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Usool al Fiqh

Beginning Usool al Fiqh: Islamic Legal Theory XII
2012 Fall Session (October 29 to December 26 2012)
Class taught by Shaikh Jamaal Zarabozo

Course Outline:
In this session the constrained and unconstrained texts (mutlaq wa muqayyad) texts followed by commands/prohibitions will be discussed.

Prerequisite: None
Recommended Text: Principles of Islamic Jurisprudence by Mohammad Hashim Kamali

2012-10-29 Class Notes

We begin with an overview for the purposes of the review today, inshaAllah. The bulk of what we have of Shariah is what is called Al-Khattab (communique, speech, texts). So we have to analyze speech and how to analyze one speech in reference to other speech. This is what Usul-al Fiqh is about. The Speech can be analyzed with three aspects to it.


1) Clarity of the meaning of the speech (Dalala tal Alfaaz ala al Maini): The Hanafis have a different approach here than the non-Hanafis. The Hanafi approach is more thought out compared to the others. They divide the words into 4 categories and provide a whole lot of details.

2) Manners of indicating rulings (i.e. Dalal tal Alfaaz ala al Ahkam): The words and speech together indicate ruling. For example we have explicit meaning and inferred meanings, isharat al nass, dalalat al nass, ibarat al nass etc. Here we found the difference between the Hanafis and non-Hanafis. However, most of what differed here was the terminology. For example, the Ibarat al nass is the explicit and clear meaning of the text, which is a Hanafi term, while other call it Al Mantooq al Sareeh. In meaning it is the same thing even though terminology differed. Only difference had been Mafhoom al Mukhalifah (argument a contrario) which is not accepted by the Hanafis. The mafhoom al Muwafiqa (argument a fortiori) is agreed upon term. For example if one cannot say uff to the parents so mafhoom al Muwafiqa show nothing harsher can be done either. Mafhoom al Mukhalifa is only accepted by non-Hanafis, i.e. opposite of what is stated is understood. For example, if teacher say that student A is going to pass the exam then mafhoom al Mukhalifa will tell us that rest of the class is not going to pass. This mafhoom al Mukhalifa is disputed even among non-Hanafis.

3) Generality of the text (Ummum of the text): If it is applying to the whole set then does it imply the whole set (it is called Aam). However, if we look at the text closely, then we may find that the text does not cover the entire text. For example, “All Muslim must pray 5 times a day”, then the women who are going through their period do not have to pray. Similarly little kids are not required to pray 5 times a day. So in many cases we find Takhsees being made of the general text. So takhsees shows that the generality of those words were not the intended meaning for the entire set. For the case of takhsees from the first moment the exceptions were intended.

Indicators of takhsees are Muttasil (connected) or Munfasil (not connected). For example for Muttasil we may have the word illa in the same verse while for Munfasil we may have another ayah or hadith to make takhsees of the verse. Here regarding the acceptance of the indicators of takhsees there is a difference of opinion between Hanafis and non-Hanafis regarding the indicator being Qatai and Dhanni. Other than Aam there is khass text and topic of this quarter (Amr, Nahi, Mutlaq, Muqayyad) fall under khass texts.   

Al Khass, Mutlaq and Muqayad

Aam is text when it applies to all the members of the set. Al Khass (specific, particular) is something which is not referring to the whole set. So we again have a whole set but the ruling only applies to some specific members of the set. For example, Muslims of Europe is a particular set in the bigger set of Muslims. If I say to a class that I need 3 students to stay after class for clean up. This is a khass statement. Even a statement that I want 99% of students to stay for clean up is also Khass. First category is Al Mutlaq (unconstrained, unrestricted) of khass statements.

If I say “if you do this then you need to free a slave”. Is this khass? It is khass since I can choose any subset. Aam means it applies to anyone and not choosing anyone. Khass is to choose anyone or any subset. Suppose if I say,”if you do this then you need to free a believing slave”. It is still khass even though the choice is more restricted. This is called Muqayad (restricted or constrained).    

Khass is anti-thesis of Aam. The definition of Khass given in Usul books:

1) A word which is applied to a limited number of things to set as a whole.
2) A word which applied to one subject or more but limited or specified in number
3) Khass term is indefinite word (Nakira), used in a positive context. In Arabic the indefinite word is always khass. Positive context means that it is not in the context of negation like La ilaha illa Allah is in context of negation.

Question for next time: What is the value of the khass statement? Is it Qatai or Dhanni?

In the following example Rajulun is the khass.

36:20

وَجَاءَ مِنْ أَقْصَى الْمَدِينَةِ رَجُلٌ يَسْعَىٰ قَالَ يَا قَوْمِ اتَّبِعُوا الْمُرْسَلِينَ

Sahih International
And there came from the farthest end of the city a man, running. He said, "O my people, follow the messengers.

2012-11-05 Class Notes

Is Al Mursaleen Mutlaq? Notice that it is definite, so it is not indefinite noun. Mutlaq is a kind of khass but not everything which is khass is not mutlaq. So Al Mursaleen is khass but not mutlaq.

Al Qarafi says: Mutlaq is indefinite noun stated in a positive context.

Can a verb in imperative form be considered as mutlaq? In Arabic language every verb is closely tied to Verbal noun (i.e. noun which captures the meaning of the verb). For example, Qum is the imperative ‘stand’ and it implies the Verbal Noun (Masdar) ‘Qiyaman’ (standing).

Usuliyeen talk about ‘Indication of the wording’. The verbal nouns is considered Mutlaq so the imperative can be considered mutlaq due to this facility in Arabic language.

وَأَنفِقُوا فِي سَبِيلِ اللَّهِ وَلَا تُلْقُوا بِأَيْدِيكُمْ إِلَى التَّهْلُكَةِ ۛ وَأَحْسِنُوا ۛ إِنَّ اللَّهَ يُحِبُّ الْمُحْسِنِينَ

Sahih International (2:195)
And spend in the way of Allah and do not throw [yourselves] with your [own] hands into destruction [by refraining]. And do good; indeed, Allah loves the doers of good

So وَأَحْسِنُو here is in the imperative so it is Mutlaq.
(2:185)

شَهْرُ رَمَضَانَ الَّذِي أُنزِلَ فِيهِ الْقُرْآنُ هُدًى لِّلنَّاسِ وَبَيِّنَاتٍ مِّنَ الْهُدَىٰ وَالْفُرْقَانِ ۚ فَمَن شَهِدَ مِنكُمُ الشَّهْرَ فَلْيَصُمْهُ ۖ وَمَن كَانَ مَرِيضًا أَوْ عَلَىٰ سَفَرٍ فَعِدَّةٌ مِّنْ أَيَّامٍ أُخَرَ ۗ يُرِيدُ اللَّهُ بِكُمُ الْيُسْرَ وَلَا يُرِيدُ بِكُمُ الْعُسْرَ وَلِتُكْمِلُوا الْعِدَّةَ وَلِتُكَبِّرُوا اللَّهَ عَلَىٰ مَا هَدَاكُمْ وَلَعَلَّكُمْ تَشْكُرُونَ

Sahih International
The month of Ramadhan [is that] in which was revealed the Qur'an, a guidance for the people and clear proofs of guidance and criterion. So whoever sights [the new moon of] the month, let him fast it; and whoever is ill or on a journey - then an equal number of other days. Allah intends for you ease and does not intend for you hardship and [wants] for you to complete the period and to glorify Allah for that [to] which He has guided you; and perhaps you will be grateful.

Ayyam is mutlaq in this verse. It is not restricted to what days you use to makeup. It is not restricted to consecutivity either. So one may give gaps while making up the fasts.

وَالَّذِينَ يُتَوَفَّوْنَ مِنكُمْ وَيَذَرُونَ أَزْوَاجًا يَتَرَبَّصْنَ بِأَنفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ وَعَشْرًا ۖ فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَلَا جُنَاحَ عَلَيْكُمْ فِيمَا فَعَلْنَ فِي أَنفُسِهِنَّ بِالْمَعْرُوفِ ۗ وَاللَّهُ بِمَا تَعْمَلُونَ خَبِيرٌ

Sahih International
And those who are taken in death among you and leave wives behind - they, [the wives, shall] wait four months and ten [days]. And when they have fulfilled their term, then there is no blame upon you for what they do with themselves in an acceptable manner. And Allah is [fully] Acquainted with what you do.

Here the 4 months and 10 days looks mutlaq but it is not (and other evidence can be brought to show this however in general it would have been mutlaq). In this verse Azwajan is Mutlaq.

(Nisa:11)

يُوصِيكُمُ اللَّهُ فِي أَوْلَادِكُمْ ۖ لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ ۚ فَإِن كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَكَ ۖ وَإِن كَانَتْ وَاحِدَةً فَلَهَا النِّصْفُ ۚ وَلِأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِّنْهُمَا السُّدُسُ مِمَّا تَرَكَ إِن كَانَ لَهُ وَلَدٌ ۚ فَإِن لَّمْ يَكُن لَّهُ وَلَدٌ وَوَرِثَهُ أَبَوَاهُ فَلِأُمِّهِ الثُّلُثُ ۚ فَإِن كَانَ لَهُ إِخْوَةٌ فَلِأُمِّهِ السُّدُسُ ۚ مِن بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ ۗ آبَاؤُكُمْ وَأَبْنَاؤُكُمْ لَا تَدْرُونَ أَيُّهُمْ أَقْرَبُ لَكُمْ نَفْعًا ۚ فَرِيضَةً مِّنَ اللَّهِ ۗ إِنَّ اللَّهَ كَانَ عَلِيمًا حَكِيمًا

Sahih International
Allah instructs you concerning your children: for the male, what is equal to the share of two females. But if there are [only] daughters, two or more, for them is two thirds of one's estate. And if there is only one, for her is half. And for one's parents, to each one of them is a sixth of his estate if he left children. But if he had no children and the parents [alone] inherit from him, then for his mother is one third. And if he had brothers [or sisters], for his mother is a sixth, after any bequest he [may have] made or debt. Your parents or your children - you know not which of them are nearest to you in benefit. [These shares are] an obligation [imposed] by Allah . Indeed, Allah is ever Knowing and Wise.

Yuseekum and Dayn is mutlaq. Wasiyatin looks mutlaq but it is not for other evidence. If someone was to give half of his wealth to his mother, but hadith restricts it to one third.

(al-Maeda:39)

لَا يُؤَاخِذُكُمُ اللَّهُ بِاللَّغْوِ فِي أَيْمَانِكُمْ وَلَٰكِن يُؤَاخِذُكُم بِمَا عَقَّدتُّمُ الْأَيْمَانَ ۖ فَكَفَّارَتُهُ إِطْعَامُ عَشَرَةِ مَسَاكِينَ مِنْ أَوْسَطِ مَا تُطْعِمُونَ أَهْلِيكُمْ أَوْ كِسْوَتُهُمْ أَوْ تَحْرِيرُ رَقَبَةٍ ۖ فَمَن لَّمْ يَجِدْ فَصِيَامُ ثَلَاثَةِ أَيَّامٍ ۚ ذَٰلِكَ كَفَّارَةُ أَيْمَانِكُمْ إِذَا حَلَفْتُمْ ۚ وَاحْفَظُوا أَيْمَانَكُمْ ۚ كَذَٰلِكَ يُبَيِّنُ اللَّهُ لَكُمْ آيَاتِهِ لَعَلَّكُمْ تَشْكُرُونَ

Sahih International
Allah will not impose blame upon you for what is meaningless in your oaths, but He will impose blame upon you for [breaking] what you intended of oaths. So its expiation is the feeding of ten needy people from the average of that which you feed your [own] families or clothing them or the freeing of a slave. But whoever cannot find [or afford it] - then a fast of three days [is required]. That is the expiation for oaths when you have sworn. But guard your oaths. Thus does Allah make clear to you His verses that you may be grateful.

Mutlaq here is Thalatha Ayyam, Ashara Masakeen, Raqaba.

(Nisa,92)

وَمَا كَانَ لِمُؤْمِنٍ أَن يَقْتُلَ مُؤْمِنًا إِلَّا خَطَأً ۚ وَمَن قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ وَدِيَةٌ مُّسَلَّمَةٌ إِلَىٰ أَهْلِهِ إِلَّا أَن يَصَّدَّقُوا ۚ فَإِن كَانَ مِن قَوْمٍ عَدُوٍّ لَّكُمْ وَهُوَ مُؤْمِنٌ فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ ۖ وَإِن كَانَ مِن قَوْمٍ بَيْنَكُمْ وَبَيْنَهُم مِّيثَاقٌ فَدِيَةٌ مُّسَلَّمَةٌ إِلَىٰ أَهْلِهِ وَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ ۖ فَمَن لَّمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ تَوْبَةً مِّنَ اللَّهِ ۗ وَكَانَ اللَّهُ عَلِيمًا حَكِيمًا

Sahih International
And never is it for a believer to kill a believer except by mistake. And whoever kills a believer by mistake - then the freeing of a believing slave and a compensation payment presented to the deceased's family [is required] unless they give [up their right as] charity. But if the deceased was from a people at war with you and he was a believer - then [only] the freeing of a believing slave; and if he was from a people with whom you have a treaty - then a compensation payment presented to his family and the freeing of a believing slave. And whoever does not find [one or cannot afford to buy one] - then [instead], a fast for two months consecutively, [seeking] acceptance of repentance from Allah . And Allah is ever Knowing and Wise.

Mutlaq here is Raqabatin Muminatin, Muminan, Shahrayni Mutatabieen.

Mutlaq is khass but at the same time it is defining some kind of generality. However, this generality is different from Aam. The Aam of mutlaq is called Amm al Badali (i.e. anyone you choose from the set fulfils the command). Earlier we also restricted (4:11) it based on external evidence from hadith.

Aam for majority scholars is Dhanni and Khass is Qatai. Is mutlaq Qatai or Dhanni? Most Ulema say default is that mutlaq is Qatai. For Hanafis it is not surprising they call it Qatai but many others agree that mutlaq is Qatai. As a consequence it is going to affect what we accept as restricting agents.

Can taweel be made for something which is khass? In usul al fiqh taweel is used in 3 cases

1) you go from apparent meaning to the lesser specific meaning (i.e. going from Haqeeqi meaning to Majazi meaning)
2) you go from Aam to Khass
3) you go from Mutlaq to Muqayyad

Going back to (5:89) of breaking the oath, text says 10 masakeen. Can we say feed the same miskeen 10 times? Is it acceptable taweel? This kind of taweel is rejected by majority of the Ulema even though some hanafi accept it.

2012-11-12 Class Notes

Today inshaAllah we finish what is Mutlaq and Muqayyad and what is the relation between the two. Recall that Mutlaq is an unrestricted text. It is obligatory to act upon the Mutlaq text in an unrestricted manner unless there is evidence to show otherwise. For example, I command you to “give me a book” and another friend says that “bring a book of greater than 300 books”. So this 2nd condition is not valid by the friend is not valid in Usul al Fiqh unless the friend can show clear evidence from Quran and Sunnah.

The burden of proof is upon the person who mentions the restrictions. For example we know the actions of the Salat, and we can see them based upon the text so we follow them. However, there are issues regarding Salat for which Shariah is quiet so we leave the room there and do not restrict it. An example by Shaykh is when we go for Sajda in Salat do we have to put our hands at the exact place where they will be for Sajda or can we slide it a little. The text of the Quran and Sunnah is quiet about it so we leave the room for this action in fiqh.

Can Mutlaq text be considered Dhanni or Qatai (question from last week)?  

Mutlaq is category of Khass. Most scholars are of opinion that khass is Qatai (according to both hanafis and non-hanafis). Even though Mutlaq is kind of khass, in the non-hanafi books they actually say it is Dhanni, like Aam is Dhanni. They consider Mutlaq is dhanni similar to Aam statement. The hanafi say it is Qatai. Of course it is going to have fiqhi ramifications.

Recall that Aam applies to the whole set at once. Also recall there is a kind of generality (Umum al Shamool; generality of all inclusiveness) to the Mutlaq text. What it means one can pick or choose any member of the set. So former (Aam) applies to the entire set (i.e. every single member) but the latter (Mutlaq) allows choosing of any member of the set.

So if the verse says free a slave then it means any slave. If someone says that it has to be particular slave then the burden of proof is on them. The non-hanafis say that khass statements are qatai but for Mutlaq they say that it is dhanni.

Al Muqayad means restricted. There is word Al Taqayyad which now restricts the application to certain members or subset of the larger set. Things can be restricted by quality, time, place or attribute. For example, a righteous person is restricted text. Few examples from Quran:

وَمَا كَانَ لِمُؤْمِنٍ أَن يَقْتُلَ مُؤْمِنًا إِلَّا خَطَأً ۚ وَمَن قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ وَدِيَةٌ مُّسَلَّمَةٌ إِلَىٰ أَهْلِهِ إِلَّا أَن يَصَّدَّقُوا ۚ فَإِن كَانَ مِن قَوْمٍ عَدُوٍّ لَّكُمْ وَهُوَ مُؤْمِنٌ فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ ۖ وَإِن كَانَ مِن قَوْمٍ بَيْنَكُمْ وَبَيْنَهُم مِّيثَاقٌ فَدِيَةٌ مُّسَلَّمَةٌ إِلَىٰ أَهْلِهِ وَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ ۖ فَمَن لَّمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ تَوْبَةً مِّنَ اللَّهِ ۗ وَكَانَ اللَّهُ عَلِيمًا حَكِيمًا

Sahih International (4:92)
And never is it for a believer to kill a believer except by mistake. And whoever kills a believer by mistake - then the freeing of a believing slave and a compensation payment presented to the deceased's family [is required] unless they give [up their right as] charity. But if the deceased was from a people at war with you and he was a believer - then [only] the freeing of a believing slave; and if he was from a people with whom you have a treaty - then a compensation payment presented to his family and the freeing of a believing slave. And whoever does not find [one or cannot afford to buy one] - then [instead], a fast for two months consecutively, [seeking] acceptance of repentance from Allah . And Allah is ever Knowing and Wise.

So the two months is unrestricted but the adjective “consecutive” restricts it.

2:67

وَإِذْ قَالَ مُوسَىٰ لِقَوْمِهِ إِنَّ اللَّهَ يَأْمُرُكُمْ أَن تَذْبَحُوا بَقَرَةً ۖ قَالُوا أَتَتَّخِذُنَا هُزُوًا ۖ قَالَ أَعُوذُ بِاللَّهِ أَنْ أَكُونَ مِنَ الْجَاهِلِينَ

Sahih International
And [recall] when Moses said to his people, "Indeed, Allah commands you to slaughter a cow." They said, "Do you take us in ridicule?" He said, "I seek refuge in Allah from being among the ignorant."

Ibn Abbas (ra) mentions that any cow would have been fine. However, they kept on asking questions and then more and more restrictions were revealed. Ultimately, it was restricted to the point that it was pointed to them what cow to sacrifice. Similarly, we find situations in fiqh where there are lots of restrictions but when one looks at the text of Quran and Sunnah one cannot find those restrictions. The fiqh has those restrictions because people keep on asking scholars too many questions.

Is Muqayad parallel to takhsees or perpendicular to takhsees?

Let’s go back to Aam. The Aam statement applies to the whole set. Takhsees restricts it to certain members of the Aam text by taking out a subset. For the Mutlaq, it looks at the individual members of the set and allows any set to be picked. Here if I bring a Muqayad statement then I am restricting you choice. So here we are getting restricted on the original set. (see the picture of the board for clarification above). The right venn diagrams are for Aam and Khass and the left ones are for the Mutlaq and Muqayad. Note in the former case it is removal of set by the khass statement and in the latter it is restrictions to a smaller set by the muqayad statement. So they are not parallel.

So the key is to see how the original set is being looked at in the text. Is the set being looked at as a whole or is the whole set being looked at as individual members. The former is Aam the latter is Mutlaq.    

With respect to Mutlaq we said that we must apply it in unrestricted way to the set unless there is evidence to show otherwise. Can we make a statement similar to this for Muqayad?


يَا أَيُّهَا الَّذِينَ آمَنُوا لَا تَأْكُلُوا الرِّبَا أَضْعَافًا مُّضَاعَفَةً ۖ وَاتَّقُوا اللَّهَ لَعَلَّكُمْ تُفْلِحُونَ

Sahih International
O you who have believed, do not consume usury, doubled and multiplied, but fear Allah that you may be successful.

So from Mafoom al Mukhalafa can we understand that the little riba is fine? Here it looks like Muqayad but it is not the case. Here it is just signifying how they took Riba in the times of the revelation of the Quran. So statement is: We can apply Muqayad as a restriction unless we have evidence to show otherwise.

2012-11-19 Class Notes

Recall we gave examples of Mutlaq (4:11)

يُوصِيكُمُ اللَّهُ فِي أَوْلَادِكُمْ ۖ لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ ۚ فَإِن كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَكَ ۖ وَإِن كَانَتْ وَاحِدَةً فَلَهَا النِّصْفُ ۚ وَلِأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِّنْهُمَا السُّدُسُ مِمَّا تَرَكَ إِن كَانَ لَهُ وَلَدٌ ۚ فَإِن لَّمْ يَكُن لَّهُ وَلَدٌ وَوَرِثَهُ أَبَوَاهُ فَلِأُمِّهِ الثُّلُثُ ۚ فَإِن كَانَ لَهُ إِخْوَةٌ فَلِأُمِّهِ السُّدُسُ ۚ مِن بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ ۗ آبَاؤُكُمْ وَأَبْنَاؤُكُمْ لَا تَدْرُونَ أَيُّهُمْ أَقْرَبُ لَكُمْ نَفْعًا ۚ فَرِيضَةً مِّنَ اللَّهِ ۗ إِنَّ اللَّهَ كَانَ عَلِيمًا حَكِيمًا

Sahih International
Allah instructs you concerning your children: for the male, what is equal to the share of two females. But if there are [only] daughters, two or more, for them is two thirds of one's estate. And if there is only one, for her is half. And for one's parents, to each one of them is a sixth of his estate if he left children. But if he had no children and the parents [alone] inherit from him, then for his mother is one third. And if he had brothers [or sisters], for his mother is a sixth, after any bequest he [may have] made or debt. Your parents or your children - you know not which of them are nearest to you in benefit. [These shares are] an obligation [imposed] by Allah . Indeed, Allah is ever Knowing and Wise.

We have a clear hadith restricting the bequeath to one third.

وَمَا كَانَ لِمُؤْمِنٍ أَن يَقْتُلَ مُؤْمِنًا إِلَّا خَطَأً ۚ وَمَن قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ وَدِيَةٌ مُّسَلَّمَةٌ إِلَىٰ أَهْلِهِ إِلَّا أَن يَصَّدَّقُوا ۚ فَإِن كَانَ مِن قَوْمٍ عَدُوٍّ لَّكُمْ وَهُوَ مُؤْمِنٌ فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ ۖ وَإِن كَانَ مِن قَوْمٍ بَيْنَكُمْ وَبَيْنَهُم مِّيثَاقٌ فَدِيَةٌ مُّسَلَّمَةٌ إِلَىٰ أَهْلِهِ وَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ ۖ فَمَن لَّمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ تَوْبَةً مِّنَ اللَّهِ ۗ وَكَانَ اللَّهُ عَلِيمًا حَكِيمًا

Sahih International (4:92)
And never is it for a believer to kill a believer except by mistake. And whoever kills a believer by mistake - then the freeing of a believing slave and a compensation payment presented to the deceased's family [is required] unless they give [up their right as] charity. But if the deceased was from a people at war with you and he was a believer - then [only] the freeing of a believing slave; and if he was from a people with whom you have a treaty - then a compensation payment presented to his family and the freeing of a believing slave. And whoever does not find [one or cannot afford to buy one] - then [instead], a fast for two months consecutively, [seeking] acceptance of repentance from Allah . And Allah is ever Knowing and Wise.

Connected and Disconnected Agent of Taqiyeed
Here the slave is Muqayad since it is a mentioned that the slave has to be believing. Recall that the particularizing agents are of two kinds. One is Muttasil and the other Munfasil (see lecture #1 for review). Here we see the first example is restricted by a hadith (i.e. agent for Muqayad is not connected) however for the second ayah the restricting agent is attached to the verse itself. So depending on your madhab, whatever can make takhsees for an Aam statement can make Taqiyeed for the Mutlaq statement.

Recall that Qasr is a form of takhsees (for hanafis) is when the particularizing agent is not a stand alone statement. Shaykh has not seen any parallel here for the Taqiyeed issue.

There is a small group of scholars who say that Quran cannot make Takhsees and Taqiyeed of the Quran. It sounds strange. Their evidence is that Takhsees and Taqiyeed is a kind of bayan (explanation and clarification of meaning), and they quote 16:44:

بِالْبَيِّنَاتِ وَالزُّبُرِ ۗ وَأَنزَلْنَا إِلَيْكَ الذِّكْرَ لِتُبَيِّنَ لِلنَّاسِ مَا نُزِّلَ إِلَيْهِمْ وَلَعَلَّهُمْ يَتَفَكَّرُونَ

Sahih International
[We sent them] with clear proofs and written ordinances. And We revealed to you the message that you may make clear to the people what was sent down to them and that they might give thought.

However, this ayah does not establish that Quran itself cannot make Taqiyeed or takhsees.

Example #1

حُرِّمَتْ عَلَيْكُمُ الْمَيْتَةُ وَالدَّمُ وَلَحْمُ الْخِنزِيرِ وَمَا أُهِلَّ لِغَيْرِ اللَّهِ بِهِ وَالْمُنْخَنِقَةُ وَالْمَوْقُوذَةُ وَالْمُتَرَدِّيَةُ وَالنَّطِيحَةُ وَمَا أَكَلَ السَّبُعُ إِلَّا مَا ذَكَّيْتُمْ وَمَا ذُبِحَ عَلَى النُّصُبِ وَأَن تَسْتَقْسِمُوا بِالْأَزْلَامِ ۚ ذَٰلِكُمْ فِسْقٌ ۗ الْيَوْمَ يَئِسَ الَّذِينَ كَفَرُوا مِن دِينِكُمْ فَلَا تَخْشَوْهُمْ وَاخْشَوْنِ ۚ الْيَوْمَ أَكْمَلْتُ لَكُمْ دِينَكُمْ وَأَتْمَمْتُ عَلَيْكُمْ نِعْمَتِي وَرَضِيتُ لَكُمُ الْإِسْلَامَ دِينًا ۚ فَمَنِ اضْطُرَّ فِي مَخْمَصَةٍ غَيْرَ مُتَجَانِفٍ لِّإِثْمٍ ۙ فَإِنَّ اللَّهَ غَفُورٌ رَّحِيمٌ

Sahih International (5:3)
Prohibited to you are dead animals, blood, the flesh of swine, and that which has been dedicated to other than Allah , and [those animals] killed by strangling or by a violent blow or by a head-long fall or by the goring of horns, and those from which a wild animal has eaten, except what you [are able to] slaughter [before its death], and those which are sacrificed on stone altars, and [prohibited is] that you seek decision through divining arrows. That is grave disobedience. This day those who disbelieve have despaired of [defeating] your religion; so fear them not, but fear Me. This day I have perfected for you your religion and completed My favor upon you and have approved for you Islam as religion. But whoever is forced by severe hunger with no inclination to sin - then indeed, Allah is Forgiving and Merciful.

قُل لَّا أَجِدُ فِي مَا أُوحِيَ إِلَيَّ مُحَرَّمًا عَلَىٰ طَاعِمٍ يَطْعَمُهُ إِلَّا أَن يَكُونَ مَيْتَةً أَوْ دَمًا مَّسْفُوحًا أَوْ لَحْمَ خِنزِيرٍ فَإِنَّهُ رِجْسٌ أَوْ فِسْقًا أُهِلَّ لِغَيْرِ اللَّهِ بِهِ ۚ فَمَنِ اضْطُرَّ غَيْرَ بَاغٍ وَلَا عَادٍ فَإِنَّ رَبَّكَ غَفُورٌ رَّحِيمٌ

Sahih International (6:145)
Say, "I do not find within that which was revealed to me [anything] forbidden to one who would eat it unless it be a dead animal or blood spilled out or the flesh of swine - for indeed, it is impure - or it be [that slaughtered in] disobedience, dedicated to other than Allah . But whoever is forced [by necessity], neither desiring [it] nor transgressing [its limit], then indeed, your Lord is Forgiving and Merciful."

So the blood in early part of the verse is unrestricted (Mutlaq) and the 2nd verse is Muqayad. Al Dam (blood) is singular (Alif Lam + singular) so it is not general but of type 3 below. The definite article Al has 5 different meanings.

1) Al Istaghraq (all inclusiveness). When this is the case then the word Al can be replaced by the word kul (all).

2) Al Jins: Set as a whole in general terms and cannot be replaced by the kul (all). For example if we say “the horse is a beautiful animal” however it is meant as a set since one can find a horse which is ugly.

3) Al Ahd al dhabi: So the boat is here not as a set but it is that boat that they rode. Here the boat is Mutlaq, since it is one of those boat.
18:71

فَانطَلَقَا حَتَّىٰ إِذَا رَكِبَا فِي السَّفِينَةِ خَرَقَهَا ۖ قَالَ أَخَرَقْتَهَا لِتُغْرِقَ أَهْلَهَا لَقَدْ جِئْتَ شَيْئًا إِمْرًا

Sahih International
So they set out, until when they had embarked on the ship, al-Khidh r tore it open. [Moses] said, "Have you torn it open to drown its people? You have certainly done a grave thing."


4) The: For example; “This is THE book in which there is no doubt”.

5) Al of particular reference...for example in Surah Al Muzammil when the messenger is introduced who was sent to Pharoah and then Al Rasool is used to make reference.

The other verse says Dam Masfohan so it falls in the category 3 above. This topic is difficult so it needs time to digest.  

Example #2

We defined Mutlaq as indefinite nouns. What about verbs? Can you say that this verb is Mutlaq? One cannot call the verb as Mutlaq but one can say that what it is pointing to is Mutlaq.

If Shariah leaves something as unrestricted then we cannot add any restrictions that the Shariah has left open. Unfortunately, in the history of fiqh we find restrictions which are not there in the text but since people kept on asking questions and as a result restrictions came. We discussed it last lecture as well where we discussed the example from the Quran related to the cow. In Shariah, we cannot add restrictions unless the text of Quran and Sunnah show them.

Q: How to add restrictions? Here the Hanafi and non-Hanafi disagree again. For Hanafis, if meaning of the verse is Mutlaq then it is Qatai.

يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا قُمْتُمْ إِلَى الصَّلَاةِ فَاغْسِلُوا وُجُوهَكُمْ وَأَيْدِيَكُمْ إِلَى الْمَرَافِقِ وَامْسَحُوا بِرُءُوسِكُمْ وَأَرْجُلَكُمْ إِلَى الْكَعْبَيْنِ ۚ وَإِن كُنتُمْ جُنُبًا فَاطَّهَّرُوا ۚ وَإِن كُنتُم مَّرْضَىٰ أَوْ عَلَىٰ سَفَرٍ أَوْ جَاءَ أَحَدٌ مِّنكُم مِّنَ الْغَائِطِ أَوْ لَامَسْتُمُ النِّسَاءَ فَلَمْ تَجِدُوا مَاءً فَتَيَمَّمُوا صَعِيدًا طَيِّبًا فَامْسَحُوا بِوُجُوهِكُمْ وَأَيْدِيكُم مِّنْهُ ۚ مَا يُرِيدُ اللَّهُ لِيَجْعَلَ عَلَيْكُم مِّنْ حَرَجٍ وَلَٰكِن يُرِيدُ لِيُطَهِّرَكُمْ وَلِيُتِمَّ نِعْمَتَهُ عَلَيْكُمْ لَعَلَّكُمْ تَشْكُرُونَ

Sahih International
O you who have believed, when you rise to [perform] prayer, wash your faces and your forearms to the elbows and wipe over your heads and wash your feet to the ankles. And if you are in a state of janabah, then purify yourselves. But if you are ill or on a journey or one of you comes from the place of relieving himself or you have contacted women and do not find water, then seek clean earth and wipe over your faces and hands with it. Allah does not intend to make difficulty for you, but He intends to purify you and complete His favor upon you that you may be grateful.

This verse is talking about wudu. To add something to this we need pretty strong evidence. One thing not mentioned here is niyyah (intention). In Hanafi and Maliki one does not need niyyah. So if someone says that we need niyyah for wudu then what is the evidence? One can answer that “deeds are dependent on their intentions....”. Is this hadith acceptable to restrict this verse? There is a famous Qaedah that “actions are based on their intents”. In general Hanafi quote “there is no reward except by intentions”. So they will say that intention is not a condition for the soundness of the wudu. Other will say that niyyah is needed for the soundness of the act. The Samarqand branch of hanafis say that intention is needed.

Do we need to make wudhu for each salat? There is plenty of other evidence to restrict the meaning and there is no difference of opinion that we do not need to make wudhu for each salat.

Is it required to recite Sura Fatihah in salat?

2012-11-26 Class Notes

From last lecture, see verses (6:145) and (5:3). We find this in many books of Usul al fiqh, which says that unrestricted is 6:145 and 5:3 says Al Dam. In Usul books they take Alif Lam to be Mutlaq (as we discussed last lecture). The 5:3 was revealed in Makkah while Surah Al Anam is one of last surahs revealed and it. It is also said about al-Maeda that it was also revealed all at once. The tafsir of Ahkam ul Quran by Abu Bakr ar Razi al Jassas (hanafi scholar and discusses Quran from Legal perspective) and he says Alif Lam is with Dam and it is called …...?....... referring to something that is already known.

Is Taqyeed a kind of bayan or naskh?

By bayan we mean that 2nd text is explaining the 1st text which was revealed. So bayan is explanation of what was intended by the text from the first time. Abrogation or naskh means some change of original meaning.

Recall that non-Hanafis in general, consider restricting text (in almost all cases) as a kind of bayan and they apply the restricting text to unrestricting text without looking at what was revealed first. The hanafi say that the time factor is important since if one came before the other then it is the case of naskh. If two verses are revealed at the same time then it is (in general) not an issue (however differences of opinion can show up at some occasions). For example, for breaking of oath, the Qiraa of Ibn Masood (ra) says the fasting 3 days with the word Mutatabiat (i.e. consecutive) so hanafis and non-hanafis differ on this one.

Among the hanafis if one does not know the chronological order of the text then one should not say anything unless one determines what came first. This is not very practical. So the Muhaqiqoon (scholars of deeper research according to hanafis) apply the restricting text to the unrestricting.

We have two possibilities for cases where we know the chronological order:

1) More restricting text came first
2) More restricting text came later then there is partial abrogation according to the hanafis.

For example, bigger sets is Slaves and the sub set is believing slaves then for Hanafis all the laws of abrogation apply to it. For non-hanafis though what is acceptable for bayan is a lot less compared to what is need for naskh. Suppose we had the restricting text of believing slaves first and then later comes the Aam text, according to hanafis Mutlaq abrogates the Muqayad, so the new ruling applies to the whole set. For non-hanafis, they do not usually look into the time frame. However, if time frame is already known then non-hanafis also may look at the problem differently. In case of the Dam example of 6:145 and 5:3 the first case is the restricting text and the 2nd text is just referring to it. So it is not the case of restriction and the Dam here is not Mutlaq and Alif Lam is only referring back to the original Dam.

Among the non-hanafis, such as ibn Subki (Shafii scholar) and al Ansari (Shafii scholar) were of the opinion that if Muqayad comes after the mutlaq then it abrogates the mutlaq.

If Mutlaq comes after muqayad and muqayad was practised, then how can mutlaq be bayan? From Shariah point of view, it is not acceptable in Usul al fiqh that mutlaq be bayan. For example, for making the Hajj, is there any restriction on the footwear. It should not cover the ankle for men, which is based on a hadith of Sahih Bukhari by ibn Umar (ra) saying Prophet (pbuh) said that, “the pilgrim should not wear the khuff (leather sock), and you should wear naal and if someone does not have the naal then he should cut his khuff below the ankles”. Another hadith in Bukhari and Muslim (and one of them is from ibn Abbas (ra)), Prophet (pbuh) if a pilgrim cannot find the izar then he should............and if one does not find naal to wear then he can wear khuff”. The one from Jabir (ra), Prophet (pbuh) said “one who cannot find naal then he can wear khuff”. Here the first one was Muqayad and the other 2 narrations were mutlaq. Do we know the chronology? Imam Ahmad said that there are no restrictions on the shoes, and he said this since mutlaq came after the muqayad so mutlaq has abrogated the muqayad. We know that narration from ibn Umar (ra) took place in Madina while Prophet (pbuh) was giving khutbah to Madina before Prophet (pbuh) went for Hajj. The other two narrations took place at Arafat when lots of people were around. So these thousands needed that information now, so when the Prophet (pbuh) told them at that time that you can wear khuff (without the ankle restriction). So khuff below ankle may just be mustahab but not required. Most Ulema say that it is recommended to have naal but not obligatory.      

Do we need to recite sura Fatihah in Salah?

2012-12-03 Class Notes

So we were discussing the Surah al Fatiha in Salat. In surah Al Muzammil when Allah (swt) says that “recite of Quran whatever is easy”. So Hanafi say that based on this ayah, one cannot add anything to the order so putting condition of Surah al Fatiha to this is not allowed to hanafis. Other scholar provide the evidence

فَاقْرَءُوا مَا تَيَسَّرَ مِنْهُ ۚ وَأَقِيمُوا الصَّلَاةَ وَآتُوا الزَّكَاةَ
(73:20)

Narrated 'Ubada bin As-Samit:
Allah's Messenger (pbuh) said, "Whoever does not recite Al-Fatiha in his prayer, his prayer is invalid."

حَدَّثَنَا عَلِيُّ بْنُ عَبْدِ اللَّهِ، قَالَ حَدَّثَنَا سُفْيَانُ، قَالَ حَدَّثَنَا الزُّهْرِيُّ، عَنْ مَحْمُودِ بْنِ الرَّبِيعِ، عَنْ عُبَادَةَ بْنِ الصَّامِتِ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ ‏ "‏ لاَ صَلاَةَ لِمَنْ لَمْ يَقْرَأْ بِفَاتِحَةِ الْكِتَابِ ‏"‏‏.‏

(Sahih Bukhari)

So this hadith is restricting the unrestricted verse of the Quran based on the hadith. The question raised by hanafi is that hadith must be mutawatir for it to restrict the unrestricted text of (73:20). The hadith on fatiha is for sure mutawatir in meaning. However, for sake of the argument lets ignore the issue of mutawatir for now and lets take hanafi position. The Hanafi do not deny authenticity of the hadith, but here they will not give it any weight. For example, in al Kassani’s book, reciting fatiha is Wajib (i.e. lowest level of obligation) and if someone does not recite al fatiha intentionally, then he is making a mistake, and if he is doing it unintentionally then he must make sajda sahw. He continues, “...in our sight this verse (73:20)  is an order to recite without any specification” and in authors position if you specify fatiha as specification then you are abrogating the unrestricted verse without proper evidence. He continues and quotes Al Shafi (that mutawatir hadith cannot restrict the Quran) and then al Kassani argues that we have to act upon khabar ul wahid in order not to reject the hadith. The hanafi use the argument of a man who came to the mosque and said salam to Prophet (pbuh) and then prayed and Prophet (pbuh) after he finished said to him to pray again since his prayer was not proper. This happened a few times and the man requested Prophet (pbuh) to teach him. The hanafi quote this that Prophet (pbuh) did not mention to this man to recite Surah al Fatiha. However, here hanafis are sticking to one version of this narration for other authentic versions do mention Surah al Fatiha in them.

Another argument that is presented to refute hanafis is that this verse is dealing with the Qiyam ul layl. Since this verse is directed to Prophet (pbuh) on whom Qiyam al layl was obligation so it is easing his burden of recitation in a salat which can have very long recitation. So this verse is not dealing with the regular arkan of the salat.

This topic and similar topics revolve around what is called Ziyadat ul Nass (adding to the text). So one question that revolves around this is whether it is abrogation to be restricting the unrestricting. Another example is the punishment of zina. In Quran for zina it is 100 lashes and in Sunnah it is 100 lashes plus banishment for 1 year for unmarried man. So this is an example of ziyadat ul nass. Should we consider it abrogation? If we just lash the unmarried man for banishment then have we fulfilled the punishment?

Keep in mind that all scholars are very strict when it comes to application of naskh. Suppose you have the obligation to pray and then later obligation of zakat is added. Then everyone agrees that this is not naskh. However, adding the 6th prayer as obligation is something which (if it was done) is not considered abrogation. If this happened then this new act is considered independent of the previous act of 5 prayers. Interestingly enough the scholars agree on this principle. So in case of the banishment of unmarried man for zina is not abrogation but addition of a new portion to the ruling.

Some scholars say that (5:89) is restricted by (4:92) which students of this class did not agree with in an earlier lecture. However, this case is also a case of adding something to an already existing ruling.

For Shafi and Maliki (and even for Hanbalis) the essence of naskh is to remove the existing ruling and replace it with a new one. The ziyadat ul nass is accepting the previous ruling and then adding something to it. For vast majority of scholars this is also true. However, for Hanafis it is naskh and they say that ziyadat ul nass shows that the time for the original ruling has come to an end. So hanafi are bringing chronology into it to understand it and looking like it it becomes naskh for Hanafis. Problem with hanafi position is that what to do with the hadith which has the ziyada. Keep in mind the Hanafis are NOT rejecting the authentic hadith but they argue that for Khabar ul Wahid it is not allowed for it to add a rukn to the ruling. The ruling can only have something recommended or permissible based on Khabar ul wahid for them. So logically speaking, Hanafis are not giving full weight to the hadith and making taweel which is not convincing. Keep in mind that later Hanafis have differed on many opinions from the earlier Hanafis on such issues.     

2012-12-10 Class Notes

We were discussing the ziyadah an nass which can cause lots of fiqh differences of opinion. For example, the Majma al Faqih of OIC and most of the scholars do not get into Qatai and Dhanni and they just apply Quran and Hadith (authentic). Even though these scholars come from lots of backgrounds (Hanafi, Hanbali, Shia, etc...).

Al Qataa means definitive knowledge which divides into two categories: The first is Al Ilm al Yaqeeni al daruri. This is knowledge that every Muslim should know this. We must recognize that under this category the amount of knowledge can increase overtime. For example, obligation of salat, forbiddance of Riba, uncreated nature of Quran (due to the fitna which showed up in Muslim history) etc. Then we have in this category a second category which is al Ilm al Yaqeeni al Nadari/Muktasabi. This is the knowledge all the Ulema and Students know. Everyone knows that we have to pray but common man may not know salat al khusuf.

Then we have Al Dhann which divides into categories: The first is Al Dhann ar Rajih (preponderence of the evidence suggests that this is the strong opinion). In this case counter evidence known is weak and we keep the possibility alive that there is some evidence which may put this opinion to question. Then we have Al Dhann al Marjuh. Here the preponderence of the evidence goes against this position. Then there is Shak (doubt) which is between Dhann al Rajih and Dhann al Marjuh where the evidence is equally on both sides.

Al-Wahm is something that we know is incorrect.


Quran is Qatai al Thaboot (which we discussed in earlier quarters) regarding its authenticity. Is Quran regarding it’s indication always Qatai? Regarding indication it is sometimes Qatai and sometimes Dhanni and it is here the scholars may differ. For example, Aam text is Qatai for Hanafi and Dhanni for others. Hadith can be Mutawatir or Ahad.

Mutwatir is a hadith which has independent chains reaching us in such a high number that it is not imaginable that narrators got together to fabricate this text or make a mistake in this text. So Mutwatir report is Qatai. The Quran is Mutwatir. It is hard to fix the number of chains for Mutwatir where number goes from 312 (number of Sahaba in battle of Badr) to 4 (minimum of 4 of Sahabah). Say if someone said that his number is 12 then 11 chains is not Mutwatir for such a person. Mutwatir can give you certainty. Hadith can be Mutwatir in text or Mutwatir in meaning.

Al Ghazali said suppose someone you know said to you that your relative has passed away. Then you go out towards the house of your relative and you see his wife crying and screaming. So the initial report gets more strength. You also see ambulance taking a body with face covered. You still have not seen the individual who is dead but based on what that single person told you has reached certainty by the other evidence. So Mutwatir and Ahad is not important to the Al Ghazali but it is important whether the knowledge it imparts is Qatai or Dhanni. All these terms were not there during time of Sahabah but it is Mutazila which influenced Usul al Fiqh even more than Asharis. The Mutazila did this to remove some of the texts which they did not like.   

Mutwatir in wording (text) are very small numbers. Much more common is Mutwatir in meaning. For example, Mutwatir in meaning is that Prophet (pbuh) recited out loud in Salat al Maghreb. In the two sahih collections, majority of ahadeeth are Ahad. So for Mutazila the ahadeeth from these two collections will be Dhanni. When the Bukhari started to collect the ahadeeth, the other scholars opposed it since they feared that people will reject what is not in the collection. The other aspect was if Bukhari made a mistake then people will accept it. However, for collection Bukhari critiqued ahadeeth seriously and only those ahadeeth were included which were cream of the crop and all scholars agreed upon it. All the schools took about 200 years to accept Bukhari and Muslim as authentic. However, rather than changing their madhab opinions they went into the ahad and Mutwatir issue and made excuses that level of knowledge in these ahadeeth is Dhanni. From the history, we can see that these collections have been accepted beyond the hadith scholars. There is Ijma of Scholars on these collections. So we should have level of confidence at the level of Qatai in knowledge. Unfortunately this clear understanding (that Sahiheen are Qatai in Knowledge) is missing from old Usul al Fiqh books.

Hadith which is Sahih but not in Sahiheen. Does this produce Qatai level of knowledge or Dhanni? Here we mean Sahih by many scholars with no known disagreement. Most Usulyeen say that Ahad reaches the level of Dhann only. This opinion (which originated by Mutazila) was also picked up by some hadith Scholars like Nawawi and ibn Abdul Barr. Mutazila did this so Dhann cannot be taken into Aqeedah while Nawawi and ibn Abdul Barr did accept Ahad into Aqeedah. Out of the 4 imams Abu Hanifa is the only one about whom we did not know whether he took it as Qatai or not but the other imams took Ahad as Qatai.  

The example is given for the Qibla change by ibn al Qayyim in Al Sawaik al Mursalah. A Sahabi who saw the Qibla change and when he went to his town and saw people praying towards Jerusalem he told them the “Qibla has changed” and then people changed direction during the Salat. Prophet (pbuh) sent single Sahabi to many tribes even to teach the Quran. So if person is trusted then the knowledge can be considered definitive.  

Prohibition of Khamr is another example, where people spilled their wine even though only one individual reported it. Also the Quran orders for a group to stay back from Jihad to learn the deen and then teach it to the ones who were missing due to Jihad.

Imam Shafi wrote al Risala because people in his times were moving away from the Usul of Quran and Sunnah.

5 conditions for Sahih:

Chain has to be unbroken
Every narrator is Adl
Every narrator has to be proficient
Hadith cannot contradict the stronger known texts
Hadith cannot have any hidden damaging defect

For Hasan only the third condition can be relaxed. For Hasan hadith one can possibly argue that it is Dhanni. Even in Hasan we have Hasan Li Dhatihi (Hasan on it’s own) and Hasan Li Ghairihi (Hasan due to external supporting evidence and would have been weak without this external evidence). The dividing line between Hasan Li Ghairihi and Daeef (weak) is very difficult to determine. So here one can argue that we can call it Dhanni. However, for Hasan Li Dhatihi still calling it Dhanni is not justifiable.

Take home message: The Usuliyeen are not fully justified in dividing between Qatai and Dhanni.  

2012-12-17 Class Notes

A remark on the ziyad ut nass from previous lectures: Ibn al Qayyim said regarding Hanafis that they differ from their own position on 300 opinions regarding the ziyadat al nass. Another scholar said that there are two ways the Hanafis differ from their own position. One is that they make taweel for their opinion (which is going against their own position) by using mashoor (which is special category for hanafis only) ahadeeth. This scholar also says that Hanafis do not give any explanation for their opinions many times by saying that some text is particularized however they only present weak arguments.

One example is the Qahqaha (laughter) which they consider breaks the Wudu. They have not given any supporting evidence for that. Another example is mahr cannot be less than 10 dirhams. They use weak hadith many times to support their fiqh opinion.

Recall 5:89 and 4:92 from earlier lectures:

لَا يُؤَاخِذُكُمُ اللَّهُ بِاللَّغْوِ فِي أَيْمَانِكُمْ وَلَٰكِن يُؤَاخِذُكُم بِمَا عَقَّدتُّمُ الْأَيْمَانَ ۖ فَكَفَّارَتُهُ إِطْعَامُ عَشَرَةِ مَسَاكِينَ مِنْ أَوْسَطِ مَا تُطْعِمُونَ أَهْلِيكُمْ أَوْ كِسْوَتُهُمْ أَوْ تَحْرِيرُ رَقَبَةٍ ۖ فَمَن لَّمْ يَجِدْ فَصِيَامُ ثَلَاثَةِ أَيَّامٍ ۚ ذَٰلِكَ كَفَّارَةُ أَيْمَانِكُمْ إِذَا حَلَفْتُمْ ۚ وَاحْفَظُوا أَيْمَانَكُمْ ۚ كَذَٰلِكَ يُبَيِّنُ اللَّهُ لَكُمْ آيَاتِهِ لَعَلَّكُمْ تَشْكُرُونَ

Sahih International
Allah will not impose blame upon you for what is meaningless in your oaths, but He will impose blame upon you for [breaking] what you intended of oaths. So its expiation is the feeding of ten needy people from the average of that which you feed your [own] families or clothing them or the freeing of a slave. But whoever cannot find [or afford it] - then a fast of three days [is required]. That is the expiation for oaths when you have sworn. But guard your oaths. Thus does Allah make clear to you His verses that you may be grateful.

وَمَا كَانَ لِمُؤْمِنٍ أَن يَقْتُلَ مُؤْمِنًا إِلَّا خَطَأً ۚ وَمَن قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ وَدِيَةٌ مُّسَلَّمَةٌ إِلَىٰ أَهْلِهِ إِلَّا أَن يَصَّدَّقُوا ۚ فَإِن كَانَ مِن قَوْمٍ عَدُوٍّ لَّكُمْ وَهُوَ مُؤْمِنٌ فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ ۖ وَإِن كَانَ مِن قَوْمٍ بَيْنَكُمْ وَبَيْنَهُم مِّيثَاقٌ فَدِيَةٌ مُّسَلَّمَةٌ إِلَىٰ أَهْلِهِ وَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ ۖ فَمَن لَّمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ تَوْبَةً مِّنَ اللَّهِ ۗ وَكَانَ اللَّهُ عَلِيمًا حَكِيمًا

Sahih International
And never is it for a believer to kill a believer except by mistake. And whoever kills a believer by mistake - then the freeing of a believing slave and a compensation payment presented to the deceased's family [is required] unless they give [up their right as] charity. But if the deceased was from a people at war with you and he was a believer - then [only] the freeing of a believing slave; and if he was from a people with whom you have a treaty - then a compensation payment presented to his family and the freeing of a believing slave. And whoever does not find [one or cannot afford to buy one] - then [instead], a fast for two months consecutively, [seeking] acceptance of repentance from Allah . And Allah is ever Knowing and Wise.

Another example 5:6

يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا قُمْتُمْ إِلَى الصَّلَاةِ فَاغْسِلُوا وُجُوهَكُمْ وَأَيْدِيَكُمْ إِلَى الْمَرَافِقِ وَامْسَحُوا بِرُءُوسِكُمْ وَأَرْجُلَكُمْ إِلَى الْكَعْبَيْنِ ۚ وَإِن كُنتُمْ جُنُبًا فَاطَّهَّرُوا ۚ وَإِن كُنتُم مَّرْضَىٰ أَوْ عَلَىٰ سَفَرٍ أَوْ جَاءَ أَحَدٌ مِّنكُم مِّنَ الْغَائِطِ أَوْ لَامَسْتُمُ النِّسَاءَ فَلَمْ تَجِدُوا مَاءً فَتَيَمَّمُوا صَعِيدًا طَيِّبًا فَامْسَحُوا بِوُجُوهِكُمْ وَأَيْدِيكُم مِّنْهُ ۚ مَا يُرِيدُ اللَّهُ لِيَجْعَلَ عَلَيْكُم مِّنْ حَرَجٍ وَلَٰكِن يُرِيدُ لِيُطَهِّرَكُمْ وَلِيُتِمَّ نِعْمَتَهُ عَلَيْكُمْ لَعَلَّكُمْ تَشْكُرُونَ

Sahih International
O you who have believed, when you rise to [perform] prayer, wash your faces and your forearms to the elbows and wipe over your heads and wash your feet to the ankles. And if you are in a state of janabah, then purify yourselves. But if you are ill or on a journey or one of you comes from the place of relieving himself or you have contacted women and do not find water, then seek clean earth and wipe over your faces and hands with it. Allah does not intend to make difficulty for you, but He intends to purify you and complete His favor upon you that you may be grateful.

In Arabic the yadd means from finger tip to all they way to the shoulder. Here for wudu it says Aydeyakum so it goes all the way to the elbows but it stresses the elbows. Does it apply to the tayammum which is mentioned in the same verse later?

In 2:282 it mentions

وَاسْتَشْهِدُوا شَهِيدَيْنِ مِن رِّجَالِكُمْ ۖ

and in 65:2

فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِّنكُمْ وَأَقِيمُوا الشَّهَادَةَ لِلَّهِ ۚ ذَٰلِكُمْ يُوعَظُ بِهِ مَن كَانَ يُؤْمِنُ بِاللَّهِ وَالْيَوْمِ الْآخِرِ ۚ وَمَن يَتَّقِ اللَّهَ يَجْعَل لَّهُ مَخْرَجًا

Sahih International
And when they have [nearly] fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And bring to witness two just men from among you and establish the testimony for [the acceptance of] Allah . That is instructed to whoever should believe in Allah and the Last day. And whoever fears Allah - He will make for him a way out

Sometimes we may be tempted to apply restriction from one text and apply to another due to their commonalities. One can divide the verses into two categories: Sabab (cause) and Hukm (command). Sabab is the topic being discussed in the verse and Hukm is the ruling.

Case 1: The two texts are in agreement in terms of Sabab and Hukm. For this Ulema are in agreement that Muqayad applies to both texts. Shaykh Jamaal is not sure about this. Al Baydawi?(hanafi scholar) says that we never apply Muqayad to the Mutlaq. For example, a Beduoin came to Prophet (pbuh) who had sexual relations during day time of Ramadan. In some narrations it says you have to fast two months. In other narrations you have to fast two consecutive months. Some argue this is just one event (so narrators left out some part) while others think it is two different events.  

حُرِّمَتْ عَلَيْكُمُ الْمَيْتَةُ وَالدَّمُ وَلَحْمُ الْخِنزِيرِ وَمَا أُهِلَّ لِغَيْرِ اللَّهِ بِهِ

and in Surah al Anaam, verse 145 it says that

قُل لَّا أَجِدُ فِي مَا أُوحِيَ إِلَيَّ مُحَرَّمًا عَلَىٰ طَاعِمٍ يَطْعَمُهُ إِلَّا أَن يَكُونَ مَيْتَةً أَوْ دَمًا مَّسْفُوحًا أَوْ لَحْمَ خِنزِيرٍ فَإِنَّهُ رِجْسٌ أَوْ فِسْقًا أُهِلَّ لِغَيْرِ اللَّهِ بِهِ ۚ فَمَنِ اضْطُرَّ غَيْرَ بَاغٍ وَلَا عَادٍ فَإِنَّ رَبَّكَ غَفُورٌ رَّحِيمٌ

Sahih International
Say, "I do not find within that which was revealed to me [anything] forbidden to one who would eat it unless it be a dead animal or blood spilled out or the flesh of swine - for indeed, it is impure - or it be [that slaughtered in] disobedience, dedicated to other than Allah . But whoever is forced [by necessity], neither desiring [it] nor transgressing [its limit], then indeed, your Lord is Forgiving and Merciful."

so we take the restriction and later apply it to the unrestricted, but according to al Jassas the particle Al is showing that it is referring back to the original blood of 6:145. So it is not an example of applying the restriction to the unrestricted.

Back to the example of Bedouin, the hanafis are saying that it is the same incident. (….. I missed the discussion......The only part I caught that Shaykh does not think Hanafis are correct in their conclusion here.)

The wiping over the socks, one is narrated by Al Mughira and Prophet (pbuh) came back after relieving himself and Al Mughira poured water for Wudu and Prophet (pbuh) made Wudu and wiped over his socks. Another narrations is where Prophet (pbuh) told a Sahabi to leave the socks on saying that I put them on while I was in state of purity and showed his intention for wiping over socks. Speech conveys more compared to action. So in the first case it is possible that he (pbuh) was in the state of Taharah. By the way, both narrations are from Al Mughira. Say someone says that socks have to be green, then what will one say to him? The answer is that if something is unrestricted then we will apply it in unrestricted sense. Hanafis say that both the hadith refers to the same incident.

Next case is related to Zakat ul Fitr: Zakat ul Fitr is for every person of the household (including newborn). Are slaves included in it? Yes. What if slaves are not Muslims? A hadith from Ibn Umar (ra) reported in Bukhari, Prophet (pbuh) made incumbent on every male and female, free man or slave …..barley ….as sadaqat ul fitr. In another one in Sunan Abi Daud (authentic), it is on free and the slave and male and the female amongst the Muslims. Is it good example for Sabab and Hukm as in case 1? Yes, but it is with Taqiyyid with respect to the first one. So from this it looks like that zakat ul fitr is not for non-Muslim slaves. Hanafis here do not apply Muqayad to the Mutlaq. They say that there is nothing making you prefer one legal cause over the other. One can apply both the texts without any conflict.

Case 2: Two texts differ both w.r.t to Sabab and the Hukm. So topics are different and rulings are different. For example, expiation for unintentional killing of believer is fasting two consecutive months but for breaking the oath it is fasting 3 days. Can we take these two texts and say for the second one that fasting has to be consecutive? So sabab and hukm are different so it looks like one should not apply the consecutive condition to the second fasting.

Yadd in Arabic means to the shoulder. For the thief, can we say that since verse of wudu restricts it to elbows, so can we use that verse to the case of the thief. However, the verse is talking about washing and not stealing, so sabab and hukm are the different. So muqayad cannot be applied to the mutlaq. This is agreed by the scholars.

Case 3: Agree on sabab but differ on hukm: In Tayammum do we wipe all the way to the elbow, since the sabab here is taharah for salat, but hukm is different. However, we do not apply muqayyad to mutlaq if there is no evidence. Scholars agree for the case of 3 we do not apply muqayad to the mutlaq. For case of tayammum we have from authentic ahadeeth two different ways of tayammum.

Case 4: Sabab different but hukm is same: For example, freeing the slave for killing and breaking the oath. Sabab is different but hukm is same of freeing the slave. We continue next week as this is the most hotly debated case.

12-24-2012 Class Notes

From last time the ayat al dayn (2:182)

وَاسْتَشْهِدُوا شَهِيدَيْنِ مِن رِّجَالِكُمْ

and in 65:2

فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِّنكُمْ وَأَقِيمُوا الشَّهَادَةَ لِلَّهِ ۚ ذَٰلِكُمْ يُوعَظُ بِهِ مَن كَانَ يُؤْمِنُ بِاللَّهِ وَالْيَوْمِ الْآخِرِ ۚ وَمَن يَتَّقِ اللَّهَ يَجْعَل لَّهُ مَخْرَجًا

Sahih International
And when they have [nearly] fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And bring to witness two just men from among you and establish the testimony for [the acceptance of] Allah . That is instructed to whoever should believe in Allah and the Last day. And whoever fears Allah - He will make for him a way out

Which one of the 4 categories from last lecture this falls into? It is in category 4 since the sabab are different but the hukm is the same (two men for al Baqarah and two just men for al Talaq).

Similarly for the example of (5:89) and (4:92) from last lecture which falls under category 4 since hukm is freeing a slave. However for this example the difference of opinion exists even within the schools.

For hanafis they will never apply the muqayad to the mutlaq and they are pretty consistent on this principle. On this particular case the hanafis are joined in by the Malikis and the Hanbalis. A second approach is that you take the muqayad and you apply it to the mutlaq. This is majority opinion among non-Hanafis. However, in all of the schools there are scholars who do not do this (apply muqayad to mutlaq), and these scholars require some illa when muqayad can be applied to the mutlaq.

Kaffara is something we have to accept from Allah (swt) so for the freeing of the slave muqayad cannot be applied to the mutlaq, however for the other case it can be applied since both are in some sense dealings, and this commonality of “dealings” one can apply muqayad to mutlaq. For the case of witnesses, we can rationally argue (from Shariah point of view) that the witnesses must be just, so one can apply muqayad here to mutlaq. Keep in mind on the category 4 there is the greatest difference of opinion among the Ulema. We have people on either side of the spectrum including some in the middle (the middle meaning that they require some illah and the bring it closer to qiyas rather than the textual argument).

Hanafis quote (5:101):

يَا أَيُّهَا الَّذِينَ آمَنُوا لَا تَسْأَلُوا عَنْ أَشْيَاءَ إِن تُبْدَ لَكُمْ تَسُؤْكُمْ وَإِن تَسْأَلُوا عَنْهَا حِينَ يُنَزَّلُ الْقُرْآنُ تُبْدَ لَكُمْ عَفَا اللَّهُ عَنْهَا ۗ وَاللَّهُ غَفُورٌ حَلِيمٌ

Sahih International
O you who have believed, do not ask about things which, if they are shown to you, will distress you. But if you ask about them while the Qur'an is being revealed, they will be shown to you. Allah has pardoned that which is past; and Allah is Forgiving and Forbearing.

Can it be used as an argument? Hanafis are saying that Quran is silent about this condition so do not ask. They also use some (authenticity questionable) statements from Ibn Abbas (ra) and ibn Masud (ra) which point to not asking such questions. For example, in Quran the marriage to mother-in-law is forbidden and on this issue ibn Abbas was asked if one had not consummated the marriage, does that mean mother-in-law is forbidden and he said leave the unrestricted as unrestricted. A narration from ibn Masud (ra) presents similar arguments.

A sahabi who got angry on his slave girl and slapped her on the face. This was before the sahabi had become a Muslim. So sahabi spoke about this to Prophet (pbuh) and Prophet (pbuh) summoned her and when after few questions it became clear that she is a believer so Prophet (pbuh) told the sahabi to free her. Can it be used to restrict the freeing of slave? No, since it is not dealing with Kaffara of what the verses are talking about.

Those who are applying the muqayad to the mutlaq are going against the norm, so it is upon them to bring the burden of proof to show why we can apply muqayad to mutlaq. Else we keep the two rulings independent and we do not apply muqayad to mutlaq. That is why we even find majority of non-Hanafi scholars not applying muqayad to mutlaq in addition to Hanafi scholars.

Same is true for other categories 1 through 3.

Conditions that must be met for applying muqayad to mutlaq (Hanafis do not accept any of these conditions since they do not agree with the concept at all).

1) Restriction should be in form of attributes while not touching the basic essence of actions involved. For example, in the verse of Wudu Allah (swt) talks about washing face, hands to elbows, wipe over the head and wash your feet but in tayammum it is only face and hands. So no scholar applies it

2) There should be no other viable alternative text. For example fasting as expiation of breaking the oath is to fast 3 days. Should these be consecutive? The verse does not say consecutive. However, for Zihar the atonement is 2 consecutive months. The other expiation for Hajj is 3 during Hajj and 7 when returning home. Here you have 2 restricting texts of Zihar and Hajj so here you have more than one restricting text and no way of choosing between them so in essence one cannot apply restriction.  

3) You apply muqayad to mutlaq if there is no way of reconciling the two texts. No good example here.

4) If you have reliable text that will show that we do not apply muqayad to mutlaq. For example, wudu is restricted --- wash till elbow. For tayammum no restriction is not mentioned. There is a hadith that shows in tayammum we wipe our hands till elbow. Due to this external evidence the muqayyad of wudu cannot be applied to tayammum.

5) If additional meaning has not been put there for some other purpose. For example, riba doubling and redoubling in the Quran is not qualifying the statement but is describing what was going on at the time of jahilliyah.

Going back to the Surah al Nisaa of forbidden category of marriage is mothers who breast fed you. It is general text. The hanafis take it as unrestricted so any amount of feeding is sufficient for this ayah to be applied and this has support in Prophet’s (pbuh) hadith which says that foster relationship forbids what blood relationship forbids. Hanafi are of this opinion, this is opinion of Imam Malik and ibn Umar (ra). The Shafi and Hanbali think it is minimum of 5 breast feedings. They take it from statement of Aisha (ra) that it was 10 breastfeeding and then it was made 5 and it stayed that way until Prophet (pbuh) passed away. Another opinion is 3 breastfeedings based on hadith which says that one or two breast feeding do not forbid the relationships.

(As homework think about how to reconcile these conflicts since all aheedth are authentic above).

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