Lesson Six Chapter 4 Deducing the Law from its Source

1. Lesson Six Chapter 4 Deducing the Law from its Source

2. Introduction • Deducing laws from the Quran and Sunnah requires clear understanding of the Arabic language • The function of interpretation is to discover the intention of the Lawgiver. • Islamic law ascertains the intention of the Lawgiver with regard to what has been left unexpressed as a matter of necessary inference from the surrounding circumstances • The Aim of ijtihad is the correct understanding of words and sentences of a legal text • The greater part of fiqh consists of rules derived through interpretation of the legal text

3. Introduction The 'ulama’ of usul have classified words as: • ‘clear’ and ‘unclear’ with reference to their conceptual clarity • homonym, general, specific, absolute or qualified with reference to scope • primary, secondary, literal, technical or customary with respect to actual usage • literal (حقيقى) and metaphorical (مجازى) as two main categories

4. Introduction The methodology of usul al-fiqh demands that commands and prohibitions may not be issued in metaphorical words as it would introduce uncertainty with the exception that when the metaphorical meaning is dominant and the original meaning is no longer in usage Strength of o legal rule is mostly determined by the language in which it is communicated Crucial significant skills for mujtahid • Firm grasp of words and their precise implications • Methodology and guidelines to resolve the conflicts

5. Ta’wil (Allegorical Interpretation) • Two main words used for ‘interpretation’ are “تفسير” and “تأويل” • Basic purpose of tafsir and ta’wil is to clarify the law and discover the intention of the Lawgiver • التأويل is perhaps closer to 'interpretation', whereas tafsir literally means'explanation‘in other words, tafseer is borne out by the content and linguistic composition of the text..

6. Ta’wil (Allegorical Interpretation) • Tafsir’s aim is to explain meaning and to deduce الحكم(command) within limits of words and sentence. • Ta'wil, on the other hand, goes beyond the literal meaning of words and sentences and reads into them a hidden meaning which is often based on speculative reasoning and Ijtihad. • From a judicial perspective, ta'wil and tafsir share the same basic purpose, which is to clarify the law and to discover the intention of the Lawgiver in the light of the indications,

7. Ta’wil must fulfill the following conditions • Ta’wil must fulfill the following conditions to be a valid judicial ruling: • Person who attempts ta’wil is qualified to do so • There is an evidence to justify ta’wil and it is not founded on mere inclination and personal opinion • Ta’wil is in harmony with rules of the language and customary or juridical usage • Word has inclination for ta’wil, even if only week one , to prevent far-fetched interpretation Thus it would be unacceptable if the word qur' in the Qur'anic text (al-Baqarah, 2:228) were to be given a meaning other than the two meanings which it bears, namely menstruation (hayd) and the clean period between menstruations (tuhr). For qur' cannot carry an additional meaning,

8. Ta’wil (Allegorical Interpretation) • Word(s) of the text open to to ta’wil • Zahir (manifest) and nass (explicit) • Amm (general) and mutlaq (absolute) • Word(s) of text not open to to ta’wil • Mufassar (unequivocal) and muhkum (perspicuous) • Khass (specific) and muqayyad (qualified), but there are some exceptions in this case • Ta’wil has two types: • Remote and far-fetched • Relevant, which is within the scope of what might be thought as correct understanding

9. Ta’wil (Allegorical Interpretation) • Characteristics of correct interpretation: • Supported by nusus or qiyas (analogy) or general principles of the Law • Does not conflict with the explicit injunctions of the Law • Its accuracy is borne out by the contents of the text • الظاهرية‘ulma’ always try to follow the literal meaning of the Quran and Sunnah and have set a total ban on ta’wil • Absence of ta’wil is likely to lead to the departure from the spirit of the Law and its general purpose • Ta’wil must be attempted carefully and only when it is necessary and justified otherwise law could be subjected to uncertainty and abuse

10. Classification AClear and Unclear Words •  Words are divided into ‘clear’ and ‘unclear’ from the viewpoint of clarity • Clear word • Conveys a concept without recourse to interpretation • Obligation is always communicated in clear words • Obligation does not require ta’wil • Division of clear words in terms of degree of clarity. • ظاهر (manifest) is least clear • نص (explicit) commands greater clarity than zahir • مفسر (unequivocal) • محكم (perspicuous) highest rank in clarity • Unclear word • ألفاظ غير واضحة, are the words which do not convey a clear meaning without the aid of additional evidence that may be given by Lawgiver Himself or by the mujtahid • An ambiguous text cannot constitute basis of an action • Unclear words are also divided into four types • خفى (obscure) and مشكل(difficult) words require clarification by means of research and ijtihad

11. Clear The Zahir and the Nass • الظاهر (manifest) is a word or text with a clear meaning but still is open to ta’wil primarily due to the reason that its usage is not in harmony with the context • When we say that zahir is open to ta’wil it means: • specification of general meaning • restriction/qualification of absolute meaning • literal meaning may be abandoned for metaphorical meaning • Zahir is susceptible to Naskh (abrogation) which in case of the Quran and the Sunnah could have only occurred in the lifetime of the Prophet (SAW)

12. Clear The Zahir and the Nass • النص (explicit) is a word or text with a clear meaning and its usage is also in harmony with the context of the text, but it is still open for ta’wil and abrogation • It is fard (obligation) to follow the obvious meaning of zahir and nass unless there is an evidence that warrant recourse to ta’wil to make interpretation in harmony with the intention of the Lawgiverقصد الشارع • The distinction between zahir and nass mainly depends upon the their relationship with the context • If there is a conflict between zahir and nass, nass will prevail as it is one degree stronger than zahir

13. Clear The Zahir and the Nass • An example to clarify (al-Nisa 4:3) • if ye fear that ye shall not be able to deal justly with the orphans, marry women of your choice, two or three or four • This ayah has two main themes and these are the nass of this text: • polygamy is permissible • it must be limited to four • Another ruling established from this ayah in the part is permissibility of marriage between man and women. However, that is not the principle theme of this ayah and this incidental point is the zahir

14. Clear The Zahir and the Nass • (al-Nisa 4:24) all others are lawful, provided ye seek (them In marriage) with gifts from your property • After spelling out the prohibited degrees of relationship in marriage, this ayah allows marriage with all other women. Zahir meaning of this ayah does not include limitation on polygamy to four and marriage to paternal and maternal aunt of one’s wife. However absolute meaning of this ayah has been qualified with al-Nisa 4:3 quoted above which limits polygamy to four and other qualification of not marrying aunt of the wife is given in a mashhurhadithwhich forbids that kind of marriage • This example also shows an instance of conflict between these ayahs on a ruling, one of them does not restrict polygamy and other restricts it to four. Since ayah with restriction is a nass, it prevails

15. Clear Mufassar (Unequivocal) and Muhkam (Perspicuous) • المفسر is a word or text whose meaning is completely clear and it is in harmony with the context in which it appears • الألفاظ الخاصة(specific words) which are not open to ta’wil or any change in their primary meaning are Mufassar • Due to high level of clarity there is no need for recourse to ta’wil • Mufassar is open to abrogation • Acting upon mufassar is obligatory, unless it has been abrogated, obvious meaning of the text must be followed • Mufassar is higher in degree from nass and in case of conflict, mufassar prevails

16. Clear Mufassar (Unequivocal) and Muhkam (Perspicuous) • Muffasar has two varities: • مفسربذاته is self explained, for an example the woman and the man guilty of adultery or fornication,- flog Each of them with a hundred stripes (al-Nur 24:2) • مفسربغيره requires clarification by other text in which case two texts combine to constitute mufassar. Text of Quran may be explained by Quran or Sunnah (verbal or practical illustration), for example: and be steadfast in prayer; practice regular charity (al-Baqarah 2:43) وَأَقِيمُوا الصَّلَاةَ وَآَتُوا الزَّكَاةَ وَارْكَعُوا مَعَ الرَّاكِعِينَ • Juridical meanings of Salah and Zakah are explained in verbal and practical instruction of the Prophet (SAW). In this case mujmal (ambivalent) text of the Quran becomes mufassar with the Sunnah

17. Muhkam المحكم • Muhkamare words and sentences whose meaning is clear beyond doubt and are not open to ta’wil • Muhkam are sometimes open for differences in tafsir but never for ta’wil • Muhkam cannot be abrogated, either in the lifetime of the Prophet (SAW) or after it • Muhkam in reality is mufassar which is not open to abrogation • Muhkam also has two verities; محكم بذاته(muhkamby itself), and محكم بغيره(muhkambecause of another factor) • For an example ... nor is it right for you that ye should annoy Allah’s Messenger, or that ye should marry His widows after Him at any time. truly such a thing is In Allah’s sight an enormity(al-Ahzab 33:53) وَمَا كَانَ لَكُمْ أَنْ تُؤْذُوا رَسُولَ اللَّهِ وَلَا أَنْ تَنْكِحُوا أَزْوَاجَهُ مِنْ بَعْدِهِ أَبَدًا إِنَّ ذَلِكُمْ كَانَ عِنْدَ اللَّهِ عَظِيمًا • The prohibition in this text is emphasized by the word ‘abadan’ (never ever) which renders this to be muhkam and it cannot be abrogated

18. Unclear الخفى (Obscure) • Khafi denotes a word which has a basic meaning but is partially ambiguous in some cases where it is applied and only obscure in those cases • Ambiguity of khafi is clarified by research and ijtihad, reason for divergent rulings • Following example will help to clarify it further: • Thief (sariq) is a خفى word when it is applied to نباش (who steals shrouds of the dead) as shroud is not a guarded property (مال محرز) • Imam shafi’i and Abu Yusuf would apply the hadd (prescribed penalty) in the case of nabbash but majority of scholars apply ta’zir (optional punishment)

19. Unclear المشكل (Difficult) • Mushkil donates a word or text which is ambiguous and its ambiguity can only be removed by research and ijtihad • Another type of mushkil arises due to conflicting texts, although each of them are fairly clear as they stand alone but they become difficult when one tries to reconcile them Divorced women shall wait concerning themselves for three monthly periods (al-Baqarah 2:228) وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنْفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ • In this ayah, القرءis a mushkil word as it has two distinct meanings: • Menstruation حيض) • Clean period between two menstruations الطهر • Imam Shafi’i has adopted second meaning • Hanafis has adopted first to be correct meaning

20. Unclear المجمل (Ambivalent) • Mujmal is a word or text which is inherently unclear and gives no indication as to its precise meaning: • It may be homonym with more than one meaning with no indication which might be correct • Lawgiver may has given it a meaning other than its literal meaning • Word may be totally unfamiliar • There is no way of removing ambiguity unless Lawgiver gives an explanation • For example, expressions ‘salah’, ‘siyam’, and ‘hajj’ have all lost their literal meanings due to the fact that Lawgiver has given them a new meaning • Words described above turn from mujmal to mufassar due to the explanation given by the Lawgiver • If Lawgiver does not provide an explanation than words turn from mujmal to mushkil and than it is open for research and ijtihad

21. Unclear Mujmal (Ambivalent) • Ambiguity may also arise due to uncertainty regarding the exact implications of particles. For example, in hadith “there is no salah without Fatiha”,لا صلاة الا بفاتحة الكتاب particle ‘la’ لاis unclear and it could mean that salah is rendered null and void or that salah is incomplete • Ambiguity in Sunnah may arise in words as well as acts

22. The general rule with regards to hukm of the majmal is التوقف (suspension), until the ambiguity is removed • If ambiguity is due to plurality of meanings and there is an indication or evidence to support one, than it should be acted upon • If various meanings of mujmal are not incompatible, then any or all of them may be applied • Al-juwayni الجوينى stated that there is no mujmal left unclarified in Quran related to ahkam (decisive injunctions)

23. Unclear Mutashabih (Intricate) • This is a word or text whose meaning is a total mystery • There is no indication in the text by the Lawgiver about their meaning • Mutashabih does not occur in the legal nasus • Example of mutashabih are المقطعات (abbreviated letters whose meaning is a total mystery) • Some views about mutashabih: • They are meant as a reminder of limitations in the knowledge of the believer • Ibn Hazm held the view that with the exception of muqatta’at there is no mutashabih in the Quran

24. Unclear Mutashabih (Intricate) Others held the view that the passages of the Quran which draw resemblances between Allah and man are also in the nature of mutashabih. Following is an example of this type: • (Al-Fath 48:10) • the hand of Allah is over their hands (Only the form is mutashabih) • Existence of mutashabih in the Quran is proven by the testimony of the Quran itself (al-Imran 3:7) هُوَ الَّذِي أَنْزَلَ عَلَيْكَ الْكِتَابَ مِنْهُ آَيَاتٌ مُحْكَمَاتٌ هُنَّ أُمُّ الْكِتَابِ وَأُخَرُ مُتَشَابِهَاتٌ • Meaning of mutashabih is only known to Allah SWT so we must not impose our estimation on the words of Allah SWT when no indication is available to reveal their meaning, therefore no one may act upon it

25. Classification Bthe العام(General) and the الخاص (Specific) • Distinction between العام and الخاص is basically conceptual and it is not always obvious in the grammatical form of words • ‘'ulama'’ have identified certain linguistic patterns of words to differentiate between العام and الخاص.

26. Amm • Amm has a single meaning but applies to an unlimited number without any restriction • In general, all words are basically ‘Amm’ unless they are specified or qualified in some way • Based upon اجماع of the Companions and the accepted norms of the Arabic, words of the Quran and the Sunnah are used in their general (amm) meaning unless there is an evidence to warrant an alternative meaning • An example of العامword in the Quran • (al-Asr 103:2)Verily man is in loss • In this ayah word ‘insan’ is ammand it includes every human being

27. ‘Amm • In grammatical terms, العامin the Arabic usage takes a variety of forms: • When a singular or plural form of a noun is preceded by the definite article ‘ال’ it is defined as عام • Expressions ‘جميع’, ‘كافة’, and ‘كل(all, entire) are generic in their effect when they precede or succeed a word, it becomes عام • Similarly when a word is prefixed by conjunctive such as ‘والذين’ (those men who) and اللاتى(those women who) it becomes عام • An indefinite word (النكرة) when used to convey the negative is also generic in its effect • The Arabic word ‘من’ (he who) is specific in its application, but when used in a conditional speech, it has an effect of عام

28. (al-Baqarah 2:228)وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنْفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ • Divorced women shall wait concerning themselves for three monthly periods • This type of amm is ظاهرand remains general unless there is an evidence to justify تخصيص(specification). In this case however, there is another ayah which qualified العامrequirement of العدة O ye who believe! when ye marry believing women, and then divorce them before ye have touched them, no period of 'Iddat have ye to count In respect of themيَاَأيُّهَا الَّذِينَ آَمَنُوا إِذَا نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا (al-Ahzab 33:49)

29. العبرة بعموم اللفظ لا بخصوص السبب • If a command is issued in the form of an amm, it must be implemented as such and acting upon it is required even if cause behind it happens to be specific as cause never specifies a general ruling • example, the hadithwhich states that ‘when any skin is tanned, it is purified’ is applicable to all types of skin, even based on some reports it was uttered with reference to a sheepskin

30. Is العامdefinitive (قطعى) or speculative (ظنى) • According to the Hanafi 'ulama', the application of العام to all that is included is definitive (قطعى), • According to Shafi’i , Maliki, and Hanbali 'ulama', application of amm is open to limitation and تأويل as long as there is such a possibility • Based on this difference: • when there is a conflict between amm of the Quran and khas of a weak or ahad hadith, according to majority, an ahad hadith (ظنى) may specify amm of the Quran. • According to Hanafi 'ulama', العام of Quran is قطعى and an ahad hadith is ظنى and therefore ظنى cannot specify قطعى • Also according to Hanafi ''ulama'', qiyas (ظنى) cannot specify العام (قطعى) of the Quran • In case of a mutawatir and mushhur hadith, there is no disagreement among different schools that either of these can specify العام of the Quran

31. Khass الخاص • When a word is applied to a limited number of things, including everything to which it can be applied, it is referred to as الخاص (specific) • الخاص has some sort of limitation in the scope of its application • الخاص can denote: • A particular individual • An individual belonging to a certain species • An individual belonging to a genus such as human being • A single subject

32. Khassالخاص Legal rules that are conveyed in الخاص(specific) terms are definite (قطعية) in application and are normally not open to ta’wil • Quranicverse which enacts the ‘feeding of ten poor persons’ as the expiation for futile oaths is khass and definite in that the number ‘ten’ and does not admit of any ta’wil • However in exceptional circumstances khass can be open to ta’wil. For example, the forgoing ayah has been interpreted by Hanfis as either feeding ten persons or one such person ten times • Amm of the Quran may be specified by the Quran, and also by the Sunnah • Amm of the Sunnah may be specified by the Sunnah itself or by the Quran, although there is a disagreement on this point, as specification of the general is a form of the explanation and this is the role of the Sunnah in its relationship to the Quran, but not vice versa

33. العام and الخاص • Majority of ''ulama'' are in agreement that the general rulings of the Quran and the Sunnah may be specified by: • الاجماع (consensus) • (al-Jum’ah 62:10) Allah SWT asks all believers to attend the congregation for Jummah) after the prayer call. • Ijma has specified this general purpose of this ruling in respect to women who are exempt from attending the Jummah prayer. {Ijma in these cases is based on nass} • Qiyas (according to some) • the four leading imams are in agreement that this is permissible, • (al-Talaq 65:2) Allah SWT ask “call to witness two just ones from among you” in case of divorce. وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِنْكُمْ • It is likely that command in this ayah conveys an obligation • It is also possible that command conveys a recommendation (ندب) only just like Allah SWT recommends witnesses for sale (al-Baqarah 2:282) • Imam shafi’i used qiyas to conclude that Allah SWT has drawn a parallel between طلاقand رجعة(revocation) and commanded testimony on both. Since we know that testimony is not an obligation in talaq, It is also not obligatory by analogy in raj’ah

34. Classification Cالمطلق (The Absolute) and المقيد (The Qualified) • المطلق denotes a word which is neither qualified nor limited in its application. For an example, when we say a ‘book’ it means any one book without any restriction or qualification. • Difference between المطلق and العام: • العام includes all to which it is applied • المطلق applies to any one from the multitude, but not to all • When المطلق is qualified by another word(s) it becomes مقيد. For an example, a ‘book’ (mutlaq) when qualified as ‘a green book’ becomes مقيد

35. المطلق (The Absolute) and المقيد (The Qualified) • Difference between muqayyad and khass: • المقيدis unspecified object with defined attribute • الخاصis a specified object • To illustrate from the Quran, Kaffarah (expiation) of futile oath is freeing a slave in al-Ma’idah (5:92) is an example of المطلقas this command does not define any attribute of the slave and it can be any one slave (Muslim or non Muslim) • Al-Nisa (4:92) commands expiation of erroneous killing ‘freeing a Muslim slave’ is an example of المقيدas it commands to free any Muslim slave • المطلقremains absolute in its application unless there is a limitation to qualify it. example, Quranic prohibition of marriage “with your wives’ mothers” in surah al-Nisa (4:23) is conveyed in absolute term, and as such is forbidden whether the marriage with daughter has been consummated or not

36. Classification Dالحقيقى(The Literal) and المجازى (The Metaphorical) • الحقيقى is the original meaning of a word and المجازى is its secondary meaning • المجازى denotes a form of speech that does not clearly disclose the intention of the speaker • Words are normally used in their haqiqi meaning, and in the language of the law, haqiqi meaning is relied upon the most Example, when a person says in his will, ‘I bequeath my property to my offspring’, ‘offspring’ primarily means sons and daughters not grandchildren as applying offspring to grandchildren is as metaphorical usage that is secondary to its original meaning

37. الحقيقى(The Literal) and المجازى (The Metaphorical • Quran has both haqiqi and mazaji usage of words • Some 'ulama' have observed that majazi,has no place in the Quran because it comprise what has no reality and truth, • Imam Ghazali discusses this argument and represents the majority view when he refutes this argument and acknowledges the existence of the majazi in the Quran • example, (al-Nur 24:35) ‘Allah is the light of the heavens and the earth’ is metaphorical usage • When a word has both haqiqi and majazi meaning, and if majazi is well-established and dominant, it is likely to prevail over haqiqi. This is the opinion of the majority example to clarify this point, the word ‘طلاق’ has haqiqi meaning ‘release’ or ‘removal of restriction’ But since the juridical meaning of talaq is dissolution of marriage and it is the dominant meaning, therefore it will prevail unless there is an evidence to suggest otherwise

38. الحقيقى(The Literal) and المجازى (The Metaphorical • According to the context in which it occurs, the haqiqi is sub-divided into: • لغوى (linguistic) • عرفى (customary) • شرعى (juridical) • Lughawi haqiqi is a word which is used in its dictionary meaning, such as ‘lion’ for that animal

39. الحقيقى(The Literal) and المجازى (The Metaphorical • Urfi haqiqi occurs in two varieties: • General • When a word is used in urfi sense and this usage is absolutely common among people. For example word ‘دابة’ means all living beings that walk on earth, but according to general custom it means an animal walking on four legs • Special • When urfi usage is common in particular profession or group. example word ‘النصب’ (accusative) has acquired a technical meaning that is common among experts in the language • Juridical haqiqi is a word used by the Lawgiver for a juridical meaning such as ‘salah’

40. الحقيقى(The Literal) and المجازى (The Metaphorical • Another important classification of haqiqi and majazi is: • صريح (plain) • If application of word clearly discloses the intention of the speaker • كناية (allusive) • If application of word does not disclose the intention of the speaker clearly • Highest degree of clarity in an expression is achieved by combination of plain (sarih) and haqiqi. For an example, ‘Ahmad bought a house’ • Plain may be combined with majazi, for an example, ‘I ate from this tree’ means ‘from the fruit of this tree’ • An example of combination of majazi and haqiqi is, ‘I met your friend and spoke to him about the matter that you know’, in this sentence all words are used in their literal meaning but whole sentence is majazi as it does not disclose the speaker’s intention.

41. الحقيقى(The Literal) and المجازى (The Metaphorical • When speech uses plain words, and words clearly convey the intention of the speaker, speech takes effect. For example when a man says to his wife, ‘you are divorced’ it occurs regardless of the intention of the husband • In case of majazi usage, one has to ascertain the intention behind it and circumstances in which they were used. For an example, when a man says to his wife, ‘you are forbidden to me’, divorce does not take effect unless there is evidence to show that husband intended a divorce • Legal matters that require certainty, such as offence entailing the hadd punishment, cannot be established by the language which is not plain. For example, when a person confesses to such offence in illusive words, he is not liable to the punishment

42. المشترك (The Homonym) المشترك is a word with more than one meaning a word the same as another in sound and spelling but different in meaning, as chase “to pursue” • Some 'ulama', including al-Shafi’I, have held the view that the homonym is a variety of amm • Difference between amm and mushtarak: • Mushtarak inherently possesses more than one meaning • Amm may or may not have more than one meaning • For an example, word ‘قرء’ has two meanings: • Menstruation • Hanafi, Hanbali and Zaydi 'ulama' have upheld this meaning • Clean period between two menstruations • Shafi’i, Maliki and Jafari 'ulama' have upheld this meaning

43. المشترك • When mushtarak occurs in the Quran and Sunnah (as command or prohibition), it denotes one meaning alone as Lawgiver does not intend more than one meaning for a word at any given time • Shafi’i and some Mu’tazilah have taken exception to this view as they maintain that in the absence of any indication in support of one of the two or more meanings of mushtarak, both or all may be upheld simultaneously provided that they do not contradict one another • Context of the text and circumstance around it help in determination of preferred meaning of a mushtarak word • When a mushtarak has general meaning and juridical meaning, juridical meaning will prevail