Islamic Classes‎ > ‎2012 Winter‎ > ‎

Usool al Fiqh

Beginning Usool al-Fiqh IX - Islamic Legal Theory
Class taught by Shaikh Jamaal Zarabozo (www.jamaalzarabozo.com)


Beginning Usool al-Fiqh (Islamic Legal Theory) IX:
An introduction and overview to the entire field of Islamic Legal Theory.
In this quarter, there will be a discussion of takhsees (what particularizes general texts)
Prerequisite: None.
Text: Principles of Islamic Jurisprudence by Mohammad Hashim Kamali
Time: Monday 7:45 - 8:45 PM PDT (Feb 27-March 5 8:00-9:00; on March 12, it will be 7:45-8:45 again)
Winter 2012: January 9 - March 12 2012

2012-01-09 Class Notes


Topic this quarter is related to concept of Takhsees. First, we want to get good grasp of this topic so there will be some review of last quarter.

What is Takhsees?
In English it can be called ‘Particularization’. Takhsees for mutaqallimoon is not a kind of change or abrogation but explanation of the original text. Let’s say we have a text (e.g. a verse in the Quran) and it says something in a general (Aam) manner. For example the ayah of the thief in the Quran:
5:38


So this general word (thief) is applying to every member of the set. However, takhsees now tells us that even though the it is a general word but it is not intended for the whole set, there is a sub-set to which this law does not apply. It is analogous to common laws, where e.g. in the first line it would say that 1. cut the hands of the thief, then there are following clauses or exceptions (a) the above law does not apply to X (b) the above law does not apply to Y.

Particularization does not mean Abrogation. Rather from the time it was revealed the intent was to exclude these groups. In the Usul al Fiqh history, we have two different ways Usul developed. One is the Hanafi approach and the other is non-Hanafi approach. Historically non-Hanafi (all 3 schools) have been closer to each other, however, Hanafis had a slightly different approach.

Hanafi methodology for takhsees
For the Hanafi, the indicators of the Particularization (Indicators of Takhsees or Al-Mukhassas). Note: We call these indicators since they are a form of bayan (explanation) and these things are not doing the act of Particularizing, therefore we should not call them particularizing agents. The Particularizing is being done by Allah (swt) or by Prophet (saw). They are not abrogating the law but are only indicating to which sub-set the law does not apply.   

1) Indicators must be complete statement, and they cannot be clause (if it is a clause, and not a complete statement then they call it Qasr. Contrast al Mukhassas with Qasr. Al Mukhassas is with the complete statement and Qasr is with a clause) There are fiqh remifications of distinction between Qasr and Takhsees. For hanafis the general text is considered Qatai (Definitive). If takhsees is made then the original text is not considered Qatai any more (it is called Dhanni), however with Qasr the original text remains Qatai.
2) For Hanafis, the indicator of takhsees has to be at the same time as the general text whereas for non-Hanafis the chronology of the indicators and the general text does not matter. The hanafi position in this aspect is stronger.
3) For takhsees to occur, the original text and indicator of takhsees must be of equal strength. Since texts of are equal strengths they consider (such situation of) takhsees as a conflict between two texts. If original text is Qatai then the indicator should also be Qatai.

Non-Hanafi methodology for takhsees
1) Indicators can be clause
2) Practically speaking they are not concerned about the chronology
3) The original text (aam) is dhanni for them so takhsees can be made by Dhanni text as well.

Given this, the non-Hanafis will be more open to takhsees then the Hanafi scholars.

Two types of Takhsees
The indicator of takhsees can be divided into two categories:
Connected (Muttasil) and
Non-Connected (Munfasil).

The following are Muttasil:
Exceptional Clause: Al Istisnaa,
Conditional Clause (Al-Shart)
Modifying Clause (Al-Sifaa)
Limiting Clause (Al-Ghaya)

Exceptional Clause: Al Istisnaa
In the case of connected or Muttasil. It is directly connected to the original text.

For example: Everybody passed the class except Umar.
In the above statement we are specifying the exception for the set of students who passed the class. Would this be a case of takhsees for the Hanafis? It is Qasr, because except Umar is not a complete statement, it is a clause.


Non connected takhsees or Munfasil Takhsees

If you have a verse from the Quran, what might be an example of Munfasil takhsees? Shaikh wants us to come up with this list. For example, a hadith making takhsees is an example of indicator which is Munfasil.

Another verse of the Quran
Mutawaatir Hadeeth
Non mutawaatir Hadeeth
Ijmaa
Qiyaas (Analogy)
Actions of Prophet (saw)--we are adding this here for completeness, since this category has strong overlap with the term “hadith”, but from fiqh point of view his actions are distinct from his statements.
Statement of a sahabi
Actions of the people of Madinah ( important for the Maliki madhab)
Maslaha (important for the Maliki School)--Maslaha means general or public welfare
Al-Urf (Custom)
Maqasid al Shariah (this is close to Maslaha)
Mafhoom of the Verse (i.e. non-stated meaning)--Hanafi will not accept this
Al-Aql (logic, common sense, rationality)
Al-Hiss (sensory perception e.g. When Allah (swt) mentions everything of previous nations was destroyed, here we know through sensory perception that “everything important” was destroyed. We know this since we can still see some of the ruins that exist).

InshaAllah next week we start with Muttasil, specifically Istasnaa.


2012-01-16 Class Notes


Review: We are discussing the indicators of takhsees (particularization). Takhsees is what particularizes a general statement. Indicators of takhsees show the intension of the speaker. So if general statement applies to a set, then takhsees shows us that there is a sub-set to which this general statement does not apply. We also maintain that this sub-set was excluded by the intention of Allah (swt) from the beginning. This is why we are calling it indicators of takhsees.

Last time we started discussing the indicators of takhsees and divided into 2 broad categories of Muttasil (connected) and Munfassil (Non-connected). Today we start with Muttasil, inshaAllah.

1) Exceptional Clause
2) Conditional Clause
3) Modifying Clause
4) Limiting Clause


1) Exceptional Clause (Al-Istithnaa): It is an exceptional clause which is directly connected to the original text.
Lets say: “Everyone stood except Zaid”. Is it takhsees? For non-Hanafi’s it is Takhsees, but for Hanafi’s it is only Qasr as the indicator is not a complete statement. In the Arabic language the word for “except” is ‘ILLA’. So Istithnaa means an exceptional clause that begins by illa or one of its sisters. Sisters of illah here is a grammatical term which means those words that have the same meaning and grammatical effect as illa, e.g. Siwa, Hasha. There are also words which have same meaning but not the same grammatical effect, and hence we do not consider such words as sister of illa (e.g. for Illa, it is the words ‘dun’ and ‘ghayr’). In Arabic the grammatical effect of a particle or haraf is shown through the case marking on the word that follows, therefore even if some of the words have the same meaning as “except” they do not result in the same case marking as illa and hence are not grammatically equivalent to illa.

Logically speaking, there are 3 basic components of “istithnaa”
1) the “except” particle, illa or one of its sisters
2) the thing being exempted
3) the set from which it was exempted (i.e. general statement).

There are other words in English which can be used in place of “except”, such as “other than”, “save”, “but”, etc. We could have said “everyone stood other than Zaid”. Here “other than” is sister of “except”. We see a lot of examples of this category in the Quran.

For example Surah Nahl 16:106). Here Allah (swt) says:

مَن كَفَرَ بِاللَّهِ مِن بَعْدِ إِيمَانِهِ إِلَّا مَنْ أُكْرِهَ وَقَلْبُهُ مُطْمَئِنٌّ بِالْإِيمَانِ وَلَٰكِن مَّن شَرَحَ بِالْكُفْرِ صَدْرًا فَعَلَيْهِمْ غَضَبٌ مِّنَ اللَّهِ وَلَهُمْ عَذَابٌ عَظِيمٌ

Sahih International
Whoever disbelieves in Allah after his belief... except for one who is forced [to renounce his religion] while his heart is secure in faith. But those who [willingly] open their breasts to disbelief, upon them is wrath from Allah , and for them is a great punishment;

Is this a good example of al-Istithnaa, it has the big set as the people who disbelieve in Allah after believing, then it has the illa, and then the thing that is being exempted (those who were coerced).

Everyone stood, except Zaid did not stand. Is this a good example?
Yes, it meets all the components. (no this is not Istithnaa, as the exception is not a clause rather a full sentence)

Everyone stood. However Zaid did not stand. Is this a good example?
This is not an example of Istithnaa, since the indicator of particularization is a complete statement and it is not a clause. Al-Istithnaa has to be a clause and not a complete sentence, so this is not a case for Isthithnaa.

“Be generous to the tall people of Sacramento”. Is this case for Isthithnaa? No this is not Isthithnaa since it does not fulfil the first condition of the sister of word “except”. We made some kind of takhsees by describing “tall people of Sacramento” in the sentence but it is not istithnaa. Can we make it into istithnaa? If we say “Don’t be generous to people of Sacramento except tall people”, even though there is istithnaa in this sentence it is not directly equivalent of the original statement as we have introduced mafhoom al mukhalifa, which changes the meaning and intent of the original statement. (The original statement was silent about people who are not tall, whereas the second statement is specifying to be not generous to them)

There are 3 types of Istithnaa:
1) One is called Mutassil (connected) istithnaa: here it means that the excepted group is from the same set as the original group. One can ask why we are identifying this as a type of the istithnaa, as this should be understood that the exempted group has to be from the original group. We are highlighting this because it is the most common, however, there are other types of istithnaa where this is not true. Example: Everyone passed the exam except Umar. If Umar is one of the students of the class then this Istithnaa al-muttasil.

2) The emptied or void Istithnaa: This is where the original set is not mentioned. For example, “No one remained except Umar”. Is this good example of emptied istithnaa? Yes, as the original set is implied but not mentioned. The emptied istithnaa is not very important.

3) Istithnaa al Munqati (Unconnected): This is quite important. This is where the excepted group is not from the same set as the original set. For example, some verses from the Quran.  
Al-Hijr V:30-31
Sahih International
So the angels prostrated - all of them entirely,
Sahih International
Except Iblees, he refused to be with those who prostrated.
----------------------------------------------------------------------------------------------------------------------------------------------------
Al-Waqiah V:25-26
Sahih International
They will not hear therein ill speech or commission of sin -
Sahih International
Only a saying: "Peace, peace."
-----------------------------------------------------------------------------------------------------------------------------------------------------
An-Nisa V:157

مَا لَهُم بِهِ مِنْ عِلْمٍ إِلَّا اتِّبَاعَ الظَّنِّ

They have no knowledge of it except the following of assumption. (here it is takhsees of understood meaning and not the stated meaning)
except

Angels --------------------> Iblees

except

Evil/sinful speach -----> Salam

except

no knowledge ----------> following conjecture


So these are examples of Istithnaa al Munqati, as all of these exemptions are not from the original set. For example, iblees is not from the category of the Angel, so here exempted is not from the original case. Is Iblees angel? There are Muslims who have written books that Iblees is an angel. Most of that has to do with the fact that in Bible Iblees is described as a fallan angel (that may be an issue with the Hebrew translation, as Hebrew may have an Istithnaa munqati’ equivalent which was not properly translated) and also when people read these kinds of verses mentioned in Quran and are not familiar with Istithnaa Munqati’ they may understand that Iblees is one of the Angels.

Is this the case of takhsees? If you look at the concept of takhsees in a diagram then the Istithnaa Munqati’ seems to not look like a takhsees. e.g.  if you say “Muslims have to pray 5 times a day, but the Christians do not have to pray”, it looks odd. So what is going on here?

According to some grammarians when you have Istithnaa Munqati then we also have ellipses (ellipses = something intentionally left out of the statement). e.g. in the case of Surah Nahl, the implied statement is “Angels and all those who were in that company were ordered to bow, they all bowed except iblees”. So here there is an assumption of a bigger set from whom the exception is made. This works for (15:30-31) but what about other verses above? e.g., for Surah Waqiah if we assume a bigger group then is it an example of takhsees? yes, The bigger group here is the speech heard in Paradise.
Some of the grammarians argue that this kind of assumption is built into it and the people who have problem with this kind of construct must be Ajmis (non-Arabs).

When we look at the Istithnaa Munqati’ in this way then it cannot be Takhsees of Mantooq (stated meaning) but it is takhsees of Mafhoom (understood meaning). Hanafis do not accept this kind of Qasr. Does this mean that Hanafis reject verses of Quran? not really. Usool-al-fiqh is related to fiqh, but is fiqh just related to Quran and hadith? No, in wider sense, fiqh touches upon every kind of transaction in life, what hanafi reject is the concept of Istithnaa munqati’ for regular speech. e.g. If we say “I owe Umar $100 minus 1 shirt”, according to Hanafis it does not make sense as the exception is not related to the original set. In everyday speech hanafis do not accept the concept of Istithnaa munqati’, therefore this kind of language is not accepted in Contracts or other legal documents, they will accept this when coming from Quran and Sunnah. The non-hanafi will deal the statement above by understanding it that I owe Umar $100 minus price of a shirt, which again goes back to the mafhoom of the statement and not the stated meaning.

Conditions for validity of Istithnaa:
1. The excepted statement must be connected to the general statement. In the Quran and Sunnah, the statements are always connected. Why did the scholars mentioned this as one of the conditions? In fiqh issues, if I told you that I will sell you all the markers for $10 and then after a month I say except green and blue marker, it will make impossible to deal with any kind of contracts.

2. The excepted clause cannot exhaust the entire original set. For example, if I say “i owe you $100 except $100”. Then to Scholars the last part is Laghw (meaningless). So they read it only as “i owe you $100”. They do not consider the whole statement as laghw, so only meaningless part (exceptional clause) is removed. Then next question is that how much of the set can the Istithnaa take out? Can we exempt more than half? Can we say “All students passed except Umar, Mohammed and Maalik”, if there are only 5 students in the class, does this statement make any sense? There is debate among the scholars whether the excepted part can be a major portion of the original set. As Shaukaani points out that their debate has no weight against the verses of Surah Al-Muzammil V:1-4

يَا أَيُّهَا الْمُزَّمِّلُ قُمِ اللَّيْلَ إِلَّا قَلِيلًا نِّصْفَهُ أَوِ انقُصْ مِنْهُ قَلِيلًا أَوْ زِدْ عَلَيْهِ وَرَتِّلِ الْقُرْآنَ تَرْتِيلًا

Sahih International
O you who wraps himself [in clothing], Arise [to pray] the night, except for a little -Half of it - or subtract from it a little Or add to it, and recite the Qur'an with measured recitation.

It is a direct evidence that a major part of the set can be exempted from the original set. Hence the debate of the usoolyeen is useless, the only restriction is that you cannot take out the whole set.

3. There can be no conjunctions between the first statement and the exceptional clause. e.g. “I owe him $100 and except $10” does not make sense with conjunction.

Next time we will inshaallah discuss how is Istithnaa applied.


2012-01-23 Class Notes


Review of Istithna: If I say “People stood but Zaid did not stand” is this Istithna? In Arabic it is “Qaam Annas walakin lam yakun Zaid”. “Lakin” is not a sister of Illa, but for time being assume that it is, as in English they both translate to but. The key is that if we separate out the last part after but, it is “Zaid did not stand”, this can be a sentence on its own. Therefore it does not meet the requirements of Istithna, where the exceptional clause is a clause and not a complete sentence.

One of the sister of Illa, is the word Ghayr in Arabic. In Surat ul Fatiha, we have:

اهْدِنَا الصِّرَاطَ الْمُسْتَقِيمَ


صِرَاطَ الَّذِينَ أَنْعَمْتَ عَلَيْهِمْ غَيْرِ الْمَغْضُوبِ عَلَيْهِمْ وَلَا الضَّالِّينَ


So here is it Isthithna? One possibility can be that it is Istithnaa Munqati’ as the set being excepted does not belong to the general set. All of the mufasiroon are agreed that it is not Istithna Munqati’ and they say that it is Siffa. It is not Isthithna Muttasil since it is related to two different sets. The main set is those whom Allah has blessed but the other set of Maghdoob alaihim is what we take refuge in Allah from. So for the ayat above, the Siffa means adjective, here it is Siffa for “al-ladheena”.

Consider the statement: “Everyone stood except Zaid”
Does it say something about Zaid? Yes, that Zaid is not standing, by Mafhoom al Mukhalafah.

How about the opposite, “No one stood except Zaid”, does it say anything about Zaid? Does it make a difference if it is Istithna of affirmation or from negation? In general we have the following:

1. Istithna from affirmation-----implies--------negation
2. Istithna from negation-------implies--------affirmation

For the Hanafi’s if you say ‘everyone stood except Zaid’:  Hanafis don’t accept mafhoom al mukhalafa. They say that Zaid did not stand, but they get it from the absence of evidence and not from Mafhoom al Mukhalafah. All of the madhabs agree with Isthithna from affirmation, but the way they get to the ruling is different.

Nobody stood except Zaid: Hanafis say that this is a statement of what people did not do, and it is a statement about what Zaid did, but you need mafhoom al-mukhalifa to arrive at what Zaid did, which hanafis do not accept.

Hanafis quote a hadith, which says that there is no nikah except with a wali (meaning: there is no nikah without wali). They say if you have a wali it does not mean that you have a marriage. Similarly they quote another hadith “La salaa ill be tahoor”, there is no prayer except with purification (meaning: there is no prayer without purification). you can be in a state of purification but there might have been no salah.

The shafiees refute the Hanafi position.

For point 2 above, the non Hanafis, the Jamhoor say that it is true unless you are speaking about a conditional clause. The real view or position of non Hanafis say that Istithnaa of negation implies affirmation except for conditional clauses.

The two hadith that Hanafis use are not contradicting the Jamhoor position, since there is a conditional clause in both of these hadith.

What is the strongest way to refute the Hanafi. The shahada la ilaha illallah is isthithna from negation implies affirmation of Allah (SWT) being the only ilah. Shafiee uses this example to refute the Hanafi view about isthithna from negation does not imply affirmation, as if you say it is not an affirmation for shahada then you have a big problem..

So isthithna from negation mean affirmation (many hanafi usoolyeen agree on this as well).

What about isthithna from tahreem (prohibition)? What are the implications of it?

Allah swt says in Surah Nisa verse 29:

يَا أَيُّهَا الَّذِينَ آمَنُوا لَا تَأْكُلُوا أَمْوَالَكُم بَيْنَكُم بِالْبَاطِلِ إِلَّا أَن تَكُونَ تِجَارَةً عَن تَرَاضٍ مِّنكُمْ

O you who have believed, do not consume one another's wealth unjustly but only [in lawful] business by mutual consent.

In this verse we have a prohibition (do not consume one another’s wealth). And there is illa which is an exception. Does it meet the condition of isthithna? Yes, as the statement after illah begins with “An” which always implies that the statement that follows is a clause and not a separate sentence. So now does Istithnaa of prohibition implies obligation? No, Ulema are agreed that it only implies permissibility.

Principle: Isthithna from Tahreem means Ibah (permissibility)

Can you also argue from the other side, that Isthithna from Wajib become permissible as well? Yes

Principle: Isthithna from Wajib means Ibah (permissibility)


Example 1 from Quran: Surah Nur verse 4 and 5

وَالَّذِينَ يَرْمُونَ الْمُحْصَنَاتِ ثُمَّ لَمْ يَأْتُوا بِأَرْبَعَةِ شُهَدَاءَ فَاجْلِدُوهُمْ ثَمَانِينَ جَلْدَةً وَلَا تَقْبَلُوا لَهُمْ شَهَادَةً أَبَدًا ۚ وَأُولَٰئِكَ هُمُ الْفَاسِقُونَ

And those who accuse chaste women and then do not produce four witnesses - lash them with eighty lashes and do not accept from them testimony ever after. And those are the defiantly disobedient,

إِلَّا الَّذِينَ تَابُوا مِن بَعْدِ ذَٰلِكَ وَأَصْلَحُوا فَإِنَّ اللَّهَ غَفُورٌ رَّحِيمٌ

Except for those who repent thereafter and reform, for indeed, Allah is Forgiving and Merciful.

Here Allah swt talks about false accusations against chaste women and describes the consequences of their actions except those who ask for forgiveness.

So here you have an act of false accusation, the consequences of the act are:
1) flogged 80 times
2) testimony is never to be accepted
3) they are considered faseequn

Illa (Exception) those who ask for forgiveness.

This (illa) exception goes back to what? Does it apply to all three of the consequences as described above or does it just apply to the last one, or the last two?

We are trying to arrive at a principle that when the Isthithna come after more than one statement, does it refer to all of them or just the last one?

We will discuss this later. Let us discuss another verse.

Example 2 from Quran: Surah Nisa verse 92, Illa goes back to the last statement

وَمَا كَانَ لِمُؤْمِنٍ أَن يَقْتُلَ مُؤْمِنًا إِلَّا خَطَأً ۚ وَمَن قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ وَدِيَةٌ مُّسَلَّمَةٌ إِلَىٰ أَهْلِهِ إِلَّا أَن يَصَّدَّقُوا

And never is it for a believer to kill a believer except by mistake. And whoever kills a believer by mistake - then the freeing of a believing slave and a compensation payment presented to the deceased's family [is required] unless they give [up their right as] charity.

Action:
Here Allah swt talks about a believer killing another believer by mistake.

Consequence:
1. Free a believing slave
2. Compensation for the believing family (blood money)

Exception: (Illa)
The family gives up their right as a charity

Should the isthithna be applied to both of the consequences or just the last one?

Freeing of a slave is the right of Allah. This is not being implemented for the benefit of the family that is harmed. The second one (blood money) is for the benefit of the family. So they have to right to give up what they are going to benefit.

Here there is agreement among all of the madhabs that illa just goes back to the blood money only.


Example 3 from Quran: Surah Furqan 68 - 70, Illa goes back to all of the statements

وَالَّذِينَ لَا يَدْعُونَ مَعَ اللَّهِ إِلَٰهًا آخَرَ وَلَا يَقْتُلُونَ النَّفْسَ الَّتِي حَرَّمَ اللَّهُ إِلَّا بِالْحَقِّ وَلَا يَزْنُونَ ۚ وَمَن يَفْعَلْ ذَٰلِكَ يَلْقَ أَثَامًا

And those who do not invoke with Allah another deity or kill the soul which Allah has forbidden [to be killed], except by right, and do not commit unlawful sexual intercourse. And whoever should do that will meet a penalty.

يُضَاعَفْ لَهُ الْعَذَابُ يَوْمَ الْقِيَامَةِ وَيَخْلُدْ فِيهِ مُهَانًا

Multiplied for him is the punishment on the Day of Resurrection, and he will abide therein humiliated -

إِلَّا مَن تَابَ وَآمَنَ وَعَمِلَ عَمَلًا صَالِحًا فَأُولَٰئِكَ يُبَدِّلُ اللَّهُ سَيِّئَاتِهِمْ حَسَنَاتٍ ۗ وَكَانَ اللَّهُ غَفُورًا رَّحِيمًا

Except for those who repent, believe and do righteous work. For them Allah will replace their evil deeds with good. And ever is Allah Forgiving and Merciful.

Actions:
Kufr, killing a soul, unlawful sexual intercourse

Result of the actions:
1. they will meet the penalty
2. Multiplied punishment on the day of judgment and
3. they will be humiliated and reside there in forever

Unless;
They repent

Does the illa apply to all?
As Tawba wipes out everything, the results of their deeds will be erased, so here the illa applies to everything that comes before. So we have two examples of illa. One where it only applies to the last statement and this one where it applies to all of them.

We like consistent patterns and rules. But we have external evidence in the case of example 2,3. Ulema come to an agreement due to the external evidence. In the case of example 2 it was Haqq-ullah which cannot be taken away by the affected family and in the case of example 3, it is the tawba that erases everything.

Principle: We have to first look for the external evidences before interpreting exceptional clauses.

Back to the example 1, there is no external evidence for Surah Noor v4-5. So it is the default case of the exceptional clauses. The Jamhoor and Hanafi disagree in interpreting this. Before discussing this case, let us look at one more example where ulema are agreed.

Example #4 Surah Baqarah verse 249, Illa goes back to the first statement

فَلَمَّا فَصَلَ طَالُوتُ بِالْجُنُودِ قَالَ إِنَّ اللَّهَ مُبْتَلِيكُم بِنَهَرٍ فَمَن شَرِبَ مِنْهُ فَلَيْسَ مِنِّي وَمَن لَّمْ يَطْعَمْهُ فَإِنَّهُ مِنِّي إِلَّا مَنِ اغْتَرَفَ غُرْفَةً بِيَدِهِ ۚ

And when Saul went forth with the soldiers, he said, "Indeed, Allah will be testing you with a river. So whoever drinks from it is not of me, and whoever does not taste it is indeed of me, excepting one who takes [from it] in the hollow of his hand."

Actions:
1. Whoever drinks from it is not from me
2. Whoever does not even taste is from me

Illa (exception):
Whoever drinks a handful only

This exceptional clause goes back to which group? Does it go back to all of them or the first one or the second one?

You have two groups, one group does not even taste anything from it and the other group who drank from the river. Those who drank a handful --- Could that be a subset of the second group (in the aayah)? No it is not possible (see figure below). Who drank handful are the subset of who drank something. So the illa goes back to the first group. If you do not take anything you are with me and if you take even a handful then you are also with me.


So here we have a case where the illa goes back to the previous clause and not to the one closest to illah. The reason here is the meaning of the verse. So it is a case of internal evidence.

So we saw illa can apply to any of the clauses, the most recent clause or the first clause or all of the clauses.

Example #5 from the Quran: Surah Maida V:33-34 illa goes back to all of the statements


إِنَّمَا جَزَاءُ الَّذِينَ يُحَارِبُونَ اللَّهَ وَرَسُولَهُ وَيَسْعَوْنَ فِي الْأَرْضِ فَسَادًا أَن يُقَتَّلُوا أَوْ يُصَلَّبُوا أَوْ تُقَطَّعَ أَيْدِيهِمْ وَأَرْجُلُهُم مِّنْ خِلَافٍ أَوْ يُنفَوْا مِنَ الْأَرْضِ ۚ ذَٰلِكَ لَهُمْ خِزْيٌ فِي الدُّنْيَا ۖ وَلَهُمْ فِي الْآخِرَةِ عَذَابٌ عَظِيمٌ

Sahih International
Indeed, the penalty for those who wage war against Allah and His Messenger and strive upon earth [to cause] corruption is none but that they be killed or crucified or that their hands and feet be cut off from opposite sides or that they be exiled from the land. That is for them a disgrace in this world; and for them in the Hereafter is a great punishment,

Sahih International
Except for those who return [repenting] before you apprehend them. And know that Allah is Forgiving and Merciful.

Act: Those who wage war against Allah swt and His Messenger
Consequences:

1. Killed, or

2. Crucified, or

3. Their feet and hands be cut off from opposite sides, or

4. Exiled

Exception: Those who repent and come back to you before you catch them

This one is also where all of the madhabs have agreed upon. They say taubah can wipe away anything from the punishment of the hereafter. Umar says that since they come back on their own and repenting, their punishment that is described in this verse is dropped. Sheikh agreed and the argument is that these hadd punishment cannot be applied unless he is captured, and since he came on his own these punishments are dropped. So this is again the case where the illa goes back to all of the statements.

(Footnote: Hadd is the explicitly stated punishment in Quran and Sunnah, it is usually harsh and strict, require very strict conditions before these punishment can be applied. Tazeer on the other hand is at the discretion of the judge, it is less than hadd punishment and is applied when the conditions for hadd cannot be established without any doubt, however, there is enough evidence that he should be punished somehow.)

There will be cases where there isn’t agreement, such as the case from Surah Nur that we started with. Shafiee and Hanbali have one view, Hanafis have another view, and Mutazilah have another view. The best view is the Mutazilah view.

Mutazilah are known as ahl al bidah in the matters of aqeedah. However in the matters of usool al fiqh, their views are given much weight. Why is this the case? Why are their views accepted?

Qadi Abdul Jabbar wrote Mughni and it has a volume on Usool al Fiqh, a very important book. Abu Hasan al Basri wrote another book on usool al fiqh.

The reason why they are not respected in matters of aqeedah is because they excessively used their aqal or reasoning or their own ijtihaad. These matters are only to be understood from what is explained by Allah swt. There is some room for aql or reasoning but these people went beyond the reasonable limits.

But in the matters of usool al fiqh the realm of Aql or reasoning is much wider so their reasoning did not harm them much in usool al fiqh. They used their aql or reasoning to derive the rulings. And this shows the justice of our ulema throughout the history who took from the Mutazilah in the matters of usool al fiqh. Mutazilah have five principles....


2012-01-30 Class Notes


We were discussing the use of Istithnaa after more than one statements.  We were discussing the following pattern: A + B + C except D. Does D refer to all (A and B and C) or the last statement C or the first statement A or other combinations? If there is some external evidence pointing to the exception, then we follow it. Is it possible that the exception just refers to A (first statement) and not C (last statement)? Yes it it possible, but the evidence for it has to be strong. What is the default case for the exception?

What is the default case that we are discussing in Surah Nur?

َوَالَّذِينَ يَرْمُونَ الْمُحْصَنَاتِ ثُمَّ لَمْ يَأْتُوا بِأَرْبَعَةِ شُهَدَاءَ فَاجْلِدُوهُمْ ثَمَانِينَ جَلْدَةً وَلَا تَقْبَلُوا لَهُمْ شَهَادَةً أَبَدًا ۚ وَأُولَٰئِكَ هُمُ الْفَاسِقُونََ
And those who accuse chaste women and then do not produce four witnesses - lash them with eighty lashes and do not accept from them testimony ever after. And those are the defiantly disobedient,

إِلَّا الَّذِينَ تَابُوا مِن بَعْدِ ذَٰلِكَ وَأَصْلَحُوا فَإِنَّ اللَّهَ غَفُورٌ رَّحِيمٌ

Except for those who repent thereafter and reform, for indeed, Allah is Forgiving and Merciful.

Case: falsely accusing chaste women

A: Flog them with eighty lashes
B: Do not accept their testimony ever after
C: They are defiantly disobedient
D: Except those who repent thereafter and reform

1. View ascribed to Shafaii and Hanbali
What is attributed to Shafiee and Hanbalis is that the default case refers to everything (A,B,C) before it. Ash-shaukani said that it is ascribed to Imam Ahmad himself that the exception refers to everything before it. Imam Ahmad  referred in particular to one hadith as his evidence.

The hadith says, no man should lead another man in prayer in his house (where the later has authority) or sit in a position of honor in his house except with his permission

A: Should not lead prayer
B: Sit in position of honor
C: Except with his permission

Based on this he said that I hope and expect that the istithnaa refers back to all of them. If it only refers to the last one than the visitor can never lead salah in a host’s house (even with his permission).

Evidence is mostly grammatical issues. They say it is feeble speech if you say that “if Zayd enters the house then beat him unless he repents” and “if he commits zina then beat him until he repents”. etc etc. They say we should combine all of the clauses to make them together and say unless he repents and the exception should apply to all of these individual clauses. This is an example of common speech and not that exciting.

2. Hanafi view
According to the majority of Hanafis, speciallly the later Hanafis, the Mutazillah and the Dhahiris (even though ibn Hazm sometime do not stick to this view) and even some Shafiees such as Razi, say that the default case is that the exceptional clause only applies to the last clause unless there is an evidence otherwise. They have some interesting proofs based on linguistics.

Proofs of Hanafis
i) If you are making istithnaa, does that mean that the clauses that come before are general or not? Will A, B and C be general? Why? Since we are making takhsees, then the original set must be general. The general statement is going to apply to a set in a definitive sense. They say exception goes back to the last clause C in a definite sense and it is only probable to the first two clauses i.e. A, B.  How do the majority of scholars respond to it?

They would say that A and B are pointing to their respective sets in a dhanni sense to begin with, so even if D points to A and B in dhanni sense it is not a problem.

ii) Hanaifs say that exceptinal clauses are by definition not complete sentences. The reason we take the exceptional clause back to something else, is because of a necessity, because it does not have meaning otherwise. And they say that ruling of necessity is that you should only take the minimum and hence it should apply only to the last clause and not to any of the previous clauses?

Is this argument convincing? Why not?

We can take other cases from Quran that we discussed last time where the exception goes back to all of the clauses and those cases all of the ulemas are agreed upon. Hence it is not the case of necessity and the analogy falls apart as in necessity you never take more than minimum. and hence it is not a strong argument.

3. View of Waqafaits
There is a third view of Waqafites. These are the ones who cannot come to a specific conclusion on this point. Asharis on this point are Waqafites. However, in this case it does not help being waqafaits, as the exception has to refer back to something. They would be forced to make a decision and probably they will default to Hanafi view.

4. View of Mutazilah (strongest)
There is the fourth view of Mutazilah (see handout emailed for this class). They said that it is not like one default case that no matter what the exception will always go to the last statement or to all of the statements. It is completely determined by the construction of the sentence. So they analyze the statement, for example, Are there two different groups of people being referred to in these statements (na’w) or are they subjected to same kind of actions (hukm). Abu Hasan al  Basari, in his book..... breaks it into 6 different categories.
handout: ----------------------------------------------------------------------------------------------------------------------------------------------------

Istithnaa after two sentences:
Read the categories below and in the examples note what comes after the word “except” and what comes before it. Try to analyze the following categories with respect to the “people involved” (ism) and the “action” (hukm) that one is to take with respect to such people:

Category One: The second statement has nothing to do with the first statement, they are of different types (naw') and the subject matter of the second differs from that of the first.  Example:
"Beat the Tribe of Tameem.  The Jurists are Abu Hanifah's companions except the people of such and such country."

Category Two: The second statement has nothing to do with the first statement, they are of the same type (naw') but they differ in ism (name) and hukm.  Example:
"Beat the Tribe of Tameem, and pay respect to the Tribe of Rabiah except the tall ones."

Category Three: The two statements are bound together their apparent hukm only, or their common feature is their ism or appelation.  One of them does not have any concealed feature different from the other.  Example:
"Greet the Tribe of Tameem and greet the Tribe of Rabiah except the tall ones."

Category Four: They share a common ism but their hukms do not share any common end.  Example:
"Greet the Tribe of Tameem and employ the Tribe of Tameem except the tall ones."

Category Five: They share a common ism and their hukms share a common end (by which they are seen as one hukm and the first must not in any way differ from the second in their subject matter).  Example:
"Greet the Tribe of Rabiah and give respect to the Tribe of Rabiah except the tall ones"
.
Category Six: The second statement does not have an explicit common factor with the first except in the manner of ellipsis, either being ism or hukm.  Example of the former:
"Give respect to the Tribe of Rabiah and employ them except those who stand up"
Example of the latter:
"Give respect to the Tribe of Tameem and Rabiah except those who stood up."

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------

‘Waw’ in Classical Arabic can mean different thing, it can be beginning of a new sentence and does not always mean conjunction. In the translations from Arabic to English, Sh. made it easy for us, by putting periods etc :)

1) "Beat the Tribe of Tameem and The Jurists are Abu Hanifah's companions except the people of such and such country."

Object in one case is bani Tameem and in the other it is Fuqaha. From the construction of the sentence, we can see that without any question the exception goes to Fuqaha.

2) "Beat the Tribe of Tameem, and pay respect to the Tribe of Rabiah except the tall ones."

Action is beat for Bani Tameem and Action is respect for Bani Rabiah. Here the exception goes back to only the last one, since it is talking about very different actions for two different sets.

3) "Greet the Tribe of Tameem and greet the Tribe of Rabiah except the tall ones."

Here action is the same for both cases but two different tribes are identified separately, so where does the exception go? The key is that there is repetition of the verb ‘greet’, so it gives the idea that one has finished talking about the first group,  otherwise it will be feeble speech to keep repeating verbs for no apparent reason. So to al Basari, exception only goes to the second one.

4) "Greet the Tribe of Tameem and employ the Tribe of Tameem except the tall ones."

Two different actions for the same tribe. The tribe’s name has been repeated with each verb, then this exception is to last one only (this is according to abu Hasan al  Basari in his book “Al-Mutamid fi Asool al-Fiqh”

5) "Greet the Tribe of Rabiah and give respect to the Tribe of Rabiah except the tall ones"

Here it is two different verbs for the same tribe again, but the “greet” here is subset of “give respect”, so the exception goes to both. If you don’t give respect to short ones of Rabiah you will not greet them either.

6) "Give respect to the Tribe of Rabiah and employ them except those who stand up",
"Give respect to the Tribe of Tameem and Rabiah except those who stood up."

In the first case both actions are for the same group (key:name is not repeated) so exception goes to both. For the second case, all scholars agree upon that exception goes to both. As this is how the normal speech would be to name all of the sets and give the exception afterwards.

Now go back to the Surah Nur example mentioned earlier, and where does that fall in analogy to one of these six categories. Another way of looking at this verse is pointed out by Al Juwayni. So does D applies to A+B+C or B+C or A+B? Would you not flog someone if they repent? We can take an analogy with Zina. If someone commits zina and repents afterwards will he be not punished? There are couple of examples from the time of Prophet (saw), these people admitted to committing zina and made taubah, but they were punished afterwards. For one of the woman prophet (saw) made the statement that she made such a sincere tawbah that all of the sins of people of Madina would be forgiven ?? Someone asked the question about the lenancy in applying hadd for zinah. Sh. mentioned that the case for that individual was that prophet asked him that if Allah has concealed his sin, he does not need to make it public and he tried to dissuade him three times and after the forth time he still admitted and prophet imposed the hadd.

In this case all ulema agree that A will not be dropped. The difference is over whether it applies to C only or to both B and C. Majority says the exception applies to B and C.

al Juwayni’s approach is to see all of the clauses before the exception. If you look at the wording of the last two clauses, it is obvious that the last one is explaining (ta3leel of) the previous one.  وَلَا تَقْبَلُوا لَهُمْ شَهَادَةً أَبَدًا ۚ وَأُولَٰئِكَ هُمُ الْفَاسِقُونََ
The last sentence is explaining the reasoning for the previous sentence, we don’t accept their shahada because they are fasiqoon. So B and C are one, so exception applies to B and C. To Maliki, Shafee after the flogging, they are not fasiqeen and their shadah will be accepted provided they repent. To Hanafi, they will never accept the testimony and only stop calling them fasiqoon.

Shaikh discussed a tricky question about a community he was visiting in Philadelphia many years ago. The early African American communities did not have much strong footing in Islam. They would take multiple wives without having any means to support them. One person’s wife told him if you take another wife, I will kill you. The husband secretly married again. When the first wife found out, she stabbed him in the stomach. While the husband was driving himself to the hospital he was pulled over by the police for errant driving due to considerable loss of blood. When the police found out, they arrested his wife. The community was now divided over an issue, should the husband use his house as a collatoral and pay bond to get his wife released since he is responsible for her maintenance and the rest of the community said that he did not have any obligation since she tried to kill him. How would you rule in this matter? This is a homework question for us. Hint: Shaikh used the principle of mafhoom al muwafiqah to offer his opinion.

Tricky Question: Suppose someone says to his wife “you are divorced twice and once except once”. What is the ruling?
Is it a silly question? it seems silly, but books of fiqh are filled with all kind of strange questions, fiqh is related to human life and humans ask all sorts of weird questions :)
Some of the conclusions: According to Hanafis, it means she is divorced three times; according to Shafees, she is divorced twice; according to Sh. Jamaal, she is divorced only once.

For Hanafi position, isthithna only goes back to the last one, but principle is that you cannot make an exception for the whole. For “Once except once” the last part of “except once” is meaningless speech.

For the Shafee, the exception goes back to both of them but the last one cannot count. The effect is: (twice except once) + (once except once) = once + once = 2. The last except once is laghw for shafee as well.

Sh. Jamaal says it is just one, since it is done in one setting, it is only one divorce. You can say it 100 times and it still counts as once. The original ruling was that during the time of prophet (saw) these repeated divorces within one setting were considered as one divorce. However at the time of Umar people started abusing this and for countering this he gave the ruling that even in one setting it should be counted as three divorce. Even though the majority follows the ruling by Umar, however, the ruling given by Umar was for a specific reason. Therefore Shaikh follows the minority opinion.

Homework: (Al-Maida:3) it is talking about animals forbidden to eat and then it says “except what you are able to slaughter”. What does this isthithna goes back to?
(Al-Imran:86-89) it is talking about those who made Kufr after the imaan,....then in v89 it says, “illa lazeen tabu...”. What does this exception goes back to?
(Al-Imran:28): what is the exception refering to here?
(Al-Nisa:83): “....illa qalela minkum” refers back to what?

2012-02-06 Class Notes


Hadith that is quoted in books of Usool al Fiqh to highlight the issue of istithna, which as far as Shaikh Jamaal knows is not a hadith of the Prophet (SAAS). Hadith: Upon a muslim there is no sadaqa on his slave nor on his horse, except for sadaqatul fitr. The last part which is “except for sadaqatul fitr” goes back to what? Does it apply to the slave and the horse, just the slave or just the horse?

There is a hadith that is sahih that is very close to what this hadith says, but not the way that is quoted by the usool al fiqh books as an example of Istithnaa after two statements. In this case there is complete agreement on where it goes to. Suppose the statement is changed to “there is no sadaqa upon your children and you car except sadaqa al-fitr”. Sadaqa al-fitr only applies to humans and there is no sadaqatul fitr on horse, so the last part must go back to the slave.
Sahih hadith “laysa fi al abdi sadaqatan illa sadaqa al-fitr”.

Discussion of homework

Problem #1, Maida V:3

حُرِّمَتْ عَلَيْكُمُ الْمَيْتَةُ وَالدَّمُ وَلَحْمُ الْخِنزِيرِ وَمَا أُهِلَّ لِغَيْرِ اللَّهِ بِهِ وَالْمُنْخَنِقَةُ وَالْمَوْقُوذَةُ وَالْمُتَرَدِّيَةُ وَالنَّطِيحَةُ وَمَا أَكَلَ السَّبُعُ إِلَّا مَا ذَكَّيْتُمْ

Prohibited to you are dead animals, blood, the flesh of swine, and that which has been dedicated to other than Allah , and [those animals] killed by strangling or by a violent blow or by a head-long fall or by the goring of horns, and those from which a wild animal has eaten, except what you [are able to] slaughter [before its death],

To which clauses did the istithna apply to?

There is one opinion, that this istithna is istithna munqati.  This is Imam Malik’s view. What is istithna munqati?
Here the istithna is for different set and it does not apply to any one listed above. This is the example that we had discussed about Iblees not prostrating even when the angels were asked to prostrate.  So Imam Malik is saying that it does not apply to any of the clauses, the animals that you can slaughter those are the only one halal for you.

Imam Malik says that the animal that has been gored and is about to die you cannot go and slaughter it. Because the cause of its death has already come may it has not already died yet, but according to Imam Malik you cannot slaughter such animal as the cause of its death has already come. Malik is alone in this view and he is contradicting statements of number of sahabah about this verse. There is clear contradiction in the translation of the verse by Sahih international, she starts by saying “those animals killed by …. and then she says except those you are able to slaughter. What is meant by these terms Mauqudha , etc are those animals that are in the process of being strangled or gored, and they also apply to those who have been killed by these incidences. Here the animals are not yet dead, but if you leave them alone they would die.

If you look at the terms before this istithnaa and you take one by one and look at the possibilities that whether these can be purified through slaughtering.
Could istithna relate back to maytah? No
Could istithna relate back to ad-dam? No
Could istithna relate back to lahm al-khinzeer? No
Could istithna relate back to ma ohilla li ghair Allah? All of these terms starting from here to the end of the verse does not imply that they have been killed, e.g. in this case you have designated an animal to be slaughtered for someone other than Allah, can this animal still be slaughtered?
Similarly is it possible to take the animals listed in the above verse after “ma ohilla li ghair Allah” and slaughter them and make them halaal?

For Hanafis if they apply their madhab strictly what would the hanafi say? which they do in this case.
For the Hanafis the istithna would only apply to the last clause of wild animal that has been eaten, you could slaughter it before it dies and then eat it.

The majority opinion is that the istithna applies to all of them starting from “wa ma ohilla li ghair Allah”. This has been narrated from a number of sahaba. This is also the conclusion of At-Tabri among mufassareen.


Problem #2 Surah Ali Imran verse 86 - 89

كَيْفَ يَهْدِي اللَّهُ قَوْمًا كَفَرُوا بَعْدَ إِيمَانِهِمْ وَشَهِدُوا أَنَّ الرَّسُولَ حَقٌّ وَجَاءَهُمُ الْبَيِّنَاتُ وَاللَّهُ لَا يَهْدِي الْقَوْمَ الظَّالِمِينَ

Sahih International
How shall Allah guide a people who disbelieved after their belief and had witnessed that the Messenger is true and clear signs had come to them? And Allah does not guide the wrongdoing people.


أُولَٰئِكَ جَزَاؤُهُمْ أَنَّ عَلَيْهِمْ لَعْنَةَ اللَّهِ وَالْمَلَائِكَةِ وَالنَّاسِ أَجْمَعِينَ

Sahih International
Those - their recompense will be that upon them is the curse of Allah and the angels and the people, all together,

خَالِدِينَ فِيهَا لَا يُخَفَّفُ عَنْهُمُ الْعَذَابُ وَلَا هُمْ يُنظَرُونَ

Sahih International
Abiding eternally therein. The punishment will not be lightened for them, nor will they be reprieved.


إِلَّا الَّذِينَ تَابُوا مِن بَعْدِ ذَٰلِكَ وَأَصْلَحُوا فَإِنَّ اللَّهَ غَفُورٌ رَّحِيمٌ

Sahih International
Except for those who repent after that and correct themselves. For indeed, Allah is Forgiving and Merciful.


Discussion:
Punishments: (i) Not guided by Allah, (ii) Curse of Allah, angles and people, (iii) Abide there in eternally (iv) punishment will not be lightened for them nor they will be reprieved
Illa: those who repent and mend their ways
What does this istithnaa refer back to?

What would hanafi say on this one? Do the hanafis always go the last one. If there is some evidence they do not always go to the last one. The other evidence in this case is that the nature of tawbah is such that taubah can wipe away everything even shirk, all of the scholars agree that if they perform taubah and correct themselves then all of the previous clauses (sins) will be wiped away. So here the istithna refers back to everything mentioned before it.


Problem #3 (3:28)

لَّا يَتَّخِذِ الْمُؤْمِنُونَ الْكَافِرِينَ أَوْلِيَاءَ مِن دُونِ الْمُؤْمِنِينَ  وَمَن يَفْعَلْ ذَٰلِكَ فَلَيْسَ مِنَ اللَّهِ فِي شَيْءٍ إِلَّا أَن تَتَّقُوا مِنْهُمْ تُقَاةً  وَيُحَذِّرُكُمُ اللَّهُ نَفْسَهُ وَإِلَى اللَّهِ الْمَصِيرُ

Sahih International
Let not believers take disbelievers as allies rather than believers. And whoever [of you] does that has nothing with Allah , except when taking precaution against them in prudence. And Allah warns you of Himself, and to Allah is the [final] destination.

Discussion:
Is this munqati? Why? One of the students is saying that if they take disbelievers rather than believers as their auliaah it then they do not have the concept of أَن تَتَّقُوا مِنْهُمْ تُقَاةً  and may be seen as something else.That would be done by people who do not take disbelievers as auliah, in other words if you have this quality أَن تَتَّقُوا مِنْهُمْ تُقَاةً then you would not take disbelievers as auliah. Sheikh said that you are taking the word Auliah in its complete sense in its inward and outward sense. It is a new tafseer!

Here we have three choices for the istithna.
It could refer to portion before it or it can refer to the begining portion and 3rd option according to Umar (student) it is istithnaa munqati. Some scholar say it is Istithnaa mufarraq, which is very similar to Istithnaa munqati’. The mufassareen on this one are pretty clear and agree that it refers to first part لَّا يَتَّخِذِ الْمُؤْمِنُونَ الْكَافِرِينَ أَوْلِيَاءَ مِن دُونِ الْمُؤْمِنِينَ As an outward sign of accepting their authority, and not committing kufr, even that outward sign of accepting them is not persmissible unless done as some kind of protection and caution against some harm.


Problem #4 (4:83):

وَإِذَا جَاءَهُمْ أَمْرٌ مِّنَ الْأَمْنِ أَوِ الْخَوْفِ أَذَاعُوا بِهِ  وَلَوْ رَدُّوهُ إِلَى الرَّسُولِ وَإِلَىٰ أُولِي الْأَمْرِ مِنْهُمْ لَعَلِمَهُ الَّذِينَ يَسْتَنبِطُونَهُ مِنْهُمْ ۗ وَلَوْلَا فَضْلُ اللَّهِ عَلَيْكُمْ وَرَحْمَتُهُ لَاتَّبَعْتُمُ الشَّيْطَانَ إِلَّا قَلِيلًا

Sahih International
And when there comes to them information about [public] security or fear, they spread it around. But if they had referred it back to the Messenger or to those of authority among them, then the ones who [can] draw correct conclusions from it would have known about it. And if not for the favor of Allah upon you and His mercy, you would have followed Satan, except for a few.

Discussion:
This one is very important, when you read it you should ask yourself what does it refer to?  What is illa qaleela referring to in this verse?

Does the istithna apply only to the last clause? one student, on the first pass it seems like it. What does “Hum” refers to in the beginning of the verse? It is probably hypocretes.

Many years ago Muhammad Ali fought a bout with Michael Sphinx and there were claims that there was a bottle in Michael’s corner that has some illegal substances, after the fight Sphinx said, “I aint denying that there was no bottle”. Was there a bottle? Yes, This is an example of double negation.
The correct translation. If it were not for the mercy of Allah you would have followed shaitan. (period) otherwise you are saying that out of mercy of Allah only few of you are not following shaitan. “Illah Qalilah definitely does not refer back to “lau la fadlu Allahi”. This applies back to the beginning of the verse “wa itha jaahum amrun”, those who are weak in faith and hypocrites, they immediately spread news about public security or fear, except for a few of them, but they should have referred to the Prophet or those in authority, … and if it were not for the favor of Allah and His mercy all of you would have followed shaitan. Otherwise, if we apply Illa to the last sentence only, we are implying that there are people who are not following shaitan and it not due to Mercy of Allah upon them. Here the evidence is very clear none of mufassareen say that it applies to last sentence.

Here illa is referring to “Hum” those weak and hypocrite people.
What the later scholars among shafai madhab say about Istithnaa when it is followed after more than one sentence and could possibly refer back to more than one.

Hanafi view, it refers back to the last one only unless there is evidence to show otherwise.
For the later hanafis they have been pretty consistent on this point.

Mutazila’ (Abu Hasan al basari) say that you have to analyze what is going on there is no one default case. That is kind of shafai position, it is close to that and they say that it applies to everything but they apply lots of conditions to that.
e.g. A + B then Illa,
i) there has to be a clear conjunction between sentence A and B, which means word “wa” (and). May be they will accept fa or thumma, there is a whole list of words they don’t accept, so there has to be a word which clearly means “and”.
ii) between the first sentence and istithnaa there cannot be a long distance, where it is clear that now you have left the original sentence and are talking about something else.
iii) the two sentence must also be different in meaning, e.g. imam al-juwaini said about Suran Nur V:4-5, do not accept there evidence and they are fasiqoon, he said they are the same thing that the main reason you do not accept a person’s shahada is that the person is fasiq. Those sentence are expressing the same thing, so they impose the condition that the two sentences must express different things. But there has to be some relationship between them.
iv) Then they get into grammar. Sometimes in Arabic you have an equational sentence joined with the verbal sentence, e.g. in Abu Hasan’s example "Beat the Tribe of Tameem and The Jurists are Abu Hanifah's companions except the people of such and such country." Here you can tell that they are not related to each other just by the structure of the language. Here they say that there has to be some symmetry in the structure of the language.

If all of these above conditions are met than the Istithnaa refers back to every thing before it. If these conditions are not met then it refers to the closest one unless there is evidence otherwise. So even for shafaiis they say that referring to everything is conditional. The closest one linguistically and logically the most obvious one. But the style of the Quran is such that Quran captures every stylistic aspect of the Arabic language. Part of the stylistic aspect of Arabic language is that the istithnaa does not refer back to the last statement but to an earlier one. This is considered stylistic ability, if someone is writing in English and the only way he can write is that “people are good except this” and only way he knows how to make an exception is through the word except and if you read such a paper you see that he is not very strong in English. One of the way Quran is showing its style is through using all of these artistic features of the language. All of these examples are from Quran, and the example from Hadith is not even authentic hadith.

Mutazali views: Before Abu Hasan al Basari there was a Mutazali scholar whose name was Qadi Abdul Jabbar. Qadi Abdul Jabbar wrote a 13 volume book called “Al Mughni” and one of the volume was on usool al fiqh. Abu Hasan in his book is expanding on Qadi Abdul Jabbar’s work. Most part, the later Mutazila were Hanafi. Historically the Hanafis are going to Mautazali or Matridee or little bit Ashaari. When Mautazali were independent and were not part of Hanafi that school is what Abu Hasan is representing. When later they merged they retained their Mautazali aqeedah but they accepted the hanafi fiqh.

Hanbalis they start with that it goes back to everything unless there is evidence otherwise, the Malakis are a bit mixed. Usool al fiqh is different than fiqh in the sense that there were never any period of blind taqleed in usool al fiqh. You can find Maliki usooly adopting shafai view or hanafi view. The reason behind that was that usool al fiqh became very theoretical and you were free to do what you want. The fiqh was very rigid and they were doing blind taqleed of their school so there was really no need for usool al fiqh. Hence there was divide between the two. It was good for usool al fiqh as it gave them independence to do their own ijtihaad.

This concludes Takhsees by Isthithna.

Takhsees by Shart:

What is Shart? We studied Mafhoom al shart earlier.
There are three words related to takhsees by shart:
1) Sabab (a cause)
2) Shart (a condition)
3) Man3a (a preventive factor)

Shart:
If the condition for something is met, that does not necessarily mean that the conditioned (mashroot) thing will exist..... Wudu is a condition for the validity of the Salat. Wudu is one of the sharoot of salah. If you don’t do the Wudu (shart) then proper Salat is not valid. However, if you make the Wudu then it does not mean that Salat is going to exist. So the condition does not force the existence of mashroot (conditioned thing).

Sabab:
The Sabab forces the existence of the thing or at least the obligation of the thing. e.g. When the sun passes the meridian it is the sabab (cause) for the obligation of the duhr prayer. The sabab brings into effect the musabbab.

Man3a: (A preventive factor)
The prohibitive factor stops the act from being proper, e.g. what is man3a for salah? Drunkenness, being drunk one cannot come near the Salat.

Shart is simply a condition that does not necessarily by itself imply that the conditioned thing will come about.
What does the takhsees by shart means? Takhsees by shart means you start from a general set and then you take away from that set by a condition.

Example of Shart: All will enter the university if they pass the exam. Start with the set “All” and then you do the takhsees by introducing the condition that only those will enter the university who pass the exam.

Can every shart be turned into Istithnaa?

Example of above: All will enter the university except those who fail the exam.
We see that the shart can be easily converted into exception (Istithnaa) so they are very similar, but they are going to look different. We have to answer other related questions, e.g. If shart follows two sentences does it apply to both or only to one of them? We will study this next time inshaallah.


2012-02-13 Class Notes

Last time we were discussing Surah Ali Imran v28

لَّا يَتَّخِذِ الْمُؤْمِنُونَ الْكَافِرِينَ أَوْلِيَاءَ مِن دُونِ الْمُؤْمِنِينَ  وَمَن يَفْعَلْ ذَٰلِكَ فَلَيْسَ مِنَ اللَّهِ فِي شَيْءٍ إِلَّا أَن تَتَّقُوا مِنْهُمْ تُقَاةً  وَيُحَذِّرُكُمُ اللَّهُ نَفْسَهُ وَإِلَى اللَّهِ الْمَصِيرُ

Sahih International
Let not believers take disbelievers as allies rather than believers. And whoever [of you] does that has nothing with Allah , except when taking precaution against them in prudence. And Allah warns you of Himself, and to Allah is the [final] destination.

One student said that it was istithna munqati and shaikh tried to find it in books of usool al fiqh and he could not find it, he looked in books of tafseer and he found one reference to it, he mentioned one scholar Rashid Rida and Najadi ulemah are of the opinion that this is istithnaa munqati.

It basically goes back to  أَوْلِيَاءَ awliyah, if you take in its literal meaning and complete (inward and outward) sense, then it must be istithna munqati, because you will not have a believer who would have an internal feeling as a precaution against them. If it is understood just as an outward show, then it would be istithna Mutassil (the other type of istithnaa)

Takhsees bil Shart
Last time we started to talk about Shart (conditions). There are many kinds of conditions:

Aqali (rational) conditions, e.g. “In order to attain knowledge you must be living”. Here life is a condition to attain knowledge.

Legal (shariaa) conditions, for example, Tahara is the condition for the validity of the Salat and these kind of conditions we can know only by the revelation.

Common sense conditions, which masses understand, e.g. to reach the roof a ladder is needed.

grammatical conditions these are stated in speech, e.g. give him this if he does such and such.

Q: When we speak about Takhsees bil Shart, which one of the conditions are we talking about?
A: e.g. when we say “you need to be in the state of taharah to perform salah”, is there any takhsees involved in this statement? there is round about takhsees involved here as we have to look at two or more verses in Quran at different places, which is not the kind of takhsees we are talking about here (munfasil). We are talking about internal or connected forms of Takhsees, i.e. two sentence next to each other, so this is of the grammatical kind. Usuliyeen say that you recognize it by certain speech/words found in the text. we have to have certain particles such as “in” in Arabic or one of it’s sisters.

By the way “IN” does not always means “if”. Sometimes “IN” actually means a negation, e.g. words like “Ma” and “La”

Surah Anam (29)

وَقَالُوا إِنْ هِيَ إِلَّا حَيَاتُنَا الدُّنْيَا وَمَا نَحْنُ بِمَبْعُوثِينَ

Sahih International
And they say, "There is none but our worldly life, and we will not be resurrected."

The “In” here is a negation, there is no other life but this worldly life.

Another verse, Tawbah v107

وَلَيَحْلِفُنَّ إِنْ أَرَدْنَا إِلَّا الْحُسْنَىٰ ۖ وَاللَّهُ يَشْهَدُ إِنَّهُمْ لَكَاذِبُونَ

And they will surely swear, "We intended only the best." And Allah testifies that indeed they are liars.

In some cases it is a strong sense of emphasis, meaning “Laqad”, as in Surah Yunus v29

فَكَفَىٰ بِاللَّهِ شَهِيدًا بَيْنَنَا وَبَيْنَكُمْ إِن كُنَّا عَنْ عِبَادَتِكُمْ لَغَافِلِينَ

Sahih International
And sufficient is Allah as a witness between us and you that we were of your worship unaware."

They will disavow themselves of their worshippers. And they were surely not knowledgeable of what they did.

Similarly in Surah Isra...V108

وَيَقُولُونَ سُبْحَانَ رَبِّنَا إِن كَانَ وَعْدُ رَبِّنَا لَمَفْعُولًا

Sahih International
And they say, "Exalted is our Lord! Indeed, the promise of our Lord has been fulfilled."

There is certainity that the promise of our Lord is fulfilled.

إِن كُلُّ نَفْسٍ لَّمَّا عَلَيْهَا حَافِظٌ

Sahih International
There is no soul but that it has over it a protector.

Finally in some verses it might look like a condition, but actually it is not a condition. It is describing the normal case or the default case. When we did mafhoom al mukhalafah, argument a contrari, we discussed that there are some conditions that need to be applied to get the mafhoom al mukhalifah

Surah Nur:33

وَلَا تُكْرِهُوا فَتَيَاتِكُمْ عَلَى الْبِغَاءِ إِنْ أَرَدْنَ تَحَصُّنًا لِّتَبْتَغُوا عَرَضَ الْحَيَاةِ الدُّنْيَا ۚ وَمَن يُكْرِههُّنَّ فَإِنَّ اللَّهَ مِن بَعْدِ إِكْرَاهِهِنَّ غَفُورٌ رَّحِيمٌ

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.

It does not mean that if they do not desire to be chaste, that you can force them into prostitution. Here “in” means “as” and it should not be translated as “if”.

Other than these kinds of exceptions that we have discussed, “in” is a clear sign, that we have a conditional statement and that we have takhsees by shart.

For example surah Baqarah, describes

فَلَا جُنَاحَ عَلَيْكُمْ إِذَا سَلَّمْتُم مَّا آتَيْتُم بِالْمَعْرُوفِ ۗ وَاتَّقُوا اللَّهَ وَاعْلَمُوا أَنَّ اللَّهَ بِمَا تَعْمَلُونَ بَصِيرٌ

And if you wish to have your children nursed by a substitute, there is no blame upon you as long as you give payment according to what is acceptable. And fear Allah and know that Allah is Seeing of what you do.

Here “itha” is a clear sign, that there is condition, that you could have children nursed by a substitute as long as they pay them.

Particle Man which means whoever.
Can “Man” be used for takhsees by shart? e.g. the hadith “Man Qala La ilaha illa Allah dakhala jannata”. If so, how so? Man is also a sign of a condition or shart. There are many such particles, such as whoever, whenever, however, that restrict something can be done, (“mata”, “haithuma”, etc)

Q: Is a conditional statement a type of bayaan (elucidation) or is it a taghyeer (change)?
Bayaan explains what was the original intention. Taghyeer is change from the original intent to something else, e.g. abrogation is kind of Taghyeer.

What if you make a statement and then add a condition after it, is this a bayaan or a change?
Amazingly some scholars consider it to be taghyeer or a change in the original meaning. This is a minority opinion and it is strange the way they apply it. In general when we say takhsees we are talking about bayaan.

Conclusion: Condition is part of the original intent of the text, it is not something added later or changed later.

Hanafi point of view is important, that it has to be at the same time, however, for Muttasil takhsees by shart this is not a problem.

Two categories of takhsees bil Shart
Takhsees with shart is divided into two categories

Category 1: Condition is known and does not need to be stated
An example that is given of this is the following, “Always give respect to people if you are able to do so” (in istata3tum). Is the last part needed? No. It is understood, even if it was not stated. If he does not have the ability to do so he is not responsible. And if it is stated, what is the purpose of the statement? When it is stated, it is probably to highlight something, if you do not have the ability, we recognize it that you do not have to do that. It is stated to highlight or emphasize something, and this is the stylistic part of the Arabic language. It is to remind people of the importance of something.

Category 2: Conditions that cannot be known unless stated by the speaker.
An example is the following, “Always give respect to people if they enter the house.” Here we would have not known this condition through common sense unless it is stated. The most of the takhsees if of this type.

Examples of Takhsees by Shart:
Surah Nisa verse 12, where Allah swt is talking about inheritance.

وَلَكُمْ نِصْفُ مَا تَرَكَ أَزْوَاجُكُمْ إِن لَّمْ يَكُن لَّهُنَّ وَلَدٌ ۚ فَإِن كَانَ لَهُنَّ وَلَدٌ فَلَكُمُ الرُّبُعُ مِمَّا تَرَكْنَ ۚ مِن بَعْدِ وَصِيَّةٍ يُوصِينَ بِهَا أَوْ دَيْنٍ ۚ

Sahih International
And for you is half of what your wives leave if they have no child. But if they have a child, for you is one fourth of what they leave, after any bequest they [may have] made or debt.

In this case the condition “if they have no child” cannot be know through common sense unless stated by Allah (swt).
When scholars of usool al fiqh discuss this, they have to talk about contracts .......

Combinations of conditions
With respect to conditions and conditioned statements one can have all sort of combinations.
a. A statement followed by one condition or two condition, when they are followed by more than one condition, then they are separated by AND or OR.
b. Two or more statements followed by one condition, here we are concerned about to which statements the shart applies to, does it go back to all of the statements or the last or some other combination.

For Example, “I will go to San Jose if it is Sunday and if it is raining.”  Another example would be I will go to San Jose if it is Sunday or if it is raining. In the second example, I will go to San Jose on any day of the week if it is raining.

Both combination types (a) and (b) will be present in Quran and Hadith.

Differences between Istithna and Shart
Even though we discussed earlier that you can restate the shart to be Istithnaa, however there are some differences:
1) In the Arabic language the conditional statement can come before the original statement, but Isthithnaa cannot come before the original statement. So in Arabic the sentence cannot start with ‘illa Umar’ for example. However in English language, you can use commas to achieve the istithna and shart to be at the beginning of the statement.

2) With respect to Shart, all the scholars agree, by a condition you can remove half or all of the original. So it is not problem with respect to Shart, but the same cannot be done through Isthithnaa.

An issue with Shart, we have the problem that Shart can come after more than one statement. Why is this problem? We may not know what is the default case for Shart, or which statement the Shart applies to, is it most recent or all statements? If there is evidence to show where does the shart goes to, you use that evidence. The different school views stay very same. According to hanafi the shart would apply to the last statement only whereas for Shafaii either it goes back to all or it is a matter of contexual analysis.

For example (5:89)

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

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

 فَمَن لَّمْ يَجِد
This is the conditional statement, and scholars agree that it goes to all three, as an AND in such a way that it does not refer to all three as one unit. It means that if you do not have the means to do any one of them. So fasting for three days is a replacement for any of these prior three statements and there is no order implied here that you must feed ten before thinking about clothing them etc.

In this point Imam Abu Hanifa agrees with Imam Shafiee, that it goes back to all of them, and they use this as an example that shart is not like Istithnaa. This is how the later hanafi try to reconcile difference in Abu Hanifa’s position on Shart vs. Istithnaa. They say that there is some difference between Shart and Istithnaa that means the application of shart can be different, such as in the example above.


Let us say if I cannot free a slave, ....

You are free to choose any of the three expiation, and the word between them is aw, and that is the reason why we have difficulty in explaining. There is a choice for your expiation, you can jump right ahead to the slave. And only when you cannot do any of those things, then you can fast.

Continuing with our differences between shart and istithnaa

3) What if we have condition first then it is followed by two sentences (no parallel to Istithnaa): The Shafai and majority of scholars of language say it will apply to everything that comes after. For the Shafi school; it does not matter what comes after or before the Shart. Hanafi have a difference here. Some say if condition comes first then it applies to all that follows. If condition comes last, then it applies only to the sentence that comes before the condition, except for Abu Hanifa who had the view that the shart even when it comes last applies to all statements before it.

(Footnote: how do you underline in traditional Arabic? There is a line over the word, that is the reason why there is sajdah then there is line over the word. What is considered good color and bad color in traditional Arabic? Something good is in black and something bad is in red)

Explanation of differences between Shafiee and Hanafis on Istithna and Shart
(in the bottom of the figure, green lines go grom C to both A and B (hanafi view = shafai view)
Istithna
A + B followed by illa C
Hanafis say C goes back to B
Shafiees the default case goes back to both A and B, but you have to analyze it.

Shart
Case 1:  A + B ‘INN’ C
Case 2: ‘INN” C, A + B
Shafiee, their default case is that C goes to both A and B for case 1.
Hanafis, Abu Hanifa’s opinion is that it goes back to both, while other Hanafis say it only goes to the last one.
Shafee, their default is both in case 2
Hanafi, for case 2 say that it applies to both.
The Hanafis are not symmetric when it comes to apply the rule regarding the two cases.

Can a conditional statement be conditioned by another conditional statement?
We do not have this type of statements in Istithnaa, but they might be possible in Shart?????

For example, Allah swt says in Surah Hud verse 34

وَلَا يَنفَعُكُمْ نُصْحِي إِنْ أَرَدتُّ أَنْ أَنصَحَ لَكُمْ إِن كَانَ اللَّهُ يُرِيدُ أَن يُغْوِيَكُمْ ۚ هُوَ رَبُّكُمْ وَإِلَيْهِ تُرْجَعُونَ

Sahih International
And my advice will not benefit you - although I wished to advise you - If Allah should intend to put you in error. He is your Lord, and to Him you will be returned."

Here in this verse, the Prophet (pbuh) is saying, my council will not profit you, if I advice you if Allah’s will is to let you go astray. So there are two conditions.

The last condition is the key, and it drives the meaning of the statement. If Allah decides to send you astray then my advice will not help you even if I want to.

Homework
Homework look for the conditional statements and find out where is it applied, where does the condition go back to in the following verses:
Surah Ahzaab verse 50
Surah Baqarah 2:278, 228
Surah Al-Nisaa:23
Surah Baqarah verse 196
Surah Muhammad verse 36

2012-02-20 Class Notes



Surah Ahzaab verse 50

يا أيها النبي إنا أحللنا لك أزواجك اللاتي آتيت أجورهن وما ملكت يمينك مما أفاء الله عليك وبنات عمك وبنات عماتك وبنات خالك وبنات خالاتك اللاتي هاجرن معك وامرأة مؤمنة إن وهبت نفسها للنبي إن أراد النبي أن يستنكحها خالصة لك من دون المؤمنين قد علمنا ما فرضنا عليهم في أزواجهم وما ملكت أيمانهم لكيلا يكون عليك حرج وكان الله غفورا رحيما

Sahih International

O Prophet, indeed We have made lawful to you your wives to whom you have given their due compensation and those your right hand possesses from what Allah has returned to you [of captives] and the daughters of your paternal uncles and the daughters of your paternal aunts and the daughters of your maternal uncles and the daughters of your maternal aunts who emigrated with you and a believing woman if she gives herself to the Prophet [and] if the Prophet wishes to marry her, [this is] only for you, excluding the [other] believers. We certainly know what We have made obligatory upon them concerning their wives and those their right hands possess, [but this is for you] in order that there will be upon you no discomfort. And ever is Allah Forgiving and Merciful.


Discussion of this verse:
One of the particles of Shart (condition)  was the word “inn”. Here we have two “inns”
إن وهبت نفسها للنبي إن أراد النبي أن يستنكحها
Do we have two conditions and one possibility? Did we do a verse last time where there were two nested conditions, or condition inside another condition, how do we recognize it?

The key over here is that there is no conjunction. One of the key signs for multiple conditions is the presence of a conjunction such as “wa”. When we discussed nested conditions, what was the key? The key here is the last “in”, if prophet desires to marry her and she gives herself to prophet.

The translation describes it as two conditions and puts a conjunction “and” between the two conditions. But that is incorrect. This is the case of a nested condition.


Surah Baqarah 2:228

والمطلقات يتربصن بأنفسهن ثلاثة قروء ولا يحل لهن أن يكتمن ما خلق الله في أرحامهن إن كن يؤمن بالله واليوم الآخر وبعولتهن أحق بردهن في ذلك إن أرادوا إصلاحا ولهن مثل الذي عليهن بالمعروف وللرجال عليهن درجة والله عزيز حكيم

Sahih International

Divorced women remain in waiting for three periods, and it is not lawful for them to conceal what Allah has created in their wombs if they believe in Allah and the Last Day. And their husbands have more right to take them back in this [period] if they want reconciliation. And due to the wives is similar to what is expected of them, according to what is reasonable. But the men have a degree over them [in responsibility and authority]. And Allah is Exalted in Might and Wise.


Discussion of this verse:
The condition in this verse is  إن كن يؤمن بالله واليوم الآخر if they believe in Allah and the Last Day“ What kind of condition is this? It is not a shart, it is there to emphasize the gravity of the action, since it will be difficult for a woman to conceal that she is pregnant. The way to understand is to look at the mafhoom al-mukhalifa, that is it permissible for a woman to conceal her pregnancy if she is not a believer. Hence the condition here is for emphasis only.

Another condition is this verse is إن أرادوا إصلاحا if they want reconciliation”. Is this takhsees or Qasar? If the phrase or clause cannot stand on its own, then hanafis will not call it takhsees, they call it Qasar. For others it is takhsees regardless.

So is this a condition? If the husband is going to take back the wife during this period only to make her suffer more, is this okay? Legally he is allowed to take her back even if his intention is of vengeance, unless he publicly states that intention in front of witnesses. So this condition can only be considered moral restriction. This verse is morally giving the husband an instruction that he should take her back only if he can be nice to his wife. This depends on the feeling of his heart and we cannot see into it. So if he takes her back just to make her suffer more, in this dunya we cannot do anything about it, but he has sinned as he is in violation of this restriction.

The first inn was not a condition and was there to show the gravity of the earlier statement. And the second inn was a condition.


Surah Baqarah 2:278

يا أيها الذين آمنوا اتقوا الله وذروا ما بقي من الربا إن كنتم مؤمنين

Sahih International

O you who have believed, fear Allah and give up what remains [due to you] of interest, if you should be believers.


Discussion of this verse:
Here the condition is   إن كنتم مؤمنين  “if you are believers”. It is emphasizing the gravity of the action. But what does it refer back to? Does it refer back to both of them or both of them, fear Allah or give up what remains? In this case every one agrees that it refers back to last one only. If someone has Taqwa of Allah then most likely he is Maumin, so here it looks like stronger opinion is that it is referring to Riba in this verse.


Surah Al-Nisaa:23

حُرِّمَتْ عَلَيْكُمْ أُمَّهَاتُكُمْ وَبَنَاتُكُمْ وَأَخَوَاتُكُمْ وَعَمَّاتُكُمْ وَخَالَاتُكُمْ وَبَنَاتُ الْأَخِ وَبَنَاتُ الْأُخْتِ وَأُمَّهَاتُكُمُ اللَّاتِي أَرْضَعْنَكُمْ وَأَخَوَاتُكُم مِّنَ الرَّضَاعَةِ وَأُمَّهَاتُ نِسَائِكُمْ وَرَبَائِبُكُمُ اللَّاتِي فِي حُجُورِكُم مِّن نِّسَائِكُمُ اللَّاتِي دَخَلْتُم بِهِنَّ فَإِن لَّمْ تَكُونُوا دَخَلْتُم بِهِنَّ فَلَا جُنَاحَ عَلَيْكُمْ وَحَلَائِلُ أَبْنَائِكُمُ الَّذِينَ مِنْ أَصْلَابِكُمْ وَأَن تَجْمَعُوا بَيْنَ الْأُخْتَيْنِ إِلَّا مَا قَدْ سَلَفَ ۗ إِنَّ اللَّهَ كَانَ غَفُورًا رَّحِيمًا

Sahih International

Prohibited to you [for marriage] are your mothers, your daughters, your sisters, your father's sisters, your mother's sisters, your brother's daughters, your sister's daughters, your [milk] mothers who nursed you, your sisters through nursing, your wives' mothers, and your step-daughters under your guardianship [born] of your wives unto whom you have gone in. But if you have not gone in unto them, there is no sin upon you. And [also prohibited are] the wives of your sons who are from your [own] loins, and that you take [in marriage] two sisters simultaneously, except for what has already occurred. Indeed, Allah is ever Forgiving and Merciful.


Discussion of this verse:
Where does this condition refer back to, to the last one only or to mother in law as well? In other words if you have not consummated your marriage are you allowed to take only the step daughters or mother in-law as well?
If you just look at the text of the verse the takhsees can be referring to both step daughters and mother-in-laws.
بِهِنَّ is referring to step daughters, for this there is no difference of opinion among scholars. For the mother-in-law case we will have to look at the external evidence. Is there an external evidence in this case?
There is external evidence in usool al fiqh books about a hadith from Bayhaqi in Sunan al Kubra “whoever marries a woman and divorce her, he cannot marry her mother”, but it is a weak hadith and Bayhaqi himself commented on the weakness of this hadith in Sunan al Kubra, it is strange that scholars do not pay attention to these details when quoting some hadith. This hadith reported the prohibition of mother-in-laws, but cannot be used as evidence. If the external evidence is rejected then what can we say?

Most fiqh books say that as soon as you sign marriage contract, the mother in law becomes permanently forbidden to you and step daughter only becomes permanently forbidden after you consummate your marriage.

Musanad of ibn abi Shayba has two reports, one from Ali and one from ibn Masood. The report from Ali, in which someone asked about mother in law and he said that she is now at the same place as step daughter. ibn Masood gave the same fatwah. However view of Umar is strongly against it that you cannot marry your mother-in-law even if the marriage is not consummated, as it is reported that in his time someone married his mother-in-law and Umar asked them to be separated even if they have children. After this statement of Umar it seems that it became ijmaa’.

The text does not prevent this condition to go back to mother in-law, the only thing that is in the text that the usooliyeen can point to is that the way they are described is different, they say that the mother-in-laws are described as idafa construction and step daughters through attached pronoun, so they say that since there is difference in their description the condition cannot go back to the both. But this is a weak argument.

Conclusion is that scholars agree unanimously (ijmaa’) with opinion of Umar that it goes back to only the step daughter.
Q: Can the statement of Umar be considered marfoo’ in this case?
A: No, this is the case where the ijtihaad can be made, Ali and ibn Masood had other opinion about this issue earlier. So unless there is something in the statement of Umar that makes it marfoo’ we cannot call it marfoo’.


Surah Baqarah verse 196

وأتموا الحج 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

Sahih International

And complete the Hajj and 'umrah for Allah . But if you are prevented, then [offer] what can be obtained with ease of sacrificial animals. And do not shave your heads until the sacrificial animal has reached its place of slaughter. And whoever among you is ill or has an ailment of the head [making shaving necessary must offer] a ransom of fasting [three days] or charity or sacrifice. And when you are secure, then whoever performs 'umrah [during the Hajj months] followed by Hajj [offers] what can be obtained with ease of sacrificial animals. And whoever cannot find [or afford such an animal] - then a fast of three days during Hajj and of seven when you have returned [home]. Those are ten complete [days]. This is for those whose family is not in the area of al-Masjid al-Haram. And fear Allah and know that Allah is severe in penalty.


Discussion of this verse:
Is there a condition in this verse? Yes there is a condition “if you are prevented”. So now what does it refer to? Does it apply to both hajj and umrah, meaning if you are prevented from completing hajj or umrah, or does it go back to the hajj only? We have discussed other verse where the exception was to the first statement only (taloot’s story).

The last thing mentioned before condition was umrah, so does that mean the condition applies to umrah? or is it similar to the case of Istithnaa where it does not refer back to the most recent one? (Student) but there is no sacrifice requirement for Umarah. Sh. This is not describing the normal case for umarah, this is a special rule for those who are prevented from making umarah. All of the ulema agree that the condition goes back to both hajj and umrah. This is because of the conjunction between the two acts which are similar to each other and also there is one verb that is used afterwards and how they are all tied together.


Surah Baqarah verse 185


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

Sahih International

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


Discussion of the verse
We discussed that the other particle for shart is من  “man”.
We have two conditions after the ruling, the condition of being ill or on a journey. You can meet either conditions and it should be sufficient. If the condition was “and”, then you would have be ill and on journey to take this rukhsaa.


Surah Muhammad verses 36 and 37


إنما الحياة الدنيا لعب ولهو وإن تؤمنوا وتتقوا يؤتكم أجوركم ولا يسألكم أموالكم

Sahih International

[This] worldly life is only amusement and diversion. And if you believe and fear Allah , He will give you your rewards and not ask you for your properties.


إِن يَسْأَلْكُمُوهَا فَيُحْفِكُمْ تَبْخَلُوا وَيُخْرِجْ أَضْغَانَكُمْ

Sahih International
If He should ask you for them and press you, you would withhold, and He would expose your unwillingness.


Discussion of this verse:
Here it looks like we have a condition inside a condition? is it a case of nested condition. First of all are they really conditions?

Is “not asking you of your worldly wealth”, a part of the condition? No it is not part of the first condition. This last part of the verse is linked to the condition mentioned in the verse 37. The way to understand this verse is to look at the condition stated earlier, if you are not a believer does this mean Allah (swt) will ask you for your wealth? No, we know that Allah swt does not demand any wealth from non-believers in this life. This is the case where we have two Shart wa al-jawab. Anytime you have a condition there has to be a result (jawab).

The jawab of the first condition is, يؤتكم أجوركم. In verse 37, Allah swt says that if he were to ask you, you would withhold it.

Any time you have condition there has to be a result, which is known as “al jawaab”. Many times in Quran the jawab is left out for stylistic reason or when the results are well known. So in linguistic Arabic, the result is sometime left unsaid to highlight its importance.

Shaikh mentioned a technical term for this type of conditions and results being left out which are known as apodosis and .....

We will now move on to the next topic of:

Takhsees al sifa.

What is sifa wal mansoof?
Sifa is adjective and mansoof is a noun. Sifa wal Mansoof is a noun-adjective phrase. In Arabic noun (mansoof) comes first which is then qualified by the adjective (sifa)

Sifa from the point of view of ulema of al bayan (which is sytlistic part of the language) is any word or clause that modifies or qualifies that came before. An example of that is an adjective. such as Muslim American, Adjective is modifying what kind of noun we are talking about, here noun “American” is being modified by the “Muslim”. So this is an obvious type of takhsees. The takhsees through sifa can also be accomplished with a clause, e.g., “American who went to college”.

So we are still discussing the connected parts of the text and we will discuss in detail next time.


2012-02-27 Class Notes

We have been discussing takhsees bil mutasil (connected internal terms) and the main topics were exceptions, conditions, qualifying adjectives, ....  And in the next quarter we will discuss external takhsees

Sifa is a modifier or qualifier, it can be an adjective or an adjective clause.

“Give respect to the tall people”
So the word tall in this statement is what? It is an adjective. Is there any takhsees going on? Yes, since if we remove the word “tall” then the set is “give respect to all people”. When you add the modifier you are limiting the original set. Hanafis call this Qasar, Sheikh prefers to call this kind of modification a Qasr as takhsees have other remifications. Can you convert this sifa into exception, “Don’t give respect except to tall people”. So the Sifa is changed to istithna here. It is similar to removing part as a set of a whole.

Examples from Quran: Nisa V25
وَمَن لَّمْ يَسْتَطِعْ مِنكُمْ طَوْلًا أَن يَنكِحَ الْمُحْصَنَاتِ الْمُؤْمِنَاتِ فَمِن مَّا مَلَكَتْ أَيْمَانُكُم مِّن فَتَيَاتِكُمُ الْمُؤْمِنَاتِ ۚ وَاللَّهُ أَعْلَمُ بِإِيمَانِكُم ۚ
And whoever among you cannot [find] the means to marry free, believing women, then [he may marry] from those whom your right hands possess of believing slave girls. And Allah is most knowing about your faith. You [believers] are of one another.

In Arabic, sifa (adjective) comes after the noun and is called Noun-Adjective-Phrase (NAP). Here Sifa is Muminat, it is an active participle which by definition is adjective, however, a number of common active participles are concretized and are used as nouns as well. But here muminaat is used as an adjective.
In the second part of the verse, Sifa is again Muminat, and it is modifying Fatayatikum (young girls). So here we are seeing two examples of takhsees.The case where the noun is followed by an adjective is very easy to recognize.

Another example, If someone kills a believer by mistake then kaffara is to free believing slave.

وَمَا كَانَ لِمُؤْمِنٍ أَن يَقْتُلَ مُؤْمِنًا إِلَّا خَطَأً ۚ وَمَن قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ
And never is it for a believer to kill a believer except by mistake. And whoever kills a believer by mistake - then the freeing of a believing slave

Consider an example where it may require more thinking to see the sifa: “The interfaith meeting at the White House was attended by the American Muslims and Jews.“

Does the word American applies to what follows only, or to both? It is ambiguous. It may or may not apply to Jews. However the context points to that American applies to both.

Consider: “The protest against Guantanamo prisoners was led by American Muslims and NGO leaders”

It does not mean American NGO leaders, just American Muslims. In arabic adjectives comes afterwards. So it is a contexual thing.

Akrim al Arab wal Ajam al Mumineen
The word al Mumeenin is adjective and “honor the Arabs and Non Arabs believers” is the literal translation. Does believers go back to both Arabs and Non Arabs? or just to non Arabs?

Basic Shafee position would be that it goes back to both and basic Hanafis position would be that it goes back to closest one. Later shafees would say it depends on contextual analysis. When you translate this sentence from Arabic to Engligh you would be required to make this assessment, e.g. you would say “Honor believing Arabs and non-Arabs” (for both) or “Honor Arabs and believing non-Arabs” (for the closest)

Akrim al Ulama wa Jaalis al Fuqaha al Zuhaad
Here does Zuhaad go to fuqaha or both fuqaha and ulama? Since there are two commands so the Zuhad goes back to the fuqhas as the second command starts a new clause.

What is the difference between this statement and the previous, they are two different kinds of things and likely it only goes back to one of them. This is a contextual analysis.

Ar-Razi says that unless you have evidence to show otherwise, it applies to both. Part of his contextual analysis is that you are honoring someone and most probably it is because they are believers, irrespective of whether they are arabs or non arabs.

If you have an adjective, could it mean anything other than qasar or takhsees. For example Ale-Imran verse, where Allah swt is describing “fihi ayatun muhkamat”. Is this a kind of takhsees? Most likely it is takhsees, as it is distinguishing this set from the other “wa ukhara mutashabihaat”.

Surah Baqarah verse 238, Allah swt says protect “salatul wusta” and the al-wusta is an adjective, it means middle, another meaning is the best. Which salat is wusta? All five can be considered salat al wusta as each one of them have some evidence, by using these evidence scholars have shown how each one of them could be considered wusta. Is this takhsees? no, it sounds more like emphasis.


حَافِظُوا عَلَى الصَّلَوَاتِ وَالصَّلَاةِ الْوُسْطَىٰ وَقُومُوا لِلَّهِ قَانِتِينَ

Sahih International
Maintain with care the [obligatory] prayers and [in particular] the middle prayer and stand before Allah , devoutly obedient.

There are two things that an adjective can do, “taudeh” or “takhsees”. Taudeh  means to highlight something.
If the adjective is definite then many scholars would say that it is Taudeh --- highlighting, not takhsees. However, if the adjective is indefinite, then there is a difference of opinion that whether it is taudeh or takhsees.

The first example of ayat al muhkamat is takhsees and the second example of wusta is for Taudeh.

Another example, Nahl v 75

ضَرَبَ اللَّهُ مَثَلًا عَبْدًا مَّمْلُوكًا لَّا يَقْدِرُ عَلَىٰ شَيْءٍ وَمَن رَّزَقْنَاهُ مِنَّا رِزْقًا حَسَنًا فَهُوَ يُنفِقُ مِنْهُ سِرًّا وَجَهْرًا ۖ هَلْ يَسْتَوُونَ ۚ الْحَمْدُ لِلَّهِ ۚ بَلْ أَكْثَرُهُمْ لَا يَعْلَمُونَ

Sahih International
Allah presents an example: a slave [who is] owned and unable to do a thing and he to whom We have provided from Us good provision, so he spends from it secretly and publicly. Can they be equal? Praise to Allah ! But most of them do not know.

An owned slave has no way of spending or giving for the sake of Allah swt, and contrasting it to the one who Allah swt has provided for, how can they both be equal. This is the gist of the verse.

Abd al Mamlook
Every Abd is Mamlook, so why Allah (swt) has used mamlook after Abd? so that we know that Allah swt is talking about a slave and not all human beings, since all human beings are Abd of Allah swt.

In this verse the sifa is an adjective clause “who has no power over anything” (لَّا يَقْدِرُ عَلَىٰ شَيْء)  after abd al Mamlook. Is this taudeh or takhsees? and what are the remifications of it being one or the other?

If it is taudeh what does that mean? It means that it is highlighting one aspect of the abd.

لَّا يَقْدِرُ عَلَىٰ شَيْءٍ--- is adjective (i.e. it is highlighting an aspect of slavery, that the slaves have no power over anything)

If it is takhsees, then it is implying that there is another set of slaves that have ability to do something.

If it is taudeh, then it implies that all sets of slaves have no ability to do something.

Hanafis and Shafiees disagree whether this is taudeh or takhsees.
For Hanafis since it is indefinite, so it is takhsees. Shafi generally say, it is taudeh, but they have some variation on this. There is a fiqh issue associated with this interpretation. In Shafi madhab whatever slave owns belongs to the Master and slaves are not allowed to own anything and they use this verse as evidence. In Hanafi, the slave can own a property and they also use this ayat to prove their point.

How would you approach when there are two parties who are using the same evidence for two points of views?
If the two parties cannot conclusively prove that their usooli view, it means neither side has conclusive evidence, then the only option left is to drop that evidence and not use it to prove either points of views.

When Allah swt is mentioning this attribute of the slaves, he is highlighting this characteristic of the slaves. By highlighting it, Allah swt is showing us the important point that he wants us to see. So if we interpret this as taudeh, then the whole set is “all slaves of the world” and the whole set is shaded to include “those who cannot own property”. In this sense Allah swt wants to bring home the point that these slaves who cannot spend anything because they do not own anything are not equal to the ones Allah has given and are spending in the ways of Allah.

Now if within a set of slaves, we have a subset of slaves who can own property, that means they can spend it in the cause of Allah swt. So if we take it as a takhsees then Allah swt is only speaking about the subset of slaves who cannot own property, so it is kind of qasar and he is showing us that they cannot spend in the cause of Allah swt.

Next example comes from a hadith from Sunan Abi Dawood. It is related to Safwan ibn Ummayid when he was a non-Muslim, prophet borrowed from him a coat of armor. Ummayid father of Safwan asked the prophet, are you taking it by force? Prophet (saw) replied:

Bal Aryiyata Madhmoona....(it is a Noun-Adjective Phrase or NAP)
Aryata = something borrowed
Madhmoona = Prophet (saws) is liable for it (so this is Sifa)

Literal translation, It is something that I have borrowed for which I am liable.
[Footnote: This hadith according to Albani is Saheeh, and Arnaut is Hasan and weak according to the darusalam translator (Ali Zai).]

Is it takhsees or Taudeh? At first glance it is Taudeh. I am only borrowing but since I am borrowing it, I am liable for it. He is highlighting the liability associated with borrowing.
There is a difference between borrowing and ammanah. Ammanah, is e.g. i leave my car to you as Amanah, and something happens to it, then you are not responsible for it (unless you damaged it yourself). If you borrow then you are responsible for it. If you take it as Taudeh than one is responsible for it.

Is there something similar where the Hanafis and Shafiees disagreed?
Hanafis do not follow Mafhoom al Sifa which is a subset of Mafhoom al Mukhalafah (the other subset is Mafhoom al Shart). So you can see the parallels over here. Hanafis if they consider this as takhsees (as it is indefinite), then they are implying that there is a set of things that you can borrow for which they are not liable, which means they are contradicting themselves as they are assuming existence of mafhooam al sifa here. If shafais say this is taudeh, then they are ignoring the possibility of mafhoom al sifa??

Is it possible for adjective to come before the noun?
One case is called adjective idaafa, e.g. “Qabih al-wajh (ugly of face)”. The other case is e.g. in surah Qasas “sawa al-sabeel”.

Surah Baqarah verse 236
Adjective comes in between two nouns. What to do in this case? Does it go back to both or the first one?

لَّا جُنَاحَ عَلَيْكُمْ إِن طَلَّقْتُمُ النِّسَاءَ مَا لَمْ تَمَسُّوهُنَّ أَوْ تَفْرِضُوا لَهُنَّ فَرِيضَةً ۚ وَمَتِّعُوهُنَّ عَلَى الْمُوسِعِ قَدَرُهُ وَعَلَى الْمُقْتِرِ قَدَرُهُ مَتَاعًا بِالْمَعْرُوفِ ۖ حَقًّا عَلَى الْمُحْسِنِينَ

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.


Allah swt says that there is no sin upon you if you divorce women and after that there is an adjective phrase, “as long as you have not touched them or appointed for them mahr”. And then Allah swt says وَمَتِّعُوهُنَّ wa matiu hunna (give them a gift). This gift that is to be given to a divorced woman, is this for every woman that is divorced, or does it apply only to those whom you have not touched or appointed mahr for them?

If you say that the gift has to be given only to those women who have not been touched, then you are putting sifa before the noun.???

Is it possible that these are two independent sentences. first sentence that there is no sin to divorce even those women whom you have not touched or appointed their mahr, and the second statement is to give them a gift? Is there an external evidence in this case to decide?

وَلِلْمُطَلَّقَاتِ مَتَاعٌ بِالْمَعْرُوفِ ۖ حَقًّا عَلَى الْمُتَّقِينَ

Sahih International
And for divorced women is a provision according to what is acceptable - a duty upon the righteous.


Homework: Think about this verse and try to figure out how the sifa is applied to this verse.


2012-03-05 Class Notes


Surah Baqarah verse 236

لَّا جُنَاحَ عَلَيْكُمْ إِن طَلَّقْتُمُ النِّسَاءَ مَا لَمْ تَمَسُّوهُنَّ أَوْ تَفْرِضُوا لَهُنَّ فَرِيضَةً ۚ وَمَتِّعُوهُنَّ عَلَى الْمُوسِعِ قَدَرُهُ وَعَلَى الْمُقْتِرِ قَدَرُهُ مَتَاعًا بِالْمَعْرُوفِ ۖ حَقًّا عَلَى الْمُحْسِنِينَ

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.

Allah swt says that there is no sin upon if you divorce women that you have not touched. And then it says give them a gift. So the question is whether it applies to all divorced women or just the subset of divorced women whom you have not touched?

Suppose, we say that “Indian Muslims are not required to pay entrance fee to visit Taj Mahal. And they can visit it as many times as they want.” What does “they” refer back to in the second statement?

One possibility is that it refers back to Indian Muslims. Can it refer just to Muslims and not Indian Muslims? No it does not make sense. You cannot refer to the sifa only when you refer it back to a noun-adjective-phrase through a pronoun.

Majority of scholars says that the gift is to be made to divorced women who have not been touched. i.e. this “hunna” refers back to the noun adjective phrase that came before it. As the noun is not alone it has been qualified by the sifa that comes before it. So this is the case where the sifa comes between the noun and the pronoun referring back to the phrase. Malikis say that “hunna” refers to “Nisaa” as whole, but they say that this gift is not obligatory and that it is haqqan  ala muhsineen حَقًّا عَلَى الْمُحْسِنِينَ , how can they say from that word, that it is not obligatory? Their argument is that it is as a form of Ihsaan, something above the obligatory which everyone is not required to do.

Is there other evidence which shows that it (Mataa’) is more general, but we are not discussing it now. There are other verses (e.g. Baqra v. 241) that says haqqan ala al-muttaqeen, which shows that it is indeed obligatory to give the gift.

The closest noun that “hunna” is referring back to is nisa and that noun is qualified and we cannot separate it.

Conclusion: This is Takhsees by Sifa

Takhsees bil Ghaya (limit)

Recall Mafhoom al Ghaya which is used to limit the meanings of things and the words used are Ila and Hatta. However they do not just mean limit. Hatta has seven different meaning and we should be careful in interpreting the meaning of Hatta, just as we did with “in” (if).


For example Surah al Baqarah v 187
وَكُلُوا وَاشْرَبُوا حَتَّىٰ يَتَبَيَّنَ لَكُمُ الْخَيْطُ الْأَبْيَضُ مِنَ الْخَيْطِ الْأَسْوَدِ مِنَ الْفَجْرِ
And eat and drink until the white thread of dawn becomes distinct to you from the black thread [of night].

Is this a kind of takhsees? How can you think of it as takhsees, then is there a way to turn it into istithna?

Yes, it is restricting an open time to a bounded limit. The time for fasting that we are discussing is the subset of an entire day, so it is a takhsees. (big set = all day, small set = before dawn) Can we now turn it into istithna? You can eat and drink except during day time hours.

So you can see that it is easy to convert it into istithna “do not eat and drink except before Fajr”

What does mafhoom al ghaya tell you? It is subset of mafhoom al mukhalifa.
Does that verse say that you cannot drink and eat after Fajr time? No, it is not mantooq (stated) that we cannot eat or drink after fajr, we understand from the above verse that we are not allowed to eat and drink after the time of fajr and that is mafhoom al ghaya. This is one of the mafhooms that all of the scholars agree upon. There are many mafhooms, and the mafhoom al ghaya is accepted by all of the scholars.

When we have takhsees by Ghaya, then we can have more then one Ghaya (i.e. more then one condition). These other Ghaya can appear in the form of substitution/badal (“or”) or combination/jama (“and”).

For example: Give respect to bani Tameen until they enter the house or they leave for the mosque.

Here is the case that we have two conditions and only one has to be fulfilled in order to give them respect. So the limit ends when one of the condition is met.

Give respect to bani Tameem Until they enter the mosque and pray Fajr

When they meet both of the conditions the limit is finished.

In the books of fiqh you find Ahkaam regarding menstruating women that the husband cannot have relations with her until she stops bleeding and makes ghusl. So how do they arrive at this combination (jama’)?

To understand what is going on consider another Example: Suppose I give you a book and tell you that don’t open this book until you are outside of the mosque and you cannot open this book unless you are in the car.

What is the point of the first condition? It looks there is some kind of discrepancy in these two conditions. The first condition seems useless as it is sort of subset of the bigger condition (unless you are in the car).

Qur’an touches upon the issue of taharah for menstruating women in Surah Baqarah verse 222

وَيَسْأَلُونَكَ عَنِ الْمَحِيضِ ۖ قُلْ هُوَ أَذًى فَاعْتَزِلُوا النِّسَاءَ فِي الْمَحِيضِ ۖ وَلَا تَقْرَبُوهُنَّ حَتَّىٰ يَطْهُرْنَ ۖ فَإِذَا تَطَهَّرْنَ فَأْتُوهُنَّ مِنْ حَيْثُ أَمَرَكُمُ اللَّهُ ۚ إِنَّ اللَّهَ يُحِبُّ التَّوَّابِينَ وَيُحِبُّ الْمُتَطَهِّرِينَ

Sahih International
And they ask you about menstruation. Say, "It is harm, so keep away from wives during menstruation. And do not approach them until they are pure. And when they have purified themselves, then come to them from where Allah has ordained for you. Indeed, Allah loves those who are constantly repentant and loves those who purify themselves."

Do not go near them until .... and then it says

They are two different forms of the verb and as such they have two different meanings.
The first form of the verb يَطْهُرْنَ means “she has become pure” which implies that the bleeding has stopped and the second form تَطَهَّرْنَ means “she has purified herself” which is ghusl. In the verse it is not two limits. It is a limit and a condition, we do not have two conditions. The timing of limit and when the condition is applied there is conflict. Ghaya: Don’t approach her until the blood stops. Mafhoom al ghaya -> after that it is ok to approach. Condition: When she makes ghusl. Mafhoom al Shart -> she can be approached when she makes the ghusl.

If mafhoom al ghaya is meant then the 2nd one (mafhoom al shart) is meaningless. If Mafhoom al shart is meant then the first part (mafhoom al ghaya) is meaningless. The problem is that the timing of the condition is different than the timing of the limit. Based on that most scholars say that there is a conflict between mafhoom al shart and mafhoom al ghaya. The arguements among Usulieen (Shafi particularly) the mafhoom al shart takes precedence over mafhoom al ghaya, otherwise the second statement has no meaning whatsoever.

The reason for this precedence rule is to ensure that there are no sentences in the Quran that has no meaning. Because if shart did not take precedence then the second statement will have no meaning on its own. Which means as soon as the bleeding stops then relations can take place. However, then shart is standing as a useless condition.

There is a simpler way to understand the shart and ghaya. You must reach shart as well as ghaya. Mafhoom al shart does not deny the truth value of mafhoom al ghaya, and they take the combination of the two.

The problem in books of usool al fiqh is that they hardly take into consideration different Qiraa, for the first part which says  وَلَا تَقْرَبُوهُنَّ حَتَّىٰ يَطْهُرْنَ   there is another qiraa that says “uattahharn” with a shaddah on the ط and “Ha” which is hard to write here. (I think we captured the true meaning over here, we should be fine....) which means that “do not approach them until they purify themselves and when they purify themselves ….”

So the existence of other Qiraa is showing us that it is the case of the combination Ghaya. Any Qiraa that is mutawatir in an independent evidence. So reading the two Qiraa together (both are Mutawattir) helps us resolve us that it is talking about the two limits and a shart. So then mafhoom al ghaya is not in conflict with mafhoom al shart. Combining these two Qiraa will imply: “do not approach them until the bleeding stops and they purify themselves, and when they purify themselves approach them …..” So these two limits are consistent with the mafhoom al shart. In this case you do not need to resort to shafaii principal to have mafhoom al shart take precedence over the mafhoom al ghaya. However, there are other verses in the Quran where you have to apply the shafaii principal so it is good to have that principal as well.

Most tafseers tend to ignore the other qiraa and they use just one qiraa. But in this case you can clearly see that bringing in the other qiraa makes the two conditions into a combination and helps us to understand this verse clearly. Both of the qiraa are mutawattir and we cannot ignore either of them.


Is Ghaya Exclusive or Inclusive?

Another important issue about takhsees al ghaya.

For example, if I tell you that “I will sell you this room until that wall over there”.

Does the above sale includes the wall over there? The question of inclusivity when it comes to clauses such as until.

For example, Allah swt says in Surah al Maidah verse 6:
يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا قُمْتُمْ إِلَى الصَّلَاةِ فَاغْسِلُوا وُجُوهَكُمْ وَأَيْدِيَكُمْ إِلَى الْمَرَافِقِ وَامْسَحُوا بِرُءُوسِكُمْ وَأَرْجُلَكُمْ إِلَى الْكَعْبَيْ
O you who have believed, when you rise to [perform] prayer, wash your faces and your forearms to the elbows and wipe over your heads and wash your feet to the ankles.

In the first part of the verse, إِذَا قُمْتُمْ إِلَى الصَّلَاةِ “ila” is not a limit. The other two “ila” are limits.
Wash your forearms to the elbows, does that mean up to or including elbows? Wash your feet until ankles, in washing the feet, is it inclusive of the ankles?

How about verse Surah Baqarah verse 187 (for eating and drinking till fajr) that we saw earlier today.
Is this condition exclusive or inclusive? Here it is very important to understand the inclusive or exclusive nature of the limit due to its implication on the breaking of the fast at the sunset. As the verse continues ثُمَّ أَتِمُّوا الصِّيَامَ إِلَى اللَّيْلِ if limit is inclusive, then we will never be able to break the fast!!!

Here the usooleen are pretty much agreed that there is a lot of disagreement on this part.
There are seven different views about exclusive or inclusive limits. We have other evidence in most of the cases (e.g. for Baqra v187 through hadith of prophet saas), but here the usooliyeen are trying to derive the default rulings.

1. Limit is included.
2. Limit is not included (majority of scholars are of this opinion)
3. Razi’s opinion: If it is from same Genus (one kind of thing), then limit is included but otherwise not included. So Marafiq in the above verse is part of the Aydiyakum (singluar Yadd which in Arabic is from the tips of the fingers to the shoulder). So here the limit included i.e. Marafiq is included.
4. Ar Razi says that if sensory perception shows difference then Genus is different. If there is some way to distinguish between the limits then the limit is exclusive. e.g. Baqra v187, act of eating is completely different than seeing the dawn, so the limit is exclusive.
5. If the word “Min” is used (e.g. minha hunaak) then it is exclusive.
6. If clear word “Ma” is used then it is inclusive.
5. Zarkashi: If word ‘Hata’ is used it is exclusive and if ‘ila’ is used then it is inclusive. Ash-shaukani says that there is no support for this opinion.

Bottom line, contexual analysis and other related evidence is required to identify whether the limit is inclusive or exclusive. It is a vague term and you have to look at the context.

Possible short exam next week in class.

Next quarter we will begin discussion of takhsees by unconnected clauses.





2012-03-12 Class Notes


Surah Ali Imran verse 97
Sahih International
In it are clear signs [such as] the standing place of Abraham. And whoever enters it shall be safe. And [due] to Allah from the people is a pilgrimage to the House - for whoever is able to find thereto a way. But whoever disbelieves - then indeed, Allah is free from need of the worlds.

Surah Baqarah verse 185

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


Exam Questions
Are these two verses listed above, are they parallel or similar? When you analyze these two verses from the point of view of takhsees, are these two verses similar?

Think about them from the point of view of takhsees and answer are they similar or dis-similar?

The first verse shows the set of naas and then a subset of believers who make the pilgrimage.

Scholars disagree whether the first verse is takhsees or not. Since it does not show a group to whom the rule does not apply. What is happening here is that you are replacing a whole with a part.

The second verse is takhsees, you are excluding a group from the general rule. The general rule is that everybody has to fast, except those who are ill or on journey.

Another example which is similar to the first verse where a whole is substituted with a part is Surah Baqarah verse ... which discusses the inviolable month and wherein fighting is prohibited.

يَسْأَلُونَكَ عَنِ الشَّهْرِ الْحَرَامِ قِتَالٍ فِيهِ ۖ قُلْ قِتَالٌ فِيهِ كَبِيرٌ ۖ وَصَدٌّ عَن سَبِيلِ اللَّهِ وَكُفْرٌ بِهِ وَالْمَسْجِدِ الْحَرَامِ وَإِخْرَاجُ أَهْلِهِ مِنْهُ أَكْبَرُ عِندَ اللَّهِ ۚ وَالْفِتْنَةُ أَكْبَرُ مِنَ الْقَتْلِ ۗ

They ask you about the sacred month - about fighting therein. Say, "Fighting therein is great [sin], but averting [people] from the way of Allah and disbelief in Him and [preventing access to] al-Masjid al-Haram and the expulsion of its people therefrom are greater [evil] in the sight of Allah . And fitnah is greater than killing."

Takhsees by Al-Haal:

What is a haal construct?
It is an adverbial clause, which defines the circumstance in which it has occured. Takhsees can also be constructed via the haal construct. Some scholars consider them to be takhsees al sifa (particularization by adjective).

For example in Surah Baqarah verse 187 where Allah swt describes the person making ihtikaaf.

أُحِلَّ لَكُمْ لَيْلَةَ الصِّيَامِ الرَّفَثُ إِلَىٰ نِسَائِكُمْ ۚ هُنَّ لِبَاسٌ لَّكُمْ وَأَنتُمْ لِبَاسٌ لَّهُنَّ ۗ عَلِمَ اللَّهُ أَنَّكُمْ كُنتُمْ تَخْتَانُونَ أَنفُسَكُمْ فَتَابَ عَلَيْكُمْ وَعَفَا عَنكُمْ ۖ فَالْآنَ بَاشِرُوهُنَّ وَابْتَغُوا مَا كَتَبَ اللَّهُ لَكُمْ ۚ وَكُلُوا وَاشْرَبُوا حَتَّىٰ يَتَبَيَّنَ لَكُمُ الْخَيْطُ الْأَبْيَضُ مِنَ الْخَيْطِ الْأَسْوَدِ مِنَ الْفَجْرِ ۖ ثُمَّ أَتِمُّوا الصِّيَامَ إِلَى اللَّيْلِ ۚ وَلَا تُبَاشِرُوهُنَّ وَأَنتُمْ عَاكِفُونَ فِي الْمَسَاجِدِ ۗ تِلْكَ حُدُودُ اللَّهِ فَلَا تَقْرَبُوهَا ۗ كَذَٰلِكَ يُبَيِّنُ اللَّهُ آيَاتِهِ لِلنَّاسِ لَعَلَّهُمْ يَتَّقُونَ

Sahih International
It has been made permissible for you the night preceding fasting to go to your wives [for sexual relations]. They are clothing for you and you are clothing for them. Allah knows that you used to deceive yourselves, so He accepted your repentance and forgave you. So now, have relations with them and seek that which Allah has decreed for you. And eat and drink until the white thread of dawn becomes distinct to you from the black thread [of night]. Then complete the fast until the sunset. And do not have relations with them as long as you are staying for worship in the mosques. These are the limits [set by] Allah , so do not approach them. Thus does Allah make clear His ordinances to the people that they may become righteous.

Do not have relationship as long as you are making ihtikaaf.

If you try to make it a stand-alone statement, then it would mean that you are making ihtikaaf in the mosque and that is not the meaning. This is a haal construct.

If you take the statement on its own, it restricts the meaning, it is not a general statement, but it is takhsees only when you are making ihtikaaf.

Takhsees by Prepositional Phrase:

What about prepositional phrase by which you can make takhsees? e.g. Don’t talk in the house

Ibn Hazm says that prepositional phrases are takhsees, while others do not consider it to be a binding condition. We discussed the example of not marrying step daughter???

اللَّاتِي أَرْضَعْنَكُمْ وَأَخَوَاتُكُم مِّنَ الرَّضَاعَةِ وَأُمَّهَاتُ نِسَائِكُمْ وَرَبَائِبُكُمُ اللَّاتِي فِي حُجُورِكُم مِّن نِّسَائِكُمُ

Shaikh clarified an earlier confusion about “Don’t read the book until you leave the mosque and get in your car”. I missed the clarification?????


Comments