Book Ref: 1g
Praise be to Allah with all due praise, and prayers and blessings on His Prophet, Muhammad, his family and Companions.
My purpose in this treatise is to lay down in it for myself, by way of remembrance, the issues (Masa'il) of the Ahkam that are agreed upon and those that are disputed, along with their evidences, and to indicate those bases of the disputes that resemble general rules and principles, for the Faqih (jurist) may be presented with problems on which the Shara' (law) is silent.
The issues are mostly those that are expressly stated in the Manthuq (unstated text of the Nass), or are closely related to those that are so stated. They are the issues agreed upon by the Muslim Fuqaha (jurists) since the generation of the Sahabah (Companions - God be pleased with them) till such time that Taqlid (following qualified scholarship) was rampant, or those over which a difference of opinion among them became widely known.Before recording these issues we will mention for you, as briefly as possible, 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. We say: The channels through which the Ahkam were received from the Prophet (God's peace and blessings be upon him) are three in classification: 1. Lafz (word), 2. al-Af'al (act), and 3. 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:
A. at-Tanbih bi A'la 'ala Adna (the use of the higher meaning to denote the lower meaning)
The example of the first (Lafzahun 'Amun Yuhmalu 'ala 'Umumihi) 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 (Lafzahun 'Amun Yuradu bihi al-Khushush) 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 (Lafzahun Khashshun Yuradu bihi al-'Am) 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:
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:
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 the Prophet (God's peace and blessings be upon him), "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) the Prophet (God's peace and blessings be upon him), 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 is the fluctuating of the words between these four modes:
The second cause is the presence of Ishtirak (similar vocal phrases) in words.
The third cause lies in the I'rab (different probabilities of the) grammatical structure.
The fourth is the ability of the word to indicate its literal meaning (hakiki), and an allegorical or metaphorical sense (majasi) 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 (hakiki) 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'arudh), 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. The Qadi Ibn Rushd (God be pleased with him) said: After this brief discussion, we begin with our purpose, seeking the help of Allah, and to do so we start with the Book of Purification (Taharah as is customary with the Fuqaha.
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"And say: truth has arrived, and falsehood has perished: for falsehood is ever bound to perish." [TMQ Al-Isra:81]