Table Of ContentAppendix
R isAla t L a t ifa t u n J a m i’a t u n f ! U su l a l -F iq h a l - M u h im a
In t r o d u c t io n t o t h e T r e a t is e 728
All praise to Allah. We praise Him for what He possesses from His beautiful
Names and lofty and perfect Attributes; and for His Judgment and Decree
which encompasses everything that exists, and for His prescribed laws which
encompass every field of legislation; and His Judgment through which he rec
ompenses: rewarding those who perform good deeds (al-muhsinin), and pun
ishing the criminals (al-mujirimin).
I testify that there is no deity worthy of being worshipped except Allah alone,
who has no partner in His Names, Attributes, worship or Judgment. And I
testify that Muhammad is His slave and messenger, who clarified the judg
ments and the rulings, made clear the halal (lawful) and the haram (prohibit
ed), and established the fundamentals and expounded upon them—until the
Religion was completed and firmly grounded. O Allah send your blessings and
peace upon Muhammad, and upon his family, his Companions and those that
follow them, particularly the people of knowledge.
To proceed: This is a brief and light essay concerning usul al-jiqh (fundamen
tals of jurisprudence), easy in its wording, clear in its meaning, and useful in
learning the rulings for whosoever reflects over its meanings. We ask Allah
that He benefits the compiler and the reader. Indeed He is the Most Gener
ous.
728 This translation is based on an existing translation of this brief text that is widely spread on
the internet. It has been edited and corrected based on the original Arabic.
A Commentary on Zad al-MuStaqni
Section
Usul al-Fiqh: It is the branch of knowledge concerning the comprehensive ev
idences offiqh. Since fiqh consists of either masail (issues) of which the ruling
(hukm) by one of the five rulings (ahkam) is sought, or the dalail (evidences)
upon which we extract these masail (issues).
Thus fiqh is actually the knowledge of masail (issues) and dalail (evidences).
These dalail (evidences) fall into two categories:
1. Comprehensive evidences (kullayyatun) that encompass every ruling of
a single kind, from the beginning offiqh to its end. An example being us
saying, “Al-amr lil-wujub" (the command indicates obligation). Likewise,
“An-nahi lit-tahrim (the forbiddance indicates prohibition), and there are
further examples we could bring similar to these two. These are from usul
al-fiqh.
2. Detailed evidences (tafsiliyyatun) that are to be understood in the light
of the comprehensive evidences. When this task is completed, then the
ahkam (rulings) can be derived. [We can see that] the ahkam (rulings)
are dependent upon the detailed evidences, and the detailed evidences are
themselves dependent upon comprehensive evidences.
Thus we can see the need and the requirement of understanding the foun
dations offiqh, and that it aids in the understanding offiqh, and that it is the
foundation for inference and performing ijtihad in the ahkam (rulings).
Section
The ahkam (rulings) upon which fiqh revolves around are five:
1. Wajib (obligation, normally translated in the main text as obligatory or
mandatory): the one who performs it is rewarded whilst the one who
leaves it is punished.
2. Haram (prohibition): this is the opposite of wajib.
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Appendix: Principles of Fiqh
3. Masnun (recommended, also referred to as Sunnah, mustahabb, sunan,
mandub): the one who performs it is rewarded and the one who leaves it
is not punished.
4. Makruh (disliked): this is the opposite of a masnun.
5. Mubah (permissible): where leaving and performing it are equal.
The wajib (mandatory) is divided into two categories:
(i) Fard 'ayn (individual obligation), the performance of this is sought from
every wz^tf/Za/Xresponsible), baligh (mature) ‘aqil (sane) individual. The major
ity of the wajib Shari'ah rulings fall under this category.
(ii) Fard kifayah (collective obligation), the performance of which is sought
from the mukallifin collectively, but not from every individual specifically. Ex
amples being: the learning of beneficial knowledge and professions, the adhan,
the commanding of good and forbidding of evil; and other similar matters.
These five rulings differ widely in accordance with the matter’s state, its levels
and its effects. Thus, whatever consists purely or predominantly of maslaha
(benefit), then the Lawgiver has commanded its performance through an ob
ligation or a recommendation. Whatever consists purely or predominantly of
mafsadah (harm), then the Lawgiver has prohibited its performance through
complete prohibition or making it disliked.
Thus this as/ (fundamental principle) encompasses all the commands and pro
hibitions [in the Shari’ah].
As for the mubahat (permissible acts) which the Shari’ (lawgiver) has per
mitted: at times they lead to good, and so they are attached to these matters
which have been commanded. Likewise on other occasions they may lead to
that which is evil, and so they become attached to those matters which are
prohibited.
Thus arises a great as/, “Anna al-wasa'ila lahd ahkam al-maqasid." (The ruling of
the means is that of its aim.) From this we learn that:
“Ma layatimmu al-wajib ilia bihi, fahuwa wajib." (Whatever the fulfilment of
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A Commentary’ on Zad al-Mustaqni
a wajib act depends upon is itself an obligation.)
“Ma layatimmu al-masnun ilia bihifiahuwa masnun!' (Whatever the fulfilment
of a masnun act depends upon is itself recommended.)
“Ma layatimmu al-masnun ilia bihi,fahuwa masnun." (Whatever the fulfilment
of a masnun act depends upon is itself recommended.)
“Ma yatawaqqafu al-haramu ‘alayhi, fa huwa haram" (Whatever haram de
pends upon is itself prohibited.)
“Wasailu al-makruh, makruhatun." (That which leads to the makruh is itself
disliked.)
Section
The adillah (evidences) that fiqh is derived from are four:
The Book and the Sunnah, and these two are the foundation upon which
the mukallafun (the morally responsible) are addressed, and upon which their
religion is built. Then ijma (consensus) and al-qiyds al-sahih (sound analogy),
these two are inferred from the Kitab and the Sunnah.
Thus fiqh—from its beginning to its end—does not leave the dependence
upon these four usitl (fundamentals). The majority of the impo rtant ahkam are
brought forth by these four adillah (evidences). They are indicated to by the
nusus from the Kitab and the Sunnah, the scholars have ijma upon them, and
they are indicated to by qiyas al-sahih (sound and correct analogy) because of
their beneficial attributes, if it is a command, or their harmful attributes, if it
is something forbidden.
Only a small number of the ahkam have been differed over by the scholars.
The closest of them to the correct view are those who correctly refer back to
the four usitl.
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Section
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Appendix: Principles of Fiqh
As for the Kitab: It is the Qur’an al-AzIm, the Kalam (Speech) of the Lord
of the worlds. It was sent down by the Ruh al-Amln upon the heart of Mu
hammad, the Messenger of Allah This was to facilitate him in being the
warner to the whole of mankind—in the clear Arabic language—regarding all
the necessary matters that entail benefit to them in their religious affairs and
worldly affairs. [The Qur’an] is that which is recited by the tongues, written in
the mus-hafs, and preserved in the chests. It is that which: {Falsehood cannot
approach it from before it or from behind it; [it is] a revelation from a [Lord
who is] Wise and Praiseworthy.}729
As for the Sunnah: It is the Prophet’s % sayings, actions, and his approval of
the sayings and actions of others.
The Shariah rulings are sometimes taken from a text found in the Book and
the Sunnah. It is a text possessing a clear meaning, without any other meaning
besides this. Sometimes it is based upon the zahir (apparent) meaning [of the
text]. It indicates towards the ruling, in a general manner, both through word
ing and meaning. Sometimes it is based upon the mantuq (literal meaning). It
indicates towards the ruling through its wording. Sometimes it is based upon
the mafhum (implied meaning). It indicates towards the ruling due to being in
agreement with the text—where the mafhum is equal to or stronger than the
mantuq. Or by a conflicting meaning if the mafhum differs from the mantuq in
its ruling. This is because the mantuq (literal meaning) is linked to an attribute
or condition, and the absence of these causes the ruling to change.
The dalalah (indications) in the Kitab and the Sunnah are of three types:
(i) Dalalah mutabaqah. This is where we apply the wording to indicate all of
its meanings, (ii) Dalalah tadammun: Where we apply the wording in order to
indicate one of its meaning, [iii] Dalalah iltizam: Where we apply the wording
of the Kitab and the Sunnah to indicate the meaning which follows as a con
sequence of it, which completes it, and what the issue being judged or spoken
about cannot be finalised except by it.
Section
729 Fussilat: 42
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A Commentary on Zad al-Musiaqni
The asl relating to commands in the Kitab and the Sunnah is that they indicate
towards obligation, except if there is evidence indicating that it is recommend
ed or mubah. The asl relating to prohibitions [in the Kitab and the Sunnah] is
that they indicate towards forbiddance, except if there is an evidence indicat
ing that it is makruh. The asl relating to kaldm (speech) is that it is to be taken
upon its haqiqah (literal meaning). So it is not to be altered and taken upon the
majaz (metaphorical)—if we accept this—except when the use of the haqiqah
is not possible.
Al-Haqaiq (literal meanings) are of three types: (i) Shar’iyyah (defined by the
Shariah), [ii] Lughawiyyah (defined by language) and [iii] ‘Ur fly yah (defined
by custom).
So whatever ruling the Shari has designated, it is obligatory to return it to the
definition legislated by the Shariah. However in matters where the Shan has
ruled but not defined and sufficed with its apparent linguistic meaning, then
it is obligatory to return it to its linguistic meaning. And that which is not
defined—neither in the Shariah,nor in the language—then it is obligatory to
refer it back to the habits of the people, and their customary usage (‘urfi. The
Shari' may declare the return of these matters to the ‘urf Examples of this are
matters such as commanding the good, living well with one’s wife, and other
similar matters.
So memorise these usul as the faqih stands in need of them in all of his inter
actions with fiqh.
Section
From the texts of the Kitab and the Sunnah are those which are ‘dm (general),
which is defined as that word which is inclusive of many categories, types or
individuals. The majority of the texts are of this nature.
From the texts are the khas (specific), which indicate towards only some cat
egories, types and individuals. When there is no conflict between the ‘am and
the khas texts, then each of them are acted upon [independently]. However,
if it is deemed that a conflict has arisen, then the ‘dm is specified by the khas.
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From them are those which are mutlaq (absolute) and muqayyad (restricted).
It is restricted by a description or a reliable restriction. Thus, the mutlaq is re
stricted by the muqayyad.
And from the texts are the mujmal (obscure) and mubayyan (explicit). What
ever the Shari’ has made obscure in one place, yet made it comprehensive in
another, then it is obligatory to return to what the Shari’ made mubayyan (ex
plicit). Many of the rulings in the Qur’an are mujmal in nature, but have been
comprehensively explained in the Sunnah. So it is obligatory to return to the
bayan (explicit clarification) of the Messenger of Allah M as he is the clear
explainer from Allah.
Similar to this are the texts that are muhkam (singular in meaning) and those
that are mutashabih (open to more than one meaning). It is wajib to under
stand the mutashabih in the light of those texts that are muhkam.
Amongst the texts are the nasikh (abrogating) and the mansukh (abrogated)
The abrogated texts in the Qur’an and the Sunnah are few in number. When
ever it is possible to harmonise two texts, with the possibility of each one being
acted upon in its own circumstance, then it is wajib to do so. One may not turn
to abrogation, except with a text from the Shari’, or an apparent contradiction
between two authentic texts concerning which there is no possible way to
resolve this contradiction such that each text is acted upon in its own circum
stance. In this case, the later text abrogates the earlier one. However, if it is im
possible to determine which is the earlier text and which is the later, we then
turn to other means of tarjih (deciding which text is preferential). For example,
if it appears that there is a contradiction between the Prophet’s M statement
and his action, then precedence is given to his saying. This is because his state
ment represents either a command or a prohibition to his Ummah, whereas
his action is, in this case, interpreted to be something particular to him alone.
So the khasais (particular and unique rulings) pertaining to the Prophet $$ are
actually based upon this asl. Likewise, anything he M performed from worship
in which he did not give a command—according to the correct view—it is
considered to be mustahabb. Anything he $£ performed as a habit is considered
to be mubah. Whatever he M permitted from speech and actions is given the
ruling as mubah or other than it, depending upon the specific manner in which
it was permitted.
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/) Commentary on Zad al-Mustaqni
Section
As for ijma: it is the agreement of the mujtahid scholars upon the ruling of
a new matter. Whenever we have certainty regarding their ijma, it is wajib
to turn to it, and it is not lawful to oppose it. It is required for the ijma to be
grounded in the evidences from the Kitab and the Sunnah.
As for qiyas al-sahih: it is an annex, joining a subsidiary branch with its root,
due to a common "illah (reason) between them. Thus whenever the Shari’dic
tates a matter or describes it with a particular characteristic, or the scholars
interpret that the ruling has been legislated because of that particular char
acteristic—if that characteristic is found to exist in another issue which the
Shari’ has not legislated any particular ruling for, without their being a differ
ence between it and the nusits (texts)—then it is wajib to link the two in their
ruling. This is because al-Shari’ al-Haklm (the Most Wise Lawgiver) does
not differentiate between matters equivalent in their characteristics, just as He
does not join between opposing matters.
This sound qiyas is the Mlzan (the Balance) which Allah sent down. And it is
inclusive of justice, and it is that by which justice is recognised. Qiyas is only
resorted to when there exists no text. So this asl is turned to when there exists
no other source. And qiyas corroborates with the text. Thus, all that the Shari
has ruled regarding in the texts is in agreement with qiyas and not in opposi
tion to it.
Section
The usuliyun (scholars of usul) have derived many usul from the Kitab and the
Sunnah, upon which they have built many rulings; by which they have bene
fited themselves and benefited others. Amongst these usul are:
“Al-yaqin la yazulu bish-shakk." (Certainty is not invalidated by doubt.) Un
der this principle there have entered many acts of worship, muamaldt (social
interactions) and huquq (rights). The one who suffers a doubt in any of these,
he should return to the asl of certainty. They also say, uAl-aslu at-taharahtu fi
kulli shay.” (The basis concerning all things is that they are pure.) And, “al-aslu
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Appendix: Principles of Fiqh
al-ibahahtu ilia ma dalla ad-dalilu 'ala najasatihi aw tahrimihi." (The asl is per
missibility except when there exists evidence indicating its impurity or pro
hibition.) And, “Al-aslu baraatu adh-dhamami min al-wajibat, wa min huqiiq
al-khalqi hatta yaquma ad-dalilu 'ala khilafi dhalika(The asl is freedom from
accountability concerning obligation and from rights towards the creation, un
til a proof is established to the contrary) And, "Al-asl baqa'u ma ishtaghalat bihi
adh-dhamamu min huquqillahi wa huquq 'ibadihi hata yatayaqqana al-bara’ata
wal-ada'a." (The asl is the continuation of accountability concerning the ob
ligations to Allah, and to His servants, until there is certain proof of freedom
and discharge.)
And from them is that, “Al-mashaqqata tailubu al-taysir." (Difficulty brings
about ease.) Based upon this are all the rukhas (concessions) allowed during
a journey, and takhfif (lightening) of acts of worship, mu'dmaldt and other
matters.
And from them is the saying: "La wajib ma' al-’ajzi, wa la muharram ma'ad-
darurah" (There is no obligation with inability, nor is there any prohibition
with necessity.)
The Shari’ has not made wajib upon us what we are incapable of doing in to
tality. Whatever the Shari' has made obligatory but the servant is incapable of
performing, that obligation is discharged. However if the servant is capable of
performing a part of it, then it is required for him to fulfil what he is capable
of, whilst the part he is incapable of is dropped. There are many examples of
this. Likewise, whatever the creation are in need of, then it has not been made
haram to them. As for the khabaith (evil matters), which have been made
haram, then if the servant is forced into it, then there is no sin upon him. This
is because darurah (necessity) allows those matters which are fixed with prohi
bition. And darurah is measured by its need in order to lessen the evil. Darurah
permits the use of what is normally forbidden from food, drinks, clothing etc.
And from them, "Al-umuru bi maqasidiha." (Matters are judged by their pur
poses.) ‘Ibadat and mu'dmaldt fall under this principle. Likewise, the prohibi
tion of employing forbidden hiyal (stratagem) is derived from this asl. Direct
ing those words which are kinayat (vague) to be sarih (clear and equivocal) is
based upon this asl. Its types are numerous.
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