Usool al-Fiqh Spring 2010

Beginning Usool al-Fiqh - Islamic Legal Theory III

Basic Outline of the Class

2010-04-05 Class Notes

Review of the last session

We defined the quran and sunnah from usool al fiqh perspective. And now we have to go and get our guidance and laws from quran and sunnah (nusoos -- نصوص). We will learn how to derive laws from the nusoos. We will layout the tools used by the scholars of usool al fiqh to gain the meaning of a passage and the implication of the meaning of the passage. Then we will learn how to derive laws that are not explicitly stated by the passage. Tools used to ponder the meaning of the quran. Not just to get the clear meaning but the ramnifications of the text. From text to fiqh conclusion.

How scholars differ in the understanding of how to derive conclusions from the text. The name for this field is tafseer al nasoos. Nasoos means quran and sunnah. We will see that the Hanafi approach is very different from the other three schools which are known as mutakallimoon (متكلمون)  - Shafiee, Maliki, Hanbali schools. There is divergence between Hanafi and the other 3 schools. Objective analysis of the different approaches.

Hanafi approach is much more defined as compared to the other schools. The textbook only discusses the hanafi approach so you miss out on the approach of the other schools. What is the best approach? What is the best way to understand the quran and sunnah. You will appreciate where the other approach comes from? You will understand that they are not going against the quran and sunnah, you may disagree with them but you gain an appreciation or understanding of their approach.

Discussion on an example from the Quran

Quran is words / speech. Sunnah is not just speech, it is also actions or tacit approvals etc.

Surah Baqarah verse 228

وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ ۚ وَلَا يَحِلُّ لَهُنَّ أَن يَكْتُمْنَ مَا خَلَقَ اللَّهُ فِي أَرْحَامِهِنَّ إِن كُنَّ يُؤْمِنَّ بِاللَّهِ وَالْيَوْمِ الْآخِرِ ۚ وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَٰلِكَ إِنْ أَرَادُوا إِصْلَاحًا ۚ وَلَهُنَّ مِثْلُ الَّذِي عَلَيْهِنَّ بِالْمَعْرُوفِ ۚ وَلِلرِّجَالِ عَلَيْهِنَّ دَرَجَةٌ ۗ وَاللَّهُ عَزِيزٌ حَكِيمٌ

Muhsin Khan: And divorced women shall wait (as regards their marriage) for three menstrual 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 the better right to take them back in that period, if they wish for reconciliation. And they (women) have rights (over their husbands as regards living expenses, etc.) similar (to those of their husbands) over them (as regards obedience and respect, etc.) to what is reasonable, but men have a degree (of responsibility) over them. And Allah is All-Mighty, All-Wise.

Qatiee Thaboot it is definitive

Discussion on analyzing the meaning of 3 quroo which we lost during the technical problems of the class.

Concept of bayaan - ways of making something clear

Bayaan bil fil (action - بيان بالفعل ) - show them how to do something

More important is Bayaan bil Qawl (بيان بالقول )- explain something by speech. Level of clarity could be different even from the same person. Will the level of clarity be the same for each ayat of the quran? Take a look at Baqarah verse 228.

Sajdah al malaikataha kulluhum - all of the angels together prostrated. What is the significance of the word kulluhum. 

The angels prostrated - Sajdah al malaika  This statement is open to interpretation taweel. One of the possible meanings is that all of the angels prostrated or it could also mean a certain group of angels prostrated. This is called takhsees or particularization. The possibility of particularization exists for general statements. Once you add kulluhum to the above statement, all of the angels, then you remove the takhsees. Meaning is extremely clear. 

Some text of the quran and sunnah are possibly open to taweel. What are the text where the possibility of taweel has been removed. If the possibility of taweel still exists, then the strenght of the passage is not as strong as text were the possibility of taweel is removed.

Types of taweel

1. Takhsees or particularization (تخصيص)  

2. Restricting the unrestricted - taqiyathul mutlaq  For example, expiation for breaking an oath is freeing a slave, can I choose any slave? There is possibility, it might mean a believing slave. Now you are restricting an unrestricted statement. (تقييد المطلق)  

3. Going from literal to lesser known or non-literal meaning of a word - haqeeqi  (حقيقي) to majaazi (مجازي). For example, wala taheer yateeru - taheer has many meanings but the next word which is two winged ... removes the possibility of using a different meaning of the word

Texts are sometimes clear and sometimes not clear. The level of clarity might vary as well. 

Hanafis divide clear passages into four categories. As you move up the category, the preciseness of the text becomes stronger and the possibility of taweel is restricted.

What would be main difference between clear and non-clear texts?

Clear text is one you are obligated to follow. There could be possibility of taweel

Unclear text is one that you do not apply until you determine the clarity of the text, it requires ijtihaad to determine the meaning.

Clear Words/Phrases

Al Muhkam (المحكم)  Removing the possibility of abrogation

Al Mufassar (المفسر)  Explained

Clear Text An Nass (singular of nasoos) (النص) 

Apparent Adh Dhahir (الظاهر) 

The level of clarity is most high for al muhkam since even the possibility of abrogation is removed.  So as you move up from adh dhahir to al muhkam the level of clarity is increases.

2010-04-12 Class Notes

Clarification on general statements

I will pay you $100 for removing the weeds.  Here weeds is general term. And this could lead to confusion in a contract between you and the person removing the weeds.  If the person removing the weeds says that he made some assumptions about the meaning of the word weed. The person who claims a general meaning of weeds has to prove his claim. 

when a general term is used, one cannot assume that ta'weel has been made.

ta'weel: restricting a general term.

a genral term is to be understood as general unless there is proof. Burden of proof is on the proposer.

Clear speech 

Clear speech is divided into four categories by Hanafis.

Clear speech is understood on its own. There is no need for an external source to explain its meaning

Strongest to Weakest categorization of clear speech

Al Muhkam

Al Mufassar (Explained)

An Nass

Adh Dhaahir

One of the benefits of this categorization, is if there is an apparent contradiction between two texts and if one of them is stronger than the other, then the preference is given to the stronger speech

Unclear speech

Unclear speech is not understood on its own. It is not clear how to understand the speech.

Unclear speech is also divided into four categories by the Hanafi school.

Example of unclear speech is the example from last time. A woman who is going through divorce has to wait for a period and the term used is kuru and it is unclear what it means. It could mean period or purity ...??? CAN SOMEBODY FILL THIS OUT ???

Adh Dhaahir

It means apparent, plain, manifest

Ad-Dabusi early Hanafi scholar, he wrote a book on Hanafi Usool. His defintion: What is apparent to the listener, once you hear it.

Zarkashi:As soon as you hear it, you understand it. It requires no pondering or thinking, it is clear and obvious.

They developed two schools in Hanafi school wrt the meaning of the term Adh Dhahir. We will focus on only one branch of the Hanafi school (Iraqi branch and Samarkand-Bukhara branch) 

Four criteria that makes text Adh Dhaahir

1. Meaning is clear in itself without the need to resort to external source. (It is true for all categories of clear speech)

2. (Disputed among the hanafi) The Dhahir meaning is not the primary intent of the speech. It is secondary to what the speech is trying to give you.

3. It is still open to the possibility of taweel. For example, the weeds, the possibility of taweel still exists

4. Text is open to abrogation (naskh) during the time of the prophet. There is nothing in the statement that implies that the possibility of naskh does not exist. Hadith --- Jihad to continue till day of judgement. So the text of the hadith makes it clear that it will not be abrogated until the day of judgement.

Kamali page 91(old edition) pg. 123 of the new edition.

"Meaning is not in context and is not harmonius with the context of the text."  

"The manifest (dhaahir) is a word which has a clear meaning and yet is open to ta'wil, primarily because the meaning it conveys is not in harmony with the context in which it occurs."

According to the sheikh this statement is complete misunderstanding of the hanafi opinion. It has to be harmonious.

Surah Nisa verse 3

وَإِنْ خِفْتُمْ أَلَّا تُقْسِطُوا فِي الْيَتَامَىٰ فَانكِحُوا مَا طَابَ لَكُم مِّنَ النِّسَاءِ مَثْنَىٰ وَثُلَاثَ وَرُبَاعَ ۖ فَإِنْ خِفْتُمْ أَلَّا تَعْدِلُوا فَوَاحِدَةً أَوْ مَا مَلَكَتْ أَيْمَانُكُمْ ۚ ذَٰلِكَ أَدْنَىٰ أَلَّا تَعُولُوا

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

Dhahir meaning of this text "then marry (other) women of your choice, two or three, or four" is that marriage is permissible. It is not the primary intent of the text. It is the most obvious meaning of the text. 

Is this dhahir meaning in context with what it says? Yes it is. So the statement by Kamali is a misunderstanding. 

Is this meaning open to taweel? Yes it is.

Surah Baqarah verse 275

الَّذِينَ يَأْكُلُونَ الرِّبَا لَا يَقُومُونَ إِلَّا كَمَا يَقُومُ الَّذِي يَتَخَبَّطُهُ الشَّيْطَانُ مِنَ الْمَسِّ ۚ ذَٰلِكَ بِأَنَّهُمْ قَالُوا إِنَّمَا الْبَيْعُ مِثْلُ الرِّبَا ۗ وَأَحَلَّ اللَّهُ الْبَيْعَ وَحَرَّمَ الرِّبَا ۚ فَمَن جَاءَهُ مَوْعِظَةٌ مِّن رَّبِّهِ فَانتَهَىٰ فَلَهُ مَا سَلَفَ وَأَمْرُهُ إِلَى اللَّهِ ۖ وَمَنْ عَادَ فَأُولَٰئِكَ أَصْحَابُ النَّارِ ۖ هُمْ فِيهَا خَالِدُونَ

Muhsin Khan: Those who eat Riba (usury) will not stand (on the Day of Resurrection) except like the standing of a person beaten by Shaitan (Satan) leading him to insanity. That is because they say: "Trading is only like Riba (usury)," whereas Allah has permitted trading and forbidden Riba (usury). So whosoever receives an admonition from his Lord and stops eating Riba (usury) shall not be punished for the past; his case is for Allah (to judge); but whoever returns [to Riba (usury)], such are the dwellers of the Fire - they will abide therein.

What is the dhahiri meaning of "Trade is just like interest"?

Dhahir meaning: Trade is permissible and riba is haraam. 

It is open to taweel.

It is not the primary intent of text

Is it possible that it could be abrogated? Yes, since there is no evidence.

Different types of Particularization (ta'weel)

From literal to non-literal

Restrict the unrestricted

Dhahir text is hujja in Islamic law unless there is evidence otherwise. It is obligatory to act according to the dhahiri meaning, definitively and certainly (am and khas). according to Zuhaily.

Dhahir meaning is definitive according to Hanafi and they are going to differ from the other madhabs. 

Role of the mujtaheed with respect to Adh Dhaahir passages:

1. Determine whether it is the primary intent of the text or not. If it is primary intent then it moves the text into another category. Asbaab an-nazool will make it clear or provide evidence if the mujtaheed needs more clarification.

2. Determine if there is any evidence to make taweel. 

Nass

-explicit, declared, manifest, visible to all.

This is text which becomes more explicit due to the evidence given by the speaker himself. 

Al Muslim is general text. Just by looking at the word we can say whether it is general. But here the speaker is providing more evidence to make it more explicit.

Hanafi defn: Text which clearly indicates its meaning and is the primary intent of the text and there is still possibility of taweel but it is less than the dhahir text and it is still open to abrogation.

Nass: strengthens the meaning of the text and is the primary intent of the text.

Surah Nisa verse 3: then marry (other) women of your choice, two or three, or four

Primay intent of the text or nass: Most that the muslim man can marry at a time is 4 wives.

It is still open to taweel but less so than the Dhahir meaning

Surah Baqarah verse 275: "Trading is only like Riba (usury)," whereas Allah has permitted trading and forbidden Riba (usury).

Nass meaning: Riba is not like trade

Role of the mujtaheed with respect to An Nass passages:

1. Is there evidence for taweel? If we find that taweel needs to be done to get the meaning of the text then it is no longer Nass.

For example Quran: Carion and blood is forbidden

Is blood forbidden?

Surah Al Anam: The blood that is still in the animal such as liver is not forbidden. 

So Carion and Blood is forbidden is unclear because we needed an external source like surah Al Anam to understand that the blood that is in arteries and veins or blood that can be spilled or drained is forbidden.

Difference between dhahir and nass is the primary intent of the text:

1. how clear is the message from the text

2. whether it is the actual intent of the text

Can a general text (am) be considered nass?

1. no evidence that ta'weel is to be made

2. no evidence of abrogation

3. main intent of the speech

4. meaning is clear

Hanafis consider general text to be Qatiee Dhalala. It is one of the major differences between Hanafi and other madhabs.

There is a small group of Hanafis that do not believe Nass and Dhahir is Qatiee Dhalala. Group of scholars called mathuridis, They say you cannot get definitive knowledge from it so you cannot consider it to be Qatiee Dhalala. They say in matters of belief things have to be definitive. In matters of actions things do not have to be definitive. So it creates an interesting situation where they say that there is no Qatiee Dhalaal for Azab Al Kabr (punishment of the grave) but make dua after the prayers for respite from azab al-kabr.

Mufassar

Something explained, expounded, disclosed.

Hanafi Definiton: A word that is so explained, that it is no longer open to taweel. However the possibility of naskh or abrogation during the lifetime of the prophet is still there.

Clear meaning to it but the possibility of ta'weel has been removed.

Taubah:36

Example: Al Mushreekin - it is an am or general term. Someone could say Mushreekin does not mean all the musreekin. But the word that comes after it, kafaa, all of them, so it removes the takhsees for the word Al Mushreekin. Something in the text discloses it's specific meaning and blocks the need for taweel

Mufassar li-dhaatihi

e.g. Taubah:36

"sajdah kulluhum malaikah..."

Kulluhum - all of the angles prostrated. No one can say that some of the angels prostrated. 

Mufassar li ghairihi

Surah Maarij verse 19-21

What is the meaning of the word khaluqa?

This word is defined by the two verses that comes after it. Hence it is Mufassar li ghairihi.

Mankind was created anxiously, when evil touches him, he becomes impatient and when some good touches hime, he becomes ungrateful

إِنَّ الْإِنسَانَ خُلِقَ هَلُوعًا

Muhsin Khan: Verily, man (disbeliever) was created very impatient;

إِذَا مَسَّهُ الشَّرُّ جَزُوعًا

Muhsin Khan: Irritable (discontented) when evil touches him;

وَإِذَا مَسَّهُ الْخَيْرُ مَنُوعًا

Muhsin Khan: And niggardly when good touches him;

2010-04-19 Class Notes

Mufassar

Mufassar can be translated as unequivocal. It is divided into two categories.

1. Mufassar li dhaatihi - Unequivocal based on its own merit

2. Mufassar li ghairihi - Unequivocal based on external evidence

Mufassar li dhaatihi can be further subdivided into two:

1a. Unequivocal based on the nature of the words used

1b. Unequivocal based on additional information provided in the text

It is not open to taweel but is open to the possibility of naskh during the lifetime of the prophet.

Example of 1a: The punishment to chaste woman, the word eighty used in the verse is not open to taweel. The word excludes the possibility of taweel.

Example of 1b: And then there are other words in the verse that remove the possibility of taweel. For example, "sajdah kulluhum malaikah..." the word malaikah is open to taweel such as how many, but the word kulluhum removes the possibility of taweel because it clearly states all of the angels. 

Mufassar li ghairihi example: Text is unclear but there is enough evidence around it to remove the possibility of taweel. For example, salat, the sunnah gives details to the word salat, what is salat, hence salat goes from unclear to detailed due to external evidence from the sunnah.

Any of the verse of the Quran can become mufassar if you use sunnah and further explanations according to the Hanafi madhab.

Ruling of mufassar text:

1. Qataiee dalalah

2. It is obligatory to act upon the text

3. It is not open to taweel

4. Precedence over nass and dhahir text

Role of mujtaheed wrt mufassar text:

Since it is not open to taweel what is the role of mujtaheed, he has to search whether or not it has been abrogated. To check for other evidences so that a verse can be elevated to Mufassar.

Muhkam Text - Definitive

Indicates it meaning in clear and definitive manner, it is not open to taweel and not open to abrogation even during the lifetime of the prophet.

For example something that will occur until the day of judgement. This type of statement cannot be abrogated. Why?

Suppose another text comes and abrogates it, then it makes the previous statement invalid.

Some statement from the quran which says ever, surah ahzab vverse 53

And it is not [conceivable or lawful] for you to harm the Messenger of Allah or to marry his wives after him, ever. Indeed, that would be in the sight of Allah an enormity.

Muhkam li dhaatihi

Muhkam due to the text itself

Muhkam li ghairrihi

Muhkam due to external sources

Texts that cannot be abrogated:

Statement about Allah swt

Aqeedah

Day of Judgement

Akhlakh

Ruling of Muhkam text:

Qatiee Dalalah

Definitive, Authorative

You have to apply the text

Benefits of categorizing the various rulings

Text of arabic points to whether it dhahir or nass or muhkam. But when you read english translation and you jump to conclusion that the verse is open to taweel, but if you know the categorization of Arabic text then you know if it is open to taweel or not.

How to deal with texts that have apparent contradiction? It is apparent because the whole Quran and Sunnah comes from Allah swt, and he wont send us contradictory messages to do or not to do something. Sometimes if it looks like there is apparent contradiction, then you take certain steps, if you have two text then you have to find out the reconcile the text and apply both of the text. You cannot simply reject or ignore one of the two texts.

Tarr wa tarjeeh

Let's take a look at some examples of apparent contradiction. We will start with an example that is not correct.

Wahad al Zuhayli http://www.zuhayli.net from Sham area and he is Hanafi and he has fiqh books, 10 volume set. In his book of usool al fiqh, he states conflicts can only be if the two pieces of evidences are at the same rank, like two verses or two hadith, if they are not equal in strength then there is no conflict. You cannot have conflict between Quran and Sunnah, in that case Quran always takes preference. You cannot have tarruf or conflict between Quran and Sunnah

Sheikh says in the field of usool al fiqh you always come across strange statements, for example the statement of Kamali from the last lecture

Surah Baqarah verse 230, when you divorce a woman, you are not allowed to marry her until she marries someone else. 

Zuhayli says the following hadith contradicts the verse 230 from Baqarah. Even though the hadith is nass, the verse takes precedence. The verse is neither naas or dhahir.

The hadith states that you cannot marry unless there is a wali for the woman. He says it contradicts the verse and he discards the hadith.

By no means of the Arabic language or custom, it implies that no wali is required from the meaning of the verse. Hadith is nass wrt the requirement of a wali for marriage. Zuhayli is saying that the woman is acting as her own wali when she marries herself. This is a stretch of the meaning of the verse until she marries someone else.

Hadith is nass on this topic and Zuhayli is not consistent on this topic. Getting married to woman and aunt at the same time, he is using the hadith to enforce that you cannot marry woman and aunt at the same time, even though there is no verse of the quran. The Quran only states that you cannot marry two sisters at the same time. So Zuhayli is using the hadith to bolster his opinion.

Denies the existence, or completeness or soundness of something (this was in response to a question from the class which I could not hear)

Another example of apparent contradiction

Hadith: There is no salat for one who does not recite Surah Fatiha

Hadith: If someone has an Imam, then the reading of the Imam is his reading

These two hadith are given as example of conflict whether it is required to recite Surah Fatiha if you are worshipping behind an Imam. 

(By the way Zuhayli will not consider it to be conflict because both of them are at the same rank)

Do we need to recite Surah Fatiha, can you say one of the hadith is nass or both of them are nass?

The first hadith is talking about recitation of Surah Fatiha and the second hadith is talking generally about qirat of salat which is more than surah fatiha.

First hadith is nass and not the second one for the recitation of surah fatiha.

For question about reciting anything other than surah fatiha, the second hadith is nass and the first hadith does not shed any light or is irrelevant.

The second hadith is a weak hadith, then you cannot put it up against an authentic hadith. If some madhan considers the second hadith to be authentic, it still cannot overrule the first hadith which is nass wrt the question of recitation of surah fatiha

Recite surah fatiha with the imam while the imam is reciting is the strongest opinion if you consider all of the evidence.

Another example of apparent contradiction

Surah Baqarah verse 233

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

Surah Ahkaf 

30 months for pregnancy and weaning

There is apparent contradiction in two verses, one of them has to be dhahir and the other nass.

The first verse is nass wrt the time period of suckling, according to one scholar

Abu Hanifa considered 30 months for weaning and he ignored the time for pregnancy. Abu Hanifa says 2:233 is wrt divorce proceedings and the resolution of payment of wet nurse for the suckling of the child. Abu Hanifa says in general breast feeding is for 30 months, however if they are divorced and the mother is not breast feeding then the father is responsible for 24 months.

Students of Abu Hanifa say that 2:233 is nass with respect to suckling.

2010-04-26 Class Notes

Discuss the way of topic of clear speech is discussed by muttaqalimoon

Mutakallimoon are the four madhabs except the Hanafi madhab (shafiee, hambali, maliki, and mutazilla). The mutazilla are an important group to discuss in fiqh. 

Trace history of ... and find out its source in mutazilla. Mutazilla introduced it and then were carried forward by the muttaqalimoon. 

Some of you might have heard the expression, the door to ijtihaad is closed. This does not occur in usool al fiqh among the muttaqalimoon, the scholars are free to go even if there is a slight opening. There are many opinions. They work closely with one another, They have free exchange of ideas among the madhab except the hanafi school.

Imam Shafiee was one of the first to write a book on usool al fiqh called Risalah. He did not speak much about the topic of clear speech. He did not distinguish between nass and dhahir. He used them interchangeably. 

Scholars after him, starting with Abdul Jabbar, a mutazilli, who introduced the topic of clear speech and then the others followed him.

Nass

Defn of Qadi Abdul Jabbar: Nass has one meaning to it and It is clear in its meaning. It is not open to taweel.

Compare it with the hanafi concept of nass which is open to taweel.

Al Ghazali important shafiee scholar in usool al fiqh, he reviewed the different meanings of the word nass. He states that according to shafiee, nass and dhahir have the same meaning.

The most common view, nass is a word that is not open to taweel either .... or remotely.

Some others say, that it is open to taweel but there is no evidence for it. This is a minority opinion.

Mutakallimoon  Defn: Text that is not open to taweel, or text that is definitive in its indication.

In Hanafi all four categories are qatiee dhalalah

Ruling of Nass

1. Definitively have to accept, follow it and act upon it

None of the writers bring upon the possibility of naskh or abrogation

Role of the Mujtaheed

1. Conflict with weaker text and show that nass takes precedence

Nass is going to take precedence over the weaker text.

Dhahir

Qadi Abdul Jabbar: It is text that is not in need for further explanation. Jamaah wa Manaa???

Encompases both the hanafi concept of dhahir and nass in their defn of dhahir.

Ruling

1. They are not qatiee dhalalah but dhanni dhalalah. 

It is open to more than one meaning, however there is one meaning that is the correct meaning. For example, the word Asad has a literal meaning or figurative meaning. Liar or Brave. 

All four of the categories for hanafi are qatiee dhalalah. This is one of the biggest differences between hanafi and other madhab,. One student wrote a phd disertation on this topic and the ramnifications. 

Dhanni Dhalalah for Mutakallimoon 

1. Amr

Any amr (imperative) is considered dhahir text and also dhanni dhalalah for muttaqalimoon

Amr can be obligation, permissibility, Possibility, Threat, Command, 

Amr is used but the meaning is simply that of permissibility.

For example Allah swt says: Go out and seek the bounties of Allah swt (after Friday prayers). It is in the form of Amr but it is not considered a command by any of the scholars. Here it means permissibility.

2. Prohbition

For muttaqalimoon every prohibition is considered dhanni dhalalah.

3. General sense - there might be some taksees or particularization is there. 

For example: Muslims might do that, but some Muslims might not.

There is no fasting for the one who did not do intention before Fajr prayers. Taweel for this is that it is only for obligatory fasts and not for voluntary fasts. And hence the muttaqalimoon consider general text to be dhanni dhalalah.

Word is clear but can have different meaning.

Difference of opinion due to different meanings of the text

Tayamum - what are you going to do the wudu with? 

According to Imam Shafiee, who was an expert in Arabic language, saeed was whatever was on the top of the earth.

Imam Malik - anything that has come to the face of the earth, rocks, sand, pebbles.

If the text is dhahir then is it obligatory to follow it?

Muttaqalimoon say it is obligatory to act upon it, unless there is some evidence otherwise.

Do you believe in dhahir text?

Discussion about yadd or hand of allah. There are different meanings to the text. (I missed this discussion....) 

Dhahir is clear but not qatiee dhalalah.

When you see something, then the belief becomes stronger. For example the story of Ibraheem and his insistence to see how the dead will be resurrected and his conversation with Allah swt. 

You can believe something without actually seeing it. You might not have any doubt it. Doubt is the greatest threat to belief. 

Another opinion:

Dhahir text have to be applied and they have reached the level of obligation and to accept it. 

The difference between action and belief goes back to Mutazilla. Sometimes you have to know the history. This concept entered into usool al fiqh and the most direct source is the mutazilla. This dichotomy did not exist during the time of the prophet and the sahaba.

Iman is simply not belief, it is belief and action. Actions are part of the Iman. Mutazilla believe that actions are different than belief. Difference between aqeedah and practice is not the way the prophet taught the sahaba and the understanding of the tabieen.

Question that the scholars discuss is when do you apply dhahir text

You come across a hadith and according to them it is dhahir. Do you then apply it or do we wait and research it and see for further evidence or do we practice it until we come across some stronger evidence against it?

Hadith is in the form of imperative. By defn it is dhanni dhalalah, it is nass. Do you apply it?

Some of the mosques in US 10-15 years ago in the East coast were applying hudood. Suppose some one brings a thief to the mosque and proves it that he is theft. What should we do? The punishment is mentioned in the Quran and then what should we do?  The text is amr which is dhanni dhalalah.

Are there any limits on the punishment? Do we take his intentions into account?

Sheikh really grilled us on how to approach the dhanni dhalalah text by asking us questions. He removed any assumptions and kept on asking what would we do?

On this point the muttaqalimoon are all over the place.

Imam Ahmad has three opinions, which is not unusual for the Maliki madhab.

1. Person does not act until he knows the meaning of the text

2. Person acts upon it unless he knows some other evidence that contradicts it

3. It is the duty of the person to search for the explanation for the text. If he does not find anything that contradicts, then he performs taweel. This is also the opinion of ibn Taymiyyah. 

Ibn Taymiyyah says that people make the most mistakes is that they apply the most apparent meaning of the text without finding more details.

Imam Ahmad gave these three opinions because of the different context such as

second view is for the scholars

first view is for the lay people

the most general case will be the third view

For the muttaqalimoon there are just two categories: nass and dhaahir.

2010-05-03 Class Notes

We take the dhahir meaning of the text and only if we have some evidence then we make taweel. This applies to aqeedah and fiqh, it is not allowed to stray from the dhahir meaning unless there is some evidence.

Dhahir meaning of the text is meant unless proven otherwise.

This is how we communicate, we take their words at face value or their apparent meaning and if you try to interpret it otherwise, no one will accept it. So the same applies to the quran and sunnah

For the Hanafis is the word is open to taweel and the scholar is not aware that taweel has to be made, he has no knowledge, then it is qataee dhalala, it is definitive.

According to the muttaqalimoon, the possibility of taweel is enough to move it from qataee dhalala to dhanni dhalala.

Clear terms according to Mutakallimoon 

Mufassar

The Mutakallimoon  do not have a concept of mufassar. Imam Shafiee used the term mufassar as something that is explained elsewhere, such as salat etc.

Fakhruddin Raji has an important book and he introduced mufassar just as defined by the hanafi, but he did not give the details like the hanafis do.

Mufassar as a technical term does not exist in the muttaqalimoon.

Muhkam

Muhkam is used by the muttaqalimoon and the meaning according to them is any text that is clear. 

Muhkam 

 -> Nass 

 -> Dhaahir

Any text that is dhaahir and nass is muhkam. Muhkam is the superset of Nass and Dhaahir. And the set Mufassar does not exist or is null.

And Mufassar does not exist in their terminology.

Shawkaiti shows the approach of the Mutakallimoon, there are three possibilitiies

1. Only one meaning - This is nass for Mutakallimoon 

2. More than one meaning but one meaning is more apparent than others - This is dhaahir for Mutakallimoon 

3. More than one meaning but it is not clear which is more apparent than others - The Mutakallimoon call it mujmal

Shawkaiti is maliki but he was teaching the hambali madhab when he wrote the usool al fiqh text.

This shows how simple is the approach of the muttaqalimoon as compared to the hanafi approach for clear terms.

Comparison between Hanafi and Mutakallimoon approach

Do you think the lengths the Hanafis went, was there any benefits to it?

Simplisitic approach is sometimes good, but when there is conflict the systematic approach of the hanafis is good.

Hanafi v/s Mutakallimoon Approaches

There is an important relationship between Mutakallimoon and the hanafi approach that we need to understand when we read books by hanafi and mutakallimoon scholars.

Mutakallimoon Dhaahir (Dhanni Dalalah according to Mutakallimoon) is the superset of  Hanafi Dhaahir and Hanafi Nass

Mutakallimoon Nass (Qataee Dalalah according to Mutakallimoon) is the superset of Hanafi Mufassar and Hanafi Muhkam

For Hanafi all four categories of clear text are Qataee Dalalah

So what Mutakallimoon  mean by nass is mufassar or mukham and what hanafi mean as nass is dhaahir according to Mutakallimoon. So we have to be aware of this relationship between Hanafi and Mutakallimoon approaches.

Unclear Text according to Hanafi

What do we mean by something that is not clear?

Dhaahir and Nass, the meaning is obvious to any observer. However for unclear text, the meaning is not obvious, it requires some effort on the part of the reader. It requires some ijtihaad or research to understand the term.

Hanafis divide unclear text into four categories.

Overview of the four categories of unclear text. as presented by At-Taftazani who is shafiee but has a very clear presentation on the hanafi approach.

Sheikh is explaining it by discussing "thief" and who is a thief and is not a thief. Which acts belong to the set of thieves. And then he asked us whether a pickpocket is a thief or is somebody who invades home a thief.  The reason why we need to know this is because we have to apply the punishment. 

Decision Tree to Categorize the unclear text

Decision Box #1: Is the word clear, but some ambiguity if it applies to certain subsets

Arrow from the box #1, if the answer is Yes then it is considered Al Khafi

Arrow from the box #1, if the answer is No, then it is drawn to another Box #2

Decision Box #2: Can it's meaning be determined by human reasoning or ijtihaad, if the answer is Yes, then the text is Mushkil

If the answer to Box #2 is No, then it moves to Box #3

Decision Box #3: Has the meaning been given by Allah?  If the answer is Yes, then the text is Mujmal (Shawkaiti used this term in the Mutakallimoon for all of the unclear text, so we can clearly see that there is going to be differences between Hanafi approach and the Mutakallimoon approach).

If the anser to Box #3 is No, then the text is Muttashahiba. There is no hope in knowing the meaning of the text.

Al Khafi

Defn: Hidden or obscure

It is case where we don't have problems understanding the word or meaning, but there is some vagueness when we try to apply it to something that may or may not fall under it. 

If some body has taken something that does not belong to him but it is less than what the text implies or in some case such as home invasion there is more harm implied and the act is more intense then simply a thief.

Lets take an example of Saariq. The meaning is clear from Arabic language - refers to some one who takes something of value that belongs to somebody else and is protected in its proper place and he takes it in a secretive manner. For example somebody who finds a phone left on a desk is not a saariq but he is still a thief.

So is a pickpocket a saariq. All the scholars agree that a pickpocket is saariq. Judging some act is not based on the name of the act but based on the reality of the act.

What about a grave robber, who steals the kaffan? Is he saariq?

According to Abu Hanfia and his student Ahmad, the grave robber is not a saariq. There is a term for it. And the stolen item is not of value and it has no owner and it is not kept in safe place and the act can be committed in daylight. 

Abu Yusuf and others concluded that they are saariq

So this is an example of al khafi. The word is clear but the application is unclear, who exactly is a saariq.

Is somebody who violates copyright law, a saariq?

(Edit: This was one of the most interesting classes this session)

2010-05-10 Class Notes

Discussion of Al Khafi (Obscured) text

If you can find other evidence related to it from Quran or Sunnah, that evidence can make it clear to you whether it belongs in that category or not.

In Sunnan Abi Dawood, there is a chapter concerning the punishment for nabbash a grave digger, does nabbash fall under the category of Saariq. Abu Dawood is quoting hadith, Prophet asked Abu Darr how would you .. when a grave will cost as much as a house .... 

How does Abi Dawood get to the conclusion that the grave digger falls under the category of saariq?

Prophet referred to the grave as a house and the house is place to store someone's belonging then if someone steals from the grave then it is like stealing from the house. Death will become so rampant that it would cost as much as a house to bury the dead.

Another example: Hadith in Sunan Abi Majid says the Qaatil killer shall not receive any inheritance. 

There are fixed heir in Shareeah and if that person who is a fixed heir kills somebody he is going to inherit from then he cannot receive any inheritance.

Who is Qaatil (Killer) and who is a murderer? This is an example of khafi/ Somebody who kills somebody by mistake, some action that you committed and it leads to somebody's death. For example you dug a well but did not mark it and your brother falls into it, then you are a qaatil, so then are you disqualified from inheritance. What about if you killed somebody in self defense etc. All of these categories leads to the discussion that whether there are any exceptions to the Qaatil who cannot inherit.

Hanafi - Any case where killing requires Qasaas or Kafarar will not inherit. It could include deliberate, quasi deliberate or intentional. It includes accidental death. They try to look and see where shareeah tries to distinguish from one type of killing to the next. If an insane person or a child or fighting on behalf of the state then there is no penalty or punishment associated with the killing and hence you can inherit

Malaki - Depends upon intention. It does not matter if you are direct or indirectly involved with the act, if you have the intent to kill then you are the qaatil and you cannot inherit. There is a legal maxim that says that you bring anything to fruition before its natural time then you should be prohibited from benefitting from that action. So

Hambali - Opinion is all over the place

Some aspect of the text is clear, but there is another aspect of the text is not clear and you cannot act upon it unless you perform ijteehad.

So can somebody choose their madhab to benefit them for example change from Malaki to Hanafi?

Shopping for madhab is wrong, if you are trying to benefit, then you are following your desires hawaa and this is not how you should choose your madhab.

Categories of text and the impact of their rulings

A: Case which is clearly stated in the text - there is no difference of opinion. It is qatiee

B: The text is not clear but when we analyze it, we find out it is equivalent to A. Then ruling of A applies to B 

C: This text has less in common with A and it does not meet all the criteria of A. So the ruling of A does not apply to C. For example grave robber.

D: The text has criteria of A plus more. It could be a different category. For example highway robber, this might be some other criteria. Another example is that rape is much more than zina and the category for punishment of rape must be different than zina.

A is qatiee dhalala. B-D are dhanni dhalalah, they require ijteehad.

Discussion of Al Mushkil text

By definition the term itself that is being used is not clear.  You have to determine the different possible meanings of the word. The word or particle or the structure of the text is itself the problem. That means you have to look at the external things to determine its meaning. Trying to discover the meaning of mushkil is much more difficult than khafi. You need much more ijteehad. Obviously the rulings will be dhanni dhalalah.

Mushtariq

One possible reasons why text would become mushkil is due to homonyms (mushtariq), words that have multiple meanings, which is very common in Arabic.

What is the meaning of ayn?

It could mean: eye, letter itself, spring, spy, guard, self or himself, chief, most beautiful, evil eye, second radical of the verb, headlight of a car, individual.

We knew the meaning of the word saariq and qaatil but if you heard ayn you would not know the meaning ot the word without the context. 

Metaphorical Meaning

Another reason for mushkil text is that words have literal meanings and metaphorical meanings. The literal meaning is the default unless you provide evidence otherwise. Metaphorical meaning has become so common that it has reached the level of the literal meaning and it is now the prominent 

The textbook by Kamali says that by itself the text itself is clear and then he brings another verse that contradicts the meaning. But the sheikh disagrees with him and he says that is not what the hanafi madhab would say as a reason for mushkil.

Surah Baqarah verse 228

وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ

The word quru قُرُو  - the divorced women would enter waitiing for 3 قُرُو quru, it could mean periods or state of purity. This is an example of mushtariq text, you do not know the meaning of the word qur wihout understanding the context of the verse. You cannot understand the text without ijteehad. This is also an example of where shafiees and hanafis differ. 

Here the woman is going to end her iddah either at the beginning of the period or at the end of the period. Mujtaheed has to ponder and find out evidence for his understanding. It is much more difficult process than khafi.

Look to see if that word is used by Allah swt or the prophet in a certain manner. We do have a hadith from the prophet, prophet told a woman to leave her salat during her qur. This is the hanafi point of view. So next time we will see how and why the shafiees differ.

2010-05-17 Class Notes

Review mushkil and khafi. What is the most important distinction between mushkil and khafi text?

Text that is khafi - the primary meaning has no doubt but when we try to extend the meaning to other situations, we run into trouble . In mushkil the word itself is problematic, we cannot determine the meaning by looking at the word itself, it is too obscure, we have to look at other evidences to show us the meaning or show the strongest interpretation of the word.

We discussed iddah for the divorced women. Ibn Al Aravi scholar said this verse is one of the problematic verses wrt the meaning and scholars have gone back and forth and have not been able to agree on the correct meaning of the text. The text could mean at the onset of menses or when she is free of menses, the word for menses in arabic qurru has multiple meanings.  We have to go to external sources.

The four madhab say it is the time of purity, the hanafi say at the onset of the menses. 

Hanafi viewpoint discussion and their proofs or evidences

Determine if the term qurru has been used in any other text, it occurs only in hadith and the prophet uses it when discussing it with Fatima bint Ubais and he uses it to mean the period.

One of the main purposes of iddah is to determine the woman is not pregnant and the occurrence of menses demonstrates that the woman is not pregnant and you don't have to wait for the purity.

Key to the iddah is menses and if the woman does not undergo period then the iddah has to be three months.

Shafiee viewpoint and their proofs

One of the arguments of the shafiee is that the proper divorce should occur in the state of purity. If the iddah is the time of purity. The time of purity is lets say 20 days and if he divorces on 19th day then 1 day before the period will count as one part of the three qurru.

Quran says the iddah is three complete qurru (either purity or onset of menses). 20 days of purity and 7 days of menstrual cycle.  So is qurru the days of purity or the days of menstrual cycle and that is what we are trying to disambiguate. This is the mushkil. It could mean more than one thing.

If the husband divorces her in the time of purity, then that part of purity is considered 1 qurru and then he has to wait for two more qurru. So the first qurru could be incomplete. 

If the qurru is menses, then the woman has to wait until she has three menstrual cycles.

Another proof the shafiee use is the Surah Talaq verse 1

يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ وَأَحْصُوا الْعِدَّةَ ۖ وَاتَّقُوا اللَّهَ رَبَّكُمْ ۖ لَا تُخْرِجُوهُنَّ مِن بُيُوتِهِنَّ وَلَا يَخْرُجْنَ إِلَّا أَن يَأْتِينَ بِفَاحِشَةٍ مُّبَيِّنَةٍ ۚ وَتِلْكَ حُدُودُ اللَّهِ ۚ وَمَن يَتَعَدَّ حُدُودَ اللَّهِ فَقَدْ ظَلَمَ نَفْسَهُ ۚ لَا تَدْرِي لَعَلَّ اللَّهَ يُحْدِثُ بَعْدَ ذَٰلِكَ أَمْرًا

Sahih International

O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period and keep count of the waiting period, and fear Allah , your Lord. Do not turn them out of their [husbands'] houses, nor should they [themselves] leave [during that period] unless they are committing a clear immorality. And those are the limits [set by] Allah . And whoever transgresses the limits of Allah has certainly wronged himself. You know not; perhaps Allah will bring about after that a [different] matter.

Another argument is the word thalata is feminine in the verse that discusses iddah. The word of tuhur purity is masculine and haida is feminine, the word thalata is for purity according to the rules of masculine and feminine. 

However you could derive many things or refute many things based on language. Shafiees say that iddah and qurru are the same thing, however when we says iddah is three qurru, then their argument falls apart. In sharieeh the only thing that is mentioned is that qurru is menses.

External evidence for mushkil text

We have to use external evidence such as asbab an nazool and hadith to determine the meaning. However we have to use ijtihaad or reasoning to resort to our conclusion and then this would become dhanni dhalalah, according to the Hanafi madhab.

Another example of mushkil / Surah Al Anam verse 121

وَلَا تَأْكُلُوا مِمَّا لَمْ يُذْكَرِ اسْمُ اللَّهِ عَلَيْهِ وَإِنَّهُ لَفِسْقٌ ۗ وَإِنَّ الشَّيَاطِينَ لَيُوحُونَ إِلَىٰ أَوْلِيَائِهِمْ لِيُجَادِلُوكُمْ ۖ وَإِنْ أَطَعْتُمُوهُمْ إِنَّكُمْ لَمُشْرِكُونَ

Sahih International

And do not eat of that upon which the name of Allah has not been mentioned, for indeed, it is grave disobedience. And indeed do the devils inspire their allies [among men] to dispute with you. And if you were to obey them, indeed, you would be associators [of others with Him].

Don't eat that which has not the name of Allah has not been mentioned, does that mean we have to mention the name of Allah while slaughtering the animal.

Is it obligatory when animal is slaughtered the name of Allah has to be mentioned? The scholars are divided on this. Shafiee and some maliki and one narration of Imam Ahmad it is sunnah. When somebody does not mention the name of allah either intentionally or forgetfully, it is still permissible to eat the meat. Dhahiri - it is obligatory and if somebody does not mention it forgetfully then the meat is not halal. Hanafi - intentionally not mentioning the name it becomes carrion dead meat and if you forget it then it will be overlooked, this is also common view among Hanbali and Malikis.

How do the Shafiees come to their conclusion, do they ignore the above ayat?  Of course not, so what could lead to mushkil when we try to understanding the meaning of the ayat.   وَإِنَّهُ لَفِسْقٌ

What is the meaning of wa? These particles or harf or haruf have more than one meaning. One of the them is the swearing by Allah swt for example wa shamshi wal qamari. Another meaning is waw al thamani, after you mention 7 things, before you mention the eighth item you use the word wa. Surah Kahf - how many were the companions of the people of the cave. Another example was Surah Taubat.

Before they used punctuation in Arabic, one of the ways of indicating the beginning of the sentence is the usage of waw. 

So the wa innahul fisq, the meaning of the wa is the mushkil. It could mean more than one meaning. Two meanings: Begining of sentence or Waw al Haal.

Waw al haal, it is the waw at the end of the passage and it indicates an adverbial clause. For example .. surah .... adverb describing the ... oh you who believe .... do not knowingly conceal the truth, the last waw is the one that describes the state of the believers?

Shafiee viewpoint is surah al anam waw is waw al haal. They say that the verse is referring to the disbelievers in the state of fisq when they disobeyed Allah swt

Hanafi say that the Shafiee are making too many assumptions when describing the above proof. The hanafi view is that the waw is the beginning of the sentence.

So to resolve the mushkil we have to take a look at some external evidence. 

In another verse where Allah swt mentions fisq when people who were disobedient and in that verse there is no mention of something that was slaughtered without mentioning the name of Allah swt.  However fisq is very comprehensive term discussing disobedience and qurru which we discussed earlier was something more narrow in scope. 

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

Sahih International

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

Another evidence - hadith of the prophet which describes the slaughter of animals where prophet describes the usage of sharp knife and mentioning the name of Allah swt.

Hadith of Ali ibn Hatim who was a hunter who used to use a hunting dog and sometimes he used to send the dog to fetch the animal but sometimes he would find his dog and another dog over the hunted animal. The prophet had advised him to say bismillah when he released his dog in earlier hadith. But in this hadith the prophet said that you ignore the hunt where you find two dogs because you dont know which dog actually hunted the animal.

So it is better to avoid linguistic gymnastics and make assumptions and use the language as a crutch to prove your argument.

Discussion on Ahl al Kitab

Even those who believe in trinity are considered ahl al kitab according to the letter written  by the prophet to Emperor Heracles who at that time believed in the trinity and yet was addressed as Ahl al kitab.  

So we are allowed to eat the meat slaughtered by them but there are some conditions.

2010-05-24 Class Notes

One of the important points is to recognize the difficulties of fiqh and it part of the aspects when dealing with fiqh issues. With respect to mushkil text, we will not do any more examples, since there is ijtihad involved and it is difficult for the students.

Conclusion for mushkil text, is it always going to be non-conclusive? In general if there is ijtihad involved and you have to study external sources to come to a conclusion. However if there is a clear asbaab an-nazool for an ayat and it is very clear, then your conclusion could be pretty definitive, the hanafis might not call it qataee dhalalah, so something that starts out mushkil might end up being definitive.

Could khafi text be ever definitive? If you find some other text that clearly points to the khafi text, then it can become conclusive.

Al Mujmal Text as classified by Hanafi madhab

We went from mushkil to mujmal in the flowchart that we discussed earlier. Khafi is text is clear in itself but its application can require ijtihaad, mushkil the wording itself is not clear and via ijtihaad conclusion is clear, mujmal the word itself is lacking in clarity and we cannot independently construct or come to a conclusion about the meaning of the text. 

That lack of clarity can be due to number of reasons:

1. Rare word from the arabic language and its meaning is not known to many people

2. Homonyms - Mustharaq word that has many meanings and the identification of the correct meaning is not known to us

3. The meaning may be changed or altered from the linguistic meaning. The shareaah has given a new meaning to the term.

4. Realm of ijtihaad is very limited

The linguistic meaning is now replaced by shareaah meaning. This meaning cannot be known except from Allah swt. For example salat means dua linguistically. It is called salat because it is composed of dua and hence this word is used for what shareeah calls dua, the shareaah meaning is the action that begins with takbeer and ends with tasleem.

Imsaq means to abstain, similarly hajj and zakat. The shareaah has given it a new meaning and how can we understand it, we can only understand it via sunnah.

If you come to the salat in the quran and it has linguistic meaning and shariah meaning. Originally it was called mujmal or ambiguous, after it has been explained by the prophet it becomes mufassir.

Now when you come to the word salat and it has new shareeah meaning, at a glance what does it mean? You understand it from shariah meaning unless there is evidence otherwise.

The authors give these two examples of how to choose linguistic or shariah meaning

Example: Allah and his angels make salat over the prophet. Here is the meaning shariah or linguistic meaning?

Example: Take from their wealth zakat to purify them to make salli allah... Is the meaning of salat shariah or linguistic meaning

The above two examples because it is verb preposition and these are poor examples.

Sheikh gives a different example

Prophet said, If you are invited, you should respond and if you are not fasting, you should eat, if you are fasting then you should make salat.

The majority of scholars say that the meaning of it is dua, you make dua for the one who has invited. And others say that you should pray two rakat based on the evidence that the prophet ate and then prayed.

Another example, surat fussilat

Woe to the mushrikeen those that do not give zakat and they are disbelievers in the hereafter.

Is zakat shariah meaning or linguistic meaning?

If the verse is revealed in Makkah and the command for zakat was not revealed, then do you use the linguistic meaning or shariah meaning?

We will discuss this in the principles of tafseer class tomorrow. If we allow the meaning of the word to be changed from linguistic to shariah then would it leave the door open for people to later redefine new meanings for words?

If a word is explained by shareeah then it becomes mufassir. Other than Hanafis, the three madhab will give preference to shariah meaning. And that's why Hanafis have different rulings for salat are derived from the linguistic meaning over the shariah.

Homonyms is not possible in the case of ahqam

The meaning of the text is so unclear that there is no way that we can figure out? Is that even possible that we would have text that we cannot determine the meaning? Is it conceivable that Allah swt will leave us clueless in the matters of ahqam?

No. Since prophet has left us something that is very clear, there is no doubt about the path. The idea that there cannot be any meaning for commandments of Allah swt is not feasible according to all of the scholars.

Is it possible for human being to say something that there is no way for us to figure out the meaning? Yes it is indeed possible. But wrt Quran there is no doubt that the text is clear.

If some one leaves a will and he bequeathes 1/3 to my muali, the term muali is a mushtariq, it could mean the one who freed him or to the slave that is freed by him.

One approach is to apply it to both the categories.

Or the contract becomes void since we don't know how to apply it.

Give it to the one who is more deserving and according to one scholar it should be to the one who freed you since you have to be thankful to the one who freed you.

By the way this 1/3 bequathement is the one that is allowed by the shariah of your inheritance.

So the conclusion is that there is no mujmal text since the shariah explains the meaning of the word and homonyms cannot exist in the case of ahqam and Allah swt has made the text clear to us for the ahqam.

Example: Hadith of Signs of the Hour.

Prophet said, there will come upon people, years of deception, liar will be believed and the honest person will not be believed, ..... believing person will not be given trust, ruyabadah ..... (Here the prophet used a rare arabic term which the sahaba did not know or understand)

Companions asked what is ruyabadah ... ... the prophet said, it is ignorant person who speaks about issues of public affair.

Example Surah Al Maarij 19 through 21 هَلُوعًا

Allah swt is an example of a term that Allah swt uses except that Allah swt goes on to explain it

إِنَّ الْإِنسَانَ خُلِقَ هَلُوعًا

Sahih International

Indeed, mankind was created anxious:

Tafsir al-Jalalayn

Indeed man was created restless: (halū‘an is an implied circumstantial qualifier, the explanation of which [follows]):

70:20

to top

إِذَا مَسَّهُ الشَّرُّ جَزُوعًا

Sahih International

When evil touches him, impatient,

Tafsir al-Jalalayn

when evil befalls him, [he is] anxious, at the point of that evil befalling [him],

70:21

to top

وَإِذَا مَسَّهُ الْخَيْرُ مَنُوعًا

Sahih International

And when good touches him, withholding [of it],

Tafsir al-Jalalayn

and when good befalls him, [he is] grudging, at the point of that good befalling [him], that is to say, [when] wealth [befalls him], [he is grudging to give] of it what is due to God;

Example Surah Al Qariah is another example of a term الْقَارِعَةُ that Allah swt uses except that Allah swt goes on to explain it

الْقَارِعَةُ

Sahih International

The Striking Calamity -

Tafsir al-Jalalayn

The Clattering Blow, the Resurrection that will make hearts clatter by its terrors.

101:2

to top

مَا الْقَارِعَةُ

Sahih International

What is the Striking Calamity?

Tafsir al-Jalalayn

What is the Clattering Blow? — [intended] to emphasise its awesomeness (mā’l-qāri‘a: both of these [elements] constitute a subject and a predicate, and [together] the predicate of [the first] al-qāri‘a).

101:3

to top

وَمَا أَدْرَاكَ مَا الْقَارِعَةُ

Sahih International

And what can make you know what is the Striking Calamity?

Tafsir al-Jalalayn

And what will show you, [what] will make known to you, what the Clattering Blow is? — additional emphasis of its awesomeness (the first mā is a subject, and what follows it is its predicate; the second mā and its predicate also function together as the second direct object of [the verb] adrā, ‘show’).

101:4

to top

يَوْمَ يَكُونُ النَّاسُ كَالْفَرَاشِ الْمَبْثُوثِ

Sahih International

It is the Day when people will be like moths, dispersed,

Tafsir al-Jalalayn

The day (yawma: that which renders it accusative is [the verb] indicated by al-qāri‘a, in other words, [by the implied] taqra‘u, ‘it clatters’) mankind will be like scattered moths, like a throng of scattered locusts surging into each other in confusion, until they are summoned to the Reckoning,

101:5

to top

وَتَكُونُ الْجِبَالُ كَالْعِهْنِ الْمَنفُوشِ

Sahih International

And the mountains will be like wool, fluffed up.

Tafsir al-Jalalayn

and the mountains will be like tufts of wool, like carded wool in terms of the lightness with which it floats [in the air] until it comes to settle upon the earth.

The word riba, how would you translate it?

It is not usury or exorbitant interest, any amount of increase is riba.

Is riba originally mujmal? Did it have a linguistic meaning prior to the shariah meaning?

When Allah swt is revealing the verses of riba, he is describing the practice that is well known among the arabs. The prophet said in his farewell khutbah that all of the riba of the days of jahiliya are null and void. So this term existed and is not mujmal.

However, the prophet defined another type of riba, riba al fadl, bartering gold for gold, silver for silver, it has to be exact amount. The riba of the quran was not mujmal, but this riba al fadl was mujmal.

Prophet mentioned six categories of riba in a hadith.

In general mujmal has now become mufassir, it is something that is qatiee. There might be some aspects of it that is open to ijtihad.  Can you take an analogy of the six categories and apply it to some other circumstances, what is the illa or driving force behind it?

If you want to extend riba al faql then you have to use ijtihad, so it is partially ... since the text does not explain to us how to apply it. Some say it is money, some other say it something that can be measured or weighed, etc.