Extract from the book The Islamic Personality Vol 1 by Sheikh Taqiuddin an-Nabhani

Ash-Shafi’i is reputed to be the one who derived the principles of deduction (usul al-istinbat) and regulated  them with general comprehensive principles. Thus, he was the originator of the science of usul ul-fiqh (foundations of jurisprudence), even though many people came after him who were more knowledgeable about usul ul-fiqh and its elaborations.  The Fuqaha (jurists) before ash-Shafi’i used to perform ijtihad without having defined any parameters for ijtihad.  They depended on their understanding of the meanings of the Shari’ah, the aims of its ahkam, its objectives,  the gesture of its texts and whatever its objectives (maqasid) indicate. Due to the experience of those Fuqaha (jurists) in the study of the Shari’ah and their skilled familiarity with the Arabic language, they were able to be acquainted with its (shari’ah) meanings, and to comprehend its aims (ghayat) and objectives (maqasid). They succeeded in deriving the rules (ahkam) from the texts, their meanings and their objectives, without having available designed or defined parameters.

The Fuqaha before ash-Shafi’i, from the time of the Sahabah, Tabi’un and those after them, did deal with issues of usul ul-fiqh and deduce and oppose (ahkam). An example of that is the narration about ‘Ali b’ Abi Talib (R.A) that he spoke about the mutlaq (absolute), muqayyad (restricted), khass (specific), ‘aamm (general), abrogator (nasikh) and the abrogated (mansukh). However, this was not done in form of defined parameters.  Those Fuqaha who dealt with certain issues of usul ul-fiqh did not possess general and comprehensive principles to which they referred in order to understand the indications of the Shari’ah in the manner or its conflicting (evidences) and weighing them up.  When ash-Shafi’i came, he derived the science of usul ul-fiqh, and laid down comprehensive principles to which reference is made in understanding and knowing the levels of the Shar’ai evidences. It has become widely known to people that ash-Shafi’i set out the science of usul in his book entitled ar-Risalah, a work which is famous.  The reality is that the book of ar-Risalah contains only a part of the science of usul as outlined by ash-Shafi’i. Anyone who examines the books of ash-Shafi’i will find that ar-Risalah contains only some of the topics in the science of usul ul-fiqh, but it does not contain all of ash-Shafi’i’s discussion on usul.  He has other books which contain discussions on usul, for example the book of the Refutation of Istihsan and the book Jima’a ul-‘ilm. Even the book al-Umm contains, (within its pages) some discussions on the science of usul, where he has mentioned comprehensive principles (qawa’id kulliyyah) amidst the detailed rules (ahkam far’aiyyah).

What helped ash-Shafi’i to lay down the science of usul was that he came at a time when Islamic jurisprudence had started to prosper and grow.   In the Islamic lands, juristical groups of mujtahidin began to take shape and they began to form into mazhabs (schools of thought). The debate between the Mujtahidin and the proponents of mazahib took various perspectives on fiqh and the evidences. So he plunged into debates with those who engaged in these actions, so these discussions were what guided him to think about general and comprehensive principles (qawa’id ‘aammah kulliyyah), as regulatory criterions which should be the basis of study and inference. He brought together these principles as one body of knowledge which was the science of usul ul-fiqh. The impressive thing about the usul of ash-Shafi’i is that he proceeded in the discussion of usul in a  legislative but not logical manner.  One of the greatest dangers for study, more specifically for the Ummah’s revival especially in fiqh and usul, is to take the path of logic. 

Ash-Shafi’i  distanced himself from the course of logic and adhered to the issues of legislation.  He was not interested in theoretical methods or suppositions. He rather regulated real and existing issues, meaning he took the Shar’ai texts and restricted himself to the text and the reality as indicated by the text and witnessed by people. Regarding the issue of abrogation (nasikh wal mansukh), he established the principles of abrogation from the issues that for him, had been proven to contain abrogations.  These were taken from what had been mentioned in the ayah or hadith itself, from the indication (dilalah) of abrogation, or what has been narrated from the Messenger (SAW) regarding ahadith that indicate abrogation, or whatever has been reported from the Sahabah of Rasool Allah (SAW) regarding reports and judgements.  Thus he was unlike many who came after him, for when they saw a conflict between two verses or hadiths, they immediately moved to say that one abrogated the other, to the point they ended up making terrible errors.  When ash-Shafi’i came with a principle he did not bring it from a logical premise (muqaddimah mantiqiyyah), rather he showed you the sources from which he had taken it, either a report from the Prophet (SAW) or from legal verdicts (fatwas) of the Sahabah.  His approach in deriving regulatory principles (qawa’id dhabitah) was a practical one, in which he relied on reality, evidences, and on the application of these two on the facts at hand. 

The most prominent aspect that makes Shafi’i’s usul unique, is that it contains general principles for the deduction (istinbat) of rules,  regardless of any specific methodology.  Therefore, his usul is suitable for any methodology, however different it might be, for it is a measure by which one can know which opinions are correct and which are incorrect. It is a comprehensive law which must be adhered to when deducing new rules, whatever methodology a person might set to himself, in order to judge on opinions and bind himself by the comprehensive law when making istinbat (deduction).  The usul of ash-Shafi’i was not intended to be an usul for his mazhab (school of thought) only, even though he adhered to it.  It was not written to defend his mazhab and clarify its viewpoint, but contained general and comprehensive principles for istinbat (inference). The motive was not a trend towards a particular mazhab, but rather a desire to regulate the procedures of ijtihad and put in place limits and guidelines for the mujtahidin. He was sincere in his intentions and had the correct understanding when devising the science of usul ul-fiqh, thereby influencing, without exception, those mujtahidin and Ulema that came after ash-Shafi’i, whether they opposed or supported his opinions.  Despite their different tendencies, they eventually saw themselves proceeding according to the path of ash-Shafi’i regarding setting out comprehensive principles (qawa’id kulliyyah) and proceeding in fiqh and istinbat (inference) in a regulated manner according to comprehensive laws and general principles. Fiqh (Islamic jurisprudence) after him came to be based on established foundations and not as an assortment of fatwas and individual judgements (aqdiyah) as had been the case before his time.  Even though all ‘Ulema proceed in the footsteps of ash-Shafi’i, in terms of the notion of usul al-fiqh, the way, in which they received what ash-Shafi’i had arrived at, differed according to their different juristic approaches.

There were those who followed his opinions and began to explain and expand on them and disagree with them.  These are like the followers of ash-Shafi’i himself. There were those who took the major part of what ash-Shafi’i had brought despite their disagreement with certain details of usul, but not the actual body of usul. They had no disagreements in terms of the body, framework or structure and course of ash-Shafi’i’s usul, like the Hanafis and those who followed their method.  There were those who disagreed with ash-Shafi’i in this usul, like the Zahiris and Shi’ah.   Those who followed ash-Shafi’i in his opinions were the Hanbalis.  They adopted the usul of ash-Shafi’i even though they said the only (recognised) Ijma’a (consensus) is that of the Sahabah. The Malikis who came after ash-Shafi’i combined their methodology with much of what was in ash-Shafi’i’s usul, though they took the actions (practice) of the people of Madinah as proof and differed with him in certain details. As for those who proceeded according to his method and embraced his opinions, they are the followers of his mazhab, who were very active in the science of usul ul-fiqh and wrote prolifically about the subject. Books were written according to the methodology of ash-Shafi’i in usul al-fiqh which were, and still are, the pillars and support of this science. Of the most important three books that are known to be written by the predecessors: First, the book  al-Mu’tamad of Abu al-Husayn Muhammad b. al-Basri (d.413 A.H.). Second, the book al-Burhan of ‘Abd ul-Malik b.’Abdullah al-Juwayni commonly known as imam al-Haramayn (d. 478 A.H.). And third, the book al-Mustasfa of Abu Hamid al-Ghazali (d. 450 A.H.).  After them came Abu al-Husayn ‘Ali, more commonly known as al-‘Aamidi.  He brought together all three books and expanded on them in his book al-ihkam fi usul al-ahkam.  It is one of the most important works written in usul ul-fiqh.
From those who adopted the major part of what ash-Shafi’i brought and differed in some of the details, they are the Hanafis. That is because their method of istinbat (inference) agreed with the usul of ash-Shafi’i, though the way in which they approached the science of usul was influenced by the furu’ (branches of fiqh). They studied the principles of usul in order to support the furu’ and thus made the furu’ the basis. The general principles were based on them and made to support them.  Perhaps what pushed them towards this approach was that their study of usul was for the purpose of supporting their mazhab and not to produce principles according to which their school should deduce rules.  This is because Abu Hanifah, who had preceded ash-Shafi’i, died in the year in which ash-Shafi’i was born.  His inferences were not according to general and comprehensive principles.  After Abu Hanifah  came his students Abu Yusuf, Muhammad and Zufar. They did not concern themselves with writing about usul ul-fiqh, but it fell to the scholars of the Hanafi mazhab afterwards to pursue the inference of principles which would serve the furu’ of the Hanafi mazhab. The principles came after the furu’ and did not precede them.  Nevertheless, the Hanafi usul, on the whole, has been extracted from the usul of ash-Shafi’I, and what they differed on with the Shafi’is was in terms of the ‘aamm (general) being qat’i (definite) like the khas (specific),  there is no consideration for the understanding of the condition (shart) and description (wasf), and there is no weighing up of evidences (tarjeeh) due to the great number of transmitters, which are detailed issues and not comprehensive principles. That is why it is possible to consider the Hanafi and Shafi’i usuls as one usul for fiqh. Its approach towards the furu’ and disagreements in certain details is not another usul, but they are one usul in its comprehensive (issues), general (issues) and principles.  One will hardly see any difference between a book on Shafi’i usul and a  book on Hanafi usul.  Rather, all of them are a study of the same principles (usul) of ul-fiqh. One of the most important books of usul for the Hanafis is the usul al-Bazdawi compiled by Fakhr ul-Islam ‘Ali b. Muhammad al-Bazdawi (d.483 A.H.)

Those who disagreed with ash-Shafi’i in usul, are the Zahiris and the Shi’ah. They disagreed with ash-Shafi’i’s usul in some of its basic elements and not just in the details.  The Zahiris, rejected Qiyas (analogical deduction) completely and depended solely on the apparent (zahir) meaning of the texts. Even what is termed as the qiyas jali (clear analogy), was not considered by them as part of Qiyas but as text. Their consideration of the text is nothing other than the apparent (zahir) meaning of the text. The imam of this mazhab is Abu Sulayman Dawud b. Khalaf al-Isfahani (d.270 A.H.).  He was from the Shafi’iyyah and learnt fiqh from the students of ash-Shafi’i. Then he left the mazhab of ash-Shafi’i and chose a special mazhab for himself, where he would only rely on the text. It is called the Zahiri mazhab (literalists). Ibn Hazm is one of them. Certain people made him popular and gave a glowing description about him until people became interested in his books even though they were below the level of the books of fiqh and other usuls in terms of the jurisprudential discussion and angle of educing evidences.  The Shi’ah, disagreed with ash-Shafi’i’s usul in a significant way. For they made the sayings of their imams a Shar’ai daleel like the Kitab and Sunnah.  They considered these sayings as a proof following the proof of the Kitab and that of the Sunnah at the very least. They permitted the speech of the imams to specify the Sunnah. They say: ‘The wisdom (hikmah) of legislation demands the exposition of a body of ahkam and requires the concealment of a body of ahkam.  The Prophet (SAW) entrusted (the body of ahkam that is concealed) to his guardians (awsiyaa). Each guardian (wasi) delegates the other to spread it when time is appropriate for him, according to Hikmah (wisdom), in terms of an ‘aamm (general) which is specified (mukhassas), a mutlaq (absolute) which is restricted (muqayyad) or a mujmal (ambivalent) which is clarified (mubayyan). So the Prophet (SAW) may mention something which is ‘aamm (general) and mentions the specific after a while in his life, or he might even not mention it originally, rather leave his guardian (wasi) to do that on his behalf.’  The Imami Shi’ah place their imams in a position close to the Sunnah. Ijtihad for them is restricted to the mazhab. It is not permitted for the mujtahid to contradict the views of the mazhab, meaning it is not permitted for him to make ijtihad with what contradicts the sayings of the imam as-Sadiq. They rejected ahadith except if they came via their imams. They do not take Qiyas. It has been recurrently reported (tawatara) about their imams, as narrated in their books, that when analogy is made to the Shari’ah the deen is destroyed.

This is the situation of the course of Muslim Ulema in the science of usul ul-fiqh after ash-Shafi’i ,in terms of their agreeing or disagreeing with him.  As for the science itself, after ash-Shafi’i it was discussed at great length and had many commentators and writers. It is strange that in the ages that followed the age of ash-Shafi’i, ijtihad diminished and there was a scarcity of mujtahidin, and in the centuries that followed that age, the door of ijtihad became closed.  However, the science of usul ul-fiqh thrived and flourished, the study of its principles increased and its issues became more elaborate.  All of this sprang from a theoretical and not practical perspective. As a result, it was ineffective in creating mujtahidin and in breaking the notion of the closing of the door of ijtihad and bringing it to an end. Perhaps the reason for that is that usul ul-fiqh, during those later periods, took a purely theoretical approach, where theoretical discussion prevailed, and studies were implicated that had no relationship to usul ul-fiqh.
 
The attention of researchers was directed to examining and revising the principles, supporting them with evidences, and selecting the one with the strongest evidence, regardless of whether there was a reality for it or not. Their theoretical assumptions multiplied and they studied the concept of dalalah (textual indication) and grouped it according to the classifications of the scholars of mantiq (logic). They raised discussions which had nothing to do with usul ul-fiqh like husn (pretty) and qubh (ugly), whether they are rational or legal?  Or a discussion such as whether thanking (shukr) of the benefactor (mun’im) is an obligation due to the Shari’a or the mind? They initiated studies that were from the science of Kalam (scholastic theology) and not from usul ul-fiqh.  For example, the infallibility of the Prophets, permissibility of the Prophets to make mistakes or forget issues relating to (conveying) the Message. They made studies relating to the Arabic language and not to usul ul-fiqh. They studied the origin of languages and studied particles (huruf) and nouns (asma’a). In that manner, they made the science of usul ul-fiqh rigid and transformed it from its legislative aspect, which produced mujtahidin and enriched fiqh, into a theoretical and philosophical study in which the scholar became unable to deduce the simplest of rules.  Its usefulness was almost lost and it had no effect on the legislation or deduction of rules (istinbat).  Bearing in mind the science of usul ul-fiqh is indispensable, in relation to the deduction of rules and the growth of the legislative aspect, it is essential to attend to its study based on reality and not on theory.  It is enough to undertake studies that relate to the deduction of rules, accompanied by evidences indicating the rules, and realities which can apply to their meanings so as to produce mujtahidin and generate a legislative wealth to solve the new issues which come up each day, both in the Muslim world and in the rest of the world.