Islamic Classes‎ > ‎2011 Winter‎ > ‎

Usool al Fiqh Winter 2011

Beginning Usool al-Fiqh VI

Recommended Textbook: Mohammad Hashim Kamali, Principles of Islamic Jurisprudence
Grading: Final Exam 100% (February 28, one week before last week of class)
When: Due to prolonged illness of Shaykh Jamaal Zarabozo this quarter was suspended in February and then resumed in late March. So this quarter started in January and the last class was on May 2. Due to this reason, we did not have a Spring session in 2011.

Basic Outline of the Class
Rules of Interpretation I: Textual Implications: (Kamali, chapter 5—in this quarter, it will be the non-Hanafi approach only, under the section, “Divergent Meaning (Mafhum al-Mukhalafah) and the Shafi'i classification of al-Dalalat”)

2011-01-03 Class Notes

Look at the big picture of where we are in the class. What is a good definition for usool al fiqh? Usool al fiqh tries to identify the sources of law and the methodology of deriving from the sources. We have Quran and sunnah, which are the two most important sources of shariah.

Bulk of Quran and Sunnah is text or language. Allah swt has conveyed the message through language, which we understand and it resonates with human being. Contrast it with a legal maxim, it is not robotic, it resonates with human souls, it has an effect on us, it is eloquent and lofty speech, which has a strong influence on us.

So now we have to figure out how to understand this speech and understand its meaning. When we speak with one another, we leave something unstated and expect the listener to understand it. We want the listener to see it via his own eyes for greater effect and emphasis.

Muslim philosophers debated whether language was created by Allah or it was developed by human beings. We will not debate it in this class. Different words and phrases have different levels of clarity. We analyzed different words with respect to their clarity. We ranked the words from top to bottom. We saw the Hanafis have a different approach on how they rank words with respect to clarity of the text as compared to the non-Hanafis. There is historical reasons and historical developments that resulted in Hanafi to take such approach.

Hanafi approach to deriving rulings from text
There are different ways in which text can express rulings. How does the text go from text to rulings? Here again the Hanafis approach differs from non-Hanafis.

Hanafis divided into four categories(textual evidence) the way text gives rulings, anything outside of the four categories is not acceptable way of deriving ruling from the text by the Hanafis.
1. Ibaraat an Nass - Explicit meaning
2. Isharaat an Nass - Alluded meaning, this what text points to beyond what text is stated.
3. Dalaalah an Nass - Inferred meaning
4. Iqtidaah an Nass - Required meaning, something that has to be assumed for the text to make sense.

Anything outside of the above 4 does not constitute evidence according to the Hanafis.

Non-Hanafi approach to deriving rulings from text
Different category that non Hanafis have and look at terms and check if there is any difference between Hanafis to non Hanafis.

Non-Hanafis divide the meaning derived from the texts into two types:
1. Al-Mantooq (المنطوق) - stated or pronounced meaning
2. Al-Mafhoom (المفهوم) Understood meaning which is not explicitly stated

Al-Mantooq is further divided into 2 categories:
1. Sari7 The explicit  (صريح)
2. Ghair Sari7 Non-explicit (غير صريح) which is further divided into three categories
2a. Dalalat-ul- ishaara ( دلالة الإشارة) (we have this hanafi category which is alluded meaning)
2b. Dalalat-ul-Iqtidha (دلالة الاقتضاء) (we have this in hanafis category as required meaning)
2c. Dalalat-ul-Imaa wa tanbeeh ( دلالة الايماء و التنبيه) (Urged meaning)

Al-Mafhoom is also further divided into 2 categories:
1. Mafhoom al Muwafaqah (مفهوم الموافقة) (Congruent/Harmonious meaning) This is equivalent to the dalaalah al nass of the Hanafi approach
2. Mafhoom al Mukhalafah (مفهوم المخالفة) (Divergent meaning) There is no equivalence in the hanafi classification.

Now if we look at Hanafis and non Hanafis we see that major categories like Al-Mantooq and Al-Mafhoom Hanafis didn’t use those terms but we see that there is some correspondence like dalaalath An-Nas which is mafhom al-muwafaqha. Mafhoom Al-Mukhalafah Hanafis there is no equvalence for this and they don’t accept this kind of deriving from the text.

Non-hanafis (Mutakalimoon) were very late in discussing this as a scientific approach.  This was defined by a Mutazilah scholar Abu Husain al Basri - al mu’tamid fi usool al fiqh) to define the mutakalimoon approach. After him came many shafiee scholars such as … Al-Juayini, al Ghazali …  Their approach evolved and differed. The classification we have described is now the consensus of the Mutakalimoon.

Q: What about Imam Shafiee’s risalah?
A: Usool al fiqh existed before it was conceived as a science. This is all pragmatics. This is basically how languages are understood.

What is understood with certainty without indications or that which the text indicates by its words.

The idea of mantooq

The following are from the Ghair Sari7 category of Al Mantooq:
1. Dalalat al Mutaabaqah (دلالة المطابقة)- complete correspondence
2. Dalalat al Tadamun (دلالة التضمُّن) - partial correspondence
3. Dalalat al Intizaam (دلالة الالتزام)- implication (something external to what is being said)

Discussion of Dalalat al Mutaabaqah (دلالة المطابقة)- Complete Correspondence
What is the meaning of the word rajul in Arabic? Rajul means adult human male. When you refer to someone as rajul, then if the way you are using the term to mean an adult, human, male, then there is complete correspondence between the way you are using the term and its actual meaning. Is this the case that we always speak like this?

Discussion of Dalalat al Tadamun (دلالة التضمُّن) - partial correspondence
When you say that you saw some one pray? And let us imagine that you saw him in rukuh. Is there a complete correspondence between the meaning of the word salah and what you saw?
No, it is not a complete correspondence, it is partial correspondence, since you only saw him in rukuh.

Examples of dalalat al tadamun
What do we mean when we say, I sold a car?
Does it imply that it has an engine?

I injured his finger?
I ripped out his finger nail, but I only refer to the finger. Did I hurt his finger too?

There is a man in the house.
This implies that there is an adult, a human, or a male in the house.

There is no man in the house.
Can you say that there is no adult in the house? What about there is no male or no human in the house? This statement implies that there is no adult or human or male in the house.

Discussion of Dalalat al Intizaam (دلالة الالتزام)- implication (something external to what is being said)
If you say the word lion, it has a specific meaning refering to the animal lion. But if you call somebody a lion, by implication, this means courage.
It is logical consequence of what we have just stated.

When Allah swt says in the Quran 64:14 (Surah At-Taghabun),  “If you are pardoning and overlooking and forgiving, then Allah is Forgiving and Merciful.”
وَإِن تَعْفُوا وَتَصْفَحُوا وَتَغْفِرُوا فَإِنَّ اللَّهَ غَفُورٌ رَّحِيمٌ

What is the necessary implication of the above verse?
If you pardon and forgive and overlook, then Allah swt will pardon and forgive and overlook (your sins).

This also applies to the attributes or names of Allah swt, such as Rahmah. What is the dalatal al intizaam of this attribute?
This name affirms Allah’s hayat (life), Allah’s ability which are implied by the attribute Rahmah. You cannot bestow mercy without having the ability to do so. Similarly, Al Khaaliq also implies that Allah is alive, He has ability to create, He has knowledge etc.
You can use these concepts to refute the mutazillah and jahmiyyah. Since they simply take the names without understanding the implications of the names.

2011-01-10 Class Notes

We will continue with the non-Hanafi also known as muttakalimoon perspective on how text indicate rulings. THeir terminology is very different from the terminology of the Hanafis. There will be some overlap, but there is one area where there is a big difference.

Muttakalimoon Approach can be divided into two main branches Mantooq -- المنطوق -- (directly stated in the text) and Al Mafhoom -- المفهوم -- (what is understood).

Mafhoom has two categories, Mafhoom al Muhakafa (same as dalalatal nass of the Hanafis).

Sheikh has a funny anecdote about Mafhoom al Muhakafa and his brother. Something to do with a macaroon which he will discuss in the future.

As part of the general category of Al Mantooq, it can be understood in three different ways, Dalalat al Mutaabaqah (complete correspondence between the words and the meaning), Dalalat al Tadamun (partial correspondence between the words and the meaning, for example you injured somebody’s fingernails but still used the word injured finger to refer to the fingernail;, and Dalalat al Intizaam (not explicitly stated but indicated by the text).

Al-Mantooq is further subdivided into Sareeh Explicit (صريح)  and Ghair Sareeh Non-explicit (غير صريح)
Sareeh is ibarataul nass for the Hanafi madhaab.

And under Ghair Sareeh or non-explicit, there are three separate categories, Dalalat-ul- ishaara, Dalalat-ul-Iqtidha, and Dalalat-ul-Imaa wa tanbeeh.

Do not say uff to your parents.  
Here the text is explicit and clear and the meaning jumps directly to you.

We are more interested in non explicit and the three categories underneath it.

What happens when you speak, sometimes you allude to other meanings. You don’t express everything that you intend to say. You expect the audience to understand the unspoken words or speech, because if you explicitly said everything, then it will be a very boring speech.

We expect there to be overlap between Muttakalimoon approach and the Hanafi approach. This is one of the overlapping cases.

Sometimes statement does not make logical sense, unless you plug in what is missing. For example, I am going to call New York. Here the unstated speech requires that you will assume that I am going to call someone in New York.

Soundness of the statement can be from the following perspectives:
1. Shariah perspective
2. Rational perspective
3. Factually true

Examples from the Quran

Speaking about fast in Baqarah verse 185, Allah swt says, if anybody is ill or on journey, the same number should be made from other days.

شهر رمضان الذي أنزل فيه القرآن هدى للناس وبينات من الهدى والفرقان فمن شهد منكم الشهر فليصمه ومن كان مريضا أو على سفر فعدة من أيام أخر يريد الله بكم اليسر ولا يريد بكم العسر ولتكملوا العدة ولتكبروا الله على ما هداكم ولعلكم تشكرون

Muhsin Khan

The month of Ramadan in which was revealed the Quran, a guidance for mankind and clear proofs for the guidance and the criterion (between right and wrong). So whoever of you sights (the crescent on the first night of) the month (of Ramadan i.e. is present at his home), he must observe Saum (fasts) that month, and whoever is ill or on a journey, the same number [of days which one did not observe Saum (fasts) must be made up] from other days. Allah intends for you ease, and He does not want to make things difficult for you. (He wants that you) must complete the same number (of days), and that you must magnify Allah [i.e. to say Takbir (Allahu-Akbar; Allah is the Most Great) on seeing the crescent of the months of Ramadan and Shawwal] for having guided you so that you may be grateful to Him.

Sheikh says that the only way to understand the verse is if you assume missing words, which is days. According to ibn Hazm, nothing is missing. Probably the way most of you understand it, there is something missing.

The question to ask about the verse, is there something missing?

Have any of you been sick during Ramadan? Have you fasted while you were sick? If you did fast, did you count it as one of the days of Ramadan?

Here you are providing the words that you did not fast while you sick. And you are inserting those words, that if you do not fast while sick in Ramadan, then you make up those days.

There is a hadith that says that if you fast while travelling, it is not considered as piety. The way that is understood is that if you are travelling and it is a hardship to fast but force yourself it is not considered piety.

Ibn Hazm says that there is no fast for the person who is sick in Ramadan. How do you answer ibn Hazm’s view? Can you jump to the conclusion that there is something missing in the Quran?

What is your justification to insert the missing words?
Remember it is has to meet one of the three cases in order to insert the words. One case is that the truth value is missing (Example --- hadith --- Allah has removed from my ummah mistakes, forgetfulness and what you do under duress) or it does not make rationally e.g. verse??. or from the shariah point of view, as it is, it is not proper.

Why is there a problem with the words from the shariah perspective?
Because there are a number of hadith about sahaba fasting in the month of Ramadan while travelling and the prophet approved of it. So this is based on authentic affirmed proofs it is dalalat-ul iqtidha (the unstated text).

What about the hadith that it is not considered piety to fast while travelling?
If it is not a hardship then you can fast, however if you have hardship then you cannot fast to show how pious you are. You have been given an exemption by Allah swt and you should make use of it.

Main reason why ibn Hazm did not accept this understanding, is because he is dhahiri (and not because he is from Spain, which is stated in jest by the sheikh since he is from spain too). He sticks to the text. It will be interesting to see how he responds to the hadith proof. Sometimes he is not polite while responding.

ibn Al-Arabi, also from Andalus, was a famous Maliki scholar after ibn Hazm ( who was very harsh with his tongue) says in his book “Ayat-ul-ahkam”, if anyone understands it as ibn Hazm they are the weak of the people who do not understand Arabic.

Why is ibn Hazm given the respect that he is given?
This is a very interesting question. Even salafi scholars give him respect. His aqeedah is not what the salafis believe in. He did not make taweel in fiqh but allowed in aqeedah. Ibn Hazm was very good in one way, he was very good in insisting that people should follow the quran and sunnah, and this is very useful for people who want to present their arguments.

Another example from the Quran is Surah Baqarah verse 196 which is talking about hajj; who ever has an ailment of the head during hajj, of fasting or charity or sacrifice.

والعمرة لله فإن أحصرتم فما استيسر من الهدي ولا تحلقوا رءوسكم حتى يبلغ الهدي محله فمن كان منكم مريضا أو به أذى من رأسه ففدية من صيام أو صدقة أو نسك فإذا أمنتم فمن تمتع بالعمرة إلى الحج فما استيسر من الهدي فمن لم يجد فصيام ثلاثة أيام في الحج وسبعة إذا رجعتم تلك عشرة كاملة ذلك لمن لم يكن أهله حاضري المسجد الحرام واتقوا الله واعلموا أن الله شديد العقاب

Muhsin Khan

And perform properly (i.e. all the ceremonies according to the ways of Prophet Muhammad SAW), the Hajj and 'Umrah (i.e. the pilgrimage to Makkah) for Allah. But if you are prevented (from completing them), sacrifice a Hady (animal, i.e. a sheep, a cow, or a camel, etc.) such as you can afford, and do not shave your heads until the Hady reaches the place of sacrifice. And whosoever of you is ill or has an ailment in his scalp (necessitating shaving), he must pay a Fidyah (ransom) of either observing Saum (fasts) (three days) or giving Sadaqah (charity - feeding six poor persons) or offering sacrifice (one sheep). Then if you are in safety and whosoever performs the 'Umrah in the months of Hajj, before (performing) the Hajj, (i.e. Hajj-at-Tamattu' and Al-Qiran), he must slaughter a Hady such as he can afford, but if he cannot afford it, he should observe Saum (fasts) three days during the Hajj and seven days after his return (to his home), making ten days in all. This is for him whose family is not present at Al-Masjid-al-Haram (i.e. non-resident of Makkah). And fear Allah much and know that Allah is Severe in punishment

Do you have to make fidhya if sick during hajj? These two verses (this and the one about fasting) are almost parallel in invoking the iqtidha. What is the iqtidha for this ayah? Shaving the hair due to an ailment i.e. necessary must offer a ransom.

There was a discussion about Sahih International translation of the verse.
That the translator did not offer the iqtidha for verse 185 but offered it in verse 196 i.e. “necessitating shaving”.
Both of the verses require you to assume some words that are missing. Because if you are forced to shave your head during Hajj or umrah, then you are supposed to make fidhya.

Dalalat-ul-Imaa or Dalalatal tanbeeh
Dalalatul Imaa is like the urged meaning, the pointed to meaning.
Tanbeeh is to alert; the speech is trying to alert you to something.
This dalalatal has two names.

For example the letter faa.  The letters faa mean “then”. Some kind of tarteeb i.e. something comes first and then followed by something else. It can also be a simple conjunction, used just like wa. It could also be used as “therefore” (faa al asabiya??? or was it faa al ta’liya, faa of causation)

When you look at the text, there is something in the text that the speaker intends. The two dalatal that we have discussed so far, we are saying that the speaker is intending the words that are missing.

In Surah Maidah verse 38,  Allah is talking about the thief.

والسارق والسارقة فاقطعوا أيديهما جزاء بما كسبا نكالا من الله والله عزيز حكيم

Muhsin Khan

Cut off (from the wrist joint) the (right) hand of the thief, male or female, as a recompense for that which they committed, a punishment by way of example from Allah. And Allah is All-Powerful, All-Wise.

In “cut off their hands” فاقطعوا  this sentence is structured differently; the subject is headed followed by a comment i.e. topic/comment construct. This “faa” is “faa” of causation. (faa al ta’liya). It is pointing us to the causation.

In another hadith the Prophet said, “If someone revives a dead land, the land therefore, is his.”

This faa is used by the sahaba to describe the actions of the prophet, for example, therefore he prostrated to indicate the cause of the prostration was because he forgot something in the salah.

If you find this kind of faa in the quran or sunnah, then this would be a stronger evidence than when used in a statement of sahaba.
When the sahabi said it, it is because of his ijtihaad, as opposed to its usage in the Quran or Sunnah.

I have become undone, because I have had sexual relationship with my wife during the fast.  And in this hadith, everytime the prophet asked a question, he replied with faa to show that he is responding to the question???

It is not intended by the speaker. The logical implication of the assumed words but is not intended by the speaker.  We will discuss it next time.

2011-01-24 Class Notes

The mutakalimoon divide the meaning derived from the texts into two types:
1. Al-Mantooq (المنطوق) - stated or pronounced meaning
2. Al-Mafhoom (المفهوم) Understood meaning which is not explicitly stated

Al-Mantooq is further divided into 2 categories:
1. Sari7 The explicit (صريح)
2. Ghair Sari7 Non-explicit (غير صريح) which is further divided into
2a. Dalalat-ul- ishaara ( دلالة الإشارة) (we have this hanafi category which is alluded meaning)
2b. Dalalat-ul-Iqtidha (دلالة الاقتضاء) (we have this in hanafis category as required meaning)
2c. Dalalat-ul-Imaa wa tanbeeh ( دلالة الايماء و التنبيه) (Urged meaning)

Al-Mafhoom is also further divided into 2 categories:
1. Mafhoom al Muwafaqah (مفهوم الموافقة) (Congruent/Harmonious meaning) This is equivalent to the dalaalah al nass of the Hanafi approach
2. Mafhoom al Mukhalafah (مفهوم المخالفة) (Divergent meaning) There is no equivalence in the hanafi classification.

Concept of Dalalatul Ishaara
Shaykh is giving an example of how we learn numbers and fractions, specifically how we add numbers. We can deduce how to add fractions from the concept of adding whole numbers. But when he taught us how to add whole numbers, he was not intending to teach us how to add fractions, but it is a necessary and logical conclusion of the concepts taught when adding whole numbers. This is known as Dalalatul Ishaara. By virtue of Dalalatul Ishaara, we can say ½ + ½ + ½ + ½ = 2.

We have a text that tells us one thing but the consequence of the text also implies another meaning.

Can you have a sound marriage contract without discussing the mahr?
The classroom said no to the above answer, so the shaykh posed the following question in response:
Who can prove from the Quran that a marriage contract in which mahr is not specified is still a valid marriage?

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

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.

How can we use dalaalatul ishaara to prove that mahr is not a requirement for a sound marriage contract?
Since you cannot divorce someone before marriage and did not appoint for them Mahr, it proves that Mahr is not required for a sound marriage contract.

One of the rights of the wife that belongs to the right of Allah swt. i.e. the husband and the wife cannot decide that no mahr will be required.

So how does this verse highlight the concept of dalaalatul ishaara?
The purpose of the verse is you can divorce such woman. Since it is permissible to divorce women to whom Mahr has not been appointed or to whom you have not touched.  And this highlights the ishaarat that marriage contracts do not require the mahr.

During the month of Ramadhan, if you wake up at Fajr in the state of janaba, is it allowed for you to fast that day? Abu Huraira said no. Is there a verse in the Quran that proves him wrong?

In a verse 2:187, Allah swt says ….. 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.

Why is this verse an example of dalaalatul ishaara?
If one is allowed to eat and drink and have sexual relations till Fajr, then when are you supposed to make ghusl? Hence this is an example of ishaara.
Abu Huraira was corrected by some of the wives of the Prophet (may the peace and blessings of Allah be upon him).

Is dalaalatul ishaara concerned a textual argument?
Yes. Sometimes the text itself may express that something else is going on here.

In verse 2:233 Allah swt says:
Muhsin Khan: The mothers shall give suck to their children for two whole years, (that is) for those (parents) who desire to complete the term of suckling, but the father of the child shall bear the cost of the mother's food and clothing on a reasonable basis. No person shall have a burden laid on him greater than he can bear. No mother shall be treated unfairly on account of her child, nor father on account of his child. And on the (father's) heir is incumbent the like of that (which was incumbent on the father). If they both decide on weaning, by mutual consent, and after due consultation, there is no sin on them. And if you decide on a foster suckling-mother for your children, there is no sin on you, provided you pay (the mother) what you agreed (to give her) on reasonable basis. And fear Allah and know that Allah is All-Seer of what you do.

This verse is about the nursing or suckling of the infant and of the time period and the maintenance of the mother and child.

Shaykh is highlighting how different translators have interpreted the verse.
Yusuf Ali says two whole years
Pickhtall says  the duty of feeding and clothing nursing mothers...

It is the father who is responsible to feed and clothe the nursing mother.
Father = al-waalid

Conciseness is an excellent quality of the Arabic language. It is considered a good practice to use few words. What is the word used in the verse? “wa Alaa almauloodi lahu”
Al Waalid is a very long phrase. Allah swt would not use a very long phrase unless he is trying to highlight a point here.

One of the not recommended translators, Free Mind translators, translate it as: The Man for whom the child is born...  According to Shaykh this is the most accurate translation of those specific words of the verse and he rarely says that Free Mind is a good translation.

Mohamed Asad says, the man who has begotten the child.

So these words used by Allah swt, jump out at you. The scholars have derived many laws from the usage of the word lahu in the verse.

In the Arabic language, laam has three aspects to it:
1. Ownership is particular to that individual
2. Lineage is particular to that individual
3. Financial relationship is also implied.

Once the laam is mentioned, then the above three concepts are implied. However in the above verse, the first concept of ownership is ruled out, or it is not applicable.

We are talking about special relationship between father and child. Are we talking about explicit meaning or alluded meaning?

Child’s descent is attributed to the father, hence the peculiar names in Arabic. Sole responsibility of supporting the child is on the father. The father has privilege of access to the child’s wealth.

Is this an example of ishaara or mantooq?
No, since the laam is implying the meaning of the three aspects in the language.

How can we state without doubt that this is dalaalatul ishaara and not mantooq?
The verse is saying something different, and even if the laam is very strong, we can state that since the verse is talking about the concept of suckling an infant and we are talking about lineage.

Another example
What does the word mirza?? mean?  Qadiyanis use it to imply that they are descendants of the prophet from his maternal lineage. This contradicts what Allah swt is saying in the Quran, since the lineage is from the father’s side. This is one of their weak arguments

Using two texts to form Dalalaatul Ishaara
Sometimes ishaaratul nass can be from bringing two texts together.
What is the shariah view for the minimum length for pregnancy?
In surat Ahqaf v 15 Allah swt describes the duration of the carrying of the child by the mother; its gestation and nursing for a period of 30 months And in Surah Luqman:14 Allah swt talks about a period of 24 months for the weaning.
Ali ibn Talib put these together to derive that the minimum of sound pregnancy is six months.

Example of far fetched Ishaara
Abu Zir3a (scholar of hadith) concluded that the extent of Allah’s mercy is greater than His punishment by combining two hadith.

One of them is a hadith Qudsi (bukhari) where Allah is talking about what He has prepared for His pious servants what the eyes, ears and hearts of humans has conceived of.
The other hadith he uses is a hadith in Sahih Muslim in which the Prophet is describing the fire in this dunia with the fire in the Hell-fire; it is one portion of 70 portions of the fire of Jahannam.

His rewards are beyond measure (manifold), whereas the punishment is a multiple of what we know in this world. And hence he concludes that the rewards are unfathomable and the punishments are enumerable.
He states that this conclusion is via dalalatul Ishaarat of the two hadith. Do you agree?

Even if you use 70 figuratively, it is still a multiple.

Another example:
Ibn Umar said the Prophet ordered the killings of the dogs of Madina. Abu Zir3a said this is evidence via Dalalatul Ishaara that it is not allowed to eat dogs.

If they were permissible to eat, it is considered wealth and therefore not subject to wanton destruction. Abu Zir3a lived many years ago, since in the recent days, we had outbreak of foot and mouth disease in cattle which led to the slaughter of the infected animals even though they are a source of wealth.

Similarly in the case of the killing of dogs, they might have been some goal, purpose that the Prophet ordered the killing. This was for a specific time and period and not for ever.

2011-01-31 Class Notes

We will continue our discussion of how text offers ahkam or legal ruling according to the Muttakalimoon approach.

When you speak and refer to something, it can be either complete correspondence, partial correspondence (tadammun), and iltizaam which is a consequence of what you stated but not something stated directly.

1. Dalalat al Mutaabaqah (دلالة المطابقة)- complete correspondence
2. Dalalat al Tadamun (دلالة التضامن) - partial correspondence
3. Dalalat al Iltizaam (دلالة الالتزام)- implication (something external to what is being said)

Differences between Hanafis and Mutakalimoon
The first two are in the Mantooq al Sari7 category and the last is in the Mafhoom Ghair Sari7, Some consider 3 to be mantooq viz-a-viz mafhoom.

Hanafis consider all of them are textual. Muttakalimoon give them less weight than the Hanafis. Among the muttakalioom, the first two are definitive, which Hanafis call ibaraat.

Another difference is that the definitiveness is an important point among Hanafis, whereas the muttaqalimoon do not even discuss it. The reason is because of how they approach the rulings. It is loosely referred to, used, and implemented by Mutakallimoon.

Is Dalalat al Iqtida’ definitive or not?

If Allah swt is revealing a message that is unstated, what can we assume a priori about things that are unstated? That it should be clear? Yes

In theory it should be definitive, Mutakallimoon do not stress this point.

Example of Iqtidaa’ -- a hadith of the Prophet ( صلى الله عليه وسلم ): Removed from my ummah are forgetfulness and acting out mistake and acting out of compulsion.

What has been removed? Is it the sin or the hukm/judgement? This is a case where it is not definitive.

Is Dalaalat al Ishaarah definitive or not?

What is a good definition for dalaalat al-Ishaarah? Very similar to Hanafi concept of Ishaaratun Nass. It is the logical conclusion of what has been stated, although it is not the point the speaker has been making at the time. (Ed: See notes for the previous class). Problem is that many people started calling things Ishaarat un nass. The hanafis over-used this concept, so had to split this up into subgroups.

Amongst the mutakallimoon, dalaalat al Ishaarah is definitive.

Dalaalat al Iima Tanbeeh

Definitiveness will depend upon the source. For example, Faa..... if it is in the Qur’an or Sunnah, it is considered definitive. From Sahabah, for example, Rasulullah  ( صلى الله عليه وسلم )  forgot something in prayer so (fa) he did sujood, is not definitive.
Amongst the mutakallimoon, there is also interpretations

All the categories of mantooq (either sari7 or ghair sari7), it is obligatory to act upon. If someone refuses to act upon it, then the burden of proof is on the person who is not performing the act.

Mantooq is explicitly stated


Comes from fahm meaning what is understood.
What is in the text implies things beyond what is stated. And this is not unique to usool or islamic fiqh but in every speech and in every legal reasoning.

Speed limit 25 mph. A bicycle rider was given a ticket in Elk Grove.

There was someone who was giving a speeding ticket. Defence: I thought the speed limit was just for cars, not for bicycles. His argument is very dahir. But he lost his plea.
We are supposed to understand.

When we understand the text in two different ways. The first category is mafhoom al muwafaqah, the congruent meaning or congruent implicature in pragmatics or in law it is called argument a fortiori denotes by a greater force of argument.

Example of an a fortiori argument: If a 14 year old child cannot sign a binding contract, then by a fortiori (mafhoom al muwafaqa ), a 13 year old also cannot sign the binding contract.

Imam Shafiee described it in his risalah.

Imam al Juwaiyni (famous Shafii scholar) gave this definition of Mafhoom al Muwafaqa: that which indicates the rule of the unstated meaning is congruent with the rule of the stated meaning with greater reasoning.
The Hanafis call this category dalalatul nass.

Difference between Mafhoom al Muwafaqa and Analogy (Qiyaas)
The driving force behind this: you have to understand the basic message or point of the text. This understanding of the basic point should be obvious. The example above is quoted.

What is the difference between a 14 year old and 13 year old. If the 14 year old cannot sign a binding contract, why?
[Ed: Here the point is that the 14 year old cannot be held responsible for binding contracts.]

The point has to be something very obvious. Should not be something miscible.

Surah Al-Israa, Ayat: 23
YUSUF ALI: Thy Lord hath decreed that ye worship none but Him, and that ye be kind to parents. Whether one or both of them attain old age in thy life, say not to them a word of contempt, nor repel them, but address them in terms of honour.

Another example, do not say uff to them. Uff is a very slight word of disrespect. You should not say even slightly disrespectful thing to your parents, what is the point of the statement? Is it simply that you should not say “uff” (probably not, except as understood by Ibn Hazm)?

You should not cause harm to your parents.
The real purpose of saying uff, you do not want to cause them some kind of displeasure or harm to them. The meaning of this word, is that you cannot do anything that brings any kind of harm or displeasure to them.

YUSUF ALI: Those who unjustly eat up the property of orphans, eat up a Fire into their own bodies: They will soon be enduring a Blazing Fire!

Another example we discussed earlier is Surah Nisa, Verse 10: “Verily those who unjustly devour the properties of orphans, only devour the fire in their bellies.”

What do you understand from this verse? Does that verse only say that you should not consume the wealth of orphans? Do you get any other message from this verse?
The other message is that you cannot cause harm to their property, you have to take care of it, you cannot gamble it or waste it.

Usool al fiqh is an important topic, because sects that are identified as extremists is because of the lack of understanding of usool al fiqh
One of the classical causes is the lack of understanding of Usool al Fiqh
Groups that have been classified as extremes.. one of the classical causes is their lack of understanding and applying usool al fiqh
Modern progressives: They will invoke usool al fiqh principles, but they will invoke them incorrectly. they will distort it.
Extremists: They don’t understand the principles of usool al fiqh
Among the Khawarijm who are more of a literalist than the dhahiris, specifically one group among them who are Maymoonahs, one of the views is that it is allowed to marry one’s grand-children (second niece or third niece). How did they get that?

Surah Nisa verse 23
YUSUF ALI: Prohibited to you (For marriage) are:- Your mothers, daughters, sisters; father's sisters, Mother's sisters; brother's daughters, sister's daughters; foster-mothers (Who gave you suck), foster-sisters; your wives' mothers; your step-daughters under your guardianship, born of your wives to whom ye have gone in,- no prohibition if ye have not gone in;- (Those who have been) wives of your sons proceeding from your loins; and two sisters in wedlock at one and the same time, except for what is past; for Allah is Oft-forgiving, Most Merciful;-

This verse mentions only one level -- does not mention grandparents etc.
How can you prove from this verse that the other levels are also prohibited?
You have to apply the priniciples of mafhoom al muwaqafa to refute their understanding,

Surah Jumah verse 9
YUSUF ALI: O ye who believe! When the call is proclaimed to prayer on Friday (the Day of Assembly), hasten earnestly to the Remembrance of Allah, and leave off business (and traffic): That is best for you if ye but knew!

Leave off business when the call of Jumuah is made. What do you understand of the phrase leave off business.

Suppose you are involved in a marriage contract when the call for prayer is made, are you supposed to leave it off and come to salah?

Does Allah swt mention bayiah because it is specific to business or is it because anything that you are doing at that time and come to perform salah? Do you think that this is obvious?

Ibn Qudamah (one of the greatest Hanbali faqih) says it applies only to buying and selling, He was the greatest Hanbali scholar and he is definitely not a dhahiri.  Shaykh says that it is obvious to him that you cannot perform any transactions (or something that occupies you) and you have to come to salah, and he has difficulty understanding it.

For both Hanafis and mutakallimoon it is is considered normal part of speech. For the mutakallimoon , the case that is not mentioned in the text, they have a difference of opinion whether it has to be superior or can it be equivalent to what is mentioned in the text???

You cannot say “uff” to your parent , so obviously you cannot hit them. (example of superior).
Can you say “aah” instead of “uff”? Equivalent.
Some will say equivalent one is a Qiyas -- a matter of ijtihad. and that it is equivalent to Qiyaas.

QIyaas is no longer a textual argument, and it’s ranking for deriving rulings is lesser compared to rulings derived from textual arguments.

From the majority of the shafiees say that it is not necessary for the second case to be superior or intensive. Majority of the shafieees say its ok for it to be equivalent.

Majority of the Shafii scholars said it can be equivalent, not necessary to be superior in severity -- including Al Gazzali, Al Razi and Al Baidawi.

For non-Hanafis it does not have any ramifications.

Should mafhoom al muwafaqa be definitive?
There should not be any cases where it is not definitive.

For example, when Allah swt says …. khairan yaraa..... what is the meaning and message and would you consider it to be definitive.
YUSUF ALI: Then shall anyone who has done an atom's weight of good, see it!

What is the implication of that? Dharra is like “smallest thing you can imagine” Dharra is word used for atom?

If you do seed’s weight of good deed, you will see its reward. Earlier it was considered to be a small seed, now it is referred to as an atom’s weight.

Mafhoom al muwafaqa should flow directly from the language and it should be obvious. However the fuqaha got clever and they tried to apply it to things that were not clearly understood from the text.

‘Ok I have done good things worse than atoms weight’. One cannot imagine anything less than that. Hence mafhoom al muwafaqa should be definitive. Mafhoom al Muwafaqa should flow from the speech. What happened in history is that fuqaha got clever. They would apply mafhoom al muwafaqa to things that were not clearly stated in the text.

A classic eg. is Surah an Nisa V92.

YUSUF ALI: Never should a believer kill a believer; but (If it so happens) by mistake, (Compensation is due): If one (so) kills a believer, it is ordained that he should free a believing slave, and pay compensation to the deceased's family, unless they remit it freely. If the deceased belonged to a people at war with you, and he was a believer, the freeing of a believing slave (Is enough). If he belonged to a people with whom ye have treaty of Mutual alliance, compensation should be paid to his family, and a believing slave be freed. For those who find this beyond their means, (is prescribed) a fast for two months running: by way of repentance to Allah: for Allah hath all knowledge and all wisdom.

This is kaffara -- expiation for the acts he did. This is for unintentional killing.

What is the punishment for intentional killing?

There is no text in the Quran or in the Hadith that they must make Kaffara.
Kaffara only in the case of “unintentionally killing someonelse”

Imam Shafiee says that if somebody unintentionally kills a believer has to perform kaffara, then by mafhoom al muwafaqa, it is even more important for somebody who kills a beleiver intentionally to also perform kaffara, even though the punishment described for intentional killing does not mention this kaffara.

According to Shaykh this is a stretch and since there is no explicit verse, we cannot perform mafhoom al muwafaqa.

This opinion is only in the shafiee madhab and not in any other madhab.

2011-03-21 Class Notes

We have discussed Al-Mantooq (منطوق)  - saarih (صريح) & ghair saarih (غير صريح).
Mantooq means stated; clearly and not clearly.

Next category is mafhoom (مفهوم); not actually stated.
Mafhoom is subdivided into mafhoom al-muwafaqah (مفهوم الموافقة) & mafhoom al-mukhalafah (مفهوم المخالفة).

What is mafhoom al-muwafaqah?

Something that is implied or goes without saying. For example, minimum age to sign a contract is 18; everyone below that is not allowed to sign a valid contract. Why does it state that? Probably because 18 is the age of maturity. Something going on behind the scenes. In normal speech, we use this principle where we expect people to understand some of the implied meaning. We expect people to understand the implied meaning. The example of the person walking in beech with 6 yrs old child and beech petrol says to that person to stay 50 ft away from the water. Here he doesn’t have to mention separately to child as it is understood.

Ayat-ul-Kursi -- the section (مَن ذَا ٱلَّذِى يَشۡفَعُ عِندَهُ ۥۤ إِلَّا بِإِذۡنِهِ‌ۚ)

How would you translate this portion? Two alternate translations:
1. Who can intercede with Him except by His permission.
2. Who from among those who are with Him in His presence can intercede with Him... In other word it means: “Those angels who are with Allah and are close to Allah can intercede with him”.

What would be the mafhoom muwafaqah of this meaning. Even if those who are close to Allah do not have the right to intercede with Allah without His permission obviously others cannot intercede without His permission. This concept applies to aqeedah as well as fiqh.

Q: Is mafhoom muwafaqah a kind of qiyaas or not. If not, then how does this defer from Qiyaas?

Side note: For the Hanafis, dalalatul nass is a textual evidence. For the mutakallimoon, texts are divided into 2 categories; mantooq (what is stated in the text) and mafhoom (this is not stated in the text).
Going back to the example of person below cannot sign contract, the reason behind is that there is legal cause behind this i.e he is not mature if he below 18.
There is an illa (علّة), a legal cause. for example “Do not say uff to your parents, the legal cause is ‘do not harm your parents in any way’.”

In the analysis of Qiyaas there is an original case and the new case with a legal cause  (علّة) binding the two together. The difference between mafhoom muwafaqah and qiyaas is subtle and conceptual. For the case of mafhoom, from the words of the statement, one can infer meanings beyond the meaning of the words, included exactly by what the individual has said. Without having to go beyond the text.
E.g. khamr (alcohol, wine) means it is prohibited but does not imply heroin etc. are prohibited when you look at the text itself. One has to make an analogy to deduce that other intoxicants are also prohibited.
The scholars among the mutakalimoom differed if mafhoom al muwafaqah is a kind of qiyaas or not.
The Hanafis consider mafhoom as qiyaas but the mutakalimoon differred.

Because when imam al-shafiee when he wrote his Risala, he described mafhoom al muwafaqah with calling it such, referred to it as qiyaas al-jali (قياس الجلي) -- or clear unmistakable qiyaas. The fact that he gives it a different name shows that it is thought to be different. Later scholar did not worry about what al-shafiee said but agreed with his opinion that it is different from qiyass.

Is it important to differentiate between the two?
In usool al fiqh you find two kinds of things: difference of opinion that may be due to semantics and there may also be difference of opinion that may not have a bearing on reality.

Is is possible for the mafhoom al muwafaqah not to be definitive? Sometimes people stretched the limits of mafhoom al-muwaafaqah, so they introduced the concept of different types: definitive and non-definitive. But mafhoom al muwafaqah must be definitive.

Is this question on the difference between qiyaas and mafhoom al muwafaqah is this important? For the non-Hanafis, this is not that important a question; the reason is because that they do not have the same view as the Hanafis that qiyaas cannot be used sometimes e.g. the hadd. The hudud is one of the things that qiyaas cannot be used to establish the hudud. And also kafaraah.
However another point of importance is those people who reject qiyaas: the dhahiris and the shiah. Ibn Hazm is quoted quite a bit.  and is a well known Dhahiri. The original founder of dhahirih madhab was
Who is the original founder of the dhahiri madhaab? Daud ibn Ali -- a Shafiee and shortly after him. One generation after imam shafiee. Daud accepts mafhoom al muwafaqah; he does not accept qiyaas. Ibn Hazm, on the other hand, in his magnum opus “al-ahkaam fii usool al-ahkaam “(الأحكام في أصول الأحكام), he considers mafhoom al muwafaqah as a kind of qiyaas. He goes on to refute qiyaas and not specifically mafhoom al muwafaqah.

What could be an argument against qiyaas and reason not to accept it?
Ibn Hazm’s argument basically you cannot make any ruling at all concerning all the matter except by the text of the word of Allah or the text of the Prophet or his actions or approval or some kind of ijmaa of the ummah. If you do not have a text or ijmaa, we have to restrict what is stated in the text and not go beyond what is stated in the text. For the verse like dont say Uff to your parents he says you dont need to use qiyaas for this as there are other text found to support this.
His arguments against qiyaas can be answered.

2011-03-28 Class Notes

The guest will not smell the meat in the house. This is typical of the way Arabs speak, here it means that the guest will not be jealous of his host.

Mafhoom al muwaafaqah (argumentum a fortiori)

What is Mafhoom al muwaafaqah of the verse you will see an atom’s weight ... what does it mean?
Even if something insignificant is noted, then it means all your significant acts would also be recognized and recorded.

Explicitly stated in the text is known as mantooq. Then there is mafhoom and there are two types, muwaafaqah and mukhaalifah.

Mafhooom al mukhaalifah (مفهوم المخالفة -- argumentum a contrario)

The other type of mafhoom al mukhaalifah. Is it possible for somebody to convey more than one thing? Say one thing and also imply a different meaning?

Kamali states in the text book states that a given text never conveys a meaning that is different than the one implied -- such an interpretation is unwarranted.

Sheikh is now giving us three scenarios to help us explain mafhoom al mukhaalifah. The classroom discussion will build one examples and then present the conclusion.

Suppose there is a father and he has three children A,B, and C. They have to pass the tests. Father visits the teacher and inquires about his children. He says A passed and moved on. Does this imply that B and C failed?

If he said only A passed, then it is clear that B and C did not pass. Teacher said A passed and you derived that B and C did not pass, so you are deriving the contrary of what the text said, the conclusion of the unmentioned case must be the opposite of the mentioned case. This is an example of mafhoom al mukhaalifah.

This understanding requires a faqih.

Suppose there was a law passed that stated that green cars require certain types of tires. Does this imply that red and blue cars require different types of tires.

Assume people passing the laws were rational beings, wouldn’t they have some intention about green cars, they are targeting green cars and does not apply to any other cars. They could have simply said cars and not restricted it to green cars.

If you hear 2008 Toyota Prius has been recalled, you do not take your 2010 Toyota Prius car to the dealer.

Sometimes a text is specifying something and if some enforcement of the law does not meet that criteria then does it mean that the ruling does not apply?

Fallacy of our conclusion
If A then B does this imply not A then not B.
The above could happen but not necessarily so.

Is mafhoom al mukhaalifah opposite of qiyaas?
Qiyaas would say that illa is green car requires xyz tires, then by analogy all types of cars should have xyz cars.

Does the specific mention of the attribute of the car, would it constrain you from making qiyaas?

Mafhoom al mukhaalifah is a very difficult concept. Hanafis reject this concept and they say that it is not valid way of derving laws from the text. Others sayt that you can derive laws based on some conditions, so they are aware of the logical fallacy.

Allah swt says in Surah Baqarah verse 280
Give respite to the borrower who is facing difficult circumstances.

وإن كان ذو عسرة فنظرة إلى ميسرة وأن تصدقوا خير لكم إن كنتم تعلمون

Muhsin Khan

And if the debtor is in a hard time (has no money), then grant him time till it is easy for him to repay, but if you remit it by way of charity, that is better for you if you did but know.

The mafhoom al-muwaafaqah is that the more extreme the circumstances someone is facing, the more mercy we should show.

The mafhoom al-mukhaalafah is that someone who is not in difficult circumstances one does not have to give them respite.

Five aspects of mafhoom al mukhaalafah

1. You have a text, and you have a specific ruling. We have case for a particular text.

2. There is a ruling pronounced for a particular case (e.g. a ruling for green cars, or showing the debtor some respite). This is mantooq.

3. In that text there is a conditional clause that restricts the ruling or mantooq to the subset. For example, if the text says Muslims should repay their debts, then all Muslims are required to repay their debts. If it says “rich Muslims should pay their debts” then this is a conditional clause based on their richness.

4. Presence of the same case but without the binding restriction or quality and this represents the opposite of the case, This is what we mean by the opposite of the stated case, this is mukhaalafah.

5. Ruling for the non stated case will be opposite of the stated case because of the lack of the restricted quality or condition

Under mafhoom al mukhaalafah there are sub-cases:

1. Mafhoom al sifah (مفهوم الصفة)  
Describing a certain quality or condition that restricts the ruling. It the quality or condition does not exist then you apply mukhaalafah.

For example, when Allah swt speaks about people who do not have means to marry free believing women, they can marry from among the believing captives, but there is a quality mentioned that they have to be believing slaves.  
It does not say anything about non-believing slaves, so the ruling is the opposite of the ruling for the believing slaves. This is mafhoom al mukhaalafah.
So mu’minaat has a particular purpose. The fact that it has been specifically stated has an intention, why would Allah (SWT) say this?
Hanafis would take a near-Thaahiri interpretation, saying that this is not a source that can be used for such a ruling.
The opposite would be qiyaas, ie. to say that since it is allowed for believing slave, it would also be allowed for ahl-ul-kitaab slaves.

Hadith in Sahih Bukhari says, delaying payment for one who has means is kind of dhulm (wrong doing).
In this case the mudhaaf-ilaih is putting some conditions, what is the obvious mafhoom al mukhaalafah? If one does not have means can delay the payment.

Another hadith in Sahih Bukhari says, if somebody sells pollinated date palms, the fruit will be for the seller, unless the buyer stipulates that he will get the fruit and the seller agrees, then the buyer is entitled to the fruit.
Since the seller has the done the effort for pollinating, the default case is that he is entitled to the fruit, unless the buyer stipulates the condition.  This is the mantooq case.
What is mafhoom al mukhaalafah?
If the tree is not pollinated then the buyer has the right to the fruit and the tree.

2. Mafhoom al shart  (مفهوم الشرط) Condition or stipulation of the text.
If and only if P then Q, implies that not P then  not Q.

Q: If you conclude mafhoom al mukhaalafah can you still make qiyaas?
I did not capture the answer for this question.

2011-04-04 Class Notes

How would you explain the concept of mafhoom al mukhaalafah?
It is argumentum a contrario. It is an argument for contrary treatment this is from the Black’s Law dictionary. Can you do better than that?

It is not easy to define it. If text touches upon a law and it places some restrictions, if that condition or restriction does not exist in a particular circumstance, then the opposite of the law is applicable.

For muttakalimoon it is a textual argument. It raises the importance of this argument. Since a textual argument has the ability to abrogate something else.

You can take the result of mafhoom al mukhaalafah and make takhsees (analogy) out of it. This gives us more potential to apply it to different circumstances via takhsees.

We discussed Surah Nisa verse 25 which says that if people who do not have means to marry free believing women, they can marry from among the believing captives, but there is a quality mentioned that they have to be believing slaves.  

If some one is non-believing, this is considered a restrictive condition in the ruling.

Hanafis do not resort to mafhoom al mukhaalafah. So they go to the general verse about marriage, which will give them implications. They say it is allowed to marry slave girls from Ahl al Kitab, whereas the muttakalimoon say it has to be a believing woman.

Is there any other mafhoom that we can get from this verse. The above is mafhoom al sifah.

Another mafhoom is that if you do not have means to marry believing slave women, then if you have the means to  marry free women, then you cannot marry slave women. This is mafhoom al shart.

ON this point, the Hanafis and Muttakalimoon disagree. Hanafis say that it is not a restricting condition, they go back to the general verse, they say that you can marry free or slave women irrespective of your means.

Is mafhoom justiified or not. We will discuss it later.

Does mafhoom al shart make sense?

if Zaid is a human, then he is an animal.
If Zaid is not a human, then he is not an animal.  Does this make sense? No, if I name my cat Zaid, then it is not human, yet it is an animal. Don’t you think the Muttakalimoon scholars don’t recognize it?

This isn’t always true. It is only true if we say “if and only if”

So scholars point out that there has to be some kind of causation. If you don't find women to worry then now you have cause thus you can marry a slave .In the above example, the relationship is not a causative one.

This condition is placed here for the purpose of the causation of the law, and those who use mafhoom al-shart would say it can only be used in this case.

If you see “In” Injaa akum, then you know that it is a conditional clause.

Surat Talaq, Verse 6 is discussing divorced women. If they are pregnant, then maintain them until they deliver. This is after the third divorce.

What is mafhoom al mukhalafaah?
If they are not pregnant, then you are not required to maintain them. It is not mentioned but this is ruling derived by using mafhoom al mukhalafaah.

Surat Hujurat, Verse 6 If an evil person or  fasiq comes with a news, then verify it.

If someone who is not fasiq or a pious person, then it is not obligatory to verify it, we can trust pious person.

Is this an example of mafhoom al sifah or mafhoom al shart?
Technically speaking it is sifah, since the text mentions a class of people and not a qualifying attribute of a man, then it would become a shart. If something is stated and there is some restriction then it is mafhoom Al-sharth. If something is stated without restriction then it is just class by itself. Techincaly this is sifaath.

Surah Nisa verse 4, Allah swt says give to the woman you marry mahar, and if they give it then use it without any harm.

What is the mantooq?
The mahar is the property of the wife, it is not the property of father in law or somebody else. The husband has no right over it. If the woman/wife gives it out of her own goodwill, then the husband can take it. This is mantooq of this verse.

What is mafhoom al mukhalafaah?
If the woman is not willing to give any portion of the mahar, then he has no right.

Concept of mafhoom al shart requires the faqeeh to look at the condition in the text and determine if it is causality of the ruling.

There is a classic case in the Quran, which we do not apply mafhoom al mukhalafaah in general is,

When we travel, we shorten our prayers, on what basis?
Based on hadith.

Does Allah swt say anything about it at all?
Surah Nisa verse 101 says if you travel in the land, there is no sin upon you if you shorten your prayer, if you fear an attack from the non-believers.

If you do not fear, then it is not allowed to shorten your prayer. Is this the understanding of the muttakalimoon? No.

Then does it not support the view of the Hanafis that there is no mafhoom al mukhalafaah.

Or is this one of the strongest verse that proves that mafhoom al mukhalafaah
Is this verse an exception that proves the rule?

If there is a hadith that states that you can shorten your prayers in travel without fear of attack, then is this in favor of mafhoom al mukhalafaah.

In an authentic narration, somebody came to Umar al Khattab and he said that we are not in state of fear and yet we shorten the prayer, so he said, I wondered the same, and I asked the prophet, he replied that this is kind of charity which Allah has upon you then accept the charity"

Shaikh mentions that this verse is an example of why mafhoom al shart is required to derive rulings? Why?
Is the statement of the Umar a Hujjah i.e hujjath-u-Sunnah ?

When we talk about authority of sunnah, we divide it into different categories, actions of the prophet, statement of the prophet, tacit approval of the prophet.  The answer lies somewhere in there.

Prophet did not object to the understanding of Umar, which was based on mafhoom al mukhalafah. He did not object to the understanding of the verse by Umar based on mafhoom (obviously the term mafhoom was not used), this is his tacit approval.

So here we have an explicit case of the way of thinking and approaching a verse to derive rulings from it. This is now hujjah,  and hence a proof for mafhoom al mukhalafaah.

In this verse the condition of fear is not a restricting condition. The term that Hanafis use is that of Makhraja al ......
During the time of Sahaba the vast majority of travel from Madinah was for jihad, this was the normal mode of travel, Madinah was not known for trade routes.

When the sahaba would go out, they would be in the state of fear from the enemy. This is not restrictive case but this is case of reality  And they say that it is not the only case for shortening the prayer.

So far we have discussed, mafhoom al sifah, mafhoom al shart, then another category is mafhoom al ghaayah (مفهوم الغاية).

Mafhoom al Ghaayah
It should be the least controversial of all mafhoom al mukhalafaah. You can show that Abu Hanifa accepted it, but the later Hanafis rejected this because of their opposition to the Shafiees and to the concept of mafhoom in general.

Mafhoom Al Ghaayah could mean the goal or limit. It is the usage of the word in its exact intended sense.

For example, the lecture will continue until 9 o’clock. It means the lecture will stop at 9. This is the literal meaning of the word “until”.   Could somebody else come and have some other understanding of the word “until”?

Mafhoom Al Ghaayah is to understand the limit. We will discuss it next time.

2011-04-11 Class Notes

Mafhoom al Ghaayah
The two particles ila and hatta denote a time limit. Abu Haneefa accepted this concept but the later Hanafis rejected it.  We will discuss later why Hanafis are anti Mafhoom al Mukhalafah.

Shaikh is explaining the concept of Mafhoom al Ghaayah by giving the following example.

Statement: Lecture will continue until 9:15
Does it imply that the lecture will stop at 9:15 or will the lecturer continue to speak after 9:15?

Student asks: After 9:15 will the lecture still continue?
What will be your response?

When it comes to speech, it is accepted and understood. By common sense or urf, it is understood, i.e. mafhoom al-gayah. Technically speaking there is no mention in his statement about what will happen after 9:15pm.

Why did the lecturer say it like that?
There has to be some meaningful meaning behind our speech.

Similarly there is this aspect in the speech of Allah swt in the Quran.

Some of the examples are pretty clear and they don't lead to much diff of opinion but not necessary it is mafhoom Al-Ghayah but there are other evidence to prove this.

For example in Surah Baqarah verse 187  Allah swt is talking about the duration of fast. Eat and drink until the white thread can be distinguished from the are we using this example to explain mafhoom al-gayah? Clear case that you are not allowed to eat after the event.

You fast until layl and then you eat and drink after layl i.e. we dont have to fast after layl and this is clear example of Mafhoom Al-Ghayah. Later Hanafis will say that you cannot make this conclusion, and they will present other evidence to support that you dont have to fast after layl.

The other example in the verse of Mafhoom al Ghaayah is to eat and drink until this happens. So it implies after this happens, then you can no longer eat and drink. This is a clear example.

THere are many examples in the Quran, a man who has said divorce three times to his wife, then she is no longer valid for him until she is married to someone else.

The man and woman can make a new Aqd and get together after they say divorce for the  first and second time but no longer after the third utterance unless she marries someone else and divorces him.

There is no zakat and ... until one year passes. It is payment on savings and not on income. Once the wealth has spent one year with you, then zakat is obligatory.

Can you say that if you see hatta and illa, and once the event has occurred then the opposite ruling (mukhalafah) will occur?

Are there any exceptions to this rule?

What about this verse in the Quran, Baqarah verse 222 wherein Allah swt says, keep away from your wife during menstruation and keep away from them until they are pure.

In this verse is hatta, still mafhoom al ghaayah.  Can you approach them even before they make ghusl?

This is an unfair example. Suppose I said that I will lecture until 9:15 and then I will continue after 9:15.

Sometimes in the same breath or same statement that is showing that this hatta or ghaayah is not going to be conditional end, then of course the mafhoom or opposite ruling will not apply.

The verse 2:222 continues, it does not stop there and gives additional statement after that
here we have 2 forms yadhkulna form 1 and this is natural state and the form 5 yathurna says unless they do some action to purify and when they have purified themselves (it implies that they are doing some action). Hence we cannot apply mafhoom al ghaayah in this case, because the verse says that they will purify themselves after the menstruation period ends.

Mafhoom al sifah, quality or attribute is given and if that is not given then the opposite ruling is applied. Mafhoom al shart where there are preconditions and if it does not apply then the opposite ruling is applicable.

Mafhoom al 3adad
Implications of a number. If something is stated with respect to a number or a quantity. Then if that number does not apply, then the opposite ruling is applied. There are some conditions.

Examples to understand this mafhoom.
When you say $3000 is too much for the car. What does it say about $4000, it means it is still too much.
If you say Zaid has 4 children. What about more than 4? Does it imply that he does not have 5 children?
What about this statement, Zaid does not have three children. Does it mean that he has less than three children?

There are different case, there is no simple rule.

One of the legal jurists, Abu Hasan al Basri, was one of the earlier Mutazillah jurists. He said that if higher or lower number is applicable depends upon the type of statement.

Example: An-Nur:2 The fornicatress and fornicator, lash each one of them 100 lashes.
Can you do less than 100 ? you cannot do more than 100.
What about more than 100? No
SO here 100 means 100 and there is no mafhoom applicable over here.

Another verse, An-Nur:4  If someone accuses innocent women, then lash him 80 times. Here it means if you get less than 4 witness then do not apply but more than 4 ruling apply

Statement: You may leave him a tip of  $100  
And he leaves $50 instead of $100. Is the above statement an order or prohibition? No it is a permission.

Don’t leave $50 as a tip
This is a prohibition. Means here do not leave more than $50.

Abu Hasan categorized the statements as obligations, prohibitions, or permissions.

In case of obligation, the lower does not entail the higher  (for ex: I gave you order to give him $50 it does not imply to give him $100)

Permission: You may give him $50, implies you can give $100
In case of permissions, the lower does entail the higher

Prohibition: Do not give him $50, implies do not give $100
In case of prohibitions, the lower entails the higher.

This does not always work.  Do not base the testimony on one witness. if the lower implies the higher then it means do not accept testimony of 2 , 3 or 4.

Is this similar to mafhoom al muwafaqah?

Ayesha described the ruling of breastfeeding, if woman breastfeeds more than 10 times, then there is relationship which is similar to a blood relation (he becomes mahram for the woman who breastfeed the baby becomes haraam for him). Then this ruling was abrogated and now the ruling is 5 times and that was situation when Prophet passed away

Is this mafhoom al muwafaqah (argument a friori) or mafhoom al 3adad which is mafhoom al mukhalafah (opposite ruling)?
If smaller number entails the higher number then it is mafhoom al muwafaqah. ??? This is confusing, I am lost ?????

Hadith: If the water reaches the amount of two kullas, then it does not bear any impurities. This is mafhoom al-muwaqa, anything less than khullatyan then it is impure ?

Surah Taubah verse 80, Allah swt is speaking to prophet about seeking forgiveness for the hypocrites. Even if you seek forgiveness for them 70 times, Allah will not forgive them.

Prophet said in respect to this verse, if I knew that if I said it more than 70 times and it would have an effect, then I would do more than 70 times.

So we are trying to understand how the prophet applied mafhoom al 3adad (mukhalafah).

If you understand 70 as mubalaghah, as some sort of exaggeration and not used as a number. And hence there is no number or quantity with which to make mafhoom al 3dad.

Surah 4:3
If you believe in mafhoom al 3adad, does it mean that you cannot marry more than 4.
And if you do not believe in  3adad, does it mean that you can marry more than 4.
By the way there was a madhab which came with the ruling that you can marry 9, they added 4+3+2 to come to this number. But that is not the point for this discussion.

There are examples of sahaba who embraced islam and had more than 4 wives, the prophet asked them to divorce more than 4.

So we know that we cannot marry more than 4, even if we do not follow 3adad because of the additional hadith about the permissibility of the number of wives.

Mafhoom al Laqab
This is the least accepted form of mafhoom al mukhalafah. You can find one scholar in each madhab who accepts this mafhoom al Laqab

The very mention of something, a common noun or a person’s name, implies mafhoom al mukhalafah.

If you say Zaid is a scholar, then nobody else is a scholar.

This could lead to kufr, because if you Muhammad ur rasul allah, does that mean that there are no other rasul?

You will not find many scholars who will apply this.

According to Imam Malik and Imam Ahmad, if someone says that my mother is not a fornicator, what does that imply? Could it ever imply some kind of mafhoom al mukhalafah?

Suppose two people are fighter and they are hurling insults at each other, if one says that my father is not a coward and the other person says my mother is not a fornicator. Here this person is implying something about the other person’s mother.

Here Imam Malik and Imam Ahmad say that the person who said my mother is not a fornicator, then that person should be punished for the crime of slandering

There have to be special circumstances for the ruling of mafhoom al laqab to be applied.

Hadith: You have to pay zakat on sheep
Does this mean that zakat is not applicable for other animals which graze?
There have to be special circumstance or context for the ruling of mafhoom al laqab to be applied.

Here we are just saying that zaid is a scholar but we are not making a statement about others.

Shaikh was contrasting it with the verse that you can marry believing slave women. And here the mafhoom is applied, because there was a reason that Allah swt defined this specific attribute of slave women to be believing women.

2011-04-18 Class Notes

We have discussed six different types of mafhoom al mukhalafah. .... lists 13 different types of mafhoom al-mukhalafah and one of them is mantooq and not mafhoom. We have covered the main topics.

This concept is very important for the study of Quran and Hadith. There is a dissertation that just discusses mafhoom al shart for verses from Baqarah to Nisa which is over 600 pages long and there are a number of verses which are invokes mafhoom al shart.

Q: Would you be able to recognize when mafhoom al mukhalafah is being invoked even when the individual is not stating that he is relying on that concept?
A: Shaikh has seen that the Hanafis rely on this concept even though they don’t call it by that name and even though they do not give credence to this concept.

Important to be able to identify when mafhoom al-mukhalafah is being invoked.

Q: Are you convinced that mafhoom al mukhalafah is a justifiable way by which a verse indicates it ruling?
A: We will discuss the Hanafi rebuttal later.

Surah Nur verse 33

Sahih International
... And do not compel your slave girls to prostitution, if they desire chastity, to seek [thereby] the temporary interests of worldly life. And if someone should compel them, then indeed, Allah is [to them], after their compulsion, Forgiving and Merciful.

What is mafhoom al mukhalafah of that verse?
Does this mean that if they do not desire chastity then it is ok to force them to prostitution.

The proponents of mafhoom al mukhalafah are aware that certain conditions have to be met before deriving rules by apply it.  Sometimes in a speech, the opposite of what you say is true but sometimes it is not. The recognition of this fact, greatly weakens the application of mafhoom al mukhalafah, because you don’t know whether the application of it is valid or not.

Proponents of mafhoom al mukhalafah accept its validity and are aware of its weakness, however it is still a textual ruling and it takes precedence over a non-textual ruling such as qiyaas or analogy.

Conditions that must be met before mafhoom al mukhalafah can be invoked to derive rulings

There are 11 conditions, we will skip a few of them.

Condition #1: If mafhoom falls in the same scope of understanding as the wording of the text then you cannot apply mafhoom

We described mafhoom al muwaafaqah by understanding the wording of the text and the scope that is understood by the wording of the text. And if something falls in that scope and the mafhoom also falls into that scope then we cannot apply it.

For example, you cannot say uff to your parents, does that mean that you can beat your parents?
Some one could understand that you could do that, but the scope of meaning of the expression uff means dont do harm to them and beating your parents would cause harm and it falls in the same scope. Hence you cannot apply mafhoom al muwaafaqah in this case.

If there is an expression that is lighter in scope than uff, then can you say it (the lighter expression) to your parent?

Another way to say this is that mafhoom al-muwaafaqah will overrule mafhoom al-mukhaalafah.

Condition #2: A description of the dominant custom or normal case is not a condition and hence you cannot apply mafhoom al mukhalafah

Sometimes when you describe something and you describe it under normal case, that text is considered a description and nothing else.

Surah Nisa verse 23 in which Allah swt is describing the category of women that you are not allowed to wed. And later in the verse, Allah swt describes your step daughter of those whom you have consummated in marriage and they are staying with their mother and normally they would be staying with them.

When you think of step daughters, you think of them staying with their mothers and their step fathers. This is a description of the normal case and it is not a condition. It is just a description of the normal case.

So what would be a fiqh conclusion if you applied mafhoom al mukhalafah?
Suppose you married a woman and their daughters never live with you because of their maturity, then those would be eligible for you to marry.

But you cannot apply mafhoom al mukhalafah because it is just a description of the normal case and not a pre-requisite for you not to marry.

Ibn Hazm does not accept qiyaas or any of the mafhooms and he says that if your step daughter does not live with you then you can marry her.

Condition #3: A verse is revealed about some custom of that time and hence you cannot apply mafhoom al mukhalafah to that verse.

It is not part of conceptualization of something but it is an actual description of an act that took place when the ayat was revealed?

Surah Al Imran verse 130. How many of you have thought about this verse?
Allah swt says believers do not devour riba, double and tripled, in order that you may succeed.

Does this mean that you cannot take heavy riba and is it okay to take a smaller riba?
No. Shaykh had some commentary about how some economists incorrectly state that riba was gradually eradicated and first it was the heavy riba and then the lighter riba, which is an incorrect understanding.

This verse is describing the custom or practice of the time, when an individual who had borrowed money and was unable to pay it at the end of the year, then the riba was doubled, and so on for the next year.

Since this was practice of that time we cannot apply mafhoom al mukhalafah.

Surah Al Imran verse 3:28 , Allah swt says dont take disbelievers as auliayas instead of believers.

Does this mean you can take disbelievers as auliyas as long as you also take believers as auliyas? No

This was a custom of the time, the hypocrites were taking disbelievers as auliyas and not the believers.

This condition is "The Qualifying text cannot refer to what is been practicing at the time of revelation"

Condition #4: You cannot apply mafhoom if a number is used in the verse for purpose of exaggeration

Mafhoom al adad which is the usage of the number. If the numerical value is stated for balagha or for the purposes of exaggeration, and it is not meant to be an exact number.

Surah Tauba verse 80, even if you ask forgiveness for 70 times, Allah swt would not forgive them.

Here the number 70 is not a stipulation and it is used as an exaggeration and hence you cannot apply mafhoom al mukhalafah.

Condition #5: If the condition or stipulation of the text is targheeb or tarheeb then you cannot apply mafhoom al mukhalafah to the text

Condition and stipulation of the text should not be just for targheeb and tarheeb. Targheeb is to exort people to do good. And tarheeb is intimidation to scare people from doing sins.

It looks like a condition but it is not a condition, it is encouragement or discouragement.

Sahih International

There is no blame upon you if you divorce women you have not touched nor specified for them an obligation. But give them [a gift of] compensation - the wealthy according to his capability and the poor according to his capability - a provision according to what is acceptable, a duty upon the doers of good.

Surah Baqarah verse 236 which talks about maintenance of the divorced women, at the end of the verse, Allah swt says this is a duty upon people of good. Suppose someone say that I am not of the Muhsineen so this does not apply to me. This exhortation at the end of the verse is to encourage people to do good and it is encumbent on all who are divorcing to pay maintenance

Surah Taubah verse 36, Allah swt says out of 12 months, four are sacred and do not wrong yourselves.

What is implied for the other 8 months?

You cannot apply mafhoom al mukhalafah because what is described is to enforce the gravity of sinning in the holy months.

Condition #6: Allah may state something in the Quran to demonstrate some kind of blessing as a restrictive condition, then you cannot apply mafhoom al mukhalafah to the text

Surah .16:14 Allah swt says

Sahih International

And it is He who subjected the sea for you to eat from it tender meat and to extract from it ornaments which you wear. And you see the ships plowing through it, and [He subjected it] that you may seek of His bounty; and perhaps you will be grateful.

Does this mean you can eat any kind of non-fresh meat?

Allah swt is describing the bounty of the fresh meat and hence you cannot apply mafhoom al mukhaalafah.

Condition #7: Cannot apply mafhoom  to a statement of the prophet when in response to a question.

If prophet is asked about a specific condition and you cannot apply mafhoom to the response from the Prophet (saw).

Prophet was asked about freely grazing sheep and is there any zakat on it? And he answered there is zakat for freely grazing sheep.

So you cannot apply mafhoom to the above statement since the answer is in response to a specific question.

Shawkaani does not accept this condition.

Condition #8: What is derived from mafhoom al mukhalafah cannot contradict the Al-mantooq

Surah Baqarah verse 178

Sahih International

O you who have believed, prescribed for you is legal retribution for those murdered - the free for the free, the slave for the slave, and the female for the female. But whoever overlooks from his brother anything, then there should be a suitable follow-up and payment to him with good conduct. This is an alleviation from your Lord and a mercy. But whoever transgresses after that will have a painful punishment.

What is mafhoom Al-mukhalafa ? If a free person kills a slave, what can be done here?
What about if a slave kills a free person?

During the time of jahilliyah, some tribes were greater than some other tribes, if slave from tribe 1 killed a slave from tribe 2 and if tribe 2 was superior than tribe 1, the tribe 2 would demand the killing of a free man or more than one person from tribe 1. Similarly woman from  tribe 1 killing another woman from tribe 2. If tribe 2 is dominant, they might ask for greater recompense.

The mafhoom al mukhalafah contradicts a general verse described in another ayat 5:45 which describes

Remember the mafhoom al mukhalafah cannot contradict the mantooq of the verse.

The verse about shortening the prayer while travelling.

Sahih International

And when you travel throughout the land, there is no blame upon you for shortening the prayer, [especially] if you fear that those who disbelieve may disrupt [or attack] you. Indeed, the disbelievers are ever to you a clear enemy.

What does Allah swt tell us in the Qur’an  Nisaa:101

The condition that is mentioned is that if you are in fear while travelling but we do not apply the  mafhoom al mukhalafah because we have clear text from hadith of the prophet and if we applied the mafhoom al mukhalafah, it would contradict the clear statement of the prophet which states that this is a rukhsa from the shariah.

Homework: Think of a condition that is only mentioned by the Shafiees and not by other madhabs.

Class Notes 2011-04-25

Conditions for applying mafhoom al mukhalafah
1. Understood meaning should not contradict any stated text.  [Questions about contradiction is a separate field, it is not technical condition, but we will leave it here.]
2. Proposed mafhoom al mukhalafah should not fall in the scope of the mantooq which also includes mafhoom al muwafaqah or understood meaning or congruent understanding of the text. So not beating your parents falls into the same scope as not hurting your parents.
3. If a condition or quality that has been stated is for restricting the ruling and not for any other reasoning then you can apply mafhoom al mukhalafah. For example targheeb and tardheeb, if the condition is not for any of these reasons and it is just for restricting the ruling which you can determine by process of elimination, such as you can marry believing slave women, here it is just as a restriction and now you can apply the mafhoom al mukhalafah to it.
[[[[[Ed: Notes from previous class might be incorrect on this point, need to fix them]]]]

Is mafhoom al mukhalafah a legitimate way of deriving a ruling?
When you study fiqh, you see the opinions are all over the map. In general, Hanafis do not accept it. In the Shafiee school, you find some scholar who reject it completely, such as Ghazali. Vast majority of Shafiee scholars accept it.

Even on particular types of mafhoom there are disagreements. There is only one Shafiee scholar who accepts Mafhoom al laqab, wherein a group or name is mentioned, this does not mean that it does not apply to others or some other groups.

Mafhoom al gayaa --- most scholars accept even some hanafi scholars.

Biggest debates are on Mafhoom al Shart and Mafhoom al ......

Preface: If you have some strong evidences or proof, then it is sufficient for you to present them. But if you present more and more evidences and arguments, this implies that they are not very strong arguments.

Hanafi Arguments against Mafhoom al Mukhalafah

1. Results of Mafhoom al Mukhalafah are many times clearly rejected

In Surah Qaf, Allah swt says never say I will do it tomorrow unless Allah wills. Does this mean that if you are going to do two or three weeks from now, you do not have to say Insha-allah.

Another example, Surah Taubah v36

If you have many examples that lead to results that are to be ignored, then you have to reject the method, according to the Hanafis.

But this is an unfair argument or straw man fallacy, because there are certain conditions need to be applied before we can apply Mafhoom al Mukhalafah. The Shafiees say if you do not apply Qiyaas or Taweel properly, then you will get incorrect results. You have to apply a technique properly to get the correct results.

So this is an unsound argument and we can remove it.

2. It is not possible to conclusively conclude that the condition/quality is meant to restrict the ruling

One of the author says that we could apply this reasoning to human speech and not to the words of Allah swt. For example, how can we say in the verse of marrying believing slave women, that the condition believing is a restriction to the ruling.

The reason against this argument is that you don’t have to have certainty to come to a Fiqh conclusion, you need a sufficient reason to come to a conclusion, it does not have to be with certainty. We just need dhaan ar rajih which is sufficient to come to a fiqh conclusion.

Since this condition does not apply to other rulings that are derived from the text, then this argument is also unsound and we can remove it.

3.  Many times Allah swt mentions the results of Mafhoom al Mukhalafah, thus indicating that Mafhoom al Mukhalafah is not a proper tool of inference.

Surah Nisa verse 23, in which Allah swt is speaking about women you are not supposed to marry and describes the step daughters from among your wives with whom you have consummated in marriage.

Which means that those whom you have not consummated in marriage, then you can marry their step daughters.

But in the verse, Allah swt explains the second part that you can indeed marry the step daughter of wives whom you have not consummated in marriage.

Is this redundant speech?
No there is nothing preventing Allah swt from mentioning something or repeating something or further explaining a verse.

Sometimes salah is mentioned, sometimes part of salah is mentioned. So this argument can be refuted by presenting these examples.

Hanafis accept Mafhoom al Muwafaqah and we can show that Allah swt says don’t say uff to your parents and in other verse he says don’t shout at your parents, which shows that Allah swt is mentioning a result of Mafhoom al Muwafaqah, and you cannot say because of this Mafhoom al Muwafaqah is not a proper tool of inference.

This is not an acceptable argument. This could be used a proof for Mafhoom al Mukhalafah. And we can cross it out.

Most Important Argument 4. The non-stated case may have the same 'illa (legal cause) as the stated case.

This is problematic issue that exists in all laws including secular laws. There is a famous German Jurist Paul Oertman who says that there are two opposite ways to derive rulings which are analogy and argument a contrario. It is possible to reason both ways. You have laws about A and B and not about C then since the law does not state about C then it does not apply to C. Other way is since it applies to A and B it also applies to C. This is a gist of the problem that Hanafis have with Mafhoom al Mukhalafah which is the antithesis of qiyaas.

If you don't have means to marry believing slaves, what is illa for this ruling?
If the illa is belief then you cannot take it to a non-believing slave.

This is what led Ghazali and other Shafiee scholars to reject Mafhoom al Mukhalafah, which is reverse Qiyaas.

Another example: You have to pay zakat on freely grazing sheep.
Is the reason why you have to pay zakat is it because it is sheep or is it because it is freely grazing?
Hanafis will use Adam al Asli and say that there is no ruling to be derived from it.

There is difference between illa and restrictive quality or condition. If you have restricting quality or condition, it is not a restriciting condition for the illa.

The restricting quality of believing slaves is not an illa. But the problem is that there is a fine line between Mafhoom al Mukhalafah and Qiyaas.

5. Argument to authority

They argue that some leading Arabic scholars do not consider Mafhoom al Mukhalafah to be a valid linguistic argument. Scholars such as ibn Jinni (the author of Al-Khasais, a book on the special cases in arabic grammar), Al-Faris & Al-Akfash

You just have to find other authorities who say this is a valid linguistic argument, such as Imam Shafiee who is leading Arabic scholar. And others such as Abu Ubaid.

We could say that this is not a sound argument and we can cross it out.

Class Notes 2011-05-02

This is the last class for the quarter. Tonight we will finish up mafhoom al mukhalafah.

Argument #4 against Mafhoom al Mukhalafah: The non-stated case may have the same 'illa (legal cause) as the stated case.

This is an argument being made by Hanafis who are pro qiyaas.

Is this really a proof or argument against mafhoom al mukhalafah?

If we have three cases A, B and C. And if we have text that covers A and B. C is not covered by the text. Should we understand C is not covered by the text because of mafhoom al mukhalafah? Or do we consider C to be analogous to A and B?

Statement 1: This is case A: If someone sells pollinated date palms, their fruit will be for the seller, unless the buyer stipulates against it. (Here the seller does the manual labor of pollinating the date palms)

Statement 2: This is case C: Suppose you are selling non pollinated date palms. To whom should the fruit belong to?
If you apply mafhoom al mukhalafah, then the fruit belongs to the buyer.

And there might be some other case B.

Hanafis say that the hadith does not talk about case C, because they do not apply mafhoom al mukhalafah. The Hanafis will look for parallel cases and apply analogy. They say statement 1 does not lead to statement 2.  They will say that there are other rulings such as for selling real estate and they say there are two stipulations, one for movable items and one for non-movable items. Non-movable items will go with the land. Buyer will get non-movable, and the movable will go with the seller. Fruits in the tree are movable.

Statement 3: If non-pollinated date palm then the fruits belong to the seller.

Hanafis introduce statement #3. And they say that the illa is the same as that of the sale of real estate.

Which statement has higher priority, S2 or S3?
Why did the prophet saws make this statement, for those who are arguing for higher priority to statement #2.

If we assume Statement #3 is correct. Then is it an argument against invoking mafhoom al mukhalafah.

Do those who believe mafhoom al mukhalafah, do they reject qiyaas?
Shafiees do not reject qiyaas. They apply it as warranted.

So this highlights a point, should it be a case for qiyaas or mafhoom al mukhalafah. If the illa is the same, then you dont apply mafhoom al mukhalafah, and the shafiees agree with it. So the argument #4 is simply saying that mafhoom al mukhalafah does not apply always and hence it is not an argument against it. It is deceptive as presented, it is not a case of either or.

So now we can cross out argument #4.

Argument #6: Principle of caution when applying the shariah.

If some one were to say, if so and so comes to you in the morning be generous to him. What about if he comes to you in the afternoon? Does it say that you should not honor him? The cautious thing would be to ask what should you do if he comes in the afternoon.

So they say that this should apply to shariah and you should be more cautious about what Allah swt has not addressed. You cannot say definitively and therefore you should not apply it.

Ihtihaat or caution has to be based on evidence. You certainly don't need certainty to apply the law. This is something well known of the language and the Quran. When you apply it, it is not due to lack of caution, it is based on preponderance of evidence.

Reminder of how words indicate meaning and the different dalaalatal tadammun, dalaalatal ..... that we discussed earlier. Three ways

1. Dalalat al Mutaabaqah (دلالة المطابقة) - equivalent signification - complete correspondence. When you refer to Zaid and use the term by which you referred to him.
2. Dalalat al Tadamun (دلالة التضمن) - incorporational signification - partial correspondence. When you use the term house and you refer to the basement or family room.
3. Dalalat al Iltizaam (دلالة الالتزام) - implicational signification (something external to what is being said)

The answer to this argument is that these are not the only three ways in Arabic language in which meanings are conveyed.

Their argument is that if prophet saws makes a statement about something and A and B are covered and C is not covered. Then what is the status quo (in arabic al aadam al asli) should be invoked or say things are permissible unless stated otherwise. And don't invoke mafhoom al mukhalafah.

Those who are in favor of mafhoom al mukhalafah also present their arguments. They claim that this approach to the text was also the approach of the prophet saws. And the example that they give is from Surah Taubah verse 80 about asking forgiveness for the disbelievers. Even if you ask forgiveness for more than 70 times, we will not forgive them. The prophet said that I have been given leeway to ask for more than 70 times. And he says that if I were to ask for forgiveness more than 70 times then they might be forgiven.

Is this a sound argument for mafhoom al mukhalafah?

Response of Hanafis is the standard response. This report is ahad and not mutawatir. The second response is the following: Majority of the people’s understanding is that it literally does not mean that even if the prophet went over 70 they will not be forgiven, and that 70 is used for exaggeration, and the prophet is showing his eagerness to ask for forgiveness.

Second argument is that this was the approach of the sahaba

Surah Nisa verse 101 which deals with the conversation of ya3la ... and umar ibn khattab about shortening the salah. There is no harm in shortening the prayer if you are travelling and shortening the prayer. Umar said that I was confused in the same manner as you and I asked the prophet and he replied that this is sadaqah from Allah swt and that we should take from it.

How would the Hanafis respond to it?
They respond that if there is no fear from the enemy then the prayer should return to al asl or the default case. Bukhari and Muslim report a narration from Ayesha that prayer originally was two rakat and it was extended to four rakat.

The verse clearly says that there is some shortening involved. So we should be shortening the prayer. So this argument should be made as the approach of the prophet.

Since the prophet did not object to their understanding and this means he approved of their understanding of the application of the mafhoom al mukhalafah tot the verse  and this is case closed against mafhoom al mukhalafah.

Another example of the approach of the sahaba.

Surah Nisa verse 23 which delineates the women you are not allowed to marry. And it talks about step daughters.

So here we understand the application of mafhoom al mukhalafah that you could marry a step daughter of woman whom you had not consumated in marriage.

Then there is report of Ali when he met somebody in Tay....  ...... ....  .....

Ibn Katheer says that this chain is strong from Ali ibn Taalib and it is strong chain and it is a very strange statement. Our shaykh Ad Dhahabi said he asked Taymiyyah and he did not give any judgement.

Sometimes even our great ulema could not fathom and were confused about some problematic statements.

Ibn Hazm quotes this report.

Whether or not you agree with Ali’s conclusion, it seems like Ali is applying Mafhoom al Mukhalafah. This is the opinion of ibn Hazm and yet he does not believe in applying mafhoom al mukahalafah.

Hanafis derived the process of deriving rules from the rulings of Imam Hanafi.

They say Ali invoked al asl or did he invoke mafhoom al mukhalafah to determine the permissibility of marriage? Which principle did he invoke?

He mentions that he might send quick notes or record a lecture or not do anything.

Majority of contemporary writers conclude that mafhoom mukhalafah is a valid argument. Almost everybody else except the author of the required text.