al-Sadr Principles of Islamic Jurisprudence [translated]

According to Shi'i Law
1. Auflage 2015
ISBN: 978-1-4835-5553-9
Verlag: BookBaby
Format: EPUB
Kopierschutz: Adobe DRM (»Systemvoraussetzungen)

E-Book, Englisch, 144 Seiten

Principles of Islamic Jurisprudence is one of the best-known textbooks written by the late Ayatullah Sayyid Muhammad Baqir al-Sadr (1934-1980). The current volume, the first in a three-volume series, is written in plain language to introduce beginners to the science of the principles of Islamic jurisprudence (usul).

Autoren/Hrsg.

al-Sadr, Muhammad Baqir

Leseproben

Foreword

‘Ilm al-u?ul (the science of the principles of jurisprudence) developed in the bosom of ‘ilm al-fiqh (the science of jurisprudence) just as the latter developed in the bosom of ‘ilm al-hadith (the science of traditions), in accordance with the stages traversed by the science of the Shari‘a.1 By the science of the Shari‘a we mean the science that endeavours to gain knowledge of the laws brought by Islam from Allah the Most High. This science began in the earliest part of Islamic history with the efforts of a large number of narrators to preserve and collect the traditions relevant to the laws of the Shari‘a. Thus in the first stage the science of the Shari‘a was at the level of ‘ilm al-?adith. The basic task consisted almost entirely of collecting the traditions and preserving their texts. Determining a method of understanding the laws embodied in those texts and traditions was not particularly important at that stage, for it did not go beyond the simple method used by people to understand one another’s words in everyday conversation.

Gradually the method of understanding the laws of Shari‘a from the texts became more and more complex, until the derivation of laws from their sources became a precise and delicate matter, demanding profound and expert knowledge. Continually increasing efforts were made to acquire the precision required by the understanding of the laws of the Shari‘a and their derivation from the sources. Thus the seeds of scientific legal thought developed and the science of jurisprudence was born. The science of the Shari‘a thus ascended from the level of the science of tradition to that of deduction and precise scholarly reasoning.

In the course of the growth and development of jurisprudence, marked by a growing interest on the part of the scholars in the process of deduction, the common elements in that process of deduction began to manifest themselves. The practitioners of jurisprudence began to perceive the existence of common elements in the process of deduction without which that process could not take place. This signalled the birth of u?ul and the acquisition by the legal mind of a methodological orientation.

Thus we can say that the science of the principles of u?ul came into existence in the bosom of jurisprudence. Those engaged in the practice of jurisprudence were already using the common elements involved in the process of deduction without being fully aware of their nature, definition and importance in the process. Once methodological thought took hold, they became conscious of those elements and began to study their nature.

The seeds of that mode of thought were undoubtedly present among the jurists who were the companions of the Imams from the time of Imams Mu?ammad Baqir and Ja‘far ?adiq (AS) onwards. Historical evidence to that effect is provided by the questions related in the books of hadith concerning some of the common elements in the process of deduction, questions posed by a number of narrators to Imam ?adiq and other Imams and answered by them. Those questions reveal the existence of the seeds of u?uli thinking among them and of a tendency to establish general laws and delineate common elements. This view is strengthened by the fact that some of the companions of the Imams wrote treatises on some of the problems of u?ul. Thus Hisham b. al-?akam wrote a treatise on terms (al-alfa?).

However, the concept of common elements and of the significance of their role in the process of deduction was not yet sufficiently clear or adequately developed. The elucidation and elaboration of their characteristics took place gradually during the expansion of jurisprudential activity and the development of the processes of deduction. The study of these common elements did not become a separate study, independent of jurisprudence, until long after the birth of the first seeds of methodological thinking. Thus the study of u?ul remained for a long time intermingled with jurisprudence and it was neither studied nor written on as a subject in its own right. At the same time, u?uli thinking was becoming continuously richer and its role increasingly clear until it reached a level at which it could become independent of jurisprudence.

Until then, u?ul had continued to waver between jurisprudence and ‘ilm u?ul al-din (the science of the creedal principles of religion). Thus sometimes discussions on u?ul al-fiqh were mingled with discussions on u?ul al-din and kalam (scholastic theology). Sayyid Murta?a indicates this in al-Dhari‘ah, his book on u?ul al-figh: ‘I am aware of one who devoted a book to u?ul al-fiqh. Although his detailed presentation of the meaning of that science, its principles and bases was highly accurate, he strayed way beyong the bounds of u?ul al-fiqh and its methods. Thus he discussed the definitions of knowledge and speculation; how the latter may lead to the former; how effect necessarily follows from cause, as well as other matters, which belong entirely and exclusively to the domain of u?ul ad-din, not to that of u?ul al-fiqh.’

Similarly, we find that the independence of u?ul as the science of the common elements in the process of deduction to derive the laws of the Shari‘a, its separation from all other religious sciences including jurisprudence and kalam, came about only when the concept of the common elements and the necessity of formulating a general system for them had fully become clear. This was the factor which helped to distinguish studies in u?ul from studies in jurisprudence and kalam, leading to the foundation of a separate science called ‘ilm al-u?ul.

In spite of the fact that u?ul was able to gain complete independence from kalam, there remained in it some conceptual residue, the history of which goes back to the time when the two sciences were interminged. This residue continued to be a source of confusion. Part of it was the concept that the narrations termed akhbar a?ad (suppositional narrations of unknown veracity) cannot be used as proofs in u?ul, for every proof used in u?ul has to be definite and decisive. The source of this concept is kalam, because the scholars of this science had ruled that the u?ul al-din (the creedal principles of Islam) require definite and decisive proofs; we cannot establish the Attributes of Allah or the Hereafter on the basis of akhbar ahad. The mingling of u?ul ad-din with u?ul al-fiqh and the fact that the names of both sciences contain the word u?ul led to a generalization of this concept and its application to u?ul al-fiqh. Thus we see that the books on u?ul al-fiqh down to the time of Mu?aqqiq ?illi in the seventh century AH continued to object to the use of akhbar a?ad as a proof of the common elements in the process of deduction; they regarded it as a deviation from the above concept.

The book al-Dhari‘a, when discussing the intermingling of u?ul al-fiqh with u?ul al-din, offers some fairly precise and well-defined observations about the common elements involved in the process of deduction. The author writes: ‘Know that the discussions of u?ul al-fiqh are in reality discussions about the proofs to be used in jurisprudence … In view of what we have described, it is not necessary that the proofs and the methods of arriving at the laws and the branches of jurisprudence found in the books of the jurists be themselves in the nature of u?ul, because the discussions on u?ul al-fiqh relate to the evidentiary nature of the proofs by which these u?ul establish laws, in general, not detailed fashion. The proofs of the jurists relate to the same pattern. Discussions of a general type are different from those that are detailed in nature.’

This quotation taken from one of the earliest sources on u?ul in the Shi’ah heritage clearly includes the concept of the common elements in the process of deduction, calling them ‘the proofs of fiqh (adillat al-fiqh) in general’. It makes a distinction between the subject-matter of u?ul and that of jurisprudence on the basis of the distinction between the proofs of a general nature and those of a detailed nature, i.e. between the common elements and the specific elements, to use our terminology. This means that the concept of common elements had developed to a considerable degree by that time. It is found later in the writings of Shaykh ?usi, Ibn Zuhrah, Mu?aqqiq Hilli and others. They all knew u?ul to be ‘the science of the proofs of fiqh in general’, and attempted to express this by means of the concept of common elements.

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