USUL AL-FIQH 2_2021 AL-QIYAS part 2

1. ‫داميت‬ ‫الحاج‬ ‫نورأسمح‬ ‫سيتي‬
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USUL FIQH 2
PRINCIPLES OF
ISLAMIC JURISPRUDENCE

2. ‫داميت‬ ‫الحاج‬ ‫نورأسمح‬ ‫سيتي‬
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3. HUKM
‫الحكم‬
‘ILLAH
‫ة‬ّ‫ل‬‫الع‬
AL-FAR’
‫الفرع‬
AL-ASL
‫األصل‬
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4. MASALIK
AL-
’ILLAH
The method of
discovering the
underlying
cause in the asl
(original case)
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5. ‫داميت‬ ‫الحاج‬ ‫نورأسمح‬ ‫سيتي‬
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Explicit
(Express word)
‫التعليل‬ ‫الم‬ ،‫كي‬ ،‫أجل‬ ‫من‬
‫ن‬ۡ‫غ‬َ ۡ
‫ٱۡل‬ َ‫ن‬ۡ‫ي‬َ‫ب‬ ََۢ‫ة‬َ‫ل‬‫ُو‬‫د‬ َ‫ون‬ُ‫ك‬َ‫ي‬ َ
‫ال‬ ۡ‫ى‬َ‫ك‬
ۚ ۡ‫م‬ُ‫ك‬‫ن‬‫م‬ ‫ء‬ٓ‫ا‬َ‫ي‬ …
…in order that it may not become a
fortune used by the rich among you…
(al-Hashr: 7)
Implicit
It may be indicated
throught pointer (ima) or
other hint
َ‫ف‬ ُ‫ة‬َ‫ق‬‫ار‬َّ‫س‬‫ٱل‬ َ‫و‬ ُ‫ق‬‫ار‬َّ‫س‬‫ٱل‬ َ‫و‬
‫ا‬َ‫م‬ُ‫ه‬َ‫ي‬‫د‬ۡ‫ي‬َ‫أ‬ ْ‫ا‬ ٓ‫و‬ُ‫ع‬َ‫ط‬ۡ‫ٱق‬
And (as for) the male theif and the female thief, cut off
their hands… (al-Maidah:38)
 This shows that the cause of cutting of the hand is
theft (sariqah)
1) Maslak al-Nass (The Text) [Type of method: maslak
nassi ‫]نصي‬

6. 2) Maslak al- Ijma
The underlying cause may be determined
through consensus (ijma).
For example, the illah of guardianship over
wealth is determined by consensus to be
“minority”. From this it was extended to other
cases as well.
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7. 3) Maslak al-Sabr wa al-Taqsim
[Type of method: maslak ‘aqli ‫]عقلي‬
Definition of al-Sabru wa al-Taqsim
Literally
 al-sabr means: Ikhtibar or doing a test.
 al-taqsim literally means: Breaking into parts or
dividing something into some divisions.
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8. ‫داميت‬ ‫الحاج‬ ‫نورأسمح‬ ‫سيتي‬
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Al-Sabru wa al-Taqsim means: A mujtahid rules out some criteria
he found unrelated and unfit to be the illah for a particular ruling.
Then he does an observation, test as well as research to
withdraw some criteria which he feels unfit to remain.

9. Examples of the application of al-Sabru wa al-Taqsim in the process of identifying the illah for a
particular ruling:
Illah for the Prohibition of Intoxicants
The nas (Qura’nic and prophetic evidence) clearly shows that the ruling for intoxicants is haram.
This is in accordance with the saying of Allah SWT in the Quran:
‫ال‬ ‫ل‬َ‫م‬َ‫ع‬ ْ‫ن‬ِّ‫م‬ ٌ‫س‬ْ‫ج‬‫ر‬ ُ‫م‬ َ
‫ال‬ ْ‫ز‬َ ْ
‫اۡل‬ َ‫و‬ ُ‫اب‬َ‫ص‬‫ن‬َ ْ
‫اۡل‬ َ‫و‬ ُ‫ر‬‫ْس‬‫ي‬َ‫م‬ْ‫ال‬ َ‫و‬ ُ‫ر‬ْ‫َم‬‫خ‬ْ‫ال‬ ‫ا‬َ‫م‬َّ‫ن‬‫إ‬ ‫وا‬ُ‫ن‬َ‫م‬‫آ‬ َ‫ين‬‫ذ‬َّ‫ال‬ ‫ا‬َ‫ه‬ُّ‫ي‬َ‫أ‬ ‫ا‬َ‫ي‬
َ‫ف‬ ‫ان‬َ‫ط‬ْ‫ي‬َّ‫ش‬
َ‫ون‬ُ‫ح‬‫ل‬ْ‫ف‬ُ‫ت‬ ْ‫م‬ُ‫ك‬َّ‫ل‬َ‫ع‬َ‫ل‬ ُ‫ه‬‫و‬ُ‫ب‬‫ن‬َ‫ت‬ْ‫اج‬
O you who have believed, indeed, intoxicants, gambling, [sacrificing on] stone alters [to other
than Allah], and divining arrows are but defilement from the work of Satan, so avoid it that you
may be successful
Surah Al-Baqarah (90)
Based on this verse, the ruling for intoxicants is clearly haram (prohibited) because there is an
imperative clause commanding to leave the act.
THE APPLICATION OF AL-SABRU WA AL-TAQSIM
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10. By using the method of al-Sabru wa al-Taqsim, a mujtahid may gather criteria which may
be the reasons for the prohibition.
The examples are as follows:
 Criterion of it is produced from grapes
 Criterion of liquor in which it is flowing
 Criterion of intoxication
 Criterion of liquor which is impure
The process of filtering and dividing these criteria is named as al-Taqsim. Then, a mujtahid
runs an inspection and analyzation as well as ruling out criteria which seem unfit to be the
‘illah and keeping only one reasonable criterion to be identified as ‘illah for the hukm. This
process is named as al-Sabru.
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11. 4) Maslak Tanqih al-Manat
Literally, tanqih means: organization, elimination or
differentiation.
[Type of method: maslak ‘aqli ‫عقلي‬
– nassi ‫]نصي‬
Al-Imam al-Mawardi defines it as the process of ijtihad in
determining the ‘illah in which Syari’ (Allah) link rulings with it.
Hence, suitable criterions are maintained while those which
don’t are eliminated.
***Tanqih Al-Manat: Emendation and refinement of the effective cause (illah) by excluding (ilgha)
some of the attributes or states of the act from being the effective cause (illah) of the command
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12. According to Dr Abdul Karim Zaidan Rahimahullah: Tanqih literally
means: Correcting or differentiating. While Manath means: ‘illah or
legal reason.
According to the technical definition of the usuliyyun, tanqih al-
manath means: Purifying ‘illah from criterions or attributes which
seemingly related to the ‘illah while methodically not
considered/included as one.
Refer: Al-Wajiz fi Usul al-Fiqh.
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13. EXPLAINATIONS
The Prophet PBUH said as narrated by Abu Hurairah RA, where the
Prophet PBUH said:
‫ى‬َ‫ت‬َ‫أ‬
‫ل‬ُ‫ج‬َ‫ر‬
ُ‫ت‬ْ‫ك‬َ‫ل‬َ‫ه‬ َ‫ل‬‫ا‬َ‫ق‬َ‫ف‬ ‫وسلم‬ ‫عليه‬ ‫هللا‬ ‫صلى‬ َّ‫ي‬ِ‫ب‬َّ‫ن‬‫ال‬
‫ي‬ِ‫ل‬ْ‫ه‬َ‫أ‬ ‫ى‬َ‫ل‬َ‫ع‬ ُ‫ت‬ْ‫ع‬َ‫ق‬ َ‫و‬
ِ‫ف‬
‫ي‬
َ‫ان‬َ‫ض‬َ‫م‬ َ‫ر‬
“A man came to the Prophet (‫)ﷺ‬ and said, "I have been ruined for I have
had sexual relation with my wife in Ramadan (while I was fasting)"
Sahih al-Bukhari
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14. ‫داميت‬ ‫الحاج‬ ‫نورأسمح‬ ‫سيتي‬
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http://qaalarasulallah.com/hadithView.php?ID=5223

15. In this hadith, a Bedouin purposely had intercourse with his wife during the day in
Ramadhan. Then, he came and informed this matter to the Prophet PBUH. The
Prophet PBUH asked him to do kaffarah due to this.
This hadith shows us that the ruling (of kaffarah) has its own ‘illah or legal reason.
However, in this hadith, the specific criterion is not stated which indicates the true ‘illah
for the ruling.
The reason is, it has not been arranged and the unrelated criterions are yet to be
eliminated. Then, a mujtahid comes and he is the one who will extract the true ‘illah
among those criterions.
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16. Attributes/criterions in the hadith are as follow:
Had intercourse with his wife. This criterion is not suitable to be the
‘illah. This is because there is no difference in ruling either he had
intercourse with his female slave.
He is a Bedouin. This also does not fit to be counted as the ‘illah as the
ruling is applicable for all whether one is a free man or a slave.
He had intercourse with his wife on the daytime of Ramadhan on a
specific year and day. This also cannot be counted as one as the ‘illah
for a ruling cannot change simply due to changes in days and years.
He had intercourse with his wife on the daytime of Ramadhan on
purpose.
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17. The jurists are divided in determining the ‘illah of the ruling for a particular hadith into two
views:
First: Imam al-Syafi’e and Imam Ahmad as well as ashab (companions) for both imam view
that the ‘illah for this particular ruling is the action of having intercourse on the daytime of
Ramadhan. Hence, according to them, the actions of drinking and eating on the daytime of
Ramadhan do not obligates kaffarah because the ‘illah for kaffarah is only towards
intercourse.
Second: The Hanafi and some Maliki scholars said that ‘illah for the imposition of kaffarah
is due to the action of dishonoring the month of Ramadhan.
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18. Authority of Tanqih al-Manath
Tanqih al-Manath is considered as the strongest masalik al-‘illah (methods to
determine the ‘illah). Imam al-Subki and al-Barmawi then said that tanqih al-
manath is the best masalik al-‘illah.
Refer: al-Mustasfa, al-Ghazali (3/490)
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19. •Tanqih al-Manath is a process to filter ‘illah from unrelated criteria and elements which are
not considered as the ‘illah. At the same time, those criteria are mentioned in the texts
(nass).
•According to some scholars, the process of al-Sabru wa al-Taqsim is specifically meant
for ‘illah which is concluded through istinbat (extraction). While, the process of Tanqih al-
Manath specifically meant for the ‘illah which is stated clearly in the nas (Quranic or
prophetic evidences).
DIFFERENCES BETWEEN
AL-SABRU WA AL-TAQSIM AND TANQIH AL-MANATH
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CONCERN
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