulson, J.N, A history of Islamic Law, pp. 91

46

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