By: M. Ramadan
It is well known and accepted by all Muslims that the basic sources of Islam are the Qur’an and Sunnah and every Muslim will have to turn towards them to learn the commands of Deen Al-Islam. Imam Hasan Al-banna writes in the 2ND.Principle of the twenty basic principles: [The glorious Qur’an and the purified traditions (Sunnah) of Rasul Allah (
) are the reference points for every Muslim to acquaint himself with the rules of Islam (Ahkam Al-Islam). The glorious Qur’an can be understood by applying the rules of the Arabic language without constraint or controversy. And the purified Sunnah of Rasul Allah can be acquired by reference to the trustworthy scholars (transmitters) of Hadith (collected sayings of Rasul Allah ]. The glorious Qur’an and the purified traditions (Sunnah) of Rasul Allah () are the reference points for every Muslim to acquaint himself with the rules of Islam (Ahkam Al-Islam). According to Al-Shatibi Al-Maliki in Al-Muwafaqat: [The Qur’an is the whole of the Shari’a, the support of religion, the fount of wisdom, the sign of Prophethood and the light of the eyes and the heart. There is no way to Allah except through it and there is no salvation by any other means than it. You must not hold to anything that contradicts it. None of this needs affirmation or deduction because it is known to the Deen of the Community. Since that is the case, whoever wants complete knowledge of the Shari’a and desires to perceive its aims and be joined to its adherents must necessarily take the Qur’an as his constant companion and make it his intimate, night and day, in both investigation and action… If he is able to do that, he will soon have students and find himself among the Frontrunners and in the first rank. He will not be able to do it without being helped in that by the Sunnah which clarifies the Book and, failing that, the works of earlier Imams and the Salaf, which will guide him in this noble aim and lofty purpose] [p. 247, vol. 3]. Malik knew that the Qur’an contains all the Shari’ah and that the Sunnah is simply its exposition. The Qur’an cannot be understood correctly and completely unless the clarification which elucidates it, the Sunnah of the Rasul Allah , is taken into account. He was thirsty for it, not merely because it was the second Islamic source, but because it also clarifies and expounds the Qur’an and gives detail to what is general and limits what is unrestricted. The Qur’an is in Arabic and was revealed in the Arabic language. The people of eloquent Arabic saw that its style was inimitable and were overwhelmed by it as all people are. However, it is in Arabic, and Malik did not think that it was proper for anyone to try to explain it unless he had deep knowledge of the Arabic language, its different dialects, and styles of speech. That is why it is reported that he said: [No one who explains the Book of Allah who does not know the dialects of the Arabs is brought to me without my making an example of him]. The Sunnah is the straight way to grasp the meanings of the Book. That is why it is not correct to hold only to the Qur’an without seeking help in its explanation, meaning the Sunnah.
ADILLAT AL-AHKAM AL-SHAR’IAYAH:
1.1 WHAT IS MEANT BY DALEEL?
Linguistically, Daleel means a proof, indication, or evidence. As a term, Daleel means the source or evidence for a thought, concept, or a ruling. Any law or ruling must have a Daleel, which can be from Qur’an, Sunnah, or a source, which Qur’an and Sunnah directed us to adopt. Any ruling from the text of either the Qur’an or Sunnah is considered a Daleel. For example, the Qur’an states: [Let there arise out of you a group of people inviting to all that is good [Islam] and enjoining what is right and forbidding what is wrong] [3/104] This Ayah is considered a Daleel for the obligation of establishing a Hizb [party or group] calling for Islam and enjoining what is Maruf [good] and forbidding what is Munkar [bad]. An example of a Daleel from the Sunnah is the prohibition to the call for nationalism. Rasul Allah () said about all types of Al-‘Asabiyah [nationalism, racism, tribalism]: [Leave it, it is rotten] [Bukhari and Muslim].
1.2 STRUCTURE OF DALEEL
As mentioned earlier, a Daleel is an evidence for an opinion, concept, ruling, or a thought from Islam. There are two aspects related to any Daleel, Riwayah OR Thubut [reportage] and Dalalah [meaning]. The Riwayah covers issues related to how the information was relayed to us, which includes the number and the integrity of the reporters. The Dalalah is related to the meaning of the text in the Daleel. There are also two terms used in connection with [Riwayah] and [Dalalah]: [Qatai] and [Zanniy]. [Qatai] is defined as being conclusive or decisive, while [Zanniy] is the opposite of [Qatai] and means non-definite or indecisive.
1.2.1 RIWAYAH
Any Ayah from the Qur’an or Hadith Mutawatir is considered Qatai [conclusive] in its Riwayah [report]. The Qatai in Riwayah implies that the evidence is authentic without any shadow of doubt. This authenticity is established based on the methodology of transmission. The methodology by which the Qur’an was transmitted to us precludes any possibility of fabrication. The report was transmitted generation by generation in exactly the same manner. It is impossible for an entire generation to fabricate, erase, or add contents to the Qur’an. It is inconceivable to believe that every single individual in that generation assembled together and agreed to add or delete parts of the Qur’an. Everyone in that generation was reciting the same contents of the Qur’an, thus authentifying its contents. Hadith Mutawatir was not transmitted generation-by-generation, nut rather by a large number of people. Due to the large number of people reporting the Daleel, and their diversity of residence, their established reliability and conviction, it is inconceivable that this Daleel could be wrong. Any report of information other than through the Qur’an or Hadith Mutawatir, such as Hadith Ahad, is considered Zanniy (non-definite), meaning that there is a minute possibility that the Daleel could contain error.
1.2.2 DALALAH
The second aspect of the Daleel is the Dalalah [meaning]. If the text of Qur’an, Hadith Mutawatir or Hadith Ahad is clear, specific, and has only one meaning, then it is considered Qatai. The text of a Qatai Daleel has to have only one meaning and cannot be open to any other interpretation. If the text is open to more than one interpretation, then it is considered Zanniy. Since interpretations are due to the Arabic language, any interpretation has to be justified through the Arabic language.
A1. EXAMPLE OF QUR’AN WITH A QATAI (CONCLUSIVE) MEANING
[What your wives leave, your share is a half, if they leave no child] [4/12] [Those who accuse chaste woman of Zina [adultery] and fail to bring four witnesses [to prove it] flog them eighty stripes] [Al-Nur: 4] The quantitative aspect of these rulings, namely one half and eighty are clear and therefore cannot be open to any other interpretations.
A2. EXAMPLE OF HADITH MUTAWATIR WITH QATAI (CONCLUSIVE) MEANING:
[Whosoever lies about me [Rasul Allah ] deliberately, let him take his place in the hell-fire].
This Mutawatir Hadith is very clear in its subject; thus there is only one understanding from the text, that whoever lies about what [Rasul Allah ] said intentionally, he will go to hell-fire.
A3. EXAMPLE OF HADITH AHAD WITH QATAI (CONCLUSIVE) MEANING:
It is reported from a Non-Mutawatir Hadith that [Rasul Allah ] fasted Six days in Shawwal. The conclusive meanings from this Hadith are the following:
[1ST.] Permissibility of fasting 6 days in Shawwal, [2ND.] Except on the first day, since it is the day of ‘Eid, and it is Haram to fast on ‘Eid.
1. EXAMPLE OF QURANIC AYAH WITH A ZANNIY (NON-DEFINITE) MEANING:
In Surah Al-Maid’a Ayah (6) Allah (
) says: [If you [La Mastum]
the women it breaks the wudhu]. The word [La-Mastum] has been interpreted as having two meanings: (a) Touching. (b) Sexual intercourse. Thus the Ayah has a Zanniy Dalalah, i.e.: it could mean touching women breaks the Wudu, or sexual intercourse with a woman breaks the Wudu.
B2. EXAMPLE OF HADITH MUTAWATIR WITH A ZANNIY (NON-DEFINITE) MEANING:
It was reported that Rasul Allah () used to take off his Ihram in a specific manner. However, when the Sahabah (RA) told Rasul Allah () that they took it off in a manner different from the way He () took it off, Rasul Allah () approved of their actions. Though this incident is Mutawatir, the rules to take off ones Ihram are many.
B3. EXAMPLE OF A HADITH AHAD WITH A ZANNIY (NON-DEFINITE) MEANING:
It is reported from a Non-Mutawatir Hadith that Rasul Allah () fasted Six days in Shawwal. The non-definite meanings of this Hadith are: (a) Whether the six days of fasting are consecutive or not? (b) Fasting in which part of Shawwal? So far we have discussed the Qatai and Zanniy aspects of both Riwayah and Dalalah separately. However, the method to determine whether the Daleel (both in Riwayah and Dalalah) is Qatai (both in Riwayah and Dalalah) is Qatai (conclusive) or Zanniy (non-definite) is the following:
(1) Qatai Riwayah + Qatai Dalalah = Qatai Daleel.
(2) Zanniy Riwayah + Qatai Dalalah = Zanniy Daleel.
(3) Zanniy Riwayah + Zanniy Dalalah = Zanniy Daleel.
(4) Qatai Riwayah + Zanniy Dalalah = Zanniy Daleel.
Any idea, thought, or concept related to the ‘Aqeedah has to be based upon a Qatai Daleel. As an example, the concept that Angels exists is based upon a Qatai Daleel not Zanniy. Also, in Usul Al-Fiqh, to establish a source for extracting rulings, the source must based upon a Qatai Daleel as well. As an example, to consider Ijma’ as Sahabah (consensus of the Companions) as a source of rulings, the Daleel to prove the authority of Ijma’ as Sahabah has to be Qatai both in Riwayah and Dalalah, though a ruling can be derived from either Qatai or Zanniy Daleel. One might wonder why understanding the text of Qur’an and Sunnah is so complicated? By examining the text of Qur’an and Sunnah one can see that it is limited in its volume. With its limited text one can generate rulings to any problems affecting us anywhere and anytime until the Day of Judgment. It is a miracle from Allah () that the text of the Qur’an and Sunnah have the ability to express numerous rulings from a single Ayah and Hadith; whereas, the ability to understand many meanings from a single text cannot be found in any other legal text in the world! The challenge is for Muslims in each generation to try to understand the text and relate it to their lives since the Qur’an and Sunnah are relevant to all times and places. Besides the point mentioned above, we have to realize that there are rules and guidelines related to understanding and deriving laws from the Qur’an and Sunnah. No one, without being acquainted with these rules (Arabic language, rules which differentiate one type of text from another, etc.) can understand the text of Qur’an and Sunnah. Even to understand man-made constitutions, one has to spend a few years studying and understanding the text. So, how can we expect an individual who is unfamiliar with the Usul Al-Fiqh to open up the Qur’an and Sunnah and start extracting laws from it?
INTERPRETING THE TEXT OF AL-QUR’AN AND AL-SUNNAH:
Unless the text of Al-Qur’an and Al-Sunnah is correctly understood, no ruling can be deduced from it. The linguistic structure of the text in Qur’an and Sunnah varies from one style to another. Some examples of these linguistic styles are: [1st.] Zanniy (speculative text) [2nd.] Qatai (definitive text) [3rd.] ‘Aam (general text) [4th.] Khass (specific text) [5th.] Haqiqi (literal text) [6th.] And Majazi (metaphorical text).
The different channels through which the Ahkam of Shara’ were received, the various categories of such Ahkam, and the causes that necessitated differences of opinion: Ibn Rushd said in his book (Bidayat Al-Mujtahid & Nihayat Al-Mugtasid): [The channels through which the Ahkam were received from Rasul Allah are three in classification: [1st.] Lafz (word) [2nd.] Fi’l (act) [3rd.] And, Iqrar (approval)].
With respect to the Ahkam about which the Lawgiver is silent, the majority (Jumhur) say that the method of attaining them is through the use of Qiyas (analogy). The Zahiri school maintain that analogy in Shara’ (law) is illegal and that about which the Lawgiver is silent has no Hukm (rule or an injunction). They give the reason, as the incidents among individuals are unlimited, while Lafz (words), Af’al (acts), and Iqrar (approvals) are limited, and it is impossible to compare the finite and the infinite. The kinds of words through which the Ahkam are received, by means of transmitted evidences, are four in number; three are agreed upon while the fourth is disputed. The three that are agreed upon are:
(1) Lafz ‘Aam Yuhmal ‘Ala ‘Umumih [the general word when applied to all its categories].
(2) Lafz Khass Yuhmal ‘Ala Khususih [the specific word applied to its single case].
(3) Lafz ‘Aam Yurad bih Al-Khusus au Lafz Khass Yurad bih Al-‘Aam [the general word when its application is specific, and the specific word when its intended implication is general].
Included in this category is:
(A) Al-Tanbih Bi Al-A’la ‘Ala Al-Adna [the use of the higher meaning to denote the lower meaning].
(B) Al-Tanbih Bi Al-Adna ‘Ala Al-A’la [the use of the lower meaning to indicate the higher meaning].
(C) Al-Tanbih Bi Al-Musawiy ‘Ala Al-Musawiy [the indication of equivalent meanings].
The example of the first [Lafz ‘Aam Yuhmal ‘Ala ‘Umumih] is found in the words of the Exalted: [Forbidden unto you [for food] are carrion and blood and swine-flesh] [5:3]. The Muslim Fuqaha agreed that the word swine (Khinzir) includes all kinds of swine, unless it belongs to the category to which the name is not applied, except by way of Ishtirak (similar vocal phrase), like the term [sea swine]. The example of the general word implying the specific (Lafz ‘Aam Yurad bihi Al-Khusus) is found in the words of Allah, “Take alms of their wealth, wherewith you may purify them and may make them grow” (9:103). Based on this, the Muslim Fuqaha agreed that Zakah is not obligatory on all kinds of wealth. The example of a specific word having a general intent (Lafz Khass Yurad bihi Al-‘Aam) is evident in the words of the Exalted: [Say not ‘Ah!’ unto them nor repulse them, but speak to them a gracious word] [17:23]. This is the case of “At-Tanbih Bi Adna ‘Ala A’la” as the prohibition includes beating, abuse, and whatever is more grievous. The authority demanding the commission of an act uses either the form of a command (Amr) or the form of an account (or narration) implying a command. Similarly, the authority demanding omission of an act employs the form of a ‘Sighat Nahy’ (prohibition), or the form of an account implying prohibition. If words occur in these forms, is the demand for the commission of an act to be interpreted as an obligation (Wajib) or a recommendation (Mandub), as is discussed under the definition of Wajib and Mandub or is interpretation to be abstained from till another evidence indicates either one of the two? There is a difference of opinion among the Fuqaha in this, recorded in books on Usul Al-Fiqh. This is the same with the case with forms of prohibition, whether they indicate Makruh (disapproval) or Haram (unlawful), or do not indicate either? In this too there is, recorded, a difference of opinion. The entities to which the Hukm is related are indicated by it either through a word with a single meaning (no annotations attached to it), and this is known in the discipline of Usul Al-Fiqh as Nass (explicit) and there being no dispute about the obligation of acting in compliance with it, or through a word having more than one meaning and this is of two types:
(1) The word may indicate an equal character toward the different meanings and is known in Usul Al-Fiqh as Mujmal (having equal possibilities) and there is no dispute that it does not require a Hukm.
(2) The word may be inclined toward some of these meanings more than it is toward the others, and is known, as Dhahir (the clearer one), and with reference to other possible meanings as Muhtamal (possibility or probable).
If such a word is used in its Mutlaq (unqualified sense) it is to be applied to its most apparent meaning, unless another evidence indicates its application to its Muhtamal meanings. Thus there occurs a difference of opinion among the Fuqaha about the Ahkam of the Lawgiver. It, in fact, takes place mostly due to three reasons:
(1) From the point of Ishtirak (similar vocal phrase) of the word applied to a Masa’il (issue) with which the Hukm is associated.
(2) From the point of Ishtirak of the definite article “Al” accompanying the classification of the Masa’il, whether the whole is hinted at or a part;
(3) From the point of Ishtirak of the words used for Amr (commands) and Sighat Nahy (prohibitions).
A fourth way through which Ahkam are received, is to know that from the obligation of the Hukm for an issue, the negation of things besides it, and from the negation of a thing the obligation of all things besides it. This is known as the Dalil Al-Khitab (indirect indication of the communication). It is a rule that is disputed, like the words of Rasul Allah () “In the Sa’imah (pasturing) out of cattle there is Zakah”. Some have understood from this that there is no Zakah in cattle other than the Sa’imah (pasturing animals) i.e. wild cattle are not subject to Zakah. Legitimate analogy (Qiyas) is the assigning of the provided Hukm for an issue to another issue, from which the Shara’ is silent, due to its resemblance to the issue for which the law has provided the Hukm or in other words due to the presence of ‘Illat (common underlying cause) between them. It is for this reason that legal analogy is of two types: Qiyas Shibh and Qiyas ‘Illat. The difference between legal Qiyas and the specific word (Lafz Khas) implying a general meaning is that analogy can be undertaken only in the case of a specific word that implies just its single category. The other similar cases are then joined with it, that is, those not covered by the text are joined to the one that is (Manthuq), due to a resemblance between them (‘Illat), not through an implication of the word. This is so because the extension of the Hukm to Manthuq (unstated) implied category is not analogy, but an indication (connotation) of the word (Dalalah Lafz). These two kinds (of extensions of the Hukm to the Manthuq condition) are very close as in both there is a joining of the explicit and the implicit cases and is often a cause of confusion for the Fuqaha. Examples of analogy are the joining of one who drinks Khamr (wine) with the Qadhif (one who accuses wrongfully others of Zina) as regards with the fixed punishment (Hadd), and the joining of (the amount of) Mahar (dower) with the Nisab (minimum scale) in the case of the cutting of the hand of the thief. The joining, on the other hand, of things carrying RIBA (usury) with food, things measured or eatables, is the case of a specific word implying the general. So ponder over this, as it is a source of confusion. It is possible for the Zahiri School to dispute the first Qiyas, while they are not obliged to dispute the second (specific word implying a general intent) for it is a case of authoritative transmission (Dalil Bab as-Sam’u) and he who rejects this, rejects a style of Khitab (communication grammar) employed by the Arabs. The report of an act (Al-Af’al), according to many, is one of the channels through which the Ahkam are received. Some have said that reports of the Prophet’s Al-Af’al (actions) do not yield Ahkam, as they do not have linguistic patterns. Those who accept that Ahkam can be received through Al-Af’al differ about the kind of Hukm indicated by them. Some say that they indicate obligation while others say that they indicate Mandub (recommendation). The preferred opinion of the learned scholars (specialists) is that if they occur as an explanation, of a Mujmal (obscure) obligatory act, they indicate an obligation, and if they occur as an explanation of a Mujmal recommended act then they indicate recommendation. If they do not occur as an explanation for a Mujmal act, but belong to a recommended category, then they indicate recommendation. If they belong to the classification of Mubah (permissible acts) then they indicate permissibility. Approval (Iqrar), on the other hand, indicates permissibility. These, then, are the kinds of channels through which the Ahkam are received. Consensus (Ijma’) relies on one of these four classifications, except that when it takes place on the basis of one of these channels, which is not Qati’i (definitive) the Hukm that was considered zhan (unclear) is then considered Qati’i due to predominant probability. Ijma’, however, is not an independent source in itself unless reliance is placed on one of these four classifications (above). Had it been so it would have amounted to the establishment of additional law after (the time of) Rasul Allah () as it would not have been based on one of the legally valid principles? The functional terms denoting the Ahkam derived from these literal modes for the subjects (Mukallaf – the act of the subject) are, as a whole, either a command for a thing or a prohibition or a choice between the two (Takhyir). When the command is decisive and an omission (to do the act) invokes punishment the act is called obligatory (Wajib). If there is reward (Thawab) for the act and punishment is absent it is called a recommended act (Mandub). Similarly, when the prohibition is decisive and the commission of the act invokes punishment, the act is prohibited (Haram), and if there is an urging to abstain from the act without invoking punishment for commission it is called disapproval (Makruh). Where a choice has been given (between commission and omission) the act is permitted (Mubah or Takhyir). The kinds of Ahkam acquired through these channels are five: obligatory, recommended, prohibited, disapproved, and permissible. (Wajib, Sunnah or Mandub, Haram, Makruh or Mahzur, Mubah or Takhyir). The causes of conflict of opinion (Ikhtilaf), by classification, are six. (It is well known that there is no conflict between in the evidences of the Shara’, only that the conflict exists in the mind of the Fuqaha that the Faqih seeks to resolve the Ikhtilaf using Usul Al-Fiqh). The First cause is the fluctuating of the words between these four modes:
(A) That is between the Lafz ‘Am meant as a specific meaning,
(B) The Lafz Khas implying generality,
(C) Lafz ‘Aam which is sought for implies generality, or that the Lafz is present, or absent with Dalil Khitab (an indirect indication of the communication),
(D) Lafz Khas, but what is needed is the specific meaning, or there is present, or absent.
The second cause is the presence of Ishtirak (similar vocal phrases) in words.
(A) This occurs sometimes in Lafz Mufrad (the individual word) like the word “period” (Quru’) that is usually applied both to purity (Tuhr) and to menstruation (Haid); similarly, the word command (Amr) whether it is to be given the (initial) meaning of obligation, sometimes is given the meaning of recommendation and the word prohibition (Nahy) whether it is to be given the meaning of prohibition or of disapproval.
(B) Sometimes it occurs in Lafz Murakkab (the compound word) as in the words of Allah: “They are transgressing save those who afterward repent” (24:4-5).
It is likely that this refers to the transgressing person (Fasiq) only and it is also possible that it refers to both the transgressor and the witness. Thus, repentance can remove the consequences of transgression and it can also permit the testimony of the Qadhif (slanderer). The third cause lies in the I’rab (different probabilities of the) grammatical structure. The fourth cause is the ability of the word to indicate its literal meaning (Haqiqi), and an allegorical or metaphorical sense (Majazi) resulting from an implied omission or addition or from the reversal of the normal order of the sentence by advancing or deferring a word from its legitimate place, or it may be the vacillation of the word between its actual application (Haqiqi) and the figurative meaning (Isti’arah). The fifth cause is the occasional use of the word in its absolute/unqualified (Mutlaq) meaning or in a qualified sense (Muqayyad), like the unqualified use, on occasions, of the word Al’Itqu and then qualifying it with the absolute Taqyid. The sixth cause is the conflict between two texts (Ta’arud), in all kinds of words from which the law derives the Ahkam. Moreover, the conflict may exist between reported acts (Af’al) or approvals (Iqrar) or between different kinds of analogy themselves, or the conflict may be between one of these four channels with another channel: that is, the conflict of a word (Lafz) with a reported act, approval, or analogy; the conflict of a reported act with approval or Qiyas; and the conflict of approval with Qiyas.
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