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Usool al Fiqh Fall 2010

Beginning Usool al Fiqh V: Beginning Islamic Legal Theory V

  • An introduction and overview to the entire field of Islamic Legal Theory. In this session, there will be a discussion of how the texts of the Quran and Sunnah “indicate” their rulings.
  • Prerequisite: NONE (all topics are independent of previous sessions)
  • Required Text: Principles of Islamic Jurisprudence by Mohammad Hashim Kamali
  • Time: Mondays 8:45 - 9:45 pm PDT September 27 to October 11, then from 8:15 to 9:15 PST October 18 to November 29
  • Grading: 100% Final Exam; Scheduled for November 22

Basic Outline of the Class

Topic 1:  Rules of interpretation I: Textual implications (Kamali chapter 5)

2010-09-27 Class Notes

Review of the last session of this course

Actions of the prophet versus speech of the prophet. What is hujja (authority) for action and what is not? And how to deal with the actions of the prophet.

Language of the Quran resonates with the people. It is similar to how people speak, it does not feel like robotic speech or a legalistic writing. People can relate to the Quran and speech of the prophet.

There are different levels of clarity and preciseness and definitiveness of speech.

We find places in the Quran and the Sunnah where the intended meaning is not the intended meaning, and we have to resort to an approach known as Ta’weel to extract this meaning of the text.

When analyzing the clarity of speech, the approach of the hanafis was different than the approach of the non-hanafis. This could be because their Usool was different in general from the other schools. The difference is that the hanafi school’s essential goal is to determine the usool fiqh of their school. So by looking at the fiqh of Imam abu Hanifa and the Quran/Sunnah and trying to see where Imam Abu Hanifa and his students came up with the ruling and from this they derived the usool.

Muttakalimoon - discuss theory and then derive the rulings.

Is there any problem with getting rid of all the madhabs and just taking from the Quran and Sunnah directly.... there are differences in usool, you still need methodology to derive laws from Quran and Sunnah, and you might differ on how you derive the laws from Quran and Sunnah. Which would be the same differences the madhabs had classically.

Textual Implications

Clarity of text, whether it is open to interpretation was the scope of the previous session. In this session we will discuss textual implications, if you say something, you have what it states and what it implies, and what it implies can be in different ways. We will go to the text and determine how text indicate rulings.

Hanafi approach will be different from the non-Hanafi approach for textual implications. We will first discuss the Hanafi approach.

What do we mean by the actual meaning and implications of a statement?
When you say something, you also intend to convey the implications of the statement and not just the actual meaning of the statement.

Verse => clear meaning => more than one implications
If we have a verse in the Quran, and this verse has a clear meaning and then there are three implications of that statement.

If I give you a command, in order to fulfill the command, it might require you to do some additional steps. If you just do the face value of the command, then are you really doing what I am ordering you to do? Rather the implications of the command must also be fulfiilled for the face value of the command to be fulfilled.

For example when you do your taxes, it is implied that you have to keep accurate financial records in order to fill out the tax forms.

If there is a command from Allah swt, then it is necessary for us to understand its implications in order to fulfill the command properly.

So in the quran if there is a command for something with implications, it is obligatory for us to understand the clear meaning and the implications. If we just stop at the clear meaning, we are failing in our attempt to apply the quran and understand the Quran.

Is it permissible to beat your parents?
The Quran says that you cannot say “uff” to your parents, so if you are not allowed to say a word that is not even considered harsh in the Arabic language, then it implies that we cannot mistreat or beat our parents.

If you are not even allowed to say Uff, you obviously can’t do something that is worse than Uff. So the implication of this verse is that anything evil towards your parents is prohibited. If we stopped at the clear meaning then it would just mean that we aren’t allowed to say Uff, but we could beat them.

Meaning is you cannot say “uff”, this is the face value of a statement of the Quran. And then we study the ramifications of the clear meaning. This is not taweel, because taweel implies that the clear meaning is not what is implied by the statement of the Quran.

Discussion of the technical terms used by Hanafis for implications of the text

All the techincal terms used by Hanafis to describe this topic, end in the word nass. Nass text has clear meaning of the word. And now we take a look at the clear meaning and see the ahkam of the text.

Danni Dalala - Not definitive in its indication. Even if you make some conclusion of what you think it means, there is still some question, it couldd still be open to some kind of interpretation, so the strength of that is not very definitive. You could be forced to make a conclusion, but it isn’t definitive.

Qati’ Dalala - It is definitive in its indication, it can not mean anything else, it isn’t open to any kind of meaning (or very low possibility, only for the Hanafis)

Discussion of the various terms used by Hanafis
1. Ebarah al Nass - Explicit meaning of the text
2. Isharat al Nass - Alluded meaning of the text
3. Dalaalah al Nass - Inferred meaning of the text
4. Iqtidaa al Nass - Required meaning of the text

When you look at the text and if it does not require much thought or ijtihaad to derive the clear meaning of the text then it is Ebarah al Nass. Meaning jumps out to you quickly.

There is undeniable meaning of the text, but that is not the main goal of the text. This clear meaning is referred to as isharat al nass or alluded meaning of the text.

Difference of dhahir versus nass for the later Hanafis?
Nass: stronger text; meaning is primary intent of the text
Dhaahir is something that is clear but may not be the main goal of the text.

For example Surah Baqarah verse 225, Allah swt has permitted trade (baya) and forbidden riba.

What is the most obvious meaning of the text? Trade is allowed and riba is forbidden --- clear text, explicit meaning.

Trade is different from riba, is this meaning clear from the text. It does not say it, but it is alluded from the text. It is obvious that they are different. Is it the main goal of the text?

If you see the context, the verse is replying to the people who say that riba is same as baya, and this verse say they are not the same.  

For hanafis, this verse (or the clear/explicit meaning of the verse?) is Qataee dalalah and it is obligatory for you to act upon it (for the Hanafis).

Surah Nisa verse 3  in which Allah swt says

وإن خفتم ألا تقسطوا في اليتامى فانكحوا ما طاب لكم من النساء مثنى وثلاث ورباع فإن خفتم ألا تعدلوا فواحدة أو ما ملكت أيمانكم ذلك أدنى ألا تعولوا

Muhsin Khan

And if you fear that you shall not be able to deal justly with the orphan-girls, then marry (other) women of your choice, two or three, or four but if you fear that you shall not be able to deal justly (with them), then only one or (the captives and the slaves) that your right hands possess. That is nearer to prevent you from doing injustice.

Permissibility of marriage is implied, it is not explicitly stated. (#2,Isharat al Nass - Alluded meaning of the text)

If you fear that you cannot be just, then you have to marry only one - this is the explicit meaning.

Shaykh ul Islam Ibn Taymiyya R.A’s position is that the basic/asl is that you have more than one wife and that only IF you fear injustice then you only have one. It is not the majority position,

Background of the verse is that from the time of jahiliyaah, if you are guardian of the orphan girls and they would marry them without giving them maher or in general be just to the orphans in your care, so if you fear that you cannot be just to the orphans, then don’t marry them, but marry other women.

Permissibility of marrying orphans - It is not explicit meaning but it is a very clear indication of the verse. This is not actually stated in the verse, hence it is not ebarah al nass.

Maximum four wives - implicit or explicit?

Could somebody say that is this just an example of 2,3,4? Would this be sufficient to say that four was the maximum. We have other evidence, prophet asked the some of the people who had more than four wives from time of jahiliyaah to divorce their wives in order to comply with order of maximum of four wives.

2010-10-04 Class Notes

We are discussing how various texts can give us ruling, we are discussing the Hanafi approach.

Let’s say you visit a friend and knocked at his door. You hear your friend say, “Door is unlocked”. What did he mean?  Let’s say that you walked away and you saw your friend later on and he asked, why did you not come in?

Let’s say you are a student from a non-English speaking country and you are still trying to understand English language and culture. Your friend is native English speaker. What do you think of the above scenario now.

Imagine you are walking on the beach with your son. And beach patrol comes to you and say, you have to stay away from the ocean due to strong rip currents. You stayed away from the ocean but did not stop your son from the ocean. And now if some harm occurred to your son, would  you have the right to sue the beach patrol for not asking you and your son to stay away from the ocean?

Every law deals with similar things

Four ways for Hanafis to get rulings from the text:
1. Actually and literally stated in the text (Ebarah al Nass - Explicit meaning of the text)
2. Isharat al Nass (Alluded meaning of the text)

Ishaarat - Can be defined as: To gesture, to sign, to indicate, to allude to. We chose the word to allude to.
Take a simple concept and make it complicated. Is a necessary, logical conclusion from what is stated in the text. Text is pointing to something. Obviousness of it may be different for different individuals. The logical conclusion may not be obvious to you but if shown it is.

Qualites of ishaarat
It is is not the primary or secondary purpose of the text. It is not stated explicit in the text.
Necessary conclusion of the meaning of the text.

For the Hanafis, this is textual evidence. All four categories are based on textual evidence and do not rely on  rational arguments supra of the  text i.e. not directly related to the text. Weaker than what is directly from the text.
Some of the rulings are not necessarily obvious to the most casual observers.
Should Ishaarat al nass be considered strong or weaker or equal to ibarat-ul-nass. Room to argue that they are equal.

Question about primary and secondary purpose (intent) of the text. Sheikh gave example of riba is not same as trade. And that ........

Example of Ibaraat and Ishaarat al Nass
Surah Baqarah verse 236

لا جناح عليكم إن طلقتم النساء ما لم تمسوهن أو تفرضوا لهن فريضة ومتعوهن على الموسع قدره وعلى المقتر قدره متاعا بالمعروف حقّا على المحسنين

Muhsin Khan

There is no sin on you, if you divorce women while yet you have not touched (had sexual relation with) them, nor appointed unto them their Mahr (bridal money given by the husband to his wife at the time of marriage). But bestow on them ( a suitable gift), the rich according to his means, and the poor according to his means, a gift of reasonable amount is a duty on the doers of good.

What is the ibarat-ul-nass of the above verse?
It is acceptable to divorce a woman before you have sexual relationships or even before you have appointed a mahr for her.

What is the ishaarat-ul-nass of the above verse?
The fact that mahr is not one of the conditions for the soundness of the marriage contract. This is what the text alludes to. Cannot have divorce if not married even though the mahr is not determined, The mahr is not a condition of the soundness of the contract (marriage).

What is the mahr? If it is not the condition of the soundness of the marriage.
It is better to discuss the mahr beforehand and agree upon it. What if it is discussed but not transacted and the husband dies? The amount would be customary given her circumstance. Fatwa of Abdullah ibn Mas’ud. He later learned that Prophet gave the same ruling.
Mahr is one of the rights of the wife as a result of the marriage contract. She has the right to forgo it afterwards. But it has to be agreed beforehand. This text proofs that it is not a condition of the marriage contract. Not stated explicitly but alluded to in the text. Logical, necessary conclusion.

Surah Baqarah 2:187

أحل لكم ليلة الصيام الرفث إلى نسائكم هن لباس لكم وأنتم لباس لهن علم الله أنكم كنتم تختانون أنفسكم فتاب عليكم وعفا عنكم فالآن باشروهن وابتغوا ما كتب الله لكم وكلوا واشربوا حتى يتبين لكم الخيط الأبيض من الخيط الأسود من الفجر ثم أتموا الصيام إلى الليل ولا تباشروهن وأنتم عاكفون في المساجد تلك حدود الله فلا تقربوها كذلك يبين الله آياته للناس لعلهم يتقون

Muhsin Khan

It is made lawful for you to have sexual relations with your wives on the night of As-Saum (the fasts). They are Libas [i.e. body cover, or screen, or Sakan, (i.e. you enjoy the pleasure of living with her - as in Verse 7:189) Tafsir At-Tabari], for you and you are the same for them. Allah knows that you used to deceive yourselves, so He turned to you (accepted your repentance) and forgave you. So now have sexual relations with them and seek that which Allah has ordained for you (offspring), and eat and drink until the white thread (light) of dawn appears to you distinct from the black thread (darkness of night), then complete your Saum (fast) till the nightfall. And do not have sexual relations with them (your wives) while you are in I'tikaf (i.e. confining oneself in a mosque for prayers and invocations leaving the worldly activities) in the mosques. These are the limits (set) by Allah, so approach them not. Thus does Allah make clear His Ayat (proofs, evidences, lessons, signs, revelations, verses, laws, legal and illegal things, Allah's set limits, orders, etc.) to mankind that they may become Al-Muttaqun (the pious - see V.2:2).

Ibaarat al nass:
There are many things mentioned in the verse

When fajr time comes, if one is sexually defiled i.e. not made ghusl before Fajr prayers, it is still possible for him to fast that day.
The condition of ghusl is not mentioned as a condition for the fast. i.e. you can have sexual intercourse uptil the time of fajr it means that one can fast without the ghusl.
Abu Huraira is of the opposite opinion i.e. if sexually defiled one cannot fast that day, until he was told by the wives of the Prophet that the Prophet and his wives would do otherwise he changed his fatwa.

People try to include as much as possible since they are relying on textual evidence and not rational arguments.

Zarakshi (early Hanafi usuliyyen) discusses in detail a particular hadith, although weak, which discusses Zakat ul fitr.
“Enrich them (the poor) from the zakat-ul-fitr so that they will not beg on this day.”

Let’s see the points that he derived from the above hadith:
1. Zakat ul Fitr is only obligatory on the rich
How did he get this from this hadith? You have to be rich in order to enrich someone.
In fiqh is that a typical understanding of giving zakat ul fitr? No, it is obligatory for all to pay zakat ul fitr
Is this is from ishaaratul nass? No it is not.

2. Zakat-ul-fitr is only to be given to the poor. How? Begging is very much restricted in Islam. Only those who are truly poor. That one is from ishaarat-ul-nass.

3. The zakat-ul-fitr must be given before fajr on the day of Eid
That is when the day time starts i.e. fajr to maghreb. Only way to stop them from begging is to give them before the day begins.

4. The individual can give form any kind and not just dates, cash. How does he reach this conclusion?
Because the hadith says enrich.

5. It is best to give zakaat ul fitr to one poor person because it will enrich him rather than to distribute among many more people. That would be better than giving it to many people.

Addendum by a contemporary scholar:
6. It is must to gather all of the zakaat and then distribute equally, so that you enrich more people.
What do you think of this conclusion as an ishaarat-ul-nass?

Another example from Kamali where he discusses Surat ali-Imran:159

فبما رحمة من الله لنت لهم ولو كنت فظّا غليظ القلب لانفضوا من حولك فاعف عنهم واستغفر لهم وشاورهم في الأمر فإذا عزمت فتوكل على الله إن الله يحب المتوكلين

Muhsin Khan

And by the Mercy of Allah, you dealt with them gently. And had you been severe and harsh-hearted, they would have broken away from about you; so pass over (their faults), and ask (Allah's) Forgiveness for them; and consult them in the affairs. Then when you have taken a decision, put your trust in Allah, certainly, Allah loves those who put their trust (in Him).

Refer page 170 of the 3rd edition of the recommended text:
Hashim Kamali states that the Ibaarat ul Nass states that the community affairs must be conducted through consultations.

And that the Ishaarat ul Nass requires creation of  a consultative body to facilitate the consultation that is required in the above verse.

What do you think of his conclusions?
The implementation of the verse, the prophet did not create a consultative body. He did consult as needed.
He used to make shura but never created a consultative body. Must not be a necessary conclusion of the text. Dangerous to do this i.e. raise it to isharat-ul-nass.

An example that is much more confounding. The Hanafis and Shafiees have differing viewpoints. Surah Hashr verse 7 and 8

ما أفاء الله على رسوله من أهل القرى فلله وللرسول ولذي القربى واليتامى والمساكين وابن السبيل كي لا يكون دولة بين الأغنياء منكم وما آتاكم الرسول فخذوه وما نهاكم عنه فانتهوا واتقوا الله إن الله شديد العقاب

Muhsin Khan

What Allah gave as booty (Fai') to His Messenger (Muhammad SAW) from the people of the townships, - it is for Allah, His Messenger (Muhammad SAW), the kindred (of Messenger Muhammad SAW), the orphans, Al-Masakin (the poor), and the wayfarer, in order that it may not become a fortune used by the rich among you. And whatsoever the Messenger (Muhammad SAW) gives you, take it, and whatsoever he forbids you, abstain (from it) , and fear Allah. Verily, Allah is Severe in punishment.

للفقراء المهاجرين الذين أخرجوا من ديارهم وأموالهم يبتغون فضلا من الله ورضوانا وينصرون الله ورسوله أولئك هم الصادقون

Muhsin Khan

(And there is also a share in this booty) for the poor emigrants, who were expelled from their homes and their property, seeking Bounties from Allah and to please Him. And helping Allah (i.e. helping His religion) and His Messenger (Muhammad SAW). Such are indeed the truthful (to what they say);

distribution of Fai’? spoils of non-war (the enemy conceded even before the battle)
v7 talks about the different groups that are supposed to receive the fai’.
v8: beginning, also be given to the poor immigrants who have been expelled from their homes and property.
faqir/fuqara - someone who does not have any property or wealth, it does not belong to them anymore. This is literal for the Hanafis.
“ukhrijuu min diyaarihim wa amwaalihim” - thier houses and their wealth. This is figurative for the hanafis.
Shafiees say that fuqara is used in figurative sense, since the houses belonged to them. Whereas the Hanafis are using fuqara literally and the houses and wealth in figurative sense.
Literal definition of faqir is one who does not have property or wealth.
Which is stronger view, Hanafi or Shafiee? Hanafi.

Sheikh Jamaal Zarabozo’s opinion about this ayah: ukhrijuu is perfect tense. driven out from their homes. What is implied is that it is not longer theirs. this is ibarat-ul-nass. Sheikh Jamaal says that if you say you sold your house, this implies you no longer own the house. After fath-al-Makkah did anyone go back and re-posses these homes.

Shafiees quote an example, of woman who came into possession of prophet’s camel, but she did not know about it and she promised that if she is saved from the war then she will slaughter this camel. When she came back, she was informed that it was the prophet’s camel. And then prophet explained... that she cannot make a vow of something that does not belong to them. So the camel was returned back to the prophet. Shafiees use this as an example of the camel returning back to the prophet which was lost during a battle.

Sheikh Jamaal thinks that the Hanafi conclusion is correct but the reasoning is not sound. He also stated that the Shafiees and Hanafis are debating this point for centuries.

There are many more examples of ishaarat al nass. We will discuss the hanafi approach ....

The Shafiees did not take it (the above example, Hashr;7,8) from the point of isharaat-ul-nass.

2010-10-11 Class Notes

Obviousness of Ishaaratal Nass
Suppose someone asks for a Quranic proof that mahar is not a requirement for the soundness of the marriage and lets suppose you gave the ayat that we discussed last time which was Surah Baqarah 2:187. Can you say that is textual evidence?

According to the scholars of fiqh, this is considered textual evidence or ishaaratal nass. Note that not everything has to be explicitly stated, if it is explicitly stated then it is called ibaratal nass.
If you say that you cannot have sound marriage contract without mahar then you are contradicting the ayat of the quran Surah Baqarah 2:187 and hence contradicting Allah SWT. Necessary and logical conclusion is part of the text

Does ishaaratal nass have to be obvious?
Somebody might read the verse and not jump to the conclusion, sometimes when something is explained it becomes obvious.

In the time Uthman, there was pregnant woman and has a child. The child is going to live of miscarried. To have the child live it must be in the womb (gestation)  for a certain amount of time. This is relevant because it becomes a part of the family. It must be within wedlock. If someone gets married  and has a baby after 6 months and lives on its on, is the child legitimate?

There are two verses from the Quran as evidence, Surah Ahqaf:15 which says gestation and weaning is 30 months. Another verse Luqman:14 which says weaning is for 2 years

So if we take these two verses, then we can deduce that the minimum time for pregnancy is 6 months, since 30 months minus 2 years gives us 6 months. This incident did happen during the time of Uthman and it was considered a legitimate child.

So was this ishaaratul nass obvious? No, but it came obvious after it was explained. Once it is seen and recognized then it becomes part of what that text is implying.

Qata’ee and Dhanni aspects of Ishaaratal Nass
If the ishaarat is supposed to be a logical and necessary conclusion of what is actually stated in the text, the ibaraat of the text, does it have to be definitive (qata’ee)?

Is it possible that the text is dhanni and not qata’ee? This cannot happen. Sheikh crossed out this implication.

For example..... People are stretching the ishaarat into something that is not implied by the text and as a consequence the scholars said that some ishaaarat is qata’ee and some of it is dhanni. This is because people went to extremes to incorporate the text which was not the logical and necessary conclusion of the text.. Some scholars said that we have to exercise moderation and not go to extremes.

Why did people go to these extremes? Because if you can prove your opinion by using textual evidence then it has the highest priority and it trumps everything else, hence their aggressiveness in going to these extremes.

Qata’ee aspects of Ibaaratal Nass
The explicit meaning of the text is considered to be Qata’ee or definitive. What did the sheikh say about Hanafis?  Sheikh mentioned that by simplifying this topic, we avoid all of the discussions about it.

Conflict between Ibaaratal Nass and Ishaaratal Nass
In case of conflict which one takes precedence?

If they are both qata’ee then the expectation is that there will be no contradictory. In general if it is not contradictory, would it be possible and if so how?

For example, one of the text could be abrogated. What about concept of taweel? Would we need to make taweel for one of the texts? Specially from the Hanafi perspective? The four clear texts for Hanafis are muhkam, nass, dhahir, xxx. They are all qata’ee. However is it possible for them to be open to taweel? Yes in the case of nass and dhahir.

Situation where ibaarat and ishaarat contradict each other. First of all it is very unlikely. However any text give three examples, and sheikh does not agree with any of the example.

They take text and say that the ibaarat of the text contradicts the ishaarat of hadith of the prophet. And then in the discussion, they argue which one takes precedence and then bring other evidence and try to tilt it in one way or other. They then bring a hadith which explicit states the ishaarat of the text. So in reality we have ibaarat of one hadith contradicting the ibaarat of another hadith. So we will not delve into this example,since it does not contradiction between ishaarat and ibaarat.

Another example, they take a very weak hadith and then pit it against the ishaarat of a misquoted hadith which can only be found in fiqh sunnah textbooks. So it is moot to discuss the ibaarat of a very weak hadith versus the ishaarat of a misquoted hadith.

Third example pits Surah Baqarah:178 versus Surah Nisa verse 93. These verses discuss murder. One verse discusses qisaas or retribution and the other verse discusses punishment in the hereafter.

يا أيها الذين آمنوا كتب عليكم القصاص في القتلى الحر بالحر والعبد بالعبد والأنثى بالأنثى فمن عفي له من أخيه شيء فاتباع بالمعروف وأداء إليه بإحسان ذلك تخفيف من ربكم ورحمة فمن اعتدى بعد ذلك فله عذاب أليم

Muhsin Khan

O you who believe! Al-Qisas (the Law of Equality in punishment) is prescribed for you in case of murder: the free for the free, the slave for the slave, and the female for the female. But if the killer is forgiven by the brother (or the relatives, etc.) of the killed against blood money, then adhering to it with fairness and payment of the blood money, to the heir should be made in fairness. This is an alleviation and a mercy from your Lord. So after this whoever transgresses the limits (i.e. kills the killer after taking the blood money), he shall have a painful torment.

ومن يقتل مؤمنا متعمدا فجزاؤه جهنم خالدا فيها وغضب الله عليه ولعنه وأعد له عذابا عظيما

Muhsin Khan

And whoever kills a believer intentionally, his recompense is Hell to abide therein, and the Wrath and the Curse of Allah are upon him, and a great punishment is prepared for him.

Is there any contradiction between these two verses?
They say that the ibaraah of Baqarah:178  is contradicted by the isharaah of Nisaa:93.

The principle that they invoke in the second verse is that if you are explaining a concept then it implies that that is all that needs to be said and that is all that needs to be done. Otherwise the person explaining that concept is not fulfilling the obligation, if they leave out some important details.

They say that in Surah Nisaa, Allah swt does not discuss the punishment for murder in this life, then it means by the principle stated above, it does not apply. Does this make sense?

Is there anything in the wording of the Nisaa:93 that signifies that the only punishment is hell, wrath and curse of Allah swt. No. The Arabic wording does not in any way imply that.

Even invoking the principle, does it show conflict? No. Because the Nisaa:93 is not talking about punishment in this life and there is no indication of punishment in this life.

Conclusion is that the examples of conflict between isharaat and ibaarat of the text are not applicable. And it would be difficult to come up with an example. Theoretically it is difficult for this to happen and hence it is difficult to come up with such examples of conflict.

Theoretically, ibaaratal nass will take precedence over ishaaratal nass.
Practically, ibaaratal nass will take precedence over ishaaratal nass. Why? Because ibaarahl is going to  be the ibaraah. Most likely what is claimed to be the ishaarah is not the ishaarah.

This concludes our discussion of ishaarat al nass and ibaaratal nass.

Dalaalat al Nass
These terms have usage in Law, pragmatics, linguistics and logic.
It is known as congruent implicature or argument a fortiori also known is mafhoom al-muwaafaqah (term used by the Shafiees). Meaning of its meaning (ma3na ma3naah).

Remember the scenario of the person who was notified about riptides at the beach and asked to stay 50 feet away from the beach, but he allowed his son to enter the water. Even though the notice was directed to him, he missed the meaning of the meaning. So if he had to stay away from the water, it implies that his son should also stay away from the water.

2010-10-18 Class Notes

We have finished discussing ishaaratal nass and ibaaratal nass from the Hanafi perspective. Now we will   get back to dalaatul nass. But before that the story of the man on the beach, he was asked to stay away  50 feet from the beach but he let his son play on the beach. He missed the bigger picture, the meaning of the meaning, not only was he supposed to stay away from the ocean but also his son.

What was the thought process that made the father realize that if the water is dangerous for him, it is also dangerous for his son?
Did you draw an analogy between the father and the 6 year old boy?
Did you generalize the statement and apply it to yourself and others?

When shariah makes statement, many times the meaning that is intended is more than simply what is stated explicitly. This unstated meaning or understanding is clear from the text.

The verse Isra:23 from the Quran is given as an example usually in books of usul-al-Fiqh.

وقضى ربك ألا تعبدوا إلا إياه وبالوالدين إحسانا إما يبلغن عندك الكبر أحدهما أو كلاهما فلا تقل لهما أفّ ولا تنهرهما وقل لهما قولا كريما

Muhsin Khan

And your Lord has decreed that you worship none but Him. And that you be dutiful to your parents. If one of them or both of them attain old age in your life, say not to them a word of disrespect, nor shout at them but address them in terms of honour.

What isأف uff? (Al-Ta’feef) The expression comes from dirt or filth. showing a sign of contempt or displeasure.

When you say something of this nature e.g. “whatever” what is the intent of the teen when saying that? When you show this kind of disrespect you are trying to emotional harm. To hurt them. The Arabic for uff is Al-Ta’feef and it comes from Al-Adha meaning ‘harm’. The one who knows the language knows not to bring even small amount of harm. The goal is to protect the parents from harm.

Can you understand from this alone as to the question of beating your parents. It is also kind of harm. When you beat your parents, you are harming them.

Steps involved in the thought process
1. uff does not mean beating them. (here we are not making taweel or figurative meaning of the text)
2. uff is a kind of harm
3. beating them is a kind of harm
4. beating them is greater harm than saying uff to your parents
5. therefore beating them is not allowed if saying’uff’ not allowed.
if these steps are taken from the knowledge of the language.

Is this ijtihad? No. Just from knowing the language you can go from 1 to 5. above. In order to perform ijtihaad you have to be qualified to do so.

This is just what we comprehend when we read the text by relying on the language of the text.

This is what the text is saying (explicit meaning, ibaaratul nass (for the Hanafis)). Simply by understanding the language there is a set of meaning that we get that is more forceful than the explicit meaning.

This concept above, a result of understanding of the text is known as dalaatul nass. We are not saying that the text is figurative. Dalaatul nass is inferred meaning.

Technical Definition of Dalaatul Nass

Defintion #1: The result of attributing the rule of the stated meaning and applying it to an unstated meaning on the strength of the consideration of the effective cause on a linguistic basis.

This is a definition from a Hanafi scholar, Muhibullah Abdulshakoor, who died in 1119
From the language you have figured out the intent of the speech or illa, since you have figured out that saying uff is implying causing harm to the parents.
Alluded meaning = isharaatul nass

What is the difference between ishaaratal nass and dalaalatal nass?
There is an overlap. Both of them are not explicitly stated in the text, if it was explicit, then it would have been ibaaratal nass. Ishaaratal nass may not be obvious but once it is seen, then it becomes obvious.
In dalaatal nass we have identified the real goal and purpose in the statement i.e. the explicit is true and what is greater, that is also true. If someting is the result of dalalatal nass it is a textual evidence. In qiyas, it is not a textual evidence, qiyas is a matter of ijtihad whereas dalalatal nass is not an ijtihad. Dalaalatal nass is not qiyas.

Hadith: ”Every intoxicating beverage is haraam.”
Everything stronger than fruit nectar (that causses intoxication) will be covered by dalaalatal nass.

Another example of dalaalatal nass which is not easy as the previous example.

Surah Al-Imran:75

ومن أهل الكتاب من إن تأمنه بقنطار يؤده إليك ومنهم من إن تأمنه بدينار لا يؤده إليك إلا ما دمت عليه قائما ذلك بأنهم قالوا ليس علينا في الأميين سبيل ويقولون على الله الكذب وهم يعلمون

Muhsin Khan

Among the people of the Scripture (Jews and Christians) is he who, if entrusted with a Cantar (a great amount of wealth, etc.), will readily pay it back; and among them there is he who, if entrusted with a single silver coin, will not repay it unless you constantly stand demanding, because they say: "There is no blame on us to betray and take the properties of the illiterates (Arabs)." But they tell a lie against Allah while they know it.

Allah (SWT) is describing the lack of  trustworthiness of the ahl kitaab. Some people are completely trustworthy and others are not. If you give a large amount of gold this people will return it to you. Because that is how Allah describes them. Some of them are completely trustworthy and others are not.

The dalaalatal nass of this text is that if somebody is unwilling to return a single silver coin, then it will be impossible to get back a larger amount that they might have borrowed.

Are there are any fiqh issues with the dalaalatal nass?
No, they are rooted in the language itself.

Justice with respect to your opponents.
Allah swt mentions the good qualities of the Ahl al Kitaab as he highlights them,
It is important we recognise each other good qualities even in disagreement.

Surah Nisa:10

إن الذين يأكلون أموال اليتامى ظلما إنما يأكلون في بطونهم نارا وسيصلون سعيرا

Muhsin Khan

Verily, those who unjustly eat up the property of orphans, they eat up only a fire into their bellies, and they will be burnt in the blazing Fire!

this verse is speaking about the guardians of orphan and their wealth.
Is it permissible for the guardian to consume the wealth of the orphans? If the guardian is poor he can consume some of the wealth of the orphan. Here it says that consuming the wealth of the orphan is prohibited.

What if I take their wealth and destroy it? Can one do that?
It is dalalatal nass. Any kind of bringing harm to the wealth is not allowed. What about mismanaging it? This is not allowed. The illa is to protect the rights of the orphan.

Surah Nisa:23

حرمت عليكم أمهاتكم وبناتكم وأخواتكم وعماتكم وخالاتكم وبنات الأخ وبنات الأخت وأمهاتكم اللاتي أرضعنكم وأخواتكم من الرضاعة وأمهات نسائكم وربائبكم اللاتي في حجوركم من نسائكم اللاتي دخلتم بهن فإن لم تكونوا دخلتم بهن فلا جناح عليكم وحلائل أبنائكم الذين من أصلابكم وأن تجمعوا بين الأختين إلا ما قد سلف إن الله كان غفورا رحيما

Muhsin Khan

Forbidden to you (for marriage) are: your mothers, your daughters, your sisters, your father's sisters, your mother's sisters, your brother's daughters, your sister's daughters, your foster mother who gave you suck, your foster milk suckling sisters, your wives' mothers, your step daughters under your guardianship, born of your wives to whom you have gone in - but there is no sin on you if you have not gone in them (to marry their daughters), - the wives of your sons who (spring) from your own loins, and two sisters in wedlock at the same time, except for what has already passed; verily, Allah is Oft-Forgiving, Most Merciful.

This verse describes who is forbidden to you for marriage. Is the grandmother mentioned in this verse?  Can you prove from this verse based on the concept of dalalatal nass that one cannot marry one’s grandmother?

What is the illa’ of this verse?
These categories are closer than your cousin, it is the blood relationship that makes all of the categories forbidden. This predates Islam and was well known to the Arabs of the time. The illa is the closeness of the blood relation.

As a blood relationship grandmother is closer than maternal and paternal aunts are closer to you. Then by dalaalatal nass, your grandmother is forbidden because she is closer than your aunts.

The conception of the early Hanafi scholar is clear. Dalalatal nass should be qatee. Isharatal nass is also qatee. Some of the later Hanafis they included things that were not qatee. Dalalatal nass by definition should be as definitive as the text. Unless you try to bring in things that are not supposed to be included. This is similar to what happened to Ishaaratal nass.

2010-10-25 Class Notes

Why is riba haraam? What is the legal cause that makes it haraam? Why is pork haraam? Why is it haraam to say uff to your parents? What is qiyaas? It is analogy. How does it work?

Sheikh is trying to derive a principle and the classroom discussion was not helping him. We were discussing dalaalatal nass last time, which is inferred meaning. How do characterize it?

We have the explicit meaning of the text and the inferred meaning just flows from it.

We have to understand the differences in between the inferred meaning and the al Qiyaas which is deductive analogy.

Inferred meaning
It is based on the textual meaning.
You don’t have to be a mujtahid, you can hear the words and make conclusions from it
You have to be careful of not extending the textual meaning to cases where it does not belong. In the Hanafi madhab you have to be aware if it is from dalaalatal nass or qiyaas.

Deductive Analogy
1, You start out with the original case which is known as asl
2. Then you have to determine the effective legal cause, which is known as the illa. The prohibition of riba does not get the legal maxim why it is prohibited, whereas in the case of not saying uff to your parents, you can determine why is it prohibited, because it is unjust to your parents, and then you can apply it a new case. Because a common person cannot determine the legal maxim for determining the prohibition of riba and hence cannot determine where else it can be prohibited.
3. Apply to a new case.

There is some similarity between two and because of the similarities, the inferrred meaning is called as the obvious analogy (???). But some scholar said that you should not call dalaalatal nass, qiyaas.

Dhahiris do not accept the concept of qiyaas, but they will accept dalaalatal nass.

For Hanafis it is important to know whether ruling is based on qiyaas or dalaalatal nass. In general dalaalatal nas is definitive and qiyaas is non definitive.

Only mujtahid is allowed to make qiyaas.

In the Hanafi madhab, some aspects cannot be established by qiyaas, they have to be established via dalaalatal nass. So there are limits to qiyaas, specially in the matters of punishments and expiation of sins, any amount of determined amount. They have to be quantified by the shariah and not a matter of ijtihaad. You cannot establish punishment of crime except via direct rulings from the text / definitive text.

For example, you cannot state that the punishment for money laundering should be to cut hands by making analogy to stealing.

It is narrated from the sahaba including ibn Masud and others which says that, you drop legal punishment in case of doubt. The hadd punishment cannot be implemented if there is doubt.

Duraini, a contemporary scholar, if something flows from the text without any ijtihaad, must be definitive. However he contradicts himself later and says that it is dhanni.

Later in Hanafi school developed the idea that dalalaatal nass can be qatiee or dhanni. And they present explanations that .....

Sheikh has a theory on why it came about, but he does not have any proofs for his theory.
Hanafis debated with Shafiees for decades. And they ended up in situations where shafiees were supporting their views based on dalaalatal nass and they said that it is qatiee. And to refute that they came up with the principle that some of the dalalaatal nass is dhanni.

For example Surah Nisa verse 92 which deals about the killing of a disbeliever by mistake.

وما كان لمؤمن أن يقتل مؤمنا إلا خطأ ومن قتل مؤمنا خطأ فتحرير رقبة مؤمنة ودية مسلمة إلى أهله إلا أن يصدقوا فإن كان من قوم عدوّ لكم وهو مؤمن فتحرير رقبة مؤمنة وإن كان من قوم بينكم وبينهم ميثاق فدية مسلمة إلى أهله وتحرير رقبة مؤمنة فمن لم يجد فصيام شهرين متتابعين توبة من الله وكان الله عليما حكيما

Muhsin Khan

It is not for a believer to kill a believer except (that it be) by mistake, and whosoever kills a believer by mistake, (it is ordained that) he must set free a believing slave and a compensation (blood money, i.e Diya) be given to the deceased's family, unless they remit it. If the deceased belonged to a people at war with you and he was a believer; the freeing of a believing slave (is prescribed), and if he belonged to a people with whom you have a treaty of mutual alliance, compensation (blood money - Diya) must be paid to his family, and a believing slave must be freed. And whoso finds this (the penance of freeing a slave) beyond his means, he must fast for two consecutive months in order to seek repentance from Allah. And Allah is Ever All-Knowing, All-Wise.

The ibaraatal nass is that believer should not kill another believer except by mistake. And if someone kills somebody by mistake then he has to make expiation which is to free a believing slave and make diya to the family.

What is the illa?
Answers from the classroom: Make people extra cautious about taking another person’s life. You want to cleanse your soul because of the effect it had on it.
Both of them sound plausible and good. Could this be a result of dalaalatal nass.

Duraini was forced to make a conclusion. The purpose of the expiation is to basically to restrain people and preventing people to harm or kill others.

What about the one who intentionally kills a believer? Shouldn’t he also make kaffarah?
Does the murderer (intentionally killed someone) make kaffarah? Is the murderer required to free a believing slave?

Doesn’t the expiation of sin logically follow from the above text for an unintentional homicide and for intentional homicide?

The other three schools say that the illa is for the burden and their suffering is more than the murderer. And hence this expiation of freeing a slave will not apply to the murderer.

Scholars says that since there is so much difference in the illa for the text. And because of that they say that this is not dalaalatal nass.

If you intentionally break your fast during the month of Ramadan.
Hadith in Sahih Muslim, a man comes to the prophet and says that he has been destroyed.... and prophet asked him why, he said, i had sexual relationship with my wife, and prophet asked him to free slave, he replied he cannot do so, then he asked him, you have to fast 60 days, he said he cannot do so, then he asked him to feed 60 people, he said he cannot do so, the prophet brought dates to feed the 60 people to feed the poor people, ..... give dates in charity and he said that there is no family poorer than his and the prophet said you can feed your family.

if you break fast intentionally by eating then does the same kaffara apply?

The illa is that he intentionally violated the conditions of the fast.

Breaking fast by eating or drinking, would it be consider more or less or equivalent to having sexual relationship with your wife during the day.
Hanafi/Maliki/ --- same kaffara
Shafii/Ahmad/Saeed --- no kaffara for breaking fast by eating or drinking.

There are many times in the shariah where you are forbidden from sexual intimacy with your wife, for example during menses, postpartum bleeding, hajj etc.

But there are not many restrictions on abstaining from eating and drinking. So what do you think about this topic some more and make some ijtihaad.

2010-11-08 Class Notes

We are discussing the hadith of the person who came to the prophet and asked what is the expiation for having sexual relationship with his wife during the fast. The expiation was free a slave or fasting two months or feeding 60 people.

What is the exact reason for the kaffara?
The reason why the Prophet ask him to make this kaffara is
1. Intentionally breaking the fast ==> expiation
2. sexual relations ==> expiation
2a. obviously by eating and drinking

Trying to identify what is the illa? is it #1 or #2?
Hanafi: the individual makes the same kaffara if breaking the fast by eating and drinking. How did they make this conclusion? They are arguing on the basis of dalalatul nass.

Dalalatul Nass should be obvious and clear. For the Hanafis if you use analogy or qiyas, then the ruling is not definitive.

The shafiees do not agree with them.
There is one hanafi scholar who wrote Nur-ul-Anwar says Imam al shafiee, who is considered an expert of the Arabic language could not see that it is dalalatul nass i.e. clear and flows from the language. This could not be dalalatul nass.

Hanafis are in a bind. They have to agree that is it is not dalalatul nass. Now their ruling for expiation on sin is based on text that is via analogy. So now they are in a situation where their ruling for expiation of a sin is based on text that is not definitive. Because qiyaas is dhanni.

To be fair to the Hanafis, Mohamed ibn Hasan al Shaibaani (محمد ابن حسن الشيباني), is a student of Abu Hanifa.

Abu Yusuf and Mohamed ibn Hasan al Shaibaani are the most famous students of Abu Hanifa. There are 2 more. Mohamed ibn Hasan al Shaibaani is also the student of Imam Maalik. He is one of the transmitters of Muwatta. The one that is used in the Indo-Pak is the one passed by Mohamed ibn Hasan al Shaibaani.
In the Muwatta, there is a narration about a man who had broken his fast and was told what is the expiation.
The reason is not given. Mohamed ibn Hasan al Shaibaani in his rendition of the Muwatta says, it is this rendition that is the basis of #1 above.
* is from Abu Huraira (see above)

Abu Huraira is the narrator of both of the hadith, one which states the reasons for breaking the fast and another that does not mention the reason for breaking the fast.

Narrators of hadith can shorten the hadith when narrating it, since it is unlikely that you would have two different people with the same predicament. Hanafis respond that the Abu Hurarira, the narrator of the hadith should be aware of the implications of shortening the hadith, where he does not mention the reasons for breaking the fast and it infuriates Sheikh Jamaal Zarabozo.

When the Hanafis find a hadith from Abu Huraira that goes against their fiqh they play the “some of the sahabi are faqih and that Abu Huraira is not one of them” to support their fiqh.

The conclusion is that this is not a case of dalalatul nass; if you say that you break your fast the expiation is not the same as the one for breaking the fast by sexual relations. There is no doubt that there is expiation for breaking the fast by having sexual relations with your wife while fasting. But to say that the text is dalalatul nass for all cases of breaking the fast is incorrect. According to the sheikh it is a qiyas.

Another example of expiation of sin from Surah Maida verse 89

لا يؤاخذكم الله باللغو في أيمانكم ولكن يؤاخذكم بما عقدتم الأيمان فكفارته إطعام عشرة مساكين من أوسط ما تطعمون أهليكم أو كسوتهم أو تحرير رقبة فمن لم يجد فصيام ثلاثة أيام ذلك كفارة أيمانكم إذا حلفتم واحفظوا أيمانكم كذلك يبين الله لكم آياته لعلكم تشكرون

Muhsin Khan

Allah will not punish you for what is unintentional in your oaths, but He will punish you for your deliberate oaths; for its expiation (a deliberate oath) feed ten Masakin (poor persons), on a scale of the average of that with which you feed your own families; or clothe them; or manumit a slave. But whosoever cannot afford (that), then he should fast for three days. That is the expiation for the oaths when you have sworn. And protect your oaths (i.e. do not swear much). Thus Allah make clear to you His Ayat (proofs, evidences, verses, lessons, signs, revelations, etc.) that you may be grateful.

What is the ibarratal nass of this verse?

By Allah, I will not go to Ali’s house
By Allah, I will come and help you tomorrow.
Why is it that we should not make these kinds of oaths and then not fulfill them?
e.g. Not to take invoking God's name lightly is dalalatul nass. One shuld not do that. The swearing here is known as al-yameen.

To swear to something that you know is not true - alyameen al amous???
When a boy swears that by Allah he went to Jumuah prayers, when in reality he did not. Here you are swearing to emphasize to your parents that something that is false is true, because now you have invoked the name of Allah swt to calm your parents worries that you did not pray.
Should swearing to something that you know to be not true have the same kaffara?

When you are dealing with expiation of sins, you cannot take the expiation of a lesser sin and apply it to a higher degree of a sin.  You have to be careful. This is where the Shafiees and Hanafis differ. Can you guess how they will differ in rulings of expiation of sins?

The Shafiees say that the above verse is deterrence for making false oaths and it applies to alyameen al amous.

The Hanafis say that alyameen al amous is graver than just unintentional oaths and they say that the expiation of unintentional sins cannot be applied to oaths that alyameen al amous.

Would this be a case of dalalatul nass? The shafiee say yes. But they are missing the point. If an act can expiate a lesser sin that does not mean it can expiate a greater one.

That is the reason why the later Hanafis came up with the concept of dhanni and qatee.

Relative strengths between ibaratal nass, isharatal nass, and dalalatal nass. There should not be any conrtradictions.

2010-11-15 Class Notes

We have finished the concepts of three of the four ways, Hanafis can derive meaning from the text of the Quran. We defined Ibaraatul nass: explicit meaning, isharaatul nass: alluded meaning , dalalaatal nass: indicated meaning

If they are all definitive there should not be any contradiction e.g. drinking alcohol. It was permissible but later abrogated.
The later Hanafis said that ishaaratul nass and dalalaatal nass can be dhanni.

How do we rank the three? Which one is the strongest?
1. Ibaaratal - explicit meaning
2. Ishaaratal - alluded meaning
3. Dalalaatal - indicated meaning

If dalalaatal is definitive and isharaah is speculative, then the dalalaatal nass will take precedence since it is definitive,

Does everybody agree with the above ranking?
What if the ibaara is dhanni and the dalalat is also dhanni?
What are the steps that you have to go through to get isharaah or get dalalaah? Is there something in the text that points to you?

In case of isharaatal nass, there is something in the text that points to the logical conclusion of the text.

In dalaalatul nass, what is the first step that you have to do to get the dalaalatul nass? Understand the illa that is not mentioned in the text. This extra step required to determine the illa is the reason why the Hanafis consider dalalaah to be ranked lower than the isharaah.

The Shafiee say dalalatul nass has preference over ishaaratul nass because ishaaratul nass is not the main purpose of the text according to the Hanafis themselves.  Dalalaah captures the important essence of the text, which is not understood by the isharaah. They discount the extra step of determining the illa.

Dalaalat and ishaarat are both qatiee.

A classic example between isharaah and dalalaah highlighting the differences between shafiees and hanafis which is the kafarah for the murder of innocent muslim.

The Hanafis say that the kafara does not apply to the murderer.

Surah Nisa is not for believer to kill a believer except in error and then Allah swt describes the kafarah.

The Shafiees base it on the dalalaalah  say that if the lesser case has to make kafarah then the greater sin of murder should also have to perform the kafarah.

The Hanafis say that the kafara is not applicable to the murderer. They argue on the basis of isharaah of the verse which states that the one who commits murder of an innocent person will be punished by Allah swt. They say that Allah swt is describing the punishment for the murderer and all of the punishment of the murderer should be mentioned and since the kafarah is not mentioned there, then it does not apply to the murderer.

Sheikh does not like the argument of the Hanafis because it is wrong to state the principle that all of the punishments should be listed in one verse.

Isharaah and Ibaraah is based into any language and this is called Ilm al Bayan.

What about the dhahiri school?
They take literal meaning of the text, they do not perform qiyaas. Do you think dhahiris accept dalalaah? Founder of dhahiri school, Dawood ibn Ali, a former Shafiee, accepts the dalalaatal nass. Ibn Hazm does not accept dalalaatal nass as well as qiyaas.

Is khamr haraam?
Are pigs haraam?
Are cats haraam?

When Allah swt says that your mothers are forbidden for you? What does that mean? What is missing in the statement? You leave out the words but the listener has to supply what is missing. Usually what is missing is very clear.

In the Arabic language, there are many different types of cases where words are left out of the text. Some are known as haraf, tadmar, etc.

We are interested in the last of the four categories of how Hanafis extract meaning from the text. It is known as the required meaning or iqtidaa al nass or dalalah al iqtidaa. It is required linguistically or from shariah point of view or rationally.

You assume that the speaker is making sense. You also assume that the speaker is speaking truthfully. When it comes to the Quran or sunnah, you can make the above two assumptions.

In the case of your mother’s are forbidden for you, what is missing?

In the example of is khamr haraam? We assume that drinking it is haraam? What about destroying it? In the house of a muslim, it is halaal, but you cannot go and destroy it in the stores.

Actions with respect to pigs, eating it is haraam. Their mere existence is not haraam?

Something needs to be added to the text, because without it, it does not make sense. Khan and Hilali when they translate, they say Forbidden (in marriage), but other translators do not add these words because it is obvious from the context.

There is a hadith of the prophet which says, Allah has removed from this ummah three things, making mistakes, forgetfulness and being coerced to do something.

Why are we discussing the hadith in this context?
There is something missing in this statement, because we all make mistakes and it is obvious that we make mistakes, so to make the statement a true statement, we have to add some words.

Is is removing of the sin? Has the blame been removed? Accountability?

You have to assume something for the speech to make rational sense.

In surah Yusuf, the brothers of Yusuf who were trying to prove to their father their truthfulness, they say to their father, ask the city and ask the caravan?

The required meaning is ask the people of the city and ask the people of the caravan. This is linguistic and some of the Hanafis do not consider it to be iqtidaa al nass.

Suppose someone says set the slave free on my behalf by paying $1000. And the second statement I have done so.
What is missing in this statement from the shariah perspective?
The one who has the slave is accepting a payment of $1000 for his slave and then I am asking you as my agent to set him free. These two actions of accepting payment and acting as an agent is required to make it correct from the shariah perspective.

2010-11-22 Class Notes

If I say I am going to call New York tomorrow. Does this make sense?
No, it means I am going to call somebody in NY and it is left out. This aspect of speech is common in many languages, it is called ellipsis in English. Ellipsis means something is left out and it is still understood.This concept also exists in Arabic and not all the words need to be said, but it is understood.

Iqtidaa al nass
Iqtidaa al nass means the thing that is required to make the thing acceptable:
1. To make sense from a Shariah point of view. Assume that something is stated.
2. To make sense from a rational point of view.
3. To make the statement truthful
If any of this is contradicted, we have to resort to iqtidhaa.

If you look at the text, you see that one of the above three is being violated and hence you know that you have to insert something to confirm with them

With respect to the first we discussed this example of the verse which states Hurrimat alaykum … forbidden are to you, your mothers, ....

What does it mean that something is forbidden to you?
It is not the object that is forbidden but an action related to it. In the above example, you are prohibited to marry form the categories of women mentioned in this verse.

Basic Principles of Textual Analysis of the Quran and the Sunnah
The basic case of any text is that everything in the text is assumed to be in there.

You cannot start with the assumption that something is missing in the text, you have to start with the assumption that nothing is missing in the text and you have to resort to the missing text only if it violates the 3 accaptability conditions discussed above. Assuming something is missing is an exception to the basic case.

If you cannot prove that something is missing, then you cannot resort to iqtidaa. So you can use iqtidaa only when you can prove that something is missing.

Relationship between iqtidaa and taweel
Is Iqtidaa a type of taweel?
The only difference between majaaz or figurative meaning and iqtidaa is that inserting somthing is the absence of the referent.
Iqtidaa is also known as majaaz al-mursal or figurative because we are not taking the literal meaning of the words.

Important general rules:
1. No iqtidhaa unless required
2. Literal meaning is always what is meant, unless there is proof to show otherwise.
3. The Shariah literal meaning is what is meant unless proven otherwise.

If something is required as part of the speech, for example when translating a verse, ask the city means ask the people of the city, the word people is required, it is iqtidaa al nass and “the people of” should be in parenthesis because it is required by the text.

The things that the translator adds to explain should be in [square brackets] and what is required by iqtidaa al nass should be in (parenthesis).

Ask (the people of) the city [of Cairo] here the people of is in parenthesis because it is required by the text and of Cairo is in brackets because it was added by the translator as an made up example, it has nothing to do with Surah Yusuf.

Iqtidaa al Nass Examples from Hadith
1. Laa salaah illaa biqiraa'at al-faatihah
There is no salat except with recitation of al-Fatihah.
a.“No” or Laa of negation of the class of items. No tanwin because of the special kind of “Laa”.
b. Soundness
c. Completeness

2. Laa nikaah illaa biwali.
There is no marriage except with a wali.

What is missing in the above statements?
The truth value of the statements are non-existant. People do pray without reciting the Fatihah and get married without a wali.

Some scholars say that you need to perform iqtidaa al nass. However there are scholars who say that the shariah literal meaning is understood, then you don't have to perform iqtidaa. Since the shariah meaning is understood then you don’t have to resort to iqtidaa. Because the iqtidaa that some perform on this statement is not what you expect. To make it complete they resort to soundness and completeness. Hanafis resort to it and that is the reason why they don't read Surah Fatiha behind the imaam’s recitation.

We should be familiar of Laa ilaha illallah, where the laa negates the concept of any ilaha except Allah.

What happens when we resort to iqtidaa?
There are many cases of iqtidaa, the unstated word is understood by everybody. In this class we highlight the cases where it is not obvious. So don't consider this to be the norm, in the class we have to highlight the problematic cases.

“Assume” ==> as if it was stated in the text; agreed by all scholars.
Once we resort to iqitdaa, then the unstated word or assumed word, now becomes part of the text and therefore is subject to the same treatment as the original words of the text.

Remember we have to meet the following conditions for iqtidaa
1. Truthfulness of the speech
2. The rationality
3. Correct from shareeah point of view

Hanafi approach to iqtidaa and idmaar
Later Hanafis tried to distinguish between iqtidaa al nass and idmaar which is ellipsis.
And the Hanafis state that 1 & 2 is something grammatical i.e. ellipsis and  3 is where iqtidhaa comes to play.

The did that to avoid one thing; assume something is missing and the possibility could be different meanings A, B, C and D which are mutually exclusively. No scholar says that you can assume all of them. Evidence that one of the four meanings is meant.

Umum al muqtidaa
However there is a possibility of existence of a general meaning as opposed to a more specific meaning. A choice between a wider meaning and a general meaning. Instead of mutually exclusive meanings, we have a choice between a general and a specific meaning implied by the unstated word of iqtidaa al nass.
To assume the generality of it is called umum al muqtidaa.

Hadith: Allah has removed from my ummah mistakes, forgetfullness and what you do under duress.
And we challenged the truthfulness of the statement in the previous class, since we are bound to make mistakes and they are not removed from us.

A more sounder narration is that Allah has overlooked or pardoned for His ummah what is done mistake, forgetfulness and duress.

Another narration of the above hadith states that Allah has overlooked from my ummah …..
Then this statement is truthful. But we still need to resort to iqtidaa to understand what is overlooked.

The ulema say that there are two possibilities:
1. The hukum of those actions, corresponding rulings, are overlooked; any sin and any ramification of the action or simply the ithm or sin of it.
2. You only assume the minimum, so instead of resorting to the general meaning, you resort to the specific meaning. So only sin is overlooked.

To assume the generality of it is called umum al muqtidaa.
This assumption is like a case of necessity e.g. you are starving and the only place open is “Honey baked Ham”. Can you eat pork when you are starving and leading to dying. Nothing else to eat. The law of necessity states that you can eat but the principle is that in necessity you consume the minimum to survive. Principle of necessity is you do the minimum to fulfill your obligation.

For example, you are praying and all of a sudden you speak out of forgetfulness. The Hanafis say there is no sin upon you but you have to redo your prayer but the others say no sin and no need to repeat. This is based on the assumption of the generality of the injunction.

2010-11-29 Class Notes

We will finish the discussion how text are used for ruling in the Hanafi Madhab, in the next session we will discuss the other madhabs.

In the case of iqtidaa al nass, we have to add something to the text, in the other cases (isharaah, ibaarah, dalalaah), the text is giving us the meaning.

Would we consider iqtidaa al nass to be a textual evidence?
All ulema agree that iqtidaa is textual ruling, because it goes to the style of the Arabic text. Imam Shafiee says that the words that are not stated, have balagha. Since the listener is able to understand what is understood from the text.

Would it be qatiee or definitve? Would umum al muqtidae be definitive?
From the Hanafi perspective, we have four ways that text offer us ruling:
1. Ibaraah al nass - explicit
2. Isharaah al nas - alluded
3. Dalalaah al nass - inferred
4. Iqtidaa al nass - required
All of them should be definitive. In the order that we have arranged, indicates their ranking.

There are two important questions
1. Does this ranking seem right to you?
2. Is there any other way to derive meaning from the text? (Think about it before the next session)

Assuming no other factors and as an independent observer, how would change the ranking of the ruling?

Note that we do not need to rely on 2,3,and 4 if we have the explicit meaning of the text, we resort to the other rulings if we cannot get the explicit meaning from the text.

#4 and #1 have to go together, either the explicit text is going to give you the meaning or the required words have to give you the meaning.

This is primarily a theoretical discussion for the Hanafis.

From one text, can we have isharaah that contradicting the dalalaah of one text? No. You could have contradictions between the different rulings of two texts.

You could have two different definitive text contradicting one another, and that is the reason why we have to resort to taweel. This is what we discussed in the last session.

For example, in the hadith that we discussed last time, that Allah has overlooked from my ummah what they have done in forgetfulness or duress.

What are the two main ways to interpret the hadith?
1. Allah has overlooked the sin or blame has been removed.
2. Allah has removed hukum, the sin and the repercussions of the actions.

For example, if someone eats while fasting out of forgetfulness. Has this person broken his fasting?
If you say the hukum has been removed, he has not committed sin and he has not broken his fast.
If you understand that sin has been overlooked, then he is not punished for it, but his fast is broken.

Everybody agrees that he is not blameworthy because of another hadith. But does he have to make up the fast?
No, they do not have to make up the fast.Because of the authentic narration of this additional hadith, that says Allah has fed you and you do not have to make up your fast.

If you are coerced to break the fast what happens?
Since you don’t have additional hadith about eating out of forgetfulness, what would you do now?
The answer depends whether you are Shafiee or Hanafi.

Malikis you have not sinned but you have to make the day up.
Hanafis …..
Shafiees you do not have sin and you do not have to make up the day.

If somebody killed someone, involuntary manslaughter
1. He has no sin, but he has to make kafarah or repercussions for his sin
2. He has no sin and he does not have to make kafarah

There is really no contradiction, if you attended the class last session. Since it is a general term and you can always particularize it, this is called particularization.

SO lets go to the case of coercion to breaking the fast.
He is not sinful, everyone agrees on that.
Does he have to make up the fast?
You can perform taweel and say that coercion is stronger case than forgetfulness.

How about if someone is coerced to divorce is his wife? Does that divorce take effect?

Imam Malik was put in prison because of this question and his ruling, so be careful with your answer.
Hadith that states all actions are based on intention. We are performing iqtidaah al nass, because we added that the validity of the actions are based on intention. If a husband is in a rage then his actions are not valid according to some scholar.

Imam Malik says that if you are coerced to divorce your wife, then the divorce is not valid. From this ruling, people understood that any bayah (allegiance) to the ruler under coercion is not valid and that is the reason why he was imprisoned for a long time.

Hanafis say that divorce does occur even under coercion. This is a minority opinion.

There is another hadith that states, three things that are said seriously even in jest will be considered binding and they are marriage, divorce, and xxx

Hanafis say that the above hadith which is particularization of three specific actions and hence the other hadith of all action need to have intention does not apply. T

We can say that even if we said it in jest, we said it intentionally and shows that you are not taking the matter seriously and the shareeah is going to take you into account.

Hanafis have another perspective on duress, there is volition even in duress.

Another hadith says that, Stating word of kufr under duress will not be considered valid.

Another case, suppose you speak out of forgetfulness in your prayer.

Are you sinful? No you are not, everyone agrees that is what is meant by the hadith that Allah has overlooked from my ummah what they have done in forgetfulness or duress.

Do you have to redo your prayer in which you spoke out of forgetfulness?