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.

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:

1. Lafzahun 'Amun Yuhmalu 'ala 'Umumihi (the general word when applied to all its categories)
2. Lafzahun Khashshun Yuhmalu 'ala Khushushihi (the specific word applied to its single case)
3. Lafzahun 'Amun Yuradu bihi al-Khushush au Lafzahun Khashshun Yuradu bihi al-'Am (the general word when its application is specific, and the specific word when its intended implication is general.) Included in this category is:

A. at-Tanbih bi A'la 'ala Adna (the use of the higher meaning to denote the lower meaning)

B. at-Tanbih bi Adna 'ala A'la (the use of the lower meaning to indicate the higher meaning)

C. at-Tanbih bi al-Musawiy 'ala al-Musawiy (the indication of equivalent meanings.)

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.

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.

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 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.

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).

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 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).

1. that is between the Lafz 'Am meant as a specific meaning,
2. the Lafz Khas implying generality,
3. Lafz 'Am which is sought for implies generality, or that the Lafz is present, or absent with Dalil Khitab (an indirect indication of the communication),
4. Lafz Khas, but what is needed is the specific meaning, or there is present, or absent.

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.

Bidayat al-Mujtahid   Contents Volume 1 Bidayat al Mujtahid  About Ibn Rushd

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