by MY Saleem · Cited by 39 — The paper examines the legal methods of reasoning in Islamic jurisprudence (usul al-fiqh) and discusses their application to group-related issues and economics.
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Methods and Methodologies in Fiqh and Islamic Economics *Muhammad Yusuf Saleem Abstract: This paper discusses the methodology and methods of reasoning in fiqh and critically examines their application to Islamic economics. It argues that fiqh methods are mainly designed to find out whether a certain act is permissible or prohibited for an individual. Islamic economics, on the other hand, is a social science and, accordingly, its proper unit of analysis is society, not the individual. Methodologies of fiqh and Islamic economics also differ as the former focuses on prescriptions. It prescribes what an individual should do or avoid. In contrast, Islamic economics is more concerned with describing economic realities. While fiqh prescriptions are permanent in nature and for all individuals, economic descriptions may change from time to time and from society to society. This paper argues that the methods of reasoning in fiqh and Islamic economics are not necessarily the same. While fiqh is well served by its methodology and methods set out in usul al-fiqh, Islamic economics should rely on a methodology and methods that suit its social and descriptive nature. JEL Classification: B , B , K , P , Z .I. Introduction This paper begins with a discussion on methods and methodologies. It explains how the adoption of different standards for the acceptability of certain evidences can lead to differences in approaches and methodologies. It also discusses that various disciplines have different units of analysis or objects of inquiry, which it contends, call for different methods of , Assistant Professor, Department of Economics, Kulliyyah of Economics and Management Sciences, International Islamic University Malaysia. *An earlier version of this paper was presented at the th International Conference on Islamic Economics at the King Abdul Aziz University, Jeddah, Saudi Arabia, held from – April .© , Review of Islamic Economics , Vol. , No. , , pp. Œ.brought to you by COREView metadata, citation and similar papers at by The International Islamic University Malaysia Repository

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Review of Islamic Economics, Vol. , No. reasoning. The paper examines the legal methods of reasoning in Islamic jurisprudence ( usul al-fiqh ) and discusses their application to group-related issues and economics. It next argues that Islamic economics should rely on a methodology and methods of reasoning that would best suit its social and descriptive nature. II. Methodological Discourse Reason alone is not an independent source of knowledge. One of its great weaknesses is its subjectivity Œ different individuals can come to a different understanding of the natural and social phenomena they observe. To avoid this there is a need for rules and standards to evaluate the arrangement of thoughts and propositions. Reason also needs to rely on certain tolls for the investigation of the truth. These tolls differ from each other and their use depends on whether the type of study calls for an examination of natural or social phenomena. A method is defined as a systematic arrangement and ordering of thoughts. It refers to a mode, procedure or way of investigation according to a defined and regular plan. A method teaches us how to arrange thoughts, propositions and arguments in a way appropriate to the investigation or exposition of a certain proposition or observation. Method includes structured reasoning such as induction or deduction where thoughts progress in an orderly way from one stage to another until they reach a certain objective and convincing conclusion. Method also refers to research techniques and tools used to gather data such as observation, case studies, or surveys. A methodology, on the other hand, is a science that deals with methods and their application in a particular field. It is concerned with the suitability of the methods and techniques of reasoning employed in a certain investigation. Methodology determines the sources from which a particular knowledge can be derived and the approach taken by a researcher to achieve understanding of certain phenomena. It also sets standards for the acceptability of evidence and determines the role of reason in the investigation. By providing standards for the acceptability of evidence and a set of methods for a systematic ordering of thoughts, methodology liberates reason from subjectivity and personal inclinations. This results to some extent in objectivity and predictability. Scholars and researchers in a particular field who use the same set of methods and methodology are better able to understand and evaluate work in that field. Researchers™ choice of methods and methodology is influenced by the basic unit of analysis in their discipline. By ‚unit of analysis™ is meant the object of the particular research Œ natural phenomena, legal rules, markets,

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Review of Islamic Economics, Vol. , No. behaviours of an individual or a group. The kind of units of analysis in a field influences the choice of methods for the investigation of the truth in that discipline. Natural phenomena, for example, comprise entities that have no volition of their own; i.e. they do not choose how they behave; rather, how they behave is governed so-called ‚natural laws™. For such phenomena, the appropriate methods are those that can discover such laws Œ they include observation, experimentation, induction, deduction and other scientific methods which are mostly aimed at producing descriptive analyses. By contrast, humans have volition; they can make choices. Nevertheless, they are also subject to rules and regulations or laws, which are either man- made or of divine origin. While man-made law is derived from customs and conventions or made by a legislature, Islamic law has its own unique sources based on revelation. The role of human reason is to extend the normative statements given in the Qur™ an and the Sunnah to new cases through the exercise of ijtih ad. The methodology adopted for this purpose is different from the methodology used in the natural sciences. In the methodology of fiqh the role of reason is to extend the law divinely prescribed for humans to new cases, while in scientific methodology the role of reason is to discover the laws in nature through observation and experiment. Human nature and behaviour are different from the phenomena studied by the natural sciences. The latter are consistently subject to ‚natural laws™ and predictably uniform; by contrast, human nature can be changed by education, family upbringing, economic and social factors, or controlled by self restraint. A human group or collectivity is not subject to the kind of laws that govern natural phenomena. The many individual members of the group have diversified choices and preferences. This results in numerous variables, which militates against consistency or uniformity. Similarly, a group should not be treated like an individual. An individual is held responsible for his actions and omissions. He is therefore the only proper subject for the enforcement of the law. For instance, an individual could be prosecuted for offences, or sued for civil liabilities. In contrast, human groups and societies cannot be prosecuted as a group in a court of law, imprisoned, punished, or declared bankrupt collectively. The commands and prohibitions addressed to an individual are meant to be permanent. In contrast, group related decisions are not about command and prohibitions. They are temporary decisions, which may differ from a society to a society, from a situation to a situation, and from time to time. A human group or collectivity is the proper subject of research for the social sciences.

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Review of Islamic Economics, Vol. , No. The collective behaviours of human groups are the proper subject of research for the social sciences, not the natural sciences. Different criteria of proof also have an impact on methodologies and influence the choice of methods. The main difference between Islamic and secular methodologies lies in source of knowledge, and the former™s acceptance of revelation as supreme proof, while the latter denies any role for revelation in discovering or explaining the truth and recognises only empirical methods. III. Fiqh as a Legal System Literally, the word fiqh means to understand and have knowledge of something. As a technical term it refers to knowledge of the practical legal rules as derived from their particular sources (Mahmasani, : ). During the time of the Prophet ( pbuh ), fiqh was not used in the latter sense alone but carried a wider meaning covering the whole of religion. For instance the Qur™an states: fiThat they may gain understanding ( liyatafaqqah u) of the religionfl ( : ). The Prophet is also reported to have blessed Ibn [Abbas saying: fiO God give him understanding ( faqqihhu) in religionfl (Al-Bukh ari : vol. .) Both, the Qur™ anic verse and the Hadith, mean a deeper understanding of the religion and not only knowledge of the legal rules. However, later the science of fiqh got a more specialized meaning, which became synonymous with law and legal matters. Thus, fiqh as understood today includes various branches of legal rules on transactions, family matters, criminal offences, as well as matters related to worship ( [ibadat). The Qur™ an and the Sunnah provide normative statements on what an individual Muslim ought to do or avoid, which constitute the basic units of analysis in the discipline of fiqh. The early jurists focused especially on those rulings of the Qur™ an and Sunnah that concerned the actions, rights, and obligations of an individual Muslim. The verses of the Qur™ an that contained these rulings were termed as ayat al-a hkam. A Shar i[ah ruling ( hukm Shar [i) was defined as a communication from the Lawgiver concerning the conduct of the mukallaf (Kamali, : ). A mukallaf refers to an individual able to understand and carry an obligation. Based on this the acts of a Muslim individual would fall within the five categories of obligatory ( wajib), recommended ( mand ub), permissible ( mub ah ), abominable ( makr uh) and prohibited ( haram). The sunnah of the Prophet is defined to include his sayings, acts, and tacit approval where the emphasis was more on legal sunnah (sunnah tashr i[iyyah ). It is largely these individual rights, obligations, and actions that have characterised the discourse of fiqh .

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Review of Islamic Economics, Vol. , No. IV. The Methodology of Islamic Jurisprudence (Usul al-Fiqh )With the spread and expansion of Islam to new territories unprecedented issues arose that demanded answers. In order to avoid legal chaos these answers had to be provided with reference to the Qur™ an, Sunnah , the practice of the Companions and reasoned opinion ( ra™y ). In the words of Iqbal ( 🙂 fisystematic legal thought became an absolute necessityfl. Differences however emerged. These differences were initially geographical where ‚the people of traditions™ ( ahl al- hadith) were mostly associated with Madina, while the ‚people of reasoned opinion™ ( ahl al-ra™y ) were mostly associated with Kufah. Later, however they found as their chief representatives Imam Malik in Medina and Imam Abu Hanihah in Kufah. These early disagreements between the people of traditions ( ahl al- hadith) and the people of reason ( ahl al-ra™y ) and the subsequent emergence of various fiqh schools could be attributed to their differences of methodologies. This could be seen in the different standards that they adopted for the acceptability of hadith and in particular solitary ( ahad) hadith. The Hanafis, for instance, gave preference to analogy over a solitary hadith. They also differed on the extent to which reason could be allowed to play a role in determining matters of Shar i[ah as far as legal ( fiqh) issues were concerned. These subsequently influenced their choice of methods. While all schools agreed on analogy (qiy as) they differed over other methods. Imam Sh afi[i who initially tried to bridge the gap between the two methodologies could not condone the Hanafis excessive use of reason and in particular their juristic preference (isti hsan) as it permitted unlimited use of reasoning. His methodology is therefore closely identified with those of the people of traditions ( ahl al-hadith). However, the methodologies adopted by all the fiqh schools have a common characteristic Œ they all make reason subservient to revelation. The difference however, was in the degree. The methodology that evolved through the efforts of Muslim jurists is called usul al-fiqh. It is concerned with the sources of the Shar i[ah, the rules of interpretation of the source texts and the methods of reasoning. It represents a joint venture between revelation and reason where the latter is always subservient to the former. The role of human reason is to extend the normative statements of the Qur™ an and the Sunnah to new legal issues or to provide answers to new legal problems through certain well- developed methods of reasoning. These methods include analogy ( qiy as), consensus ( ijm a[), juristic preference (isti hsan), general public interest (maslaha al-mursalah ), blocking the means (sadd al-dhar ai[), presumption

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Review of Islamic Economics, Vol. , No. of continuity (isti shab) and customs ( [urf ). The exercise of ijtih ad through these various methods of reasoning produced immense wealth of legal rules. However, the bulk of these rulings were concerned with the conduct of the individual mukallaf . Consequently, the methods of reasoning used in usul al-fiqh are also more individually oriented. Ijma [, for instance, is defined as consensus of Muslim jurists upon a matter of Islamic law ( hukm shar [i) (Zuhaili : ). All non-legal matters such as matters related to war, or matters concerning the management of peoples™ affairs ( tadbir um ur al-ra [iyyah ) are excluded from the scope of ijm a[. (Zuhaili : ) All analogical deduction ( qiy as) is defined as the extension of a Shar i[ah ruling from an original situation (asl) to a new situation where the latter has the same effective cause ( [illah ) as the former. The hukm that is extended to the new case must be with regard to practical matters. It must be a legal rule that pertain to acts, rights, and obligations of an individual. A certain rule that does not fall within the ambit of fiqh cannot be extended to new issues through qiy as. Isti hsan as a method of reasoning relies on qiy as which was initially introduced by the Hanafi School and later adopted by the other Schools of fiqh. Isti hsan was applied to cases where a decision based on qiy as would produce hardship to the people. As a result a Muslim jurist will set aside qiy as and give preference to another evidence that may remove hardships. Ma slahah literally means benefit. Technically, maslahah mursalah refers to a consideration which is proper and harmonious with the objectives of the Shar i[ah; it secures a benefit or prevents a harm; and the Shar i[ah provides no indication as to its validity or otherwise. Sadd al-dhar ai[ is defined as blocking the means to an expected evil which is likely to materialize if it is not obstructed (Kamali, : ). Based on this method the means even if permissible itself would be declared prohibited if it leads to an evil or prohibited act or outcome. V. U sul al-Fiqh and Group-Related Issues Usul al-fiqh as a methodology aims to arrive at normative statements that conform to the principles of Qur™ an and Sunnah . These normative rulings are made by jurists through the process of ijtih ad and bind each and every member of the society. A widely used method of reasoning is analogy ( qiy as) which is almost universally accepted by all fiqh schools. Qiy as or deductive reasoning is reasoning from the principle. It extends a certain rule of the Qur™an and the Sunnah to a new case where the latter has the same effective cause ( [illah ). While referring to qiy as, Iqbal observes: fiThe School of Abu

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Review of Islamic Economics, Vol. , No. to decide whether zakah funds should go to some recipient groups such as the poor and the needy to the exclusion of others. Thus, the distribution aspect of zakah is not governed by fiqh rules and is entirely left to the Muslim authorities to decide as this concerns issues related to groups. Similarly, the issue of how zakah affects the distribution of wealth across classes and groups could not be addressed by the methods of reasoning in usul al-fiqh . In contrast, the basic principles concerning the amount of nisab, the duration of hawl , the rate of zakah are laid down by fiqh as zakah is an obligation on an individual. Fiqh methods of reasoning such as qiy as are used to extend the rule of zakah to rented houses and salaries. These are issues that cannot be decided by resort to interviews and questionnaires or left to authorities for their decision. Besides analogy ( qiy as) another method of usul al-fiqh that may not suitably be applied to group issues is consensus of juristic opinion ( ijm a[). Ijm a[ according to the majority opinion represents a juristic consensus on a legal ( fiqhi) issue. An ijm a[ is also binding on subsequent generations. Instead consultation ( shura) could be the right method for matters that affect groups and collectivities. It represents the deliberation and decisions of experts in a certain field other than the law ( fiqh). These decisions may not be followed in subsequent similar situations. In shura the overriding principle is the consideration of public interest which may change from time to time. In contrast maslahah also called isti slah is more suitable as a method to introduce policies for the general public rather than a law for the individual. Indeed, the examples of maslahah given in fiqh books are not purely legal but are related to governmental decisions, policies and administrative issues. These include issuing currencies, establishing prisons, waging war on those tribes who refused to pay zakah, and imposing zakah on the wealthy when public treasury runs out of funds. These are measure aimed to secure a certain public benefit ( maslahah). Similarly, sadd al-dhar ai[ has a great potential to be used to block the means to a certain public harm (mafsadah ) or to open the means to a certain public beneficence ( maslahah). For instance, when Hudhayfah one of Caliph [Umar™s officials in Madain married a Jewish woman the Caliph ordered him to divorce his wife. In reply to Hudhayfah who wrote to the Caliph arguing for the validity of the marriage the Caliph wrote that his example might be followed by others attracted by the beauty of the women of ahl al-dhimmah (Kamali, : ). It must be noted, however, that the jurists from both the Hanafi and Shafi[i

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Review of Islamic Economics, Vol. , No. schools had reservations about the suitability of maslahah al-mursalah and sadd al-dhar ai[ as independent proofs in usul al-fiqh . The opponents of maslahah argued that the use of maslahah would result in the application of haram and halal in some places or to some persons and not to others. Al-Sh afi[i approves of maslahah only within the general scope of qiy as while Ab u Hanifah recognises it as a variety of isti hsan. (Kamali, : ). The Hanafi and Shafi[i jurists also did not recognise sadd al-dhar ai[ as a principle of jurisprudence in its own right. They argue that the necessary ruling regarding the means can be derived by recourse to other principles such as qiy as and isti hsan (Kamali, : ).The methods of reasoning in usul al-fiqh could be defined as reasoning from the principles prescribed in the source texts, i.e. the Qur™ an and the Sunnah . These methods enable a jurist to arrive at a normative statement and extend it to new cases. The methods of reasoning in economics could be described as reasoning from experience and observation. These methods of reasoning produce descriptive hypotheses or assumptions that suggest a certain relationship between economic variables or discover a certain economic reality. For instance, the methods of reasoning in fiqh are not meant to discover or explain the effects of prices on behaviours, the law of supply and demand or to tell us how markets behave in a certain given situation. These methods of reasoning can explain what should be supplied and what should be demanded or what an individual should do or refrain from. In contrast methods of reasoning in economics are not designed to decide on the permissibility or prohibition of acts or things. For instance, it is not possible to decide whether or not tawarruq or bay [ al-[inah are permissible through observation, market research, case studies, questionnaires, interviews, or surveys. These are purely legal issues and should be decided with reference to legal methods of reasoning of analogy (qiy as) or blocking the means ( sad al-dhar ai[).VI. Economics as a Descriptive and Social Science Economic theories and principles are descriptive hypotheses and assumptions that explain economic realities. A descriptive statement or a statement of a fact is a statement of what is. It is a statement that describes a specific reality or a certain relationship between variables. Such statements are arrived at ostensibly on the basis of observation of economic phenomena and realities in a certain society and some assumptions about human economic behaviours. They involve numerous variables which defy permanence

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Review of Islamic Economics, Vol. , No. and always demand a new investigation and approach. For instance, data- based research of economic crises and conditions is descriptive. This can only reveal the situational character of the discipline. There exist so many variables that it is difficult if not impossible for economic research to be of any predictive value. In contrast the rules of fiqh are normative statements. A normative statement is a statement of value that expresses an attitude towards what should be. It expresses a preference. It is not concerned with describing scientific or economic realities. Economics is a social science. It is concerned with policy issues that affect groups or collectivities. Policy decisions related to collectivities involve numerous variables that defy permanence and always demand revision. They are not legal rulings. A legal rule by its very nature is addressed to an individual. It establishes on a permanent basis whether a certain act is obligatory ( wajib) or forbidden ( haram). Whereas economic policies are not about obligation or prohibition. They are mainly based on factual realities and are intended to achieve certain results. Economic policies may therefore differ from time to time and from one society to another. However, an Islamic economic policy should always endeavour to achieve the objectives of the Shar i[ah. Economics is not the study of one individual™s behaviour but how an aggregate of them would behave in a given economic situation. Since it is difficult to predict how groups of people would behave, due to the existence of numerous variables and preferences, the study therefore is focused on general human nature. Assumptions about ‚rational individuals™ motivated by self-interest are used to formulate certain economic theories and hypotheses. These theories and hypotheses are used to predict how groups of humans would make their decisions with regard to scarce resources. Among the most important economic assumptions that have widespread implications for the premises and theories of this discipline are those that relate to humans™ natural dispositions and motives as they are and not as they ought to be. Economic assumptions and theories cannot be built on human behaviour as it ought to be. Such an attempt assumes the observance and internalization of fiqh rules and ethics by each and every individual of a certain group. The problem with this assumption is that individuals differ with each other as far as the observance and implementation of fiqh and ethics are concerned. Fiqh rules and ethics are extraneous forces that impose certain restraints on human behaviour. The influence of these extraneous forces differs from one individual to another. It is therefore always safe to

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Review of Islamic Economics, Vol. , No. base assumptions on human nature and find out how, not one individual, but a group of them would behave in a certain given economic context. For instance, Caliph [Umar (ra) refused to distribute Iraqi land among the soldiers on the ground that if Arab soldiers became land settlers they would cease to be fighters. He argued based on human nature that if a person settles and busies himself with the land he is more likely to abandon jihad, as a result of which the cause of religion may suffer. We should not forget that among the soldiers were the Companions and the Successors. This policy was made with reference to human nature as it is and not as it ought to be. It is not therefore argued that how groups of humans ought to behave should not be addressed by economic policies. Rather, Islamic economic policies should be designed in a way that would ensure people™s compliance with the Shar i[ah principles. Thus, the difference between secular and Islamic economics is in the design and implementation of economic policies. VII. Sources and Methods of Reasoning in Islamic Economics .. The Holy Qur™ anThe first source for the knowledge of Islamic economics is the Qur™ an as is also the case with fiqh. However, unlike fiqh which focuses on Qur™ anic verses that confer rights or impose obligations on individuals ( ayat al-ahkam), Islamic economics should focus on those verses that contain descriptive statements about human nature. Similarly descriptive statements of the Qur™ an on economic phenomena and verses concerning groups or collectivities fall within the ambit of Islamic economics. The Qur™ an has many descriptive statements on human nature. These include, for instance, verse : which states that man fihas always been prone to be most wicked, most foolishfl; verses : which links human transgression to affluence and richness; verses : , : that explains the covetous nature of man which desires what others have and thereby his vulnerability to be influenced by external social and economic factors. Humans by nature love wealth. For example, verses : – describes man™s love of wealth and verse : states that fiverily, to the love of wealth is he most ardently devotedfl. Islam does not, therefore, condemn seeking wealth but instead introduces certain guidelines within which wealth can be earned and spent. We may also refer to verse : where the angels while referring to man™s khilafah on earth said that men would fispread corruption thereon (liyufsid u fiha) and shed bloodfl. The fact that God did not reject their claim but merely said that, fiverily, I know that which you do not knowfl shows that

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