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Nyazee on the Secrets of Us.ūl al-Fiqh
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is the précis prepared from Imām Muh.ammad al-Shaybānī’s al-Mabsūt. and the two Jāmi‘s. There is no method more powerful than this for the teaching of fiqh. It is also the method that dominated the scene for a long time, until the appearance of the literalists.30 Ibn ‘Ābidīn has given a few words of warning when it comes to consulting later books. His text is reproduced below: As you have known the obligation to follow the preferred opinion out of the various opinions…know then that most of the verdicts handed out today by merely referring to the books of the later jurists are not trustworthy, especially the unverified verdicts in books like Sharh. al-Nuqāyah by al-Quhistānī, al-Durr al-Mukhtār, and al-Ashbāh wa alNaz.ā’ir…for they contain in many cases the preference of a rejected opinion and the preference of that which is the opinion of another school, not preferred by anyone in this school. The transmission of an opinion may occur in about 20 books of the later jurists and still the opinion may be incorrect as the first jurist has erred and those coming after him have transmitted the opinion from him.31 Ibn ‘Ābidīn is trying to tell us that a case should first be traced in the earliest books, and then in the later. When a case is found, it needs to be subjected to verification. This verification means determining the underlying rule. Without tracing the rule employed, the faqīh can never be sure how the new case is to be settled. The tracing of the rule is a process that is identical to tracing the rule and ratio decidendi from a series of cases in modern law and separating it from the obiter dicta. This process is the essence of the methodology of takhrīj. The rule once extracted is used to settle the new case. It is also a process that the muftī needs to acquire before he can be called a true muftī. 30. The above passages have been reproduced from the introduction to our translation of the Hidāyah. Burhan al-Dīn Abū Bakr Marghīnānī, al-Hidāyah: The Guidance, trans. Imran Ahsan Nyazee, 4 vols. (Bristol: Amal Press, 2006), vol. 1, xiii-xvii. 31. Ibn ‘Ābidīn, Rasm al-Muftī, 13.
Advanced Legal Studies Institute
©Imran Ahsan Khan Nyazee