A friend once asked: “Why do you advise consulting the fundamentals of jurisprudence (uṣūl al-fiqh) in questions of faith but forbid recourse to the hadith, even though the hadith itself constitutes an evidence in fiqh?” My reply was that the beginnings of the hadith from the first until the fifth century AH were an ijtihād – independent legal reasoning  – and that the early hadith narrators did not claim that their writings were binding on others, as their followers do claim now.
BY SAMEH ASKER
DISAGREEMENT AMONG the hadith narrators was a constant and at times reached the point of mutual insults and takfīr. The sanctification of the hadith narrators began in the 7th century AH, the era of the ‘second revival’ under Ibn al-Ṣalāḥ  and others. Before that, there was a sanctification at the level of individuals, but the hadith narrators did not achieve collective sanctity until late. The reason for that was that their intellectual product was characterized by deficiencies, ignorance, mutual antipathy, superstition, fabrication, malice and egotism – all motivated by personal interest or the interest of the powerful and influential. It was therefore natural for conflicts to occur between the hadith narrators and the clerics for as long as their primary evidence suffered from this defectiveness.
We conclude from this that the so-called ‘science’ of hadith – despite the fact that its appearance among the Salaf  as a form of ijtihād was legitimate – does not have a legitimate existence now for two reasons:
Firstly: the proximity of the time between Islam’s emergence and the time of the hadith narrators made it legitimate to invoke what happened, the evidence they provide and what was said, in making a legal ruling – regardless of the precision in making that invocation in terms of detail. But to invoke it as an ijtihād obliges the mujtahid to consider other evidences, including of course the reliability of the narration since being a product of in the latter’s perception one has to look into his authenticity and sincerity.
Secondly: Mankind has made great strides and reached a mental and scientific stage that makes it difficult for a jurist to reconcile facts and reality with those narrations and tales; a common mindset that could combine the two does not exist, since the majority of those narrations are highly literal and leave no room for the intellect and for interpretation.
The so-called ‘science’ of hadith does not have a legitimate existence now
As for the uṣūl al-fiqh, its primary arena is the mind and is characterized by a high degree of latitude and flexibility, with its ultimate purpose being the interest of people as it accords with the interest of the faith.
If any contradiction emerges, the jurist considers the interpretation of the texts from the angle of the common interest, and on this basis the uṣūl al-fiqh were developed over hundreds of years. I might mention that Shaykh Muḥammad al-Ghazālī (1917-1996) despite his extremism and his causing the killing of Farag Fouda, also noticed this point and wrote the book The Prophet’s Sunnah between the Jurisprudents and the Hadith Scholars which brought down upon his head the wrath of the Salafist movement. In this work he called for restoring the primacy of jurisprudence and its principles against its domination by hadith scholars and their claims to primacy due to the ‘evidence of narration’, since these last were aware that in this book, and others, al-Ghazali rejected dozens of ṣaḥīḥ (‘authentic’) hadiths for their corruption and their defectiveness and for their influence as he saw it in spreading myths, violence and takfīr.
Studying the uṣūl al-fiqh as it was at the stage of the Ikhwān, I came to the conclusion that a jurisprudential ruling is not a single fact, but in fact takes two forms – the mandated and the contextual. The first is the theoretical, patent meaning upon which the evidence for the obligation is founded; the second is the practical meaning, the essential purpose on which the evidence is based taking into account the interest served, the rationale and the applicability of a ruling. Consequently the Text (the Qur’ān or the Hadith) may state such and such, but according to the contextual, positive ruling may not be suitable for application or have some apparent deficiency that would cause an injustice, or an oppressive act. So the jurist performs a wide-ranging cogitation whereby the adjudication steps beyond the patent mandate and into the arena of the actual context and to how it is applied, in order to take into account the public interest. The positivist ruling arrived at constitutes the finalised adjudication and purpose of the uṣūl al-fiqh, given that religion was revealed for the benefit of the people.
Here is a brief example of how to differentiate between mandated and positive rulings:
Take the cutting off of the hand of the thief as mentioned in the Qur’ān. This is a mandated ruling found in the primary level of proof, which is the Qur’ān. According to its compulsory nature, the application of this ruling is either (obligatory, recommended, or allowed or optional), but according to the positive ruling it is not like this, since the positive, contextual element here evaluates those matters which block its application or permits a concession from it. The first impediment to its application is the nature of the modern state and the laws and penalties which have been developed the imposition of imprisonment, exile and fines, and so on.
But for the hadith scholars’ decades-long control over jurisprudence, terrorist groups would not have become widespread
The positive ruling discusses the concessions permitted by linking the inapplicability of the ruling to the cause and reasons for the existence of the mandated proof in the Qur’ān, which is to deter criminality and regulate how one lives. So the cutting of the thief’s hand, according to the positivist ruling, is just a means for deterrence and regulating life and not a goal or purpose in itself. On this basis the jurist secures the interest of the people and at the same time does not contradict the religion in its essence and content, and indeed in the eyes of some does something more admirable by taking into consideration the spirit of the faith and its message.
What is more, according to the uṣūl al-fiqh, there is no one Sunna, nor is there one Sharīʻa, but a plurality of Sharīʻas and Sunnas, because the evidence on which the jurist relies is, in principle, that which is unanimously agreed upon (such as the Sunna, analogical reasoning, and the ijmāʽ-consensus), but upon which there may be different views as to its credibility – that is, in how these matters are perceived in actual, tangible reality. Accordingly some jurists denied the existence of a consensus in the first place, as well as the possibility of the imams agreeing to an analogy on the grounds that it is a mental operation that is relative depending on the perspective of the individual jurist.
They also denied the possibility of a consensus concerning the Sunna, which in essence is a matter of the individual jurist’s perception of the way the Messenger and the Salaf understood the religion. Its technical proof is ambiguous and conflicting due to the era that followed the death of the Messenger and the struggles among the Companions, as well as the long period that thus separated them from the Prophet, which led to the spread of fabrications about him and considering these fabrications to be truthful. These fabrications subsequently were included in the celebrated nine hadith collections, a fact which impelled the hadith scholars and jurists to weed out thousands of such hadiths due to the threat they posed not only to the Islamic intellect, but to the very life and survival of the Muslims.
Likewise, the flexibility that characterizes the uṣūl al-fiqh allowed the ancient jurists to evaluate the validity of the evidence itself, and they thus discussed what was contradictory in them and what was more likely. This is an admirable intellectual process that was not carried out by the hadith scholars, who instead spread their myths without taking into account how they contradicted with each other and without expressing a preference for the best and the truest of these narrations.
I admire the uṣūl al-fiqh because I know that it these uṣūl are open to renewal, and they take into account the public interest of the people in the first place, and thereby allow for political theory and debating. I recall, five years ago that I wrote the article: Ten Evidences for Secularism in Islamic Jurisprudence. Anyone reading into Islamic thought, inasmuch as this prioritises the uṣūl al-fiqh over against the hadith, will see that Islam in essence says nothing about a religious state, but does talk about the separation between religion as an individual message and the state as an agreed-upon collective legal space.
Had it not been for the hadith scholars’ decades-long control over the processes of jurisprudence and their presenting their fictional intellectual product as ‘religion’, the terrorist groups would not have become widespread. For it is these, confusing the mandated rulings with the contextual rulings, mixing up the mutawātir hadiths with the āḥād hadiths, confusing the definitive with the conjectural, the theory and the credibility of the agreed-upon proofs, who presented what were debatable evidences (such as the Companions’ mursal hadith or customary practice, or sadd al-dhara’iʽ or the presumption of permission) as if these were agreed upon proofs without any disputes about them whatsoever.
This is an obscene lie that their imams and leaders have fallen for, and it only impels the enlightened, the reformists and the more intelligent clerics to rise up and overcome it, and combat the absorption of this primitive and savage assault on the mindset of Muslims. For it is this assault that has held back our peoples and caused an intellectual backlash that even our pessimists half a century ago would never have imagined.
 Literally ‘exertion’, the term ijtihād refers technically to the effort a jurist makes in order to deduce the law, which is not self-evident, from its sources. It is therefore the exercise of legal reasoning independent of what is literally prescribed by scripture. (Ed.)
 See Glossary under Takfīr.
 Ibn al-Ṣalāḥ (1181-1245) affirmed a qāḍī’s obligation to rule according to the received doctrine of his madhhab so that by the Mamluk period (1250–1517) they came to be obligated to adjudicate according to the established doctrines of their madhāhib, and subject to discipline if they diverged from them. (Ed.)
 See Glossary under Salaf and Salafist.
 Farag Fouda (1945 – 1992) was a prominent Egyptian professor, writer, columnist and human rights activist who was assassinated on 8 June, 1992 by members of the Islamist group al-Gama’a al-Islamiyya after being accused of blasphemy by a committee of scholars at al-Azhar University. (Ed.)
 See Glossary under Hadīth.
 The mandated (taklīfī) ruling is one that requires the individual to perform or abandon an action or to choose the preferable between two actions, and is held to have direct divine authority in the Sharīʻa. The contextual or positive (waḍʽī) ruling is one where situational circumstances determine whether the Sharīʻa ruling is to be put into effect. (Ed.)
 See Glossary under Sahāba.
 See Glossary under Hadīth.
 Al-Mursal al-Ṣaḥābī is a hadith reported by a Companion, or a Tābiʽī, but one that was not heard or witnessed in person. It is thus a hadith with a broken link in the chain of narration. It is nevertheless broadly classed as authentic.(Ed.) See Glossary under Sahāba and Hadīth.
 The category of sadd al-dharā’iʽ or ‘blocking the means [to evil]’ is part of the maṣlaḥa mursala category of Islamic law, and was employed as a useful method for resolving conflicting source-texts when a new circumstance had arisen, or a qualifying detail that would lead a legal principle into conflicting with other principles or maxims (such as: الضرر يزال ‘harm is to be removed’ or المشقة تجلب التيسير ‘difficulty demands easing’) or producing an unlawful result. (Ed.)
Main picture: The ḥadīth raised to the level of holy writ itself: a muṣḥaf-like page from the Ṣaḥīḥ al-Bukhārī with gold illumination. The passages calligraphically inscribed are Ḥadīths 815 and 816 from chapter كتاب الأذان : “The Prophet was ordered to prostrate on seven bony parts and not to tuck up his clothes or hair” (when performing ṣalāh). Unknown artist, Shiraz, dated 1400-1450. From the Keir Collection of Islamic Art, Object number K.1.2014.800.1.