Usool al Fiqh Summer 2010
Beginning Usool al-Fiqh - Islamic Legal Theory IV
A basic introduction and overview to the entire field of Islamic Legal Theory. In this session, the method of deriving texts from the Quran and Hadith will be discussed, emphasizing the concept of taweel.
Prerequisite: None.(all topics are independent of previous sessions).
Text: Principles of Islamic Jurisprudence by Mohammad Hashim Kamali
Time: Mondays 7:15 - 8:15 PDT
Basic Outline of the Class
Topic 1: Rules of Interpretation I: Deducing the Law From Its Sources (Kamali, chapter 4)—specifically Taweel (pp. 88-90)
Topic 2: Either: Rules of Interpretation I: Deducing the Law From Its Sources: General and Specific Texts (Kamali, chapter 4, pp. 1o4-113) Or Rules of Interpretation I: Textual Implications: (Kamali, chapter 5)
2010-06-21 Class Notes
I still have to transcribe the notes from the audio recording for this lecture
2010-06-28 Class Notes
What is the justification from Shareeah perspective for Taweel? What are the evidences?
Some scholars give examples from Prophet (). But Prophet () did not do taweel, technically speaking.
Example --- Sura Nasr was revealed --- Prophet () said that this is an indication that he is going to die. Narrations are weak. Cannot be used as evidence.
Dreams of Prophet () --- people had short garments, Omar (RA) had long garment, Sahabas asked what is Prophet ()’s interpretation --- Prophet () replied that it was deen or ilm. Dream interpretation is different than taweel of speech.
Dhulm --- any kind of wrongdoing.
Sahaba when they heard the verse that whoever does dhulm with emaan..... Prophet () explained that Shirk is the dhulm. Particularizing the greater set of dhulm.
The following may be the best example of the Prophet () approving taweel.
After the battle of Azhab Prophet () sent sahabas to Banu Quraiza and asked none should pray Asr till they reach banu Quraiza. Some sahabas delayed the prayer but others prayed the Asr on time before reaching Banu Quraiza. One group went against the Dhahir meaning but they had evidence for praying Asr on time. Prophet () did not disapprove either one. Scholars have debated which one is more correct. Sheikh thinks there is not much to discuss about it.
The dhahiri scholar Ibn Hazm did not accept taweel on fiqh matters but did taweel for aqeedah matters.
Hadith --- none of you should urinate in stagnated water and wash from it. making taweel that this hadith is not applicable to one individual. But Ibn Hazm applies that only the person who urinated cannot do wudu from it others can do wudu.
Mushtarak is not taweel as the different meanings of the word are equally likely.
Conditions for Taweel
Categoires of text for which taweel is allowed ----
Text related to laws
Text related to aqeedah
Bakarah 174 --- concealed what is being revealed in the book they consume nothing but hell fire and Allah (SWT) will not speak to them.
Hadith --- Bukhari --- Allah (SWT) will speak to every one of you.
Hadith --- Alcoholic will not enter Jannah.
Sheikh Nasser Aqeel --- there is no such thing of taweel in aqeedah as there is understanding of some texts with the help of others.
2010-07-05 Class Notes
Review of the last class
We have text in the Quran and Sunnah that give an outward or apparent meaning and in reality the most apparent meaning is not what is meant. The whole goal of taweel is to get the actual intention of the speaker. So where can we apply taweel to? We can apply to legal texts and those texts that are related to the matter of aqeedah.
Example of hadith where we do apply taweel
Hadith: "man qala la ilaha illallah, dakhalal jannah"
Whoever says la ila ha illalah will enter jannah
من قال لا إله اللله داخالال جناح
The word من is a general word and here it means whoever or anyone. It represents the set of people who say la ilaha illallah
The most apparent meaning or dhahir meaning is that whoever says la ilaha illallah will enter jannah. Is that what is meant by this hadith? The default case is the dhahir meaning unless you have other text.
So from the large set of people who say la ilaha ... we can exclude people who are hypocrites and then are seven conditions and we can exclude people who do not meet the seven conditions.
This is an example of taweel. So we have to know what is sound taweel and what is not sound taweel.
Why we cannot do taweel for attributes of Allah swt?
When it comes to attributes of Allah swt there is no taweel, the reason for it is three-fold:
The reason why many people make taweel when it comes to sifat or attributes of Allah swt is that their dhahir or apparent meaning is not what is meant by the text and they say that they have to make taweel. Ibn Taymiyyah says that hand of Allah swt is not like the hand of Allah swt and that there is no need to make taweel wrt the attributes of Allah swt.
He further states that there is no report of any sahaba who made taweel wrt the attributes of Allah swt.
And finally, if you do make taweel, any thing that you come up with will be false. For example if you say hand of Allah swt is power of Allah swt, there is no basis for it and you will be wrong.
However this does not mean that you cannot make taweel in matters of aqeedah. Commentator says what Al Tahawi is saying is that he is not rejecting taweel in matters of aqeedah but what he is rejecting is taweel that is false and heretical and that which is not supported by sunnah, he is rejecting incorrect taweel.
Classroom discussion about Sheikh Nasser’s statement
He refuses to call it taweel but that is not a sound approach. It is important to know that we do apply taweel and sometimes it is acceptable to apply it and sometimes it isn’t the right approach.
Obviously it should be a scholar who should do taweel who is knowledgeable about all of the aspects before he approaches the text. Taweel is left for the scholars.
Scholars recognize that taweel is a tool and it should be applied. The problem is that taweel can be abused and we have to be careful.
Principles of Sound Taweel
So we will concentrate on the principles of taweel to understand what is sound taweel. The conditions for taweel are:
1. The text has to be open to taweel
Some text are open to more than one meaning, some text are specific and are not open to taweel. For example, if I say give me that book, it is very specific, the clause that book is specific and is not open to taweel.
In the Hanafi school, when they look at various texts, they have two categories Mufassar and Muhkam, the nature of those text is such that it is not open to taweel. Non-hanafis call it Nass text.
Numbers are not open to taweel. So if the punishment says 100 strikes then you cannot do taweel and say it is less or more than 100.
Seven and seventy is unique in Arabic language and it could mean several of them or many of them in certain usages of the numbers seven and seventy. They are used
2. Meaning that is derived must be consistent with the way in which language expresses itself
The language must be bare or allow for the taweel, you cannot violate the language.
Freeing a slave - you could free a believing slave
Literal sense to Figurative sense - word for lion is asad in literal sense and it could also mean a brave person. Going from literal to figurative is part of the language.
When you make taweel and cannot make stuff up and say that you are performing taweel
It is unacceptable to say shaad is cow when it means sheep. Similarly you cannot say yad (hand) means power.
3. You must have authentic evidence for your taweel
We are trying to restrict taweel. When we did taweel of man qala, we presented the hadith of seven conditions.
When you study the evidence and find out that it is not strong enough to convince us to go from the apparent meaning to a less apparent meaning of the text.
The taweel that is made sometimes goes very far away from what is meant by the text. Far fetched taweel is not necessarily rejected, if it has strong enough evidence to convince us. Obviously the closer the taweel is to the apparent meaning, then the strenght of the evidence could be less and less.
For example, when we take away hypocrites from the people who will enter jannah, is it closer to the apparent meaning? It is a close taweel because you are going from general to a more specific meaning.
If you want to understand fiqh you have to understand taweel. There are many levels of Taweel. If the evidence that is used is another verse of the quran then it strengthens your taweel.
For example Surah Maidah Verse 3
حُرِّمَتْ عَلَيْكُمُ الْمَيْتَةُ
Sahih International Prohibited to you are dead animals,
Here it does not say eating is prohibited, here it means anything related to dead animals is prohibited. So here can we do taweel and say that fur of dead animal is not prohibited.
So the word al maita is general and we are saying that dead fish are not included. So we are excluding a subset from the large set of الْمَيْتَةُ (al Maita) and we are using the evidence of hadith that states that all the bounties of the sea are permissible.
So is the evidence sufficient? Yes
Is the evidence strong enough for us to eat dead fish? Yes
What about fur?
We have evidence from the prophet that showed us how to tan the skin of a dead animal. There is also hadith of Maymunah which states that what is forbidden is eating the dead animal.
Another example: Hadith that states Deceased is being punished because of the crying of the relatives over him.
What is the main reason why you would not take it at its dhahir or apparent meaning?
The evidence is the Quran where a soul will not carry the burden of any other soul.
Why should the deceased be punished by the crying of the relatives? There is difference of opinion among the scholars about this and some still take it at its apparent meaning and we do not have time to delve into it.
4. The conclusion that you make should not contradict any other source of the shareeah
If you look at the heretical groups that did taweel, it contradicts other text of Quran and Sunnah and then they get into a spiral or loop and they cannot extradite themselves from their taweel.
5. The conclusion cannot render the text false
You cannot negate the apparent meaning. If it completely negates the apparent meaning then you are not performing sound taweel.
In each madhab you will find interesting conditions of taweel which we will discuss later.
2010-07-19 Class Notes
Review of last class. Three types of taweel:
1. Al Taweel al Saheeh “Sound taweel”
It is based on sound principles and you are presenting evidence for the taweel.
2. Al Taweel as Faasid “Unsound taweel”
Under closes inspection you find the evidence is weak, for example hadith is not sahih. Among the four madhabs you will have saheeh or faasid taweel.
3. Al Taweel al Baatil al Mardood “False or rejected taweel”
This taweel has no basis in the Arabic language. It contradicts the apparent or dhahir meaning of the text. Some scholars call it playing with the text. Some say if you persist with this taweel then you are performing kufr.
This type of taweel is resorted by the heretic groups. One heretic group uses esoteric meaning of the Quran that contradicts the apparent meaning of the text.
Taweel al Kareeb - Taweel that is close to the apparent meaning. It is not a stretch of imagination.
Taweel al Baid- Taweel that is further away from the apparent meaning, now you have to present evidence to show why the taweel is so further away.
Al Karhi, earlier Hanafi usoolayeen, he says that every verse or hadith that goes against our opinions is either to be reinterpreted or must be abrogated. They are trying to reconcile the approach of their scholars and understand their methodology. Remember these statements are directed at other scholars and not the masses. So how can you interpret this statement in a positive light? When a conclusion of a scholar is different, then you try to reconcile. However this statement can be interpreted in a negative way.
Force your conclusion on text
Some scholars start with a conclusion and then try to force that conclusion on the text. And the only way they can do that is by performing taweel. And this is one of the way that taweel is abused.
It should be the other way around, you should start with the text and then derive your conclusions.
Example of taweel al kareeb
Surah Maida verse 6 It talks about obligation of making wudu
What is idha kuntum al salah? Rise to perform prayers. Do we follow the dhahir meaning of the text?
We have plenty of evidence from the prophet, that it is pre-requisite for the salah. We don’t perform it when we stand up for salah. We understand that if you have the intention to perform prayer, then you perform wudu. If you take the apparent meaning, then you would have to perform wudu for every prayer.
Surah Nahl verse 98
فَإِذَا قَرَأْتَ الْقُرْآنَ فَاسْتَعِذْ بِاللَّهِ مِنَ الشَّيْطَانِ الرَّجِيمِ
So when you recite the Qur'an, [first] seek refuge in Allah from Satan, the expelled [from His mercy].
What is the dhahir meaning of this? When do you perform istaada? You perform it after the salah. And we have evidence from the prophet. The translator does the taweel for us in the above example.
Surah Ali Imran verse 102
يَا أَيُّهَا الَّذِينَ آمَنُوا اتَّقُوا اللَّهَ حَقَّ تُقَاتِهِ وَلَا تَمُوتُنَّ إِلَّا وَأَنتُم مُّسْلِمُونَ
O you who have believed, fear Allah as He should be feared and do not die except as Muslims [in submission to Him].
Does this mean that if someone goes out of the fold of Islam that you don’t die in that state?
The command is for istiqamaah and to remain steadfast on the straight path.
The above three examples are very straight forward and do not stray from the apparent meaning and their is evidence for the taweel.
Examples of taweel that will highlight fiqh issues
The approach we should follow for these examples are:
1. We will try to identify if the taweel is close or distant to the apparent meaning of the text.
2. How strong is the evidence for the taweel. The basic ruling is to take the dhahir meaning and the movement away from it requires justification.
3. Finally we should take a look at the taweel and does it contradict the apparent meaning of the text.
Hadith: For every forty sheep give a sheep
Zakat and expiation of sins. Should we pay the actual item described in the ayat or can we use equivalent monetary value of the item for the expiation or for zakat. For example for every 40 sheep you have to pay 1 sheep. Can we give the value of the sheep? To say money instead of sheep is taweel. This is a classic case where the shafiees and hanafis differ.
Goal of the shareeah is to help the poor. Zakat is act of ibadah and in matters of ibadah you have to stick to the text.
Giving money is more consistent with the goal of the text. You have to be careful about this argument. However they have evidence for it.
Imam Bukhari agrees with the hanafi, it is strange, because he spent most of his time disagreeing with the hanafi.
He has a chapter heading: Zakat may be paid in kind (and not in cash) The parenthesis is from the translator Muhsin Khan and it contradicts what Imam Bukhari is saying. Imam Bukhari then reports that Muad ibn Jabbal said ... instead of giving me barley give me clothing ....
This report is muallaq hadith of Bukhari. This muallaq hadith is not authentic. Remember this title of Bukhari’s book is Jameh Sahih Musnad which says that all hadith that traced back to the prophet and have a sound isnad are authentic.
The statement of Muad ibn Jabbal is not a statement of the prophet. And the statement of Muad does not have a complete chain. In other narrations of the above statement of Muad, he was asking about jizyah and not zakat.
Another hadith from Bukhari which discusses equivalence payment of zakat
Anas narrated Abu Baqr wrote to me that .... (arabs have a different name for every stage of camel) ... one who had to pay zakat had to pay a one year old she camel, but he doesn't have one, instead he has a two year old she camel for paying the zakat, the zakat colletor has to refund either 2 sheep or 20 dirham to the payee of the zakat ... this hadith is about zakat
Is this proof for Hanafis? No it is proof against the hanafis. If it was acceptable to pay equivalent then they would not have to go these lengths to refund the equivalent amount to the payee of zakat.
Opinion of the hanafis is taweel - Money instead of sheep
How distant is the taweel?
Can you even make taweel for this statement, for every 40 sheep give a sheep?
For sadaqat ul fitr you have the same debate, giving value of food instead of food, between shafiees and hanafis.
Another example: Expiation of sins
The act of dhihar, where a husband would declare his wife’s back to be equivalent to his mother’s back. Allah swt condemns this action and he has to perform expiation for this sin. He has to fast two consecutive months, if he is unable to fast two consecutive months, he has to feed sixty misqeen.
Shafiees say you have to feed sixty poor people.
Hanafis say you don’t have to feed sixty poor people, you can feed one person sixty times. Are they performing taweel? Yes
Is it distant or close?
Al Ghazali, famous shafiee usooli and fiqh scholar, he does not reject this taweel completely. Ibn al Humam, important hanafi fiqh scholar, he wrote hidaya ...., he rejects Hanafi opinion.
Conditions for taweel
Is it even possible to make taweel? No
It is a specific number, it says 60 people, so how can you make taweel in this case?
The text may not be open to taweel.
In this case, Hanafis do not have any reports that support their taweel.
If you feed one person 60 times, can you say that you have fed 60 people? No, you have contradicted the text. One person is not the same as 60 people.
Now the hanafis are going against the principle of benefiting the ummah, which they invoke when they say that paying monetary equivalent of the food or sheep etc.
2010-07-26 Class Notes
Hanafi madhab has a tendency to make a distant taweel than other madhabs and we have to be aware of it. If we critique it, it does not mean that we have a dislike for that madhab.
Everybody except Hanafis says that the guardian of the bride as a wali in the marriage contract.
Prophet said, “there is no marriage except with a wali.
Prophet also said, If any woman marries without permission of her wali then her marriage is void, her marriage is void, her marriage is void.
Prophet said, ...there is no marriage except with a wali, if a woman does not have a wali, then the ruler is the wali
If any woman marries without permission of her wali,...... they take the word woman and perform takhsees (kind of taweel), they look at the word imrah and say that imrah here means an underage woman and say marriage is invalid only for her.
If that was the case, then the prophet would not make such a statement, since the woman would not be able to enter the contract any way.
Hanafis say that if an underage woman enter contract, then it is baatil, until the wali agrees to it. Now this violates the hadith.
Some say imrah here means slave woman, and if a slave woman marries without permission of her master then the marriage is not valid.
When a prophet said any woman and if your taweel says that it only applies to 10% of the women, then your taweel is not correct.
If a woman marries someone who is not qualified then the wali has the right to invalidate, according to the hanafis.
This is an example of distant taweel, so the burden of evidence will be quite stringent.
Hanafis do have some evidence, one of the evidence they have is that Ayesha’s brother Abdul Rahman was travelling to Sham and while he was gone, Ayesha married of his daughter and when Abdul Rahman was upset and he did not want to undo what was done.
The way the evidence is presented, it looks like Ayesha is the wali in this case.
They also present another evidence from Zouhri which says that if there is wali present then you do not separate the marriage.
If you look at the statement of the prophet, according to Ghazali, the arabic emphasis that it means any woman what so ever. The Shafiees say that the text is Nass and is not open to taweel because of the language of the statement of the prophet. ayyu ma ....
Another example of the statement, Ayyu ma ehabin .... any animal skin that is tanned becomes pure...
All madhabs understand that it is any animal skin. This construct is also used for the statement of any woman who marries without the permission of wali then her marriage is void....
Ayesha did not marry her niece, she did the preparation and there was somebody else in the family who fulfilled the role of the wali.
Examples of Shafiee Madhab Taweel
Prophet said, if some one owns a slave who is related to him, then that slave is free.
IN other words that if you happen to come in possession of a slave, and if that person is related to you in the prohibited degrees (one who is mahram to you) then by law that slave is free.
Mahram - mother and above, daughter and below, aunt ....
Imam Shafiee says that it is restricted to just mother/father and above and children and below. Aunts, uncles, brothers, sisters are not included.
He is making taweel. Since you are excluding some categories, then you have to present evidence. And unfortunately they could not find evidence for it. And outright the shafiees reject this statement, because nobody other than Imam Shafiee made this taweel. They cannot figure out how he came to this conclusion. (He could have made a mistake)
Some later Shafiee scholars, we don’t accept the hadith of the prophet and they turned the hadith on its head and said that there is no evidence for us to free uncle/aunt/brother/sister who are enslaved by you.
Shafiees in general don’t have that many strange taweels that scholars highlight. The above is one of the examples that scholars highlight.
Now we will move to Hambalis
29th of Shaban and moon for Ramadhan is not seen, what should you do?
Hadith of the prophet, if you see the moon then you fast, but if it is hidden or covered to you, then you reckon shabaan to be 30 days (faktaru .... you reckon it)
Ibn Umar one of the narrators of the hadith, he understood the word faktaru to mean that if the moon is obstructed due to clouds then you fast, if it is clear then you do not fast.
There is another hadith that you do not fast the day of shaq (doubt). If Shabaan has 30 days, will the 30th day always be the day of shaq? According to ibn Umar, the day of doubt is clear day.
Other sahabas say that ibn Umar is wrong. Majority of the scholars do not follow his taweel because we have clear text from other narrators that what is meant by prophet is that we should reckon the month of Shabaan.
This brings an important point, that if the narrator of the hadith makes taweel of that hadith, should this taweel that this narrator (sahaba) made, should it be considered authoritative?
Unless we know otherwise, we would consider his taweel to be authoritative.
Khiyaar ul majlees
Khiyaar means contract and majlees means party. The prophet said that the two parties of a transaction have right of change their mind until the two separate.
Ibn Umar meant that separation meant actual physical separation of the two parties.
Malikis have problems with khiyaar ul majleees, they say that separation means end of conversation or speech concerning that transaction. If we change the topic and move on to some other transaction then it is a separation of the two parties.
Maliks are making taweel here.
We have hadith of the prophet and we have understanding of the sahaba who narrated the hadith
Imam Malik said that people of Medina do not practice it. However one of the founders of Medina school is ibn Umar.
Imam Shafiee who was a student of Imam Malik said, may allah have mercy on his soul, (because this hadith is recorded in the muwatta of Imam Malik). Imam Shafiee said I don’t know who is Imam Malik doubting, is it Nafi, is it Ibn Umar who narrated this hadith and yet he is interpreting it this way.
Hanafis also make taweel for it but Sheikh does not remember what it is.
08-02-2010 Class Notes
Example of Taweel from Maliki
Hadith --- Strong warning concerning sitting on graves.
Majority of scholars take this as a general statement --- any kind of sitting upon grave.
Imam Malik’s taweel --- Sitting with purpose to urinate or defecate.
Need to have evidence for this taweel. Imam Malik used evidence in Muatta --- Ali (RA) used to lie down on graves.
Is it possible that Ali was not aware of the hadith. Obviously Imam Malik did not meet Ali ibn Talib. There is a hadith that says that if someone sits on a grave to defecate or urinate, it is as if he sat on burning coal. This is a weak hadith
Report of Ali ibn Talib and hadith that is weak -
In Sahih Bukhari, Al Bukhari records that Uthman ibn Hakim was taken by his hand by ..... and told to sit down on the grave, and he informed him from his uncle, that sitting down on the grave is disliked only if one is sitting down for defecating or urinating. .....
Another report from sahaba (ibn Umar?) said that Uthman used to sit upon the grave.
These are reports from sahaba and they are muallaqat or chapter headings of Sahih Bukhari, however the way Bukhari reports it, it indicates that he had a sahih chain
So these three reports are supporting Imam Malik’s view.
Musnad of Imam Ahmad, authentic hadith, reported by Amr ibn Hazm, he said that prophet saw me reclining upon the grave and the prophet said do not harm the one in the grave.
We have two authentic text from the prophet and we have three text from Sahaba which one will have the precedence?
Only the Malikis are the one who make taweel and accept the reports of the sahaba that it is okay to sit on the graves, wheres the Shafiee, Hanafis and Hanbalis say that it is not okay to sit on the graves.
It is possible that Imam Malik was not aware of these hadith, however the followers of the madhab are aware of this hadith and yet do not follow the hadith.
Dhahir meaning is what is meant by the text. In order for somebody to claim that dhahir meaning is not what is meant, but this taweel is what is meant, they have to offer evidence for this claim. What kind of evidence would be acceptable for you to accept the taweel? We know the difference between close and distant taweel.
1. Sahih or Hasan Hadith from the prophet.
Hanafis consider general text to be definitive, it is qatee dhalalah, for other madhabs it is dhanni dhalalah. So they require hadith that is mutawattir (that means the more then 4 sahih chains for the hadith)
2. Action of the sahaba
3. Another verse of the quran
Let’s take an example from Surah Baqarah which describes which kind of meat are forbidden. Dhahir meaning is that all kinds of carion and all kinds of blood are forbidden. Do we make taweel for this? Yes. We eat fish from the ocean without slaughtering it. We make taweel based on the hadith of the prophet, where he said that two kinds of carrion and two kinds of blood are permissible. The two kinds of carrion are fish and locusts.
Another proof is that ocean water is pure and the bounty of the ocean is halaal (I didn’t capture this point clearly)
Authentic hadith of the prophet: If one of you is going to the Jumuah prayer, then you have to make ghusl. The arabic word indicates that it is indirect amr or command (person must do so).
Is ghusl wajib mandatory or recommended for the Jumuah prayer? If you say it is recommended then you are making taweel for the statement of the prophet.
Majority of the scholars say that is ghusl is recommmended...... The evidence is the hadith of the prophet and story of Uthman and Umar that ghusl is not mandatory but highly recommended.
However there is another hadith that says the ghusl on day of Jumuah is wajibun ala kulli muslimin.
Here the prophet is using the word wajib using the rules of Arabic language and not the terminology of fiqh. Here the word wajibun means recommended
What does the word kalima mean?
It means a complete sentence in the language of the prophet.
Harf in the language of the prophet meant a word. There is a reward for every harf of the quran, that’s why he added that alif lam meem is one word, but alif is a harf, lam is harf, meem is harf. He had to use this additional explanation because the word harf meant a word in the language of the prophet. Now the meaning has shifted and for us harf is a letter of the word.
Is it permissible to give a gift then take it back?
Business transactions have their own ahkam and giving gifts has its own ahkam. People use them incorrectly and confuse it. You cannot apply khiyal al majlees to the gift, it only applies to business transacations.
There is a hadith, the one who takes back a gift is like a dog that eats his own vomit.
Imam Shafiee said that it is permissible to take back a gift based on this hadith. He said it it mubaha. How does he come to this conclusion? Imam Shafiee understood by the dhahir meaning of the hadith to understand that this might be a natural act for a dog.
There is a debate between Imam Shafiee and Imam Ahmad
Imam Ahmad is of the opinion that it is forbidden based on the above hadith, he mentioned that there is another part of the hadith, it begins that for us there is no example, to imply that the actions of the dog is evil.
Majority of the scholars agree with Imam Ahmad.
4. Practices of the people of Madinah.
Obviously if you are Maliki then you would .....
What about gut feeling? Common sense or akl or reasoning as evidence for taweel. It can be a very dangerous tool because they might use it to come to pre-conceived conclusions.
5. Qiyaas or analogy
Going from aam (general case) to khas (specific case) (also known as takhsees) is ruled out by Hanafis. Because their belief is that general text is definitive.
Example of dhihar where a husband says that his wife’s back is like his mother. And the expiation for this sin is fasting 60 days consecutively and if that is not possible then feeding 60 people.
Expiation for breaking fast because of sexual act is fasting 60 days consecutively and if that is not possible then feeding 60 people.
If you take a look at Surah .... the kaffara (expiation for sin) for involuntary manslaughter that is mentioned is fasting two months consecutively. However it does not mention feeding 60 people.
Can you perform analogy between the expiation of sins for two different cases and use the alternative expiation from one to the other?
Can we make qiyaas and say it is possible to use the alternative kaffara for involuntary manslaughter?
Hanafis dont accept it at all, others do apply qiyaas.
Sheikh mentioned that the ruling of hadd punishment is something for which we cannot apply qiyaas
2010-08-09 Class Notes
You have to recognize what is acceptable taweel and which is not. Ultimate goal of Usool al Fiqh is to allow you to recognize what is the straight path isteqama. Once people start making taweel, one of the dangers is that it might lead you away from the straight path, because you try to say that this is not what the text means.
Taweel is necessary because it is the characteristic of human speech and the Quran is revealed in a format that is human speech. It is how humans communicate and it is how prophet communicated with the people.
One of the main reasons scholars resort to taweel is because they have two verses of quran or verse of quran and hadith that they feel are in apparent contradiction. So they resort to taweel to remove the apparent contradiction, they try to justify that one of the text must not be the apparent meaning.
Components of taweel or arkan of taweel
1. Text itself
2. The one who is making taweel, the one who is make taweel is making a kind of ijtihaad.
3. Taweel must be based on evidence, what are the kind of evidences that you can use for taweel
4. Conclusions that can derived from the taweel. It must be compelling and strong enough evidence to convince us to move away from the apparent meaning of the text. Burden of proof is on the one making taweel.
Evidence for taweel
1. Another verse of the quran
3. Customs of the sahaba????
Takhsees - particularizing a general text
Can ijmaa make takhsees? No, we cannot as a community get together and say that since we have consensus and make taweel of text
Ijmaa is a very tricky point.
There is no such thing as ijmaa of the ummah, it is mostly the ijmaa of the scholars or the ulema. And by default the ummah has to follow the ulema. But it is difficult to get ijmaa.
But there are cases of ijmaa where the scholars have agreed such as in Surah Nur verse 4 - falsely accusing chaste woman
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,
And those who accuse chaste women, and produce not four witnesses, flog them with eighty stripes, and reject their testimony forever, they indeed are the Fasiqun (liars, rebellious, disobedient to Allah).
Is this text open to taweel since it discusses an explicit number for the punishment. But there is ijmaa among scholars that the person who falsely accuses is a slave then his punishment is halfed to 40.
Here the general term is al-ladhina which means everyone and they say that here the word al-ladhina excludes the slaves. So it is particularizing a general text and it is not performing taweel on the number 80.
Sources of taweel:
1. Wisdom behind sharia ruling
2. Human reasoning akl and hiss is to physically looking at thins
3. Urf or custom or convention
4. Legal maxim, legal principles that are drawn from the text of quran and sunnah
5. General welfare - interpretation that is for the general welfare of the ummah
Now we will discuss each of them individually
Taweel based on Hikmata tashreah / Wisdom behind the verse
What is the wisdom behind the verse and then you try to find out the goal behind the verse. This can be quite complicated.
There is a difference between illa (punishment) and hikmah (wisdom).
Illa is something that is specifically defined and easily used from a legal perspective. For example the punishment for drinking alcohol. What is the hikmah behind it, it could be intoxication, effect on the family and community, etc. It is difficult to identify the hikmah and difficulty to identify when does it occur, for example for some the intoxication happens at low level of consumption and for some others it is at a higher level consumption.
Whereas the illa is specific, it does not say one glass or 10 glasses of consumption. Hikmah is difficult to identify, it is more subjective, and when does it become effective.
We discussed another example of hikmah when the hanafis used hikmah to say it is helpful for the poor to give the value of the sheep instead of the sheep itself.
The ruling should not contradict or void the text completely.
Scholars in principle accept taweel based on wisdom but they are very careful in stating what are the conditions required for it.
For example, the case where the state enters into the free working of the market and sets the maximum price of a commodity, this is known as tasreeah. Is it permissible for the state to do that?
There is a hadith, where someone had asked the prophet if he could set the prices and he said that I would leave it for Allah to set and lower prices and I would not want to meet Allah swt when I have caused dhulm to the people.
But let us say that there is a monopoly or a cartel that is setting prices, then is it permissible for the state to fix prices?
Number of scholars have accepted this based on this hadith. But if there is dhulm being committed by the cartel or monopoly and the state is not interfering with the free market and this hadith allows the state to interfere in this case.
Taweel based on (akl) rational argument and (hiss) empirical observation
When we speak we don’t mean exactly what we say. For example Surah Ali Imran verse 97, it is obligation for people to make hajj. And scholars say that the nass excludes children or retarted people(???)
Is this an example of rational or akli taweel? It is more than that. Obviously Allah swt is not going to obligate the categories of people who cannot perform hajj.
Surah Al Ahqaf verse 25
تُدَمِّرُ كُلَّ شَيْءٍ بِأَمْرِ رَبِّهَا فَأَصْبَحُوا لَا يُرَىٰ إِلَّا مَسَاكِنُهُمْ ۚ كَذَٰلِكَ نَجْزِي الْقَوْمَ الْمُجْرِمِينَ
Destroying everything by command of its Lord. And they became so that nothing was seen [of them] except their dwellings. Thus do We recompense the criminal people.
Destroying everything by the Command of its Lord! So they became such that nothing could be seen except their dwellings! Thus do We recompense the people who are Mujrimun (polytheists, disbelievers, sinners, etc.)!
Here the destruction is not everything but actually there is taweel to be made there. And this is an example of empirical observation or hiss taweel.
Taweel based on Legal Maxim
When you study Quran and Sunnah as a whole. there are certain principles that are established and highlighted. One of the principles is that action are according to the intent behind them. This principle is based on the hadith of the prophet.
Another principle is that there should no inflicting of harm and no reciprocating of harm ..... it is based on exactly the word of a hadith. This principle is mentioned as an example of taweel, however the sheikh did not find any example of taweel based on this principle.
What is certain cannot be broken by what is doubtful is another principle. So if you are certain that you have performed wudu and doubtful that it is broken, then that doubt cannot overrule the certainty of the wudu.