09-09-2005, 01:04 AM
Extracts from the [same] book by M. H. Kamali
Classification I: Clear and Unclear Words
From the viewpoint of clarity (wuduh), words are divided into the two main categories of clear and unclear words. A clear word conveys a concept which is intelligible without recourse to interpretation. A ruling which is communicated in clear words constitutes the basis of obligation, without any recourse to ta'wil. A word is unclear, on the other hand, when it lacks the foregoing qualities: the meaning which it conveys is ambiguous/incomplete, and requires clarification. An ambiguous text which is in need of clarification cannot constitute the basis of action. The clarification so required can only be supplied through extraneous evidence, for the text itself is deficient and fails to convey a complete meaning without recourse to evidence outside its contents. A clear text, on the other hand, is self-contained, and needs no recourse to extraneous evidence.
From the viewpoint of the degree of clarity and conceptual strength, clear words are divided into four types in a ranking which starts with the least clear, namely the manifest (Zahir)and then the explicit (Nass),which commands greater clarity than the Zahir. This is followed by the unequivocal (Mufassar)and finally the perspicuous (Muhkam),which ranks highest in respect of clarity. And then from the viewpoint of the degree of ambiguity in their meaning, words are classified, once again, into four types which start with the least ambiguous and end by the most ambiguous in the range. We shall begin with an exposition of the clear words.
I. 1 & 2 The Zahir and the Nass
The manifest (Zahir) is a word which has a clear meaning and yet is open to ta'wil, primarily because the meaning that it conveys is not in harmony with the context in which it occurs. It is a word which has a literal original meaning of its own but which leaves open the possibility of an alternative interpretation. For example, the word 'lion' in the sentence 'I saw a lion' is clear enough, but it is possible, although less likely, that the speaker might have meant a brave man. Zahir has been defined as a word or words which convey a clear meaning, while this meaning is not the principal theme of the text in which they appear. [10. Khallaf, 'Ilm, p.161; Badran, Usul, p. 403; Abu Zahrah, Usul, p. 93.]
When a word conveys a clear meaning that is also in harmony with the context in which it appears, and yet is still open to ta'wil, it is classified as Nass. The distinction between the Zahir and Nass mainly depends on their relationship with the context in which they occur. Zahir and Nass both denote clear words, but the two differ in that the former does not constitute the dominant theme of the text whereas the Nass does. These may be illustrated in the Qur,anic text concerning polygamy, as follows:
And if you fear that you cannot treat the orphans justly, then marry the women who seem good to you, two, three or four (al-Nisa, 4:3)
Two points constitute the principal theme of this ayah, one of which is that polygamy is permissible, and the other that it must be limited to the maximum of four. We may therefore say that these are the explicit rulings (Nass) of this text. But this text also establishes the legality of marriage between men and women, especially in the part where it reads 'marry of the women who seem good to you'. However, legalising marriage is not the principal theme of this text, but only a subsidiary point. The main theme is the Nass and the incidental point is the Zahir.[11. Abu Zahrah, Usul, p. 93; Badran, Usul, p. 402.]
The effect of the Zahir and the Nass isthat their obvious meanings must be followed and action upon them is obligatory unless there is evidence to warrant recourse to ta'wil, that is, to a different interpretation which might be in greater harmony with the intention of the Lawgiver. For the basic rules of interpretation require that the obvious meaning of words should be accepted and followed unless there is a compelling reason for abandoning the obvious meaning. When we say that the Zahir isopen to ta'wil, it means that when the Zahir isgeneral, it may be specified, and when it is absolute, it may be restricted and qualified. Similarly the literal meaning of the Zahir may be abandoned in favour of a metaphorical meaning. And finally, the Zahir issusceptible to abrogation which, in the case of the Qur'an and Sunnah, could only occur during the lifetime of the Prophet. An example of the Zahir which is initially conveyed in absolute terms but has subsequently been qualified is the Qur'anic text (al-Nisa', 4:24) which spells out the prohibited degrees of relationship in marriage. The text then continues, 'and lawful to you are women other than these, provided you seek them by means of your wealth and marry them properly. . .' The passage preceding this ayah refers to a number of female relatives with whom marriage is forbidden, but there is no reference anywhere in this passage either to polygamy or to marriage with the paternal and maternal aunt of one's wife. The apparent or Zahir meaning of this passage, especially in the part where it reads 'and lawful to you are women other than these' would seem to validate polygamy beyond the limit of four, and also marriage to the paternal and maternal aunt of one's wife. However, the absolute terms of this ayah have been qualified by another ruling of the Qur'an (al-Nisa', 4:3) quoted earlier which limits polygamy to four. The other qualification to the text under discussion is provided by the Mashhur Hadith which forbids simultaneous marriage with the maternal and paternal aunt of one's wife.[12. Abu Dawud, Sunan (Hasan's trans.), II, 551, Hadith no. 2060; Khallaf, 'Ilm, p. 163; Abu Zahrah, Usul, p. 94.] This illustration also serves to show an instance of conflict between the Zahir and the Nass. Since the second of the two ayat under discussion is a Nass, it is one degree stronger than the Zahir and would therefore prevail. This question of conflicts between the Zahir and Nass will be further discussed later.
It will be noted that Nass, in addition to the technical meaning which we shall presently elaborate, has a more general meaning which is commonly used by the fuqaha'. In the terminology of fiqh, Nass means a definitive text or ruling of the Qur'an or the Sunnah. Thus it is said that this or that ruling is a Nass, which means that it is a definitive injunction of the Qur'an or Sunnah. But Nass as opposed to Zahir denotes a word or words that convey a clear meaning, and also represents the principal theme of the text in which it occurs. An example of Nass in the Qur'an is the Qur'anic text on the priority of debts and bequests over inheritance in the administration of an estate. The relevant ayah assigns specific shares to a number of heirs and then provides that the distribution of shares in all cases is to take place 'after the payment of legacies and debts' (al-Nisa', 4:11). Similarly, the Qur'anic text which provides that 'unlawful to you are the dead carcass and blood' (al-Ma'idah, 5:3), is a Nass on the prohibition of these items for human consumption.[13. Badran, Usul, p. 403; Abu Zahrah, Usul, p. 94.] As already stated, the Nass, like the Zahir, is open to ta'wil and abrogation. For example, the absolute terms of the ayah which we just quoted on the prohibition of dead carcasses and blood have been qualified elsewhere in the Qur'an where 'blood' has been qualified as 'blood shed forth' (al-An'am, 6:145).Similarly, there is a Hadithwhich permits consumption of two types of dead carcasses, namely fish and locust.[14. Tabrizi, Mishkat, II, 1203, Hadith no. 4132.] (See full version of this Hadith on page 131.) Another example of the Nass which has been subjected to ta'wil is the Hadith concerning the legal alms (zakah) of livestock, which simply provides that this shall be 'one in every forty sheep'. [15. Abu Dawud, Sunan, II, 410, Hadith no. 1567.]
The obvious Nass of this Hadith admittedly requires that the animal itself should be given in zakah.But it would seem in harmony with the basic purpose of the law to say that either the sheep or their equivalent monetary value may be given. For the purpose of zakah is to satisfy the needs of the poor, and this could equally be done by giving them the equivalent amount of money; it is even likely that they might prefer this.[16. Khallaf, 'Ilm, p. 165; Amidi (Ihkam, III, 57) considers this to be a ta'wil which is far-fetched.] The Hanafis have offered a similar interpretation for two other Qur'anic ayat, one on the expiation of futile oaths, and the other on the expiation of deliberate breaking of the fast during Ramadan. The first is enacted at feeding ten poor persons (al-Ma'idah, 5:92), and the second at feeding sixty such persons (al-Mujadalah, 58:4). The Hanafis have held that this text can be implemented either by feeding ten needy persons or by feeding one such person on ten occasions. Similarly, the provision in the second ayah may be understood, according to the Hanafis, to mean feeding sixty poor persons, or one such person sixty times. [17. Khallaf, 'Ilm, p. 166.]
As already stated, Nass isstronger than Zahir, and should there be a conflict between them, the former prevails over the latter. This may be illustrated in the following two Qur'anic passages, one of which is a Nass in regard to the prohibition of wine, and the other a Zahir in regard to the permissibility of eating and drinking in general. The two passages are as follows:
O believers! Intoxicants, games of chance and sacrificing to stones and arrows are the unclean works of Satan So avoid them . . . (al-Ma'idah, 5:93).
On those who believe and do good deeds, there is no blame for what they consume while they keep their duty and believe and do good deeds (al-Ma'idah, 5:96)
The Nass in the first ayah is the prohibition of wine, which is the main purpose and theme of the text. The Zahir in the second ayah isthe permissibility of eating and drinking without restriction. The main purpose of the second ayah is, however, to accentuate the virtue of piety (taqwa) in that taqwa is not a question of austerity with regard to food, it is rather a matter of God-consciousness and good deeds. There is an apparent conflict between the two ayat, but since the prohibition of wine is established in the Nass, and the permissibility regarding food and drink is in the form of Zahir, the Nass prevails over the Zahir. [18. Abu Zahrah, Usul, p.95.]
To give an example of Zahir in modern criminal law, we may refer to the word 'night' which occurs in many statutes in connection with theft. When theft is committed at night, it carries a heavier penalty. Now if one takes the manifest meaning of 'night', then it means the period between sunset and sunrise. However this meaning may not be totally harmonious with the purpose of the law. What is really meant by 'night' is the dark of the night, which is an accentuating circumstance in regard to theft. Here the meaning of the Zahir isqualified with reference to the rational purpose of the law and the nature of the offence in question. [19. Cf. Khallaf, 'Ilm, p. 166.]
I. 3 & 4 Unequivocal (Mufassar) and Perspicuous (Muhkam)
Mufassar isa word or a text whose meaning is completely clear and is, in the meantime, in harmony with the context in which it appears. Because of this and the high level of clarity in the meaning of Mufassar, there is no need for recourse to ta'wil. But the Mufassar may still be open to abrogation which might, in reference to the Qur'an and Sunnah, have taken place during the lifetime of the Prophet. The idea of the Mufassar, as the word itself implies, is that the text explains itself. The Lawgiver has, in other words, explained His own intentions with complete clarity, and the occasion for ta'wil does not arise. The Mufassar occurs in two varieties, one being the text which is self-explained, or Mufassar bidhatih, and the other is when the ambiguity in one text is clarified and explained by another. This is known as Mufassar bighayrih, in which case the two texts become an integral part of one another and the two combine to constitute a Mufassar.[20. Abu Zahrah, Usul, p. 96; Badran, Usul, pp. 404-405.] An example of Mufassar in the Qur'an is the text in sura al-Tawbah (9:36) which addresses the believers to 'fight the pagans all together (kaffah)as they fight you all together'. The word 'kaffah' which occurs twice in this text precludes the possibility of applying specification (takhsis)to the words preceding it, namely the pagans (mushrikin). Mufassar occurs in many a modern statute with regard to specified crimes and their penalties, but also with regard to civil liabilities, the payment of damages, and debts. The words of the statute are often self-explained and definite so as to preclude ta'wil. But the basic function of the explanation that the text itself provides is concerned with that part of the text which is ambivalent (mujmal) and needs to be clarified. When the necessary explanation is provided, the ambiguity is removed and the text becomes a Mufassar. An example of this is the phrase 'laylah al-qadr' ('night of qadr')in the following Qur'anic passage. The phrase is ambiguous to begin with, but is then explained:
We sent it [the Qur'an] down on the Night of Qadr. What will make you realise what the Night of Qadr is like?[...] It is the night in which angels and the spirit descend [...] (al-Qadr, 97:1-4).
The text thus explains the 'laylah al-qadr' and as a result of the explanation so provided, the text becomes self-explained, or Mufassar. Hence there is no need for recourse to ta'wil. Sometimes the ambiguous of the Qur'an is clarified by the Sunnah, and when this is the case, the clarification given by the Sunnah becomes an integral part of the Qur'an. There are numerous examples of this, such as the words salah, zakah, hajj, riba, which occur in the following ayat:
Perform the salah and pay the zakah (al-Nahl, 16:44)
God has enacted upon people the pilgrimage of hajj to be performed by all who are capable of it (Al-'Imran, 3:97).
God permitted sale and prohibited usury (riba ) (al-Baqarah, 2:275).
The juridical meanings of salah, zakah, hajj and riba could not be known from the brief references that are made to them in these ayat. Hence the Prophet provided the necessary explanation in the form of both verbal and practical instructions. In this way the text which was initially ambivalent (mujmal) became Mufassar. With regard to salah, for example, the Prophet instructed his followers to 'perform the salah the way you see me performing it', and regarding the hajj he ordered them to 'take from me the rituals of the hajj.[21. Tabrizi, Mishkat, I, 215, Hadith no. 683; Shatibi, Muwafaqat III, 178; Khallaf, 'Ilm, p.167; Badran, Usul, p. 405.]
There are also many ahadith which explain the Qur'anic prohibition of riba in specific and elaborate detail.
The value (hukm) of the Mufassar isthat acting upon it is obligatory. The clear meaning of a Mufassar is not open to interpretation and unless it has been abrogated, the obvious text must be followed. But since abrogation of the Qur'an and Sunnah discontinued upon the demise of the Prophet, to all intents and purposes, the Mufassar is equivalent to the perspicuous (Muhkam),which is the last in the range of clear words and is not open to any change.
Specific words (al-alfaz al-khassah)which are not open to ta'wil or any change in their primary meanings are in the nature of Mufassar. Thus the Qur'anic punishment of eighty lashes for slanderous accusation (qadhf)in sura al-Nur (24:4), or the ayah of inheritance (al-Nisa', 4:11) which prescribes specific shares for legal heirs, consist of fixed numbers which rule out the possibility of ta'wil. They all partake in the qualities of Mufassar. [22. Badran, Usul, p. 404.]
Since Mufassar isone degree stronger than Nass,in the event of a conflict between them, the Mufassar prevails. This can be illustrated in the two hadiths concerning the ablution of a woman who experiences irregular menstruations that last longer than the expected three days or so: she is required to perform the salah;as for the ablution (wudu') for salah, she is instructed, according to one Hadith:
A woman in prolonged menstruations must make a fresh wudu' for every salah: [23. Abu Dawud, Sunan, I, 76, Hadith nos. 294, and 304 respectively.]
And according to another Hadith
A woman in prolonged menstruation must make a fresh wudu' at the time of every salah.[24. Abu Dawud, Sunan, I, 76, Hadith nos. 294, and 304 respectively.]
The first Hadith is a Nass on the requirement of a fresh wudu' for every salah, but the second Hadith is a Mufassar which does not admit of any ta'wil. The first Hadith is not completely categorical as to whether 'every salah' applies to both obligatory and supererogatory (fara'id wa-nawafil) types of salah. Supposing that they are both performed at the same time, would a separate wudu' be required for each? But this ambiguity/ question does not arise under the second Hadith as the latter provides complete instruction: a wudu' is only required at the time of every salah and the same wudu' is sufficient for any number of salahs at that particular time.[25. Khallaf, 'Ilm, p. 169; Badran, Usul, p. 408.]
Words and sentences whose meaning is clear beyond doubt and are not open to ta'wil and abrogation are called Muhkam. An example of this is the frequently occurring Qur'anic statement that 'God knows all things'. This kind of statement cannot be abrogated, either in the lifetime of the Prophet, or after his demise. [26. Hughes, Dictionary of Islam, p.518; Badran, Usul, p. 406; Abu Zahrah, Usul, p.96.] The text may sometimes explain itself in terms that would preclude the possibility of abrogation. An example of this is the Qur'anic address to the believers concerning the wives of the Prophet: 'It is not right for you to annoy the Messenger of God; nor should you ever marry his widows after him. For that is truly an enormity in God's sight' (al-Ahzab, 33:35). The prohibition here is emphasised by the word abadan (never, ever) which renders it Muhkam, thereby precluding the possibility of abrogation. The Muhkam is, in reality, nothing other than Mufassar with one difference, namely that Muhkam isnot open to abrogation. An example of Muhkam in the Sunnah isthe ruling concerning jihad which provides that 'jihad (holy struggle) remains valid till the day of resurrection'. [27. Abu Dawud, Sunan, II, 702, Hadith no. 2526; Abu Zahrah, Usul, p. 96.]
The ulema of usul have given the Qur'anic ayah on slanderous accusation as another example of Muhkam, despite some differences of interpretation that have arisen over it among the Hanafi and Shafi'i jurists. The ayah provides, concerning persons who are convicted and punished for slanderous accusation (qadhf):'And accept not their testimony ever, for such people are transgressors' (al-Nur, 24:4). Once again the occurrence of abadan ('for ever') in this text renders it Muhkam and precludes all possibility of abrogation. The Hanafis have held that the express terms of this ayah admit of no exception. A qadhif, that is, a slanderous accuser, may never be admitted as a witness even if he repents. But according to the Shafi'is, if the qadhif repents after punishment, he may be admitted as a witness. The reason for this exception, according to the Shafi'is, is given in the subsequent portion of the same text, which reads: 'Unless they repent afterwards, and rectify themselves.' The grounds of these differential interpretations need not be elaborated here. Suffice it to point out that the differences are over the understanding of the pronouns in the text, whether they refer to the qadhif and transgressors both, or to the latter only. There is no difference of opinion over the basic punishment of qadhf, which is eighty lashes as the text provides, but only with regard to the additional penalty disqualifying them as witnesses forever. It would thus appear that these differences fall within the scope of tafsir rather than that of ta'wil.
The Muhkam isnot open to abrogation. This may be indicated in the text itself, as in the foregoing examples, or it may be due to the absence of an abrogating text. The former is known as Muhkam bidhatih, or Muhkam by itself, and the second as Muhkam bighayrih, or Muhkam because of another factor. [28. Abu Zahrah, Usul, p. 96; Badran, Usul, p. 406.]
The purpose of the foregoing distinction between the four types of clear words is to identify their propensity or otherwise to ta'wil,that is, of admitting a meaning other than their obvious meaning, and whether or not they are open to abrogation. If a word is not open to either of these possibilities, it would follow that it retains its original or primary meaning and admits of no other interpretation. The present classification, in other words, contemplates the scope of ta'wil in that the latter is applicable only to the Zahir and Nass but not to the Mufassar and Muhkam. The next purpose of this classification is to provide guidelines for resolving possible conflicts between the various categories of words. In this way an order of priority is established by which the Muhkam prevails over the other three varieties of clear words and the Mufassar takes priority over the Nass, and so on. But this order of priority applies only when the two conflicting texts both occur in the Qur'an. However, when a conflict arises between, say, the Zahir of the Qur'an and the Nass of the Sunnah, the former would prevail despite its being one degree weaker in the order of priority. This may be illustrated by the ayah of the Qur'an concerning guardianship in marriage, which is in the nature of Zahir. The ayah provides: 'If he has divorced her, then she is not lawful to him until she marries (hatta tankiha) another man' (al-Baqarah, 2:229). This text is Zahir in respect of guardianship as its principal theme is divorce, not guardianship. From the Arabic form of the word 'tankiha' in this text, the Hanafis have drawn the additional conclusion that an adult woman can contract her own marriage, without the presence of a guardian. However there is a Hadith on the subject of guardianship which is in the nature of Nass, which provides that 'there shall be no marriage without a guardian (wali). [29. Abu Dawud, Sunan (Hasan's trans.), II, 555 Hadith no. 2078; Badran, Usul, p. 408.]
This Hadith is more specific on the point that a woman must be contracted in marriage by her guardian. Notwithstanding this, however, the Zahir of the Qur'an is given priority, by the Hanafis at least, over the Nass of the Hadith. The majority of ulema have, however, followed the ruling of the Sunnah on this point. [30. Badran,Usul, p.409.]
II. Unclear Words (al-Alfaz Ghayr al-Wadihah)
These are words which do not by themselves convey a clear meaning without the aid of additional evidence that may be furnished by the Lawgiver Himself, or by the mujtahid. If the inherent ambiguity is clarified by means of research and ijtihad, the words are classified as Khafi (obscure) and Mushkil (difficult). But when the ambiguity could only be removed by an explanation which is furnished by the Lawgiver, the word is classified either as Mujmal (ambivalent) or Mutashabih (intricate), as follows. [31. Khallaf, 'Ilm, p.162; Badran, Usul, p. 409.]
II. 1 The Obscure (Khafi)
Khafi denotes a word which has a basic meaning but is partially ambiguous in respect of some of the individual cases to which it is applied: the word is consequently obscure with regard to these cases only. The ambiguity in Khafi needs to be clarified by extraneous evidence which is often a matter of research and ijtihad. An example of Khafi isthe word 'thief' (sariq) which has a basic meaning but which, when it is applied to cases such as that of a pickpocket, or a person who steals the shrouds of the dead, does not make it immediately clear whether 'thief' includes a pickpocket or not and whether the punishment of theft can be applied to the latter. The basic ingredients of theft are present in this activity, but the fact that the pickpocket uses a kind of skill in taking the assets of a person in wakefulness makes it somewhat different from theft. Similarly, it is not certain whether 'thief' includes a nabbash, that is, one who steals the shroud of the dead, since a shroud is not a guarded property (mal muhraz). Imam Shafi'i and Abu Yusuf would apply the prescribed penalty of theft to the nabbash, whereasthe majority of ulema only make him liable to the discretionary punishment of ta'zir. There is also an ijtihadi opinionwhich authorises the application of the hadd of theft to the pickpocket. [32. Khallaf, 'Ilm, p.170; Badran, Usul, p. 410.]
The word 'qatil' (killer) in the Hadith that 'the killer shall not inherit', [33. Shafi'i, Al-Risalah, p. 80.] is also Khafi in respect of certain varieties of killing such as 'erroneous killing' (qatl al-khata'). The malikis have held that erroneous killing is not included in the meaning of this Hadith, whereas according to the Hanafis, it is in the interest of safeguarding the lives of the people to include erroneous killing within the meaning of this Hadith. [34. Badran, Usul, p. 411.] To remove the ambiguity in Khafi is usually a matter of ijtihad, which would explain why there are divergent rulings on each of the foregoing examples. It is the duty of the mujtahid toexert himself so as to clarify the ambiguity in the Khafi before it can constitute the basis of a judicial order.
II.2 The Difficult (Mushkil)
Mushkil denotes a word which is inherently ambiguous, and whose ambiguity can only be removed by means of research and ijtihad. The Mushkil differs from the Khafi in that the latter has a basic meaning which is generally clear, whereas the Mushkil isinherently ambiguous. There are, for example, words which have more than one meaning, and when they occur in a text, the text is unclear with regard to one or the other of those meanings. Thus the word 'qur' 'which occurs in sura al-Baqarah (2:228) is Mushkil as it has two distinct meanings: menstruation (hayd) and the clean period between two menstruations (tuhr). Whichever of these is taken, the ruling of the text will differ accordingly. Imam Shafi'i and a number of other jurists have adopted the latter, whereas the Hanafis and others have adopted the former as the correct meaning of qur'.
Sometimes the difficulty arising in the text is caused by the existence of a conflicting text. Although each of the two texts may be fairly clear as they stand alone, they become difficult when one attempts to reconcile them. This may be illustrated in the following two ayat, one of which provides:
'Whatever good that befalls you is from God, and whatever misfortune that happens to you' is from yourself' (al-Nisa', 4:79).
Elsewhere we read in sura Al-'Imran (3:154): 'Say that the matter is all in God's hands.' A similar difficulty is noted in the following two passages. According to the first, 'Verily God does not command obscenity/evil' (al-A'raf, 7:28). And then we read in sura Bani Isra'il (17: 16), 'When We decide to destroy a population, We first send a definite order to their privileged ones, and when they transgress, the word is proven against them, then We destroy them with utter destruction.' Could it be said that total destruction is a form of evil? There is no certainty as to the correct meaning of Mushkil, as it is inherently ambiguous. Any explanation which is provided by the mujtahid isbound to be speculative. The mujtahid isnevertheless bound to exert himself in order to discover the correct meaning of Mushkil before it can be implemented and adopted as a basis of action. [35. Khallaf, 'Ilm, p.173; Badran, Usul, p. 413.]
II.3 The Ambivalent (Mujmal)
Mujmal denotes a word or text which is inherently unclear and gives no indication as to its precise meaning. The cause of ambiguity in Mujmal isinherent in the locution itself. A word may be a homonym with more than one meaning, and there is no indication as to which might be the correct one, or alternatively the Lawgiver has given it a meaning other than its literal one, or the word may be totally unfamiliar. In any of these eventualities, there is no way of removing the ambiguity without recourse to the explanation that the Lawgiver has furnished Himself, for He introduced the ambiguous word in the first place. Words that have been used in a transferred sense, that is, for a meaning other than their literal one, in order to convey a technical or a juridical concept, fall under the category of Mujmal. For example, expressions such as salah, riba, hajj,and siyam have all lost their literal meanings due to the fact that the Lawgiver has used them for purposes other than those which they originally conveyed. Each of these words has a literal meaning, but since their technical meaning is so radically different from the literal, the link between them is lost and the technical meaning becomes totally dominant. A word of this type remains ambivalent until it is clarified by the Lawgiver Himself. The juridical meaning of all the Qur'anic words cited above has been explained by the Prophet, in which case, they cease to be ambivalent. For when the Lawgiver provides the necessary explanation, the Mujmal is explained and turns into Mufassar.
The Mujmal may sometimes be an unfamiliar word which is inherently vague, but is clarified by the text where it occurs. For example 'al-qari'ah' and 'halu ' whichoccur in the Qur'an. The relevant passages are as follows:
The stunning blow (al-qari'ah)!What is the stunning blow? What will make you realise what the stunning blow is? It is the Day on which the people will act like scattered moths; and the mountains will be like carded wool (al-Qari'ah, 101:1-5).
Truly man was created restless (halu'an);sohe panics whenever any evil touches him; and withholds when some fortune befalls him (al-Ma'arij, 70:20-23).
The ambivalent words in these passages have thus been explained and the text has as a result become self-explained, or Mufassar. The Mujmal turns into the Mufassar only when the clarification that the Lawgiver provides is complete; but when it is incomplete, or insufficient to remove the ambiguity, the Mujmal turns into a Mushkil, which is then open to research and ijtihad. An example of this is the word riba which occurs in the Qur'an (al-Baqarah, 2:275) in the form of a Mujmal, as when it reads: 'God permitted sale and prohibited riba', the last word in this text literally meaning 'increase'. Since not every increase or profit is unlawful, the text remains ambivalent as to what type of increase it intends to forbid. The Prophet has clarified the basic concept of riba in the Hadith which specifies six items (gold, silver, wheat, barley, salt and dates) to which the prohibition applies. But this explanation is insufficient for detailed purposes in that it leaves room for reflection and enquiry as to the rationale of the text with a view to extending the same rule to similar commodities. The Hadith thus opens the way to further ijtihad and analogy to the goods that it has specified. [36. Muslim, Sahih Muslim, I, 252, Hadith no. 949; Khallaf, 'Ilm, pp.173-175; Badran, Usul, pp. 414-415.]
II.4 The Intricate (Mutashabih)
This denotes a word whose meaning is a total mystery. There are words in the Qur'an whose meaning is not known at all. Neither the words themselves nor the text in which they occur provide any indication as to their meaning. The Mutashabih as such does not occur in the legal nusus,but it does occur in other contexts. Some of the suras of the Qur'an begin with what is called al-muqatta'at,that is, abbreviated letters whose meaning is a total mystery. Expressions such as alif-lam-mim, ya-sin, ha-mim and many others which occur on 29 occasions in the Qur'an, are all classified as Mutashabih. Some ulema have held the view that the muqatta'at are meant to exemplify the inimitable qualities of the Qur'an, while others maintain that they are not abbreviations but symbols and names of God; that they have numerical significance; and that they are used to attract the attention of the audience. According to yet another view, the Mutashabih in the Qur'an is meant as a reminder of limitations in the knowledge of the believer, who is made to realise that the unseen realities are too vast to be comprehended by reason. [37. The Holy Qur'an (Yusuf Ali's trans.) p. 118; Denffer, 'Ulum, p. 84; Abdur Rahim, Jurisprudence, p. 100.]
Some ulema, including Ibn Hazm al-Zahiri, have held the view that with the exception of the muqatta'at there is no Mutashabih in the Qur'an. Others have maintained that the passages of the Qur'an which draw resemblances between God and man are also in the nature of Mutashabih.[38. Badran, Usul, p. 416.] Thusthe ayat which provide: 'the hand of God is over their hands' (al-Fath, 48:10); and in a reference to the Prophet Noah where we read: 'build a ship under Our eyes and Our inspiration' (Hud, 11:37) and in sura al-Rahman (55:27) where the text runs 'and the face of your Lord will abide forever', are instances of Mutashabih as their precise meaning cannot be known. One can of course draw an appropriate metaphorical meaning in each case, which is what the Mu'tazilah have attempted, but this is neither satisfactory nor certain. To say that 'hand' metaphorically means power, and 'eyes' means supervision is no more than a conjecture. For we do not know the subject of our comparison. The Qur'an also tells us that 'there is nothing like Him' (al-Shura, 42:11). Since the Lawgiver has not explained these resemblances to us, they remain unintelligible. [39. Khallaf, 'Ilm, p. 176.]
The existence of the Mutashabih in the Qur'an is proven by the testimony of the Book itself, which is as follows:
He it is who has sent down to you the Book. Some of it consist of Muhkamat,which are the Mother of the Book, while others are Mutashabihat. Those who have swerving in their hearts, in their quest for sedition, follow the Mutashabihat and search for its hidden meanings. But no one knows those meanings except God. And those who are firmly grounded in knowledge say: We believe in it, the whole is from our Lord. But only people of inner understanding really heed. (Al-'Imran, 3:7).
The ulema have differed in their understanding of this ayah, particularly with regard to the definition of Muhkamat and Mutashabihat. But the correct view is that Muhkam isthat part of the Qur'an which is not open to conjecture and doubt, whereas the Mutashabih is. With regard to the letters which appear at the beginning of suras, it has been suggested that they are the names of the suras in which they occur. As for the question of whether acting upon the Mutashabih ispermissible or not, there is disagreement, but the correct view is that no one may act upon it. This is so not because the Mutashabih has no meaning, but because the correct meaning is not known to any human being. [40. Ghazali, Mustasfa, I, 68.] There is no doubt that all the Mutashabihat have a meaning, but it is only known to God, and we must not impose our estimations on the words of God in areas where no indication is available to reveal the correct meaning to us. [41. Shawkani, Irshad, pp.31-32.]
Classification II: The 'Amm (General) and the Khass (Specific).
From the viewpoint of their scope, words are classified into the 'general' and the 'specific'. This is basically a conceptual distinction which is not always obvious in the grammatical forms of words, although the ulema have identified certain linguistic patterns of words which assist us in differentiating the 'Amm from the Khass.
'Amm may be defined as a word which applies to many things, not limited in number, and includes everything to which it is applicable. [42. Ghazali, Mustasfa, II, 12; Abdur Rahim, Jurisprudence, p. 79.] An example of this is the word 'insan' (human being) in the Qur'anic ayah, 'verily the human being is in loss' (al-'Asr, 103:1), or the command, 'whoever enters this house, give him a dirham'. In both examples the application of 'human being' and 'whoever' is general and includes every human being without any limitation. 'Amm isbasically a word that has a single meaning, but which applies to an unlimited number without any restrictions. All words, whether in Arabic or any other language, are basically general, and unless they are specified or qualified in some way, they retain their generality. According to the reported ijma' of the Companions and the accepted norms of Arabic, the words of the Qur'an and Sunnah apply in their general capacity unless there is evidence to warrant a departure from the general to an alternative meaning. [43. Khallaf, 'Ilm, p. 178; Badran, Usul, p. 375.] To say that the 'Amm has a single meaning differentiates the 'Amm from the homonym (Mushtarak) which has more than one meaning. Similarly, the statement that the 'Amm applies to an unlimited number precludes the Khass from the definition of 'Amm. [44. Badran, Usul, p. 370.]A word may be general either by its form, such as men, students, judges, etc., or by its meaning only, such as people, community, etc., or by way of substitution, such as by prefixing pronouns like all, every, entire, etc., to common nouns. Thus the Qur'anic ayah which provides that 'every soul shall taste of death' (Al-'Imran, 3: 185), or the statement that 'every contract consists of two parties' are both general in their import.
The 'Amm must include everything to which it is applicable. Thus when a command is issued in the form of an 'Amm it is essential that it is implemented as such. In this way, if A commands his servant to give a dirham to everyone who enters his house, the proper fulfillment of this command would require that the servant does not specify the purport of A's command to, say, A's relatives only. If the servant gives a dirham only to A's relatives with the explanation that he understood that this was what A had wanted, the explanation would be unacceptable and the servant would be at fault.
When a word is applied to a limited number of things, including everything to which it can be applied, say one or two or a hundred, it is referred to as 'specific' (Khass).A word of this kind may denote particular individual such as Ahmad, or Zayd, or an individual belonging to a certain species such as a horse or a bird, or an individual belonging to a genus such as a human being. [45. Abdur Rahim, Jurisprudence, p.79.] As opposed to the general, the specific word applies to a limited number, be it a genus, or a species, or a particular individual. So long as it applies to a single subject, or specified number thereof, it is Khass.But if there is no such limitation to the scope of its application, it is classified as 'Amm.
Legal rules which are conveyed in specific terms are definite in application and are normally not open to ta'wil. Thus the Qur'anic ayah which enacts the 'feeding of ten poor persons' as the expiation for futile oaths is specific and definite in that the number 'ten' does not admit of any ta'wil. However, if there be exceptional reasons to warrant recourse to ta'wil, then the Khass may be open to it. For example, the requirement to feed ten poor persons in the foregoing ayah has been interpreted by the Hanafis as either feeding ten persons or one such person ten times. The Hanafis have, however, been overruled by the majority on this point who say that the Khass,as a rule, is not amenable to ta'wil.
In determining the scope of the 'Amm, reference is made not only to the rules of the language but also to the usage of the people, and should there be a conflict between the two priority is given to the latter. The Arabs normally use words in their general sense. But this statement must be qualified by saying that linguistic usage has many facets. Words are sometimes used in the form of 'Amm but the purpose of the speaker may actually be less than 'Amm or even Khass. The precise scope of the 'Amm has thus to be determined with reference to the conditions of the speaker and the context of the speech. When, for example, a person says that ' honoured the people' or 'I fought the enemy forces', he must surely mean only those whom he met. 'Amm as a rule applies to all that it includes especially when it is used on its own. But when it is used in combination with other words, then there are two possibilities: either the 'Amm remains as before, or it is specified by other words. [46. Shatibi, Muwafaqat, III, 154.]
It thus appears that there are three types of 'Amm, which are a follows: Firstly, the 'Amm which is absolutely general, which may be indicated by a prefix in the form of a pronoun. Note for example the Qur'anic ayat, 'there is no living creature on earth [wa ma min dabbatin fi'l-ard]that God does not provide for' (Hud, 11:6); and 'We made everything [kulla shay'in]alive from water' (al-Anbiya', 21:30). In the first ayah, the prefix 'ma min' ('no one', 'no living creature'), and in the second ayah, the word 'kull' (i.e. 'all' or 'every') are expressions which identify the 'Amm. Both of these ayat consist of general propositions which preclude specification of any kind. Hence they remain absolutely general and include all to which they apply without any exception. Secondly, there is the 'Amm which is meant to imply a Khass. Thisusage of 'Amm is also indicated by evidence which suggests that the 'Amm comprises some but not absolutely all the individuals to whom it could possibly apply. An example of this is the word 'al-nas'('the people') in the Qur'anic ayah, 'pilgrimage to the House is a duty owed to God by all people who are able to undertake it' (Al-'Imran, 3:97). Here the indications provided by the text imply that children and lunatics or anyone who cannot afford to perform the required duty are not included in the scope of this ayah Thirdly, there is the 'Amm which is not accompanied by either of the foregoing two varieties of indications as to its scope. An example of this is the Qur'anic word al-mutallaqat ('divorced women') in the text which provides that 'divorced women must observe three courses upon themselves' (al-Baqarah, 2:228). This type of 'Amm is Zahir in respect of its generality, which means that it remains general unless there is evidence to justify specification (takhsis).In this instance, however, there is another Qur'anic ruling which qualifies the general requirement of the waiting period, or 'iddah, that the divorced women must observe. This ruling occurs in sura al-Ahzab (33:49) which is as follows: 'O believers! When you enter the contract of marriage with believing women and then divorce them before consummating the marriage, they do not have to observe any 'iddah'.In this way, women who are divorced prior to consummating the marriage are excluded from the general requirement of the first ayah. The second ayah, in other words, specifies the first. [47. Badran, Usul, pp. 386-387; Khallaf, 'Ilm, p. 185.]
In grammatical terms, the 'Amm in its Arabic usage takes a variety of identifiable forms. The grammatical forms in which the 'Amm occurs are, however, numerous, and owing to the dominantly linguistic and Arabic nature of the subject, I shall only attempt to explain some of the well-known patterns of the 'Amm.
When a singular or a plural form of a noun is preceded by the definite article al it is identified as 'Amm. For example the Qur'anic text which provides, 'the adulterer, whether a woman or a man, flog them one hundred lashes' (al-Nur, 24:2). Here the article al preceding 'adulterer' (al-zaniyah wa'l-zani) indicates that all adulterers must suffer the prescribed punishment. Similarly, when the plural form of a noun is preceded by al, it is identified as 'Amm. The example that we gave above relating to the waiting period of the divorced women (al-mutallaqat) is a case in point. The ayah in question begins by the word 'al-mutallaqat', that is, 'the divorced women' [48. Khallaf, 'Ilm, p. 182 ff; Badran, Usul, p. 371 ff; Abdur Rahim, Jurisprudence, p. 86 ff.] who are required to observe a waiting period of three courses before they can marry again. 'The divorced women' is an 'Amm which comprises all to whom this expression can apply.
The Arabic expressions jami', kaffah and kull ('all', 'entire'), are generic in their effect, and when they precede or succeed a word, the latter comprises all to which it is applicable. We have already illustrated the occurrence of 'kull' in the Qur'anic text where we read 'We made everything [kulla shay'in] alive from water'. The word jami' has a similar effect when it precedes or follows another word. Thus the Qur'anic text which reads, 'He has created for you all that is in the earth' [khalaqa lakum ma fi'l-ard jami'a] (al-Baqarah, 2:29) means that everything in the earth is created for the benefit of man. Similarly, when a word, usually a plural noun, is prefixed by a conjunctive such as walladhina ('those men who') and wallati ('those women who'), it becomes generic in its effect. An example of this in the Qur'an occurs in sura al-Nur (24:21): 'Those who [walladhina]accuse chaste women of adultery and fail to bring four witnesses, flog them eighty lashes.' This ruling is general as it applies to all those who can possibly be included in its scope, and it remains so unless there is evidence to warrant specification. As it happens, this ruling has, in so far as it relates to the proof of slanderous accusation, been specified by a subsequent ayah in the same passage. This second ayah makes an exception in the case of the husband who is allowed to prove a charge of adultery against his wife by taking four solemn oaths instead of four witnesses, but the wife can rebut the charge by taking four solemn oaths herself (al-Nur, 24:6).The general ruling of the first ayah has thus been qualified insofar as it concerns a married couple.
An indefinite word (al-nakirah) when used to convey the negative is also generic in its effect. For instance the Hadith la darar wa la dirar fi'l-Islam ('no harm shall be inflicted or reciprocated in Islam') is general in its import, as 'la darar' and 'la dirar' are both indefinite words which convey their concepts in the negative, thereby negating all to which they apply.
The word 'man' ('he who') is specific in its application, but when used in a conditional speech, it has the effect of a general word. To illustrate this in the Qur'an, we may refer to the text which provides: 'Whoever [wa-man] kills a believer in error, must release a believing slave' (al-Nisa', 4:92); and 'Whoever [fa-man]among you sees the new moon must observe the fast' (al-Baqarah, 2:185).
There is general agreement to the effect that the Khass isdefinitive (qat'i)in its import, but the ulema have differed as to whether the 'Amm is definitive or speculative (zanni).According to the Hanafis, the application of 'Amm to all that it includes is definitive, the reason being that the language of the law is usually general and if its application were to be confined to only a few of the cases covered by its words without a particular reason or authority to warrant such limited application, the intention of the Lawgiver would be frustrated.[49. Shatibi, Muwafaqat, III, 153; Abu Zahrah, Usul, p.124; Abdur Rahim, Jurisprudence, p. 82.] The majority of ulema, including the Shafi'is, Malikis and Hanbalis, maintain on the other hand that the application of 'Amm to all that it includes is speculative as it is open to limitation and ta'wil, and so long as there is such a possibility, it is not definitive. The result of this disagreement becomes obvious in the event of a conflict between the 'Amm of the Qur'an and the Khass of the Hadith, especially the weak or the solitary Hadith. According to the majority view, a solitary Hadith may specify a general provision of the Qur'an, for the 'Amm of Qur'an is zanni and the Khass of a solitary Hadith, although definitive in meaning, is of speculative authenticity. A zanni may be specified by a qat'i or another zanni.[50. Abu Zahrah, Usul, p.125; Badran, Usul, p.381.] Tothe Hanafis, however, the 'Amm of Qur'an is definite, and the solitary Hadith, or qiyas for that matter, is speculative. A definitive may not be limited nor specified by a speculative. The two views may be illustrated with reference to the Qur'anic text concerning the slaughter of animals, which provides 'eat not [of meat] on which God's name has not been pronounced' (al-An'am, 6: 121). In conjunction with this general ruling, there is a solitary Hadith which provides that 'the believer slaughters in the name of God whether he pronounces the name of God or not'. [51. Bayhaqi, Al-Sunan al-Kubra, VII, 240; Badran, Usul, p.383.]
According to the majority, this Hadith specifies the Qur'anic ayah, with the result that slaughter by a Muslim, even without pronouncing the name of God, is lawful for consumption. But to the Hanafis, it is not lawful, as the 'Amm of the Qur'an may not be specified by solitary (Ahad) Hadith. This disagreement between the juristic schools, however, arises in respect of the solitary Hadith only. As for the Mutawatir (and the Mashhur) there is no disagreement on the point that either of these may specify the general in the Qur'an just as the Qur'an itself sometimes specifies its own general provisions. [52. Shawkani, Irshad, p. 157; Abu Zahrah, Usul, p.125.]
A general proposition may be qualified either by a dependent clause, that is, a clause which occurs in the same text, or by an independent locution. The majority of ulema consider either of these eventualities as two varieties of takhsis. According to the Hanafis, however, an independent locution can specify another locution only if it is established that the two locutions are chronologically parallel to one another. but if they are not so parallel, the later in time abrogates the former, and the case is one of abrogation rather than takhsis. In the event where the qualifying words relate to what has preceded and do not form a complete locution by themselves, they are not regarded as independent propositions. According to the majority, but not the Hanafis, a dependent clause may qualify a general proposition by introducing an exception (istithna'),a condition (shart),a quality (sifah),or indicating the extent (ghayah) of the original proposition. Each of such clauses will have the effect of limiting and specifying the operation of the general proposition. An example of specification in the form of istithna' is the general ruling which prescribes documentation of commercial transactions that involve deferred payments in sura al-Baqarah (2:282). This general provision is then followed, in the same ayah,by the exception 'unless it be a transaction handled on the spot that you pass around among yourselves in which case it will not be held against you if you did not reduce it into writing'. This second portion of the ayah thus embodies an exception to the first. Specification (takhsis)in the form of a condition (shart)to a general proposition may be illustrated by reference to the Qur'anic text which prescribes the share of the husband in the estate of his deceased wife. The text thus provides, 'in what your wives leave, you are entitled to one half if they have no children' (al-Nisa' , 4:12). The application of the general rule in the first portion of the ayah has thus been qualified by the condition which the text itself has provided in its latter part, namely the absence of children. And then to illustrate takhsis by way of providing a description or qualification (sifah) to a general proposition, we may refer to the Qur'anic text regarding the prohibition of marriage with one's step-daughter where we read '[and forbidden to you are] your step-daughters under your guardianship from your wives with whom you have consummated the marriage' (al-Nisa', 4:23). Thus the general prohibition in the first part of the ayah has been qualified by the description that is provided in the latter part. And lastly, to illustrate takhsis in the form of ghayah,or specifying the extent of application of a general proposition, we may refer to the Qur'anic text on ablutions for salah. The text prescribes the 'washing of your hands up to the elbows' (al-Ma'idah, 5:6). Washing the hands, which is a general ruling, is thus specified in regard to the area which must be covered in washing. Similarly when it is said 'respect your fellow citizens unless they violate the law', the word 'citizens' includes all, but the succeeding phrase specifies the extent of the operation of the general ruling. [53. Abdur Rahim, Jurisprudence, pp. 83-84; Khallaf, 'Ilm, p.187; Badran, Usul, pp. 375-378.]
When the application of a general proposition is narrowed down, not by a clause which is part of the general locution itself, but by an independent locution, the latter may consist of a separate text, or of a reference to the general requirements of reason, social custom, or the objectives of Shari'ah (hikmah al-tashri').It is by virtue of reason, for example, that infants and lunatics are excluded from the scope of the Qur'anic obligation of hajj, which occurs in sura Al-'Imran (3:97). Similarly, the general text of the Qur'an which reads that '[a wind] will destroy everything by the command of its Lord' (al-Ahqaf, 46:25), customarily denotes everything which is capable of destruction. Similarly, in the area of commercial transactions, the general provisions of the law are often qualified in the light of the custom prevailing among people. We have already illustrated specification of one text by another in regard to the waiting period ('iddah)of divorced women. The general provision that such women must observe a 'iddah consisting of three menstrual cycles occurs in sura al-Baqarah (2:228). This has in turn been qualified by another text in sura al-Ahzab (33:49) which removes the requirement of 'iddah in cases where divorce takes place prior to the consummation of marriage.[54. Abu Zahrah, Usul, p. 128; Abdur Rahim, Jurisprudence, p. 84; Badran, Usul, p. 379.] And lastly, the general provision of the Qur'an concerning retaliation in injuries on an 'equal for equal' basis (al-Ma'idah, 5:48) is qualified in the light of the objectives of the Lawgiver in the sense that the offender is not to be physically wounded in the manner that he injured his victim, but is to be punished in proportion to the gravity of his offence.
Next, there arises the question of chronological order between the general and the specifying provisions. The specifying clause is either parallel in origin to the general, or is of later origin, or their chronological order is unknown. According to the Hanafis, when the specifying clause is of a later origin than the general proposition, the former abrogates the latter and is no longer regarded as takhsis, but as a partial abrogation of one text by another. According to the Hanafis, takhsis can only take place when the 'Amm and the Khass are chronologically parallel to one another; in cases where this order cannot be established between them, they are presumed to be parallel. The difference between abrogation and takhsis is that abrogation consists of a total or partial suspension of a ruling at a later date, whereas takhsis essentially limits the application of the 'Amm ab initio. To the majority of ulema takhsis is a form of explanation (bayan) in all of its varieties, but to the Hanafis it is a form of bayan only when the specifying clause is independent of the general proposition, chronologically parallel to it, and is of the same degree of strength as the 'Amm in respect of being a qat'i or a zanni. But when the specifying clause is of a later origin than the general proposition, the effect which it has on the latter, according to the Hanafis, is one of abrogation rather than bayan. [55. Badran, Usul, p. 376.] The majority view on takhsis thus differs from the Hanafis in that takhsis according to the majority may be by means of both a dependent or an independent locution, and the specifying clause need not be chronologically parallel to the general proposition. This is because in the majority opinion, the specifying clause explains and does not abrogate or invalidate the general proposition.[56. Abu Zahrah, Usul, pp. 128-129.]
Notwithstanding the ulema's disagreement regarding the nature of takhsis, it would appear that takhsis isnot a partial invalidation of the 'Amm, but an explanation or qualification thereof. This is the majority view, and seems to be preferable to the Hanafi view which equates takhsis with partial abrogation.[57. Abu Zahrah, Usul, p. 129.] Imam Ghazali discusses the Hanafi position at some length, and refutes it by saying that a mere discrepancy in time does not justify the conclusion that takhsis changes its character into abrogation. Nor is it justified to say that a discrepancy in the strength of the indication (dalil) determines the difference between takhsis and abrogation.[58. Ghazali, Mustasfa, II, 103-105.]
The effect of 'Amm isthat it remains in force, and action upon it is required, unless there is a specifying clause which would limit its application. In the event where a general provision is partially specified, it still retains its legal authority in respect of the part which remains unspecified. According to the majority of ulema, the 'Amm is speculative as a whole, whether before or after takhsis, and as such it is open to qualification and ta'wil in either case. For the Hanafis, however, the 'Amm isdefinitive in the first place, but when it is partially specified, it becomes speculative in respect of the part which still remains unspecified; hence it will be treated as zanni and would be susceptible to further specification by another zanni. [59. Khallaf, 'Ilm, p. 183; Abu Zahrah, Usul, p. 129.]
As for the question of whether the cause of a general ruling can operate as a limiting factor in its general application, it will be noted that the cause never specifies a general ruling. This is relevant, as far as the Qur'an is concerned, to the question of asbab al-nuzul, or the occasions of its revelation. One often finds general rulings in the Qur'an which were revealed with reference to specific issues. Whether the cause of the revelation contemplated a particular situation or not, it does not operate as a limiting factor on the application of the general ruling. Thus the occasion of the revelation of the ayah of imprecation (li'an) in sura al-Nur (24:6) was a complaint that a resident of Madinah, Hilal ibn Umayyah, made to the Prophet about the difficulty experienced by the spouse in proving, by four eyewitnesses, the act of adultery on the part of the other spouse. The cause of the revelation was specific but the ruling remains general. Similarly, the Hadith which provides that 'when any hide is tanned, it is purified' [60. Abu Dawud, Sunan (Hasan's trans.), II, 1149; Hadith no. 4111; Abu Zabrah, Usul, p. 130.]
was, according to reports, uttered with reference to a sheepskin, but the ruling is nevertheless applicable to all types of skins. The actual wording of a general ruling is therefore to be taken into consideration regardless of its cause. If the ruling is conveyed in general terms, it must be applied as such even if the cause behind it happens to be specific. [61. Abu Zahrah, Usul, p.130; Khallaf, 'Ilm, p. 189.]
Conflict between 'Amm and Khass
Should there be two textual rulings on one and the same subject in the Qur'an, one being 'Amm and the other Khass, there will be a case of conflict between them according to the Hanafis, but not according to the majority. The reason is that to the Hanafis, 'Amm and Khass are both definitive (qat'i) and as such a conflict between them is possible, whereas to the majority, only the Khass is qat'i and it would always prevail over the 'Amm, which is zanni.
The Hanafis maintain that in the event of a conflict between the general and the specific in the Qur'an, one must ascertain the chronological order between them first; whether, for example, they are both Makki or Madani ayat or whether one is Makki and the other Madani. If the two happen to be parallel in time, the Khass specifies the 'Amm. If a different chronological sequence can be established between them, then if the 'Amm isof a later origin, it abrogates the Khass, but if the Khass islater, it only partially abrogates the 'Amm. This is because the Hanafis maintain that the Khass specifies the 'Amm only when they are chronologically parallel, both are qat'i, and both are independent locutions.
The majority of ulema, as already noted, do not envisage the possibility of a conflict between the 'Amm and the Khass: when there are two rulings on the same point, one being 'Amm and the other Khass, the latter becomes explanatory to the former and both are retained. For the majority, the 'Amm islike the Zahir in that both are speculative and both are open to qualification and ta'wil.[62.Abu Zahrah, Usul, p. 131; Badran, Usul, p. 383.]
The two foregoing approaches to takhsis may be illustrated by the conflict arising in the following two ahadith concerning legal alms (zakah).Oneof these provides, 'whatever is watered by the sky is subject to a tithe'.
The second Hadith provides that 'there is no charity in less than five awsaq'. [63. Al-Tabrizi, Mishkat, I, 563-65, Hadith nos. 1794 & 1797; Abu Zahrah, Usul, p. 131.]
A wasaq (sing. of awsaq) is a quantitative measure equivalent to about ten kilograms. The first Hadith contains a general ruling in respect of any quantity of agricultural crops, but the second Hadith is specific on this point. The majority of ulema (including the Shafi'is) have held that the second Hadith explains and qualifies the first. The first Hadith lays down the general principle and the second enacts the quorum (nisab) of zakah. For the Hanafis, however, the first Hadith abrogates the second, as they consider that the first Hadith is of a later origin than the second. According to the Hanafis, when the 'Amm is of a later origin than the Khass, the former abrogates the latter completely. Hence there is no case for takhsis andthe Hanafis as a result impose no minimum quantitative limit with regard to zakah on produce obtained through dry farming. The two views remain far apart, and there is no meeting ground between them. However, as already indicated, the majority opinion is sound, and recourse to abrogation in cases of conflict between the 'Amm and Khass is often found to be unnecessary. In modern law too one often notices that the particular usually qualifies the general, and the two can co-exist. The 'Amm and the Khass can thus each operate in their respective spheres with or without a discrepancy in their time of origin and the degree of their respective strength. [64. Cf. Abu Zahrah, Usul, p. 132.]
Classification III: The Absolute (Mutlaq) and the Qualified (Muqayyad)
Mutlaq denotesa word which is neither qualified nor limited in its application. When we say, for example, a 'book', a 'bird' or a 'man', each one is a generic noun which applies to any book, bird or man without any restriction. In its original state, the Mutlaq isunspecified and unqualified. The Mutlaq differs from the 'Amm, however, in that the latter comprises all to which it applies whereas the former can apply to any one of a multitude, but not to all.[65. Khallaf, 'Ilm, p. 192; Badran, Usul, pp.351, 371.] However, the ulema have differed regarding the Mutlaq and the Muqayyad. Tosome ulema, including al-Baydawi, the Mutlaq resembles the 'Amm, and the Muqayyad resembles the Khass. Hence anything which specifies the 'Amm can qualify the Mutlaq. Both are open to ta'wil and Mutlaq/Muqayyad are complementary to 'Amm/Khass respectively. [66. Ansari, Ghayat al-Wusul, p. 84.] When the Mutlaq is qualified by another word or words it becomes a Muqayyad, such as qualifying 'a book' as 'a green book', or 'a bird' as 'a huge bird' or 'a man' as 'a wise man'. The Muqayyad differs from the Khass in that the former is a word which implies an unspecified individual/s who is merely distinguished by certain attributes and qualifications. An example of Mutlaq in the Qur'an is the expiation (kaffarah)of futile oaths, which is freeing a slave (fa-tahriru raqabatin) in sura al-Ma'idah, (5:92). The command in this text is not limited to any kind of slaves, whether Muslim or non-Muslim. Yet in another Qur'anic passage the expiation of erroneous killing consists of 'freeing a Muslim slave' (fa-tahriru raqabatin mu'minatin) (al-Nisa', 4:92). In contrast to the first text, which is conveyed in absolute terms, the command in the second ayah is qualified in that the slave to be released must be a Muslim.
The Mutlaq remains absolute in its application unless there is a limitation to qualify it. Thus the Qur'anic prohibition of marriage 'with your wives' mothers' in sura al-Nisa' (4:23) is conveyed in absolute terms, and as such, marriage with one's mother-in-law is forbidden regardless as to whether the marriage with her daughter has been consummated or not. Since there is no indication to qualify the terms of the Qur'anic command, it is to be implemented as it is. But when a Mutlaq is qualified into a Muqayyad, the latter is to be given priority over the former. Thus if we have two texts on one and the same subject, and both convey the same ruling (hukm) as well as both having the same cause (sabab)but one is Mutlaq and the other Muqayyad, the latter prevails over the former. To illustrate this in the Qur'an, we refer to the two ayat on the prohibition of blood for human consumption. The first of these, which occurs in absolute terms, provides, 'forbidden to you are the dead carcass and blood' (al-Ma'idah, 5:3). But elsewhere in the Qur'an there is another text on the same subject which qualifies the word 'blood' as 'blood shed forth' (daman masfuhan)(al-An'am, 6:145). This second ayah is a Muqayyad whereas the first is Mutlaq, hence the Muqayyad prevails. It will be noted here that the two texts convey the same ruling, namely prohibition, and that they have the same cause or subject in common (i.e. consumption of blood). When this is the case, the ulema are in agreement that the Muqayyad qualifies the Mutlaq and prevails over it.[67. Khallaf, 'Ilm, p.193; Abdur Rahim, Jurisprudence, pp. 91-92.]
However if there are two texts on the same issue, one absolute and the other qualified, but they differ with one another in their rulings and in their causes, or in both, then neither is qualified by the other and each will operate as it stands. This is the view of the Hanafi and Maliki schools, and the Shafi'is concur insofar as it relates to two texts which differ both in their respective rulings and their causes. However the Shafi'is maintain the view that if the two texts vary in their ruling (hukm)but have the same cause in common, the Mutlaq is qualified by the Muqayyad. This may be illustrated by referring to the two Qur'anic ayat concerning ablution, one of which reads, in an address to the believers, to 'wash your faces and your hands [aydikum] up to the elbows' (al-Ma'idah, 5:7). The washing of hands in this ayah has been qualified by the succeeding phrase, that is 'up to the elbows'. The second Qur'anic provision which we are about to quote occurs in regard to tayammum, that is, ablution with clean sand in the event where no water can be found, in which case the Qur'an provides, 'take clean sand/earth and wipe your faces and your hands' (al-Nisal, 4:43). The word 'aydikum' (your hands) occurs as a Muqayyad in the first text but as a Mutlaq in the second. However the two texts have the same cause in common, which is cleanliness for salah.There is admittedly a difference between the two rulings, in that the first requires washing, and the second wiping, of the hands, but this difference is of no consequence. The first is a Muqayyad in regard to the area of the hands to be washed whereas the second is conveyed in absolute terms. The second is therefore qualified by the first, and the Muqayyad prevails. Consequently in wiping the hands in tayammum, too, one is required to wipe them up to the elbows.
And lastly we give another illustration, again of two texts, one Mutlaq, the other Muqayyad, both of which convey the same ruling but differ in respect of their causes. Here we refer to the two Qur'anic ayat on the subject of witnesses. One of these, which requires the testimony of two witness in all commercial transactions, is conveyed in absolute terms, whereas the second is qualified. The first of the two texts does not qualify the word 'men' when it provides 'and bring two witnesses from among your men' (al-Baqarah, 2:282). But the second text on same subject, that is, of witnesses, conveys a qualified command when it provides and bring two just witnesses [when you revoke a divorce]' (al-Talaq, 65:2). The ruling in both of these texts is the same, namely the requirement of two witnesses, but the two rulings differ in respect of their causes. The cause of the first text, as already noted, is commercial transactions which must accordingly be testified to by two men; whereas the cause of the second ruling is the revocation of talaq. In the first ayah witnesses are not qualified, but they are qualified in the second ayah. The latter prevails over the former. Consequently, witnesses in both commercial transactions and the revocation of talaq must be upright and just. [68. Khallaf, 'Ilm, p.194; Badran, Usul, p.354.]
The foregoing basically represents the majority opinion. But the Hanafis maintain that when the Muqayyad and the Mutlaq differ in their causes, the one does not qualify the other and that each should be implemented independently. The Hanafis basically recognise only one case where the Muqayyad qualifies the Mutlaq, namely when both convey the same ruling and have the same cause in common. But when they differ in either of these respects or in both, then each must stand separately. In this way the Hanafis do not agree with the majority in regard to the qualification of the area of the arms to be wiped in tayammum by the same terms which apply to ablution by water (wudu'). The Hanafis argue that the hukm in regard to tayammum isconveyed in absolute terms and must operate as such. They contend that unlike wudu', tayammum is a shar'i concession, and the spirit of concession should prevail in the determination of its detailed requirements, including the area of the arm that is to be wiped.[69. Khallaf, 'Ilm, pp. 193-194.]
Classification IV: The Literal (Haqiqi) and the Metaphorical (Majazi)
A word may be used in its literal sense, that is, for its original or primary meaning, or it may be used in a secondary and metaphorical sense. When a word is applied literally, it keeps its original meaning, but when it is used in a metaphorical sense, it is transferred from its original to a secondary meaning on grounds of a relationship between the two meanings.[70. Abdur Rahim, Jurisprudence, p. 93; Badran, Usul, p. 394.] There is normally a logical connection between the literal and the metaphorical meanings of a word. The nature of this relationship varies and extends over a wide range of possibilities. There are at least thirty to forty variations in how the metaphorical usage of a word may relate to its literal meaning.[71. See for details Shawkani, Irshad, pp. 23-24.] The metaphorical usage of a word thus consists of a transfer from the original to a connected meaning. Once such a transfer has taken place both the original and the metaphorical meanings of a word cannot be assigned to it at one and the same time.
Words are normally used in their literal sense, and in the language of the law it is the literal meaning which is relied upon most. Hence if a word is simultaneously used in both these senses, the literal will prevail. When, for example, a person says in his will that 'I bequeath my property to the memorisers of the Qur'an' or to 'my offspring', those who might have memorised the Qur'an but have forgotten it since will not be entitled. Similarly, 'offspring (awlad)'primarily means sons and daughters, not grandchildren. For applying 'awlad' to 'grandchildren' is a metaphorical usage which is secondary to its original meaning.[72. Badran, Usul, p. 395; Hitu, Wajiz, p.115.]
Both the Haqiqi and the Majazi occur in the Qur'an, and they each convey their respective meanings. Thus when we read in the Qur'an to 'kill not [la taqtulu] the life which God has made sacrosanct', 'la taqtulu' carries its literal meaning. Similarly the Majazi occurs frequently in the Qur'an. When, for example, we read in the Qur'an that 'God sends down your sustenance from the heavens' (Ghafir, 40:13), this means rain which causes the production of food. Some ulema have observed that Majazi isin the nature of a homonym which could comprise what may be termed as falsehood or that which has no reality and truth, and that falsehood has no place in the Qur'an. Imam Ghazali discusses this argument in some length and represents the majority view when he refutes it and acknowledges the existence of the Majazi in the Qur'an. The Qur'anic expression, for example, that 'God is the light of the heavens and the earth' (al-Nur, 24:35) and 'whenever they [the Jews] kindled the fire of war, God extinguished it' (al-Ma'idah, 5:67), God being 'the light of the universe', and God having 'extinguished the fire of war', are both metaphorical usages; and numerous other instances of the Majazi can be found in the Qur'an.[73. Ghazali, Mustasfa, 67-78.] As already stated, the Haqiqi and the Majazi both occur in the Qur'an, and they each convey their respective meanings. But this is only the case where the Majazi does not represent the dominant usage. In the event where a word has both a literal and a metaphorical meaning and the latter is well-established and dominant, it is likely to prevail over the former. Some ulema have, however, held the opposite view, namely that the Haqiqi would prevail in any case; and according to yet a third view, both are to be given equal weight. But the first of these views represents the view of the majority. To give an example, the word 'talaq' literally means 'release' or 'removal of restriction' (izalah al-qayd),be it from the tie of marriage, slavery, or ownership, etc. But since the juridical meaning of talaq, which is dissolution of marriage, or divorce, has become totally dominant, it is this meaning that is most likely to prevail, unless there be evidence to suggest otherwise.[74. Hitu, Wajiz, p. 115.]
The Haqiqi is sub-divided, according to the context in which it occurs, into linguistic (lughawi),customary (urfi)and juridical (shar'i).The linguistic Haqiqi isa word which is used in its dictionary meaning, such as 'lion' for that animal, and 'man' for the male gender of the human being. The customary Haqiqi occurs in the two varieties of general and special: when a word is used in a customary sense and the custom is absolutely common among people, the customary Haqiqi isclassified as general, that is, in accord with the general custom. An example of this in Arabic is the word 'dabbah' which in its dictionary meaning applies to all living beings that walk on the face of the earth, but which has been assigned a different meaning by general custom, that is, an animal walking on four legs. But when the customary Haqiqi isused for a meaning that is common to a particular profession or group, the customary Haqiqi isclassified as special, that is, in accord with a special custom. For example the Arabic word raf ('nominative') and nasb ('accusative') have each acquired a technical meaning that is common among grammarians and experts in the language.
There is some disagreement as to the nature of the juridical Haqiqi, as some ulema consider this to be a variety of the Majazi, but having said this, the juridical Haqiqi isdefined as a word which is used for a juridical meaning that the Lawgiver has given it in the first place, such as 'salah', which literally means 'supplication' but which, in its well-established juridical sense, is a particular form of worship. Similarly, the word 'zakah literally means 'purification', but in its juridical sense, denotes a particular form of charity whose details are specified in the Shari'ah.[75. Badran, Usul, p.394; Hitu,Wajiz, p. 112 .]
It would take us too far afield to describe the sub-divisions of the Majazi, as we are not primarily concerned with technical linguistic detail. Suffice it to point out here that the Majazi has also been divided into linguistic, customary and juridical varieties. However, there is one other classification which merits our attention. This is the division of the Haqiqi and Majazi into plain (Sarih) and allusive (Kinayah).
If the application of a word is such that it clearly discloses the speaker's intention, it is plain, otherwise it is allusive. The highest degree of clarity in expression is achieved by the combination of the plain (Sarih) and the literal (Haqiqi) such as the sentence 'Ahmad bought a house', or 'Fatimah married Ahmad'. The plain may also be combined with the metaphorical, as in the sentence 'I ate from this tree', while it is intended to mean 'from the fruit of this tree'.
The 'allusive' or Kinayah denotes a form of speech , which does not clearly disclose the intention of its speaker. It can occur in combination with the literal or the metaphorical. When a person wishes, for example, to confide in his colleague in front of others, he might say 'I met your friend and spoke to him about the matter that you know'. This is a combination of the literal and the allusive in which all the words used convey their literal meanings but where the whole sentence is allusive in that it does not disclose the purpose of the speaker with clarity. Supposing that a man addresses his wife and tells her in Arabic 'i'taddi'(start counting) while intending to divorce her. This utterance is allusive, as 'counting' literally means taking a record of numbers, but is used here in reference to counting the days of the waiting period of 'iddah. This speech is also metaphorical in that the 'iddah which is caused by divorce is used as a substitute for 'divorce'. It is a form of Majazi in which the effect is used as a substitute for the cause.[76. See for further detail on the various forms of the Majazi, Abdur Rahim, Jurisprudence, pp. 94-97; Badran, Usul, p. 397 ff.]
When a speech consists of plain words, the intention of the person using them is to be gathered from the words themselves, and there is no room for further enquiry as to the intention of the speaker. Thus when a man tells his wife 'you are divorced', the divorce is pronounced in plain words and occurs regardless of the husband's intention. But in the case of allusive words, one has to ascertain the intention behind them and the circumstances in which they were uttered. Thus when a man tells his wife 'you are forbidden to me', or when he asks her to 'join your relatives', no divorce will take place unless there is evidence to show that the husband intended a divorce.[77. Badran, Usul, p. 398]
Legal matters which require certainty, such as offences entailing the hadd punishment, cannot be established by language which is not plain. For example when a person confesses to such offences in allusive words, he is not liable to punishment.[78. Abdur Rahim, Jurisprudence, p. 98.]
The jurists are in agreement that a word may be used metaphorically while still retaining its literal meaning, such as the word 'umm' (mother) which the Arabs sometimes use metaphorically for 'grandmother' and yet still retains its literal meaning. But there is disagreement among the ulema of usul as to whether both the literal and metaphorical meanings of a word can be applied simultaneously. When, for example, a man orders his servant to 'kill the lion', could this also include a brave person? The Hanafis and the Mu'tazilah have answered this question in the negative, saying that words normally carry their literal meanings unless there is evidence to warrant a departure to another meaning. The Shafi'is and the ulema of Hadith have held, on the other hand, that the literal and the metaphorical meaning of a word can be simultaneously applied. They have thus validated either of the two meanings of the Qur'anic provision 'or when you have touched women' (al-Nisa', 4:43), which could mean touching the women with the hand, or touching in the sense of having sexual intercourse. The text in which this ayah occurs spells out the circumstances that break the state of purity. Thus when a Muslim 'touches a woman' he must take a fresh ablution for the next salah. But according to the Hanafis, the Qur'anic ayah on this point only conveys the metaphorical meaning of 'touching', that is, sexual intercourse. Hence when a person is in the state of ablution, and then touches a woman by the hand, his ablution remains intact. For the Shafi'is, however, the key word in this ayah carries both its literal and metaphorical meanings simultaneously. Consequently the state of purity is broken, not only by sexual intercourse, but also by a mere touch such as a handshake with a woman who is not of one's family.[79. Badran, Usul, p. 397.]
The Homonym (Mushtarak)
A homonym is a word which has more than one meaning. Some ulema, including al-Shafi'i, have held the view that the homonym is a variety of 'Amm. The two are, however, different in that the homonym inherently possesses more than one meaning, which is not necessarily the case with the 'Amm. An example of the Mushtarak in Arabic is the word "ayn' which means several things, including eye, water-spring, gold, and spy. Similarly the word 'qur" has two meanings, namely menstruation, and the clean period between two menstruations. The Hanafis, the Hanbalis and the Zaydis have upheld the first, while the Shafi'is, Malikis and Ja'faris have upheld the second meaning of qur'. [80. Abu Zahrah, Usul, p. 132; EI2, IV, 101.]
The plurality of meanings in a homonym may be due to the usage of different Arab tribes and communities. Some used it for one meaning, others for the other. Otherwise a word may have acquired a metaphorical meaning which became literal in course of time. When Mushtarak occurs in the Qur'an or Sunnah, it denotes one meaning alone, not more than one. For the Lawgiver does not intend more than one meaning for a word at any given time. The Shafi'is and some Mutazilah 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 a Mushtarak, both or all may be upheld simultaneously provided that they do not contradict one another. According to a variant view, however, plurality of meanings on a simultaneous basis is permissible in negation or denial (nafy)but not in affirmation and proof (ithbat).If, for example, Ahmad says 'I did not see a 'ayn (ma ra'aytu 'aynan)', 'ayn in this negative statement could comprise all of its various meanings. But if Ahmad says 'I saw a 'ayn', than 'ayn in this statement must be used for only one of its several meanings.[81. Shawkani, Irshad, p. 21; Isnawi, Nihayah, I, 166; Abu Zahrah, Usul, p. 133.] This view, however, does not extend to commands and prohibitions which do not admit of affirmation or denial as such. The rule in regard to commands and prohibitions of the Shari'ah isthat the Lawgiver does not intend to uphold more than one of the different meanings of a homonym at any given time. An example of a homonym which occurs in the context of a Qur'anic command is the word 'yad' (hand) in 'as for the thief, male or female, cut off their hands' (al-Ma'idah, 5:38). 'Hand' in this ayah has not been qualified in any way, hence it can mean 'hand' from the tip of the fingers up to the wrist, or up to the elbow, or even up to the shoulder; it also means left or right hand. But the ulema have agreed on the first and the last of these meanings, that is, the right hand, up to the wrist.[82. Khallaf, 'Ilm, p. 180.] To illustrate the homonym in the context of a prohibitory order in the Qur'an we refer to the word 'nakaha' in sura al-Nisa' (4:22) which reads, 'and marry not women whom your fathers had married (ma nakaha aba'ukum)'. 'Nakaha' isa homonym which means both marriage and sexual intercourse. The Hanafis, the Hanbalis, al-Awza'i and others have upheld the latter, whereas the Shafi'is and the Malikis have upheld the former meaning of nakaha. According to the first view, a woman who has had sexual intercourse with a man is forbidden to his children and grandchildren; a mere contract of marriage, without consummation, would thus not amount to a prohibition in this case. The Shafi'is and Malikis, however, maintain that the text under discussion only refers to the contract of marriage. Accordingly a woman who has entered a contract of marriage with one's father or grandfather is unlawful for one to marry regardless as to whether the marriage had been consummated or not .[83. Badran, Bayan, pp. 103-104.]
To determine which of the two or more meanings of the Mushtarak is to be upheld in a particular locution, reference is usually made to the context and circumstances in which it occurs. If it is a locution that pertains to the Shari'ah, then determining the precise purport of its words must also take into consideration the general principles and objectives of the Shari'ah. The Mushtarak isin the nature of Mushkil (difficult) and it is for the Mujtahid to determine its correct meaning by means of research and ijtihad;it is his duty to do so in the event where Mushtarak constitutes the basis of a judicial order .[84. Abu Zahrah, Usul, p.133; Khallaf, 'Ilm, p.179.] The mujtahid will normally look into the context. When, for example, a homonym has two meanings, one literal and the other juridical, and it occurs in a juridical context, than as a rule the juridical meaning will prevail. With words such as salah and talaq, for example, each possesses a literal meaning, that is 'supplication' and 'release' respectively, but when they occur in a juridical context, then their juridical meanings will take priority. As such, salah would be held to refer to a particular form of worship, and talaq would mean 'dissolution of marriage'.
Finally it will be noted in passing that Mushtarak as a concept is not confined to nouns but also includes verbs. In our discussion of commands and prohibitions in a separate chapter, we have shown how a word in its imperative mood can impart more than one meaning. We have also discussed and illustrated the words of the Qur'an that occur in the imperative mood, but the juridical value that they convey can either be an obligatory command, a recommendation, or mere permissibility.
Chapter Five: Rules of Interpretation II: Al-Dalalat (Textual Implications)
The law normally requires compliance not only with the obvious meaning of its text but also with its implied meaning, and indirect indications and inferences that could be drawn from it. With reference to the textual rulings of the Qur'an and the Sunnah, the ulema of usul have distinguished several shades of meaning that a nass may be capable of imparting. The Hanafi jurists have distinguished four levels of meaning in an order which begins with the explicit or immediate meaning of the text. Next in this order is the 'alluded' meaning which is followed by the 'inferred' meaning, and lastly by the 'required' meaning. There is yet a fifth variety of meaning, namely the 'divergent' meaning, which is somewhat controversial but has, in principle, been accepted, as our discussion will show. The explicit meaning (ibarah al-nass), which is based on the words and sentences of the text, is the dominant and most authoritative meaning which takes priority over the other levels of implied meanings that might be detectable in the text. In addition to its obvious meaning, a text may impart a meaning which is indicated by the signs and allusions that it might contain. This secondary meaning is referred to as isharah al-nass, that is the alluded meaning. A legal text may also convey a meaning which may not have been indicated by the words or signs and yet is a complementary meaning which is warranted by the logical and juridical purport of the text. This is known as dalalah al-nass, or the inferred meaning, which is one degree below the alluded meaning by virtue of the fact that it is essentially extraneous to the text. But as will later be discussed, there is a difference of opinion between the Hanafi and the Shafi'i, jurists as to whether the inferred meaning should necessarily be regarded as inferior to the alluded meaning. Next in this order is the iqtida' al-nass, or the required meaning, which is once again a logical and necessary meaning without which the text would remain incomplete and would fail to achieve its desired purpose.[1. Khallaf, 'Ilm, p.143; Badran, Usul, p. 417.] When there is a conflict between the first and the second meanings, priority is given to the first. Similarly, the second will take priority over the third and the third over the fourth, as we shall presently explain.
I. The Explicit Meaning (Ibarah al-Nass)
As already stated, this is the immediate meaning of the text which is derived from its obvious words and sentences. The explicit meaning represents the principal theme and purpose of the text, especially in cases where the text might impart more than one meaning and comprises in its scope a subsidiary theme or themes in addition to the one which is obvious. In its capacity as the obvious and dominant meaning, the 'ibarah al-nass isalways given priority over the secondary and subsidiary themes or meanings of the text. To illustrate this, we refer to the Qur'anic passage on the subject of polygamy, a text which conveys more than one meaning, as follows 'And if you fear that you may be unable to treat the orphans fairly, then marry of the women who seem good to you, two, three or four. But if you fear that you cannot treat [your co-wives] equitably, then marry only one. . .' (al-Nisa', 4:3). At least three or four meanings are distinguishable in this text which are: first, the legality of marriage, a meaning which is conveyed by the phrase fankihu ma taba lakum min al-nisa' ('marry of the women who seem good to you'); second, limiting polygamy to the maximum of four; third, remaining monogamous if polygamy may be feared to lead to injustice; and fourth, the requirement that orphaned girls must be accorded fair treatment, a meaning which is indicated in the first part of the text. All of these are conveyed in the actual words and sentences of the text. But the first and the last are subsidiary and incidental whereas the second and the third represent the explicit themes and meanings of the text, that is, the 'ibarah al-nass. Limiting polygamy to the maximum of four is the explicit meaning which takes absolute priority over all the implied and incidental meanings that this text might convey.[2. Khallaf, 'Ilm, p. 145.]
Most of the nusus of Shari'ah convey their rulings by way of 'ibarah al-nass. Thus the command to perform the obligatory prayers, to observe the fast during Ramadan, to enforce the prescribed penalties for certain offences, to give specified shares to the legal heirs in inheritance, etc., are all instances of 'ibarah al-nass. The effect of 'ibarah al-nass is that it conveys a definitive ruling hukm qat'i on its own and is in no need of corroborative evidence. But if the text is conveyed in general terms, it may be susceptible to qualification, in which case it may not impart a definitive rule of law but a speculative (zanni) evidence only.[3. Badran, Usul, pp. 419-420; Khudari, Usul, p. 119.]
II. The Alluded Meaning (Isharah al-Nass)
The text itself may not be obvious with regard to its alluded meaning, but it imparts, nevertheless, a rationally concomitant meaning which is obtained through further investigation of the signs that might be detectable therein. Since the alluded meaning does not represent the principal theme of the text and yet embodies a necessary inference, it is called isharah al-nass. The alluded meaning may be easily detectable in the text, or may be reached through deeper investigation and ijtihad. An example of the isharah al-nass in the Qur'an is the text concerning the maintenance of young children which provides: 'It is his [father's] duty to provide them with maintenance and clothing according to custom' (al-Baqarah, 2:233). The explicit meaning of this text obviously determines that it is the father's duty to support his child. It is also understood from the wording of the text, especially from the use of the pronoun 'lahu' (his) that only the father and no-one else bears this obligation. This much is easily detectable and constitutes the explicit meaning of this text. But to say that the child's descent is solely attributed to the father and his identity is determined with reference to that of the father is a rational and concomitant meaning which is derived through further investigation of the signs that are detectable in the text.[4. Abu Zahrah, Usul, p. 111; Khudari, Usul, p. 120.] Similarly, the rule that the father, when in dire need, may take what he needs of the property of his offspring without the latter's permission is yet another meaning which is derived by way of isharah al-nass. This meaning is derived from the combination of the text under discussion and the Hadith of the Prophet which proclaims that 'you and your property both belong to your father'. [5. Tabrizi, Mishkat, II, 1002, Hadith no.3354; Khallaf, 'Ilm, p.146.]
Another example of a combination of the explicit and alluded meanings occurring in the same text is the Qur'anic ayah on the permissibility of divorce which provides, in an address to the believers: 'There shall be no blame on you if you divorce your wives with whom you had no sexual intercourse, nor had you assigned for them a dower' (al-Baqarah, 2:236). The explicit meaning of this text is that divorce is permissible prior to the consummation of marriage and the assignment of a dower. The alluded meaning here is the legality of concluding a contract of marriage without the assignment of a dower (mahr). For a divorce can only occur when there is a subsisting marriage. The text implies this to be the case' and that a marriage can legally exist even without the assignment of a mahr.[6. Badran, Usul, p. 420.]
To give yet another example of isharah al-nass we may refer to the Qur'anic text on consultation (shura)where we read, in an address to the Prophet, 'So pardon them [the Companions] and ask for [God's] forgiveness for them and consult them in affairs' (Al-'Imran, 3:159). The 'ibarah al-nass in this text requires that community affairs must be conducted through consultation. The alluded meaning of this text requires the creation of a consultative body in the community to facilitate the consultation which is required in the obvious text.
The effect of isharah al-nass is similar to that of 'ibarah al-nass in that both constitute the basis of obligation, unless there is evidence to suggest otherwise. To illustrate this, we may refer once again to the Qur'anic text (al-Baqarah, 2:233) which laid down the rule that the child follows the descent of his father. This is a definitive ruling (hukm qat'i) which has, however, been set aside by ijma' in respect of slavery to the effect that the offspring of a slave does not necessarily acquire the status of his father. In this example, the isharah al-nass initially laid down a definitive ruling but it has been set aside in respect of slavery by another definitive evidence, namely the ijma'.[7. Badran, Usul, p. 421.]
III. The Inferred Meaning (Dalalah al-Nass)
This is a meaning which is derived from the spirit and rationale of a legal text even if it is not indicated in its words and sentences. Unlike the explicit meaning and the alluded meaning which are both indicated in the words and signs of the text, the inferred meaning is not so indicated. Instead, it is derived through analogy and the identification of an effective cause ('illah) which is in common between the explicit meaning and the meaning that is derived through inference. This might explain why some ulema have equated dalalah al-nass with analogical deduction, namely qiyas jali. To illustrate this, we may refer to the Qur'anic text on the obligation to respect one's parents. In particular, the text provides, 'and say not uff to them' (al-Isra' 17:23), which obviously forbids the utterance of the slightest word of contempt to the parents. The effective cause of this prohibition is honouring the parents and avoiding offence to them. There are, of course, other forms of offensive behaviour, besides a mere contemptuous word such as uff, to which the effective cause of this prohibition would apply. The inferred meaning of this text is thus held to be that all forms of abusive words and acts which offend the parents are forbidden even if they are not specifically mentioned in the text under consideration.[8. Abu Zahrah, Usul, p. 112.]
To give another example, the Qur'an proclaims, concerning the property of orphans, that 'those who unjustly devour the property of the orphans only devour fire into their bodies' (al-Nisa', 4:10). The explicit meaning of this text forbids guardians and executors from devouring the property of their orphaned wards for their personal gain. But by way of inference the same prohibition is extended to other forms of destruction and waste which might have been caused, for example, through financial mismanagement that does not involve personal gain and yet leads to the loss and destruction of the property of the orphans. Although the text provides no indication as to the different ways in which destruction can be caused, they are nevertheless equally forbidden. As already stated, this kind of inference is equivalent to what is known as obvious analogy (qiyas jali) which consists of identifying the effective cause of a textual ruling, and when this is identified the original ruling is analogically extended to all similar cases. The effective cause of the ruling in the foregoing ayah isprotection of the orphans' property, and any act which causes destruction or loss of such property falls under the same prohibition.[9. Khallaf, 'Ilm, p. 150.]
IV. The Required Meaning (Iqtida' al-Nass)
This is a meaning on which the text itself is silent and yet which must be read into it if it is to fulfill its proper objective. To give an example, the Qur'an proclaims concerning the prohibited degrees of relations in marriage: 'unlawful to you are your mothers and your daughters . . .' (al-Nisa', 4:22). This text does not mention the word 'marriage', but even so it must be read into the text to complete its meaning. Similarly we read elsewhere in the Qur'an: 'unlawful to you are the dead carcass and blood' (al-Ma'idah, 5:3), without mentioning that these are unlawful 'for consumption'. But the text requires the missing element to be supplied in order that it may convey a complete meaning.
To give a slightly different example of iqtida' al-nass, we may refer to the Hadith which provides: "There is no fast (la siyama)for anyone who has not intended it from the night before."
The missing element could either be that the fasting is 'invalid' or that it is 'incomplete'. The Hanafis have upheld the latter whereas the Shafi'is have read the former meaning into this Hadith. Whichever meaning is upheld, the consequences that it may lead to will vary accordingly. [10. Ibn Majah, Sunan, I, 542, Hadith no. 1700; Badran, Usul, p. 424.]
To summarise, a legal text may be interpreted through the application of any one or more of the four varieties of textual implications. The meaning that is arrived at may be indicated in the words of the text, by the signs which occur therein, by inference, or by the supplementation of a missing element. These methods of legal construction may be applied individually or in combination with one another, and they are all designed to carry the text to its proper and logical conclusions.
As stated above, in the event of a conflict between the 'ibarah al-nass and the isharah al-nass, the former prevails over the latter. This may be illustrated by a reference to the two Qur'anic ayat concerning the punishment of murder. One of these explicitly proclaims that 'retaliation is prescribed for you in cases of murder' (al-Baqarah, 2:178). But elsewhere in the Qur'an, it is provided: 'Whoever deliberately kills a believer, his punishment will be permanent hellfire' (al-Nisa', 4:93). The explicit meaning of the first ayah provides that the murderer must be retaliated against; the explicit meaning of the second ayah isthat the murderer is punished with permanent hellfire. The alluded meaning of the second ayah isthat retaliation is not a required punishment for murder; instead the murderer will, according to the explicit terms of this ayah be punished in the hereafter. There is no conflict in the explicit meanings of the two texts, but only between the explicit meaning of the first and the alluded meaning of the second. A conflict thus arises as to which of the two punishments are to be upheld. But since the first ruling constitutes the explicit meaning of the text and the second is an alluded meaning, the former prevails over the latter.[11. Abu Zahrah, Usul, p.115; Khallaf, 'Ilm, p.150.]
For another illustration of a conflict between the explicit and the alluded meanings, we refer to the Qur'anic text which informs the believers of the dignified status of the martyrs, as follows: 'And think not of those who are slain in God's way as dead; they are alive, finding their sustenance in the presence of God' (Al-'Imran, 3:169). The explicit terms of this text obviously declare the martyrs to be alive and that anyone who thinks they are dead is mistaken. The alluded meaning of this text is held to be that no funeral prayer is necessary for the martyr as he is deemed to be still alive. However, this conclusion conflicts with the explicit meaning of another Qur'anic text which orders, concerning the dead in general, to 'pray on their behalf [salli 'alayhim]as your prayers are a source of tranquility for them' (al-Tawbah, 9:103). This text explicitly requires prayers for everyone, martyr or otherwise, as they are dead literally and juridically and their property may be inherited by their legal heirs, etc. This is the explicit meaning of this second text and it prevails over the alluded meaning of the first. [12. Badran, Usul, p. 428.]
To illustrate the conflict between the alluded meaning and the inferred meaning, we refer firstly to the Qur'anic text on the expiation of erroneous homicide which provides: 'The expiation (kaffarah)of anyone who erroneously kills a believer is to set free a Muslim slave' (al-Nisa', 4:92). The explicit meaning of this ayah isthat erroneous homicide must be expiated by releasing a Muslim slave. By way of inference, it is further understood that freeing a Muslim slave would also be required in intentional homicide. For the purpose of kaffarah iscompensation and atonement for a sin. It is argued that the murderer is also a sinner and has committed a sin far greater then the one who kills as a result of error. The inferred meaning derived in this way is that the murderer is liable, at least, to the same kaffarah which is required in erroneous homicide. However, according to the next ayah in the same passage, to which reference has already been made: 'Whoever deliberately kills a believer, his punishment is permanent hellfire' (al-Nisa', 4:93). The alluded meaning of this text is that freeing a slave is not required in intentional killing. This meaning is understood from the explicit terms of this ayah which provide that the punishment of deliberate homicide is a permanent abode in hell. This would in turn imply that murder is an unpardonable sin, and as such there is no room for kaffarah in cases of murder. This is the alluded meaning of the second ayah; and a conflict arises between this and the inferred meaning of the first ayah. The alluded meaning, which is that the murderer is not required to pay a kaffarah, takes priority over the inferred meaning that renders him liable to payment.[13. Badran, Usul, p. 429; Khallaf, 'Ilm, p. 153.]
The Shafi'is are in disagreement with the Hanafis on the priority of the alluded meaning over the inferred meaning. According to the Shafi'is, the inferred meaning takes priority over the alluded meaning. The reason given for this is that the former is founded in both the language and rationale of the text whereas the latter is not; that the alluded meaning is only derived from a sign which is basically weaker than the words and the rationale of the text, and that the inferred meaning is a closer meaning and should therefore be given priority over the alluded meaning. It is on the basis of this analysis that, in the foregoing example, the Shafi'is have given priority to the inferred meaning of the text with the result that the murderer is also required to pay the kaffarah.[14. Abu Zahrah, Usul, p.115.]
V. Divergent Meaning (Mafhum al-Mukhalafah) and the Shafi'i Classification of al-Dalalat
The basic rule to be stated at the outset here is that a legal text never implies its opposite meaning, and that any interpretation which aims at reading a divergent meaning into a given text is unwarranted and untenable. If a legal text is at all capable of imparting a divergent meaning, then there needs to be a separate text to validate it. But any attempt to obtain two divergent meanings from one and the same text is bound to defy the very essence and purpose of interpretation. This argument has been more forcefully advanced by the Hanafis, who are basically of the view that mafhum al-mukhalafah isnot a valid method of interpretation.[15. Khallaf, 'Ilm, p.153.] Having said this, however, mafhum al-mukhalafah isupheld on a restrictive basis not only by the Shafi'is but even by the Hanafis; they have both laid down certain conditions which must be fulfilled so as to ensure the proper use of this method.
Mafhum al-mukhalafah may be defined as a meaning which is derived from the words of the text in such a way that it diverges from the explicit meaning thereof. [16. Hitu, Wajiz, p. 125.] To give an example, the Qur'an proclaims the general rule of permissibility (ibahah)of foodstuffs for human consumption with a few exceptions which are specified in the following text: 'Say, I find nothing in the message that is revealed to me forbidden for anyone who wishes to eat except the dead carcass and blood shed forth' (daman masfuhan)(al-An'am, 6:145). With reference to the latter part of this text, would it be valid to suggest that blood which is not shed forth (dam ghayr masfuh)islawful for human consumption? The answer to this question is in the negative. For otherwise the text would be subjected to an interpretation which is most likely to oppose its obvious meaning. As for the permissibility of unspilt blood such as liver and spleen, which consist of clotted blood, this is established, not by the ayah under consideration, but by a separate text. Liver and spleen are lawful to eat by virtue of the Hadith of the Prophet which proclaims that 'lawful to us are two types of corpses and two types of blood. These are the fish, the locust, the liver and the spleen.[17. Tabrizi, Mishkat, II, 203, Hadith no. 4132; Khallaf, 'Ilm, p. I54.]
As already indicated, the Shafi'is have adopted a different approach to mafhum al-mukhalafah. But to put this matter in its proper perspective, we would need to elaborate on the Shafi'i approach to textual implications (al-dalalat')as a whole, and in the course of this general discussion, we shall turn to mafhum al-mukhalafah in particular.
Unlike the Hanafi classification of textual implications into four types, the Shafi'is have initially divided al-dalalat into the two main varieties of dalalah al-mantuq (pronounced meaning) and dalalah al-mafhum (implied meaning). Both of these are derived from the words and sentences of the text. The former form the obvious text and the latter come through logical and juridical construction thereof. An example of dalalah al-mantuq isthe Qur'anic ayah which proclaims that 'God has permitted sale and prohibited usury' (al-Baqarah, 2:275). This text clearly speaks of the legality of sale and the prohibition of usury. Dalalah al-mantuq has in turn been subdivided into two types, namely dalalah al-iqtida (required meaning), and dalalah al-isharah (alluded meaning). Both of these are either indicated in the words of the text or constitute a necessary and integral part of its meaning. As will be noted, even from this brief description, the difference between the Shafi'i and Hanafi approaches to the classification of al-dalalat ismore formal than real.[18. Badran, Usul, p. 429; Khudari, Usul, pp. 121-122; Hitu, Wajiz, p. 120.] Abu Zahrah has aptly observed that essentially all of the four Hanafi varieties of al-dalalat are, in one way or another, founded in the actual words and sentences of the text. Despite the technical differences that might exist between the four types of implications, they are basically all founded in the text. In this way all of the four-fold Hanafi divisions of al-dalalat can be classified under dalalah al-mantuq.[19. Abu Zahrah, Usul, p. 116.]
Dalalah al-mafhum isan implied meaning which is not indicated in the text but is arrived at by way of inference. This is to a large extent concurrent with what the Hanafis have termed dalalah al-nass.But the Shafi'is have more to say on dalalah al-mafhum in that they sub-divide this into the two types of mafhum al-muwafaqah (harmonious meaning) and mafhum al-mukhalafah (divergent meaning). The former is an implicit meaning on which the text may be silent but is nevertheless in harmony with its pronounced meaning. This harmonious meaning (mafhum al-muwafaqah)may be equivalent to the pronounced meaning (dalalah al-mantuq),or may be superior to it. If it is the former, it is referred to as lahn al-khitab (parallel meaning) and if the latter, it is known as fahwa al-khitab (superior meaning). For example, to extend the Qur'anic ruling in sura al-Nisa' (4:10) which only forbids 'devouring the property of orphans' to other forms of mismanagement and waste, is a 'parallel' meaning (lahn al-khitab).But to extend the Qur'anic text which forbids the utterance of 'uff', that is the slightest word of contempt, to, for instance, physical abuse of one's parents, is a meaning which is 'superior' to the pronounced meaning of the text.[20. Hitu, Wajiz, p.124; Salih, Mabahith, p. 301.] The validity of these forms of harmonious meanings is approved by the ulema of all schools (except the Zahiris) who are generally in agreement with the basic concept of mafhum al-muwafaqah. But this is not the case with regard to mafhum al-mukhalafah, on which the ulema have disagreed. [21. Badran, Usul, p. 430.]
As noted above, mafhum al-mukhalafah diverges from the pronounced meaning (dalalah al-mantuq) of the text, which may, however, be either in harmony or in disharmony with it. It is only when mafhum al-mukhalafah is in harmony with the pronounced meaning of the text that it is accepted as a valid form of interpretation, otherwise it is rejected. For an example of the divergent meaning which is in harmony with the pronounced meaning of the text, we may refer to the Hadith which provides: 'When the water reaches the level of qullatayn (approximately two feet) it does not carry dirt.' [22. Ibn Majah, Sunan I, 172, Hadith no. 518.]
In this way when a polluting substance falls into water of this depth, it is still regarded as clean for purposes of ablution. This is the pronounced, or explicit, meaning of the text. By way of mafhum al-mukhalafah, it is understood that water below this level is capable of 'retaining' dirt. This is an interpretation which is deemed to be in harmony with the pronounced meaning of the Hadith. [23. Zuhayr, Usul, II, 114.]
According to the Shafi'is, deduction by way of mafhum al-mukhalafah is acceptable only if it fulfills certain conditions, which are as follows: firstly, that the divergent meaning does not exceed the scope of the pronounced meaning. For example, the Qur'anic ayah which prohibits 'saying uff' to one's parents may not be given a divergent meaning so as to make physical abuse of them permissible. Secondly, that the divergent meaning has not been left out in the first place for a reason such as fear or ignorance; for example, if a man orders his servant to 'distribute this charity among the Muslims', but by saying so he had actually intended people in need, whether Muslims or non-Muslims, and yet omitted to mention the latter for fear of being accused of disunity by his fellow Muslims. Should there be evidence as to the existence of such a fear, then no divergent meaning should be deduced. A similar case would be when a person says that 'maintenance is obligatory for ascendants and descendants', while he did not know that collaterals are also entitled to maintenance. Should there be evidence as to his ignorance on this point, then no divergent meaning should be attempted to the effect, for example, of saying that maintenance is not obligatory for collaterals. Thirdly, that the divergent meaning does not go against that which is dominant and customary in favour of something which is infrequent and rare. To give an example: the Qur'an provides concerning the prohibited degrees of relationship in marriage: 'and forbidden to you are [...] your step-daughters who live with you, born of your wives with whom you have consummated the marriage; but there is no prohibition if you have not consummated the marriage' (al-Nisa', 4:23). This text is explicit on the point that marriage to a step-daughter who is under the guardianship of her step-father is forbidden to the latter. By way of mafhum al-mukhalafah, this ayah might be taken to mean that a step-daughter who does not live in the house of her mother's husband may be lawfully married by the latter. But this would be a meaning which relies on what would be a rare situation. The probable and customary situation in this case would be that the step-daughter lives with her mother and her step-father, which is why the Qur'an refers to this qualification, and not because it was meant to legalise marriage with the step-daughter who did not live with him .[24. Hitu, Wajiz, p.125; Badran, Usul, p. 433.] Fourthly, that the original text is not formulated in response to a particular question or event. For instance, the Prophet was once asked if free-grazing livestock was liable to zakah; and he answered in the affirmative. But this answer does not imply that the stall-fed livestock is not liable to zakah. The answer was originally given to a question which specified the free-grazing livestock and not in order to exempt the stall-fed variety from zakah. Fifthly, that the divergent meaning does not depart from the reality, or the particular state of affairs, which the text is known to have envisaged. For example the Qur'an provides in a reference to relations between Muslims and non-Muslims: 'Let not the believers befriend the unbelievers to the exclusion of their fellow believers' (Al-'Imran, 3:28). This ayah apparently forbids friendship with the unbelievers, but this is not the purpose of the text. This ayah was, in fact, revealed in reference to a particular state of affairs, namely concerning a group of believers who exclusively befriended the unbelievers, and they were forbidden from doing this; it did not mean to impose a ban on friendship with unbelievers. The text, in other words, contemplated a particular situation and not the enactment of a general principle, and should therefore not be taken out of context by recourse to mafhum al-mukhalafah.[25. Hitu, Wajiz, p. 126; Badran, Usul, p.434.] Sixthly, that the divergent meaning does not lead to a conclusion that would oppose another textual ruling. To give an example, we refer to the Qur'anic text on the requirement of retaliation which provides: 'Retaliation is prescribed for you in cases of murder: the free for the free, the slave for the slave, the woman for the woman [ ... ]' (alBaqarah, 2:178). This text may not be taken by way of mafhum al mukhalafah to mean that a man is not retaliated against for murdering a woman. For such a conclusion would violate the explicit ruling of another Qur'anic text which requires retaliation for all intentional homicides on the broadest possible basis of 'life for life' (al-Ma'idah, 5:45).
The main restriction that the Hanafis have imposed on mafhum al mukhalafah isthat it must not be applied to a revealed text, namely the Qur'an and the Sunnah. As a method of interpretation, mafhum al mukhalafah is thus validated only with regard to a non-revealed text. Only in this context, that is, in regard to rational proofs and man-made law, can it provide a valid basis of hukm and ijtihad. The main reason that the Hanafis have given in support of this view is that the Qur'an itself discourages reliance on mafhum al-mukhalafah, for there are many injunctions in the Qur'an and Sunnah whose meaning will be distorted if they were to be given divergent interpretation. To give an example, we read in the Qur'an, in a reference to the number of months that God enacted on the day He created the universe, that there shall be twelve months in a year. The text then continues to provide that 'four of them are sacred, so avoid committing acts of oppression [zulm]therein' (al Tawbah, 9:36).[26. These are the months of Muharram, Dhu al-Hijjah, Dhu al-Qi'dah and Rajab] By way of mafhum al-mukhalafah,this text could be taken to mean that acts of oppression are permissible during the rest of the year. This would obviously corrupt the purpose of this text, as oppression is always forbidden regardless of the time in which it is committed.[27. Badran, Usul, p. 435.] Similarly, there is a Hadith which instructs the believers that 'none of you may urinate in permanently standing water nor may you take a bath therein to cleanse yourselves of major pollution (janabah)'. [28. Tabrizi, Mishkat, I,148; Hadith no. 474.]
By way of mafhum al mukhalafah, this text could be taken to mean that taking a bath other than the one specifically for janabah ispermissible in such water, or that urinating is permissible in flowing water, neither of which would be correct. Bathing in small ponds below a certain depth is not permitted whether it be for janabah or otherwise.
The Hanafis have further concluded that whenever necessary the Qur'an itself has stated the divergent implications of its own rulings, and when this is the case, the divergent meaning becomes an integral part of the text and must be implemented accordingly. This style of the Qur'anic legislation suggests that if recourse to mafhum al-mukhalafah were generally valid, there would be no need for it to be explicitly spelled out in the Qur'anic text. The Qur'an, in other words, is self-contained and does not leave it to us to deduce the law from it by recourse to divergent interpretation. Note, for example, the text which instructs the husband to avoid sexual intercourse with his wife during her menstruation. The text then immediately follows on to specify its own divergent implication: 'And approach them not until they are clean. But when they have purified themselves, you may approach them' (al-Baqarah, 2:223). In the same sura, there is another text, to which reference has already been made, concerning the prohibition of marriage between the step-daughter and her step-father who has consummated the marriage with her mother. The text then continues to specify its divergent meaning by providing that 'there is no prohibition if you have not consummated the marriage' (al-Baqarah, 2:23). The Hanafis have thus concluded that mafhum al-mukhalafah is not applicable to the nusus of the Qur'an and Sunnah. We only deduce from the nusus such rules as are in harmony with their explicit terms.[29. Abu Zahrah, Usul, pp. 117-118.]
The Shafi'is and the Malikis who validate the application of mafhum al-mukhalafah to the nusus have, in addition to the conditions that were earlier stated, imposed further restrictions which consist of specifying exactly what forms of linguistic expressions are amenable to this method of interpretation. For this purpose the Shafi'is have sub-divided mafhum al-mukhalafah into four types. The main purpose of this classification is to introduce greater accuracy into the use of mafhum al-mukhalafah,specifying that it is an acceptable method of deduction only when it occurs in any of the following forms but not otherwise:
1. Mafhum al-Sifah (Implication of the Attribute). When the ruling of a text is dependent on the fulfillment of a quality or an attribute then the ruling in question obtains only when that quality is present; otherwise it lapses. This can be shown in the Qur'anic text on the prohibited degrees of relations in marriage which includes 'the wives of your sons proceeding from your loins' (al-Nisa' 4:23). The pronounced meaning of this text is the prohibition of the wife of one's own son in marriage. The son has thus been qualified in the text by the phrase 'proceeding from your loins'. By way of mafhum al-mukhalafah,it is concluded from this qualification that the wife of an adopted son, or of a son by fosterage (rada'a),that is a child who has suckled the breast of one's wife, is not prohibited.[30. Badran, Usul, p. 432; Salih, Mabahith, p. 302; Khudari, Usul, p. 123.]
2. Mafhum al-Shart(Implication of the Condition). When the ruling of a text is contingent on a condition, then the ruling obtains only in the presence of that condition, and lapses otherwise. An example of this is the Qur'anic text on the entitlement to maintenance of divorced women who are observing their waiting period ('iddah).The text proclaims: 'If they are pregnant, then provide them with maintenance until they deliver the child' (al-Talaq, 65:6). The condition here is pregnancy and the hukm applies only when this condition is present. By way of mafhum al-mukhalafah,it is concluded, by those who validate this method at least, that maintenance is not required if the divorced woman, who is finally divorced, is not pregnant. Similarly, the Qur'anic text which provides for a concession in regard to fasting is conveyed in conditional terms. Having laid down the duty of fasting, the text then continues: 'but if any one is ill or traveling, the prescribed fasting should be observed later' (al-Baqarah, 2:185). By way of mafhum al-mukhalafah,it is concluded that the concession to break the fast does not apply if one is neither ill nor traveling, which is a valid interpretation. [31. Hitu, Wajiz, p. 127;]
3. Mafhum al-Ghayah(Implication of the Extent). When the text itself demarcates the extent or scope of the operation of its ruling, the latter will obtain only within the scope of the stated limits and will lapse when the limit is surpassed. To illustrate this, the Qur'anic text on the time of fasting provides the farthest limit beyond which one must stop eating and drinking during Ramadan: 'Eat and drink until you see the white streak [of dawn in the horizon] distinctly from the black' (al-Baqarah, 2:187). By way of mafhum al-mukhalafah, it is concluded that when whiteness appears in the horizon, one may neither eat nor drink. [32. Khudari, Usul, p. 123]
4. Mafhum al-Adad (Implication of the Stated Number). When the ruling of a text is conveyed in terms of a specified number, the number so stated must be carefully observed. Thus the Qur'anic text on the punishment of adultery is clearly stated to be one hundred lashes (al-Nur, 24:2) By way of mafhum al-mukhalafah this text is taken to mean that it is not permissible either to increase or decrease the stated number of lashes.[33. Khudari, Usul, p. 123.]
In conclusion, it may be said that the foregoing methods are generally designed to encourage rational enquiry in the deduction of the ahkam from the divinely revealed sources. They provide the jurist and the mujtahid with guidelines so as to ensure the propriety of interpretation and ijtihad. The restrictions that are imposed on the liberty of the mujtahid are obvious enough in that the textual rulings of the Qur'an and Sunnah must be treated carefully so that they are not stretched beyond the limits of their correct implications. Yet the main thrust of the guidelines that are provided is one of encouragement to the exercise of rational enquiry in the understanding and implementation of the nusus. The rules of interpretation that are discussed under this and the preceding chapter are once again indicative of the primacy of revelation over reason, and yet they are, at the same time, an embodiment of the significant role that reason must play side by side with the revelation. The two are substantially concurrent and complementary to one another.
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