Usool al Fiqh

Beginning Usool al-Fiqh - Islamic Legal Theory X

2012 Spring Session (March 26 to May 28 2012)

Class taught by Shaikh Jamaal Zarabozo

A basic introduction and overview to the entire field of Islamic Legal Theory. In this session, the issue of takshees or particularization of general texts by other evidences will be discussed.

Recommended Text: Principles of Islamic Jurisprudence by Mohammad Hashim Kamali

Time: Mondays 8:30 - 9:30 PM PDT

Course Outline: External Indicators of Takhsees, Kamali pp. 104-113

2012-03-26 Class Notes

Concepts of Aam and Takhsees must be clear in your mind by now. An Aam statement points to all the members of set without enumerating the set or specifying any limits to the set. Takhsees is the case when one ruling applies to a subset due to some particularizing agent and the ruling to the entire set remains as is.

Last quarter we did takhsees by internal indicators, and we spent time studying tricky situations, but it was rather simple. Some of the main questions that arise out of takhsees were not that big or critical. The big question is whether the particularizing agent .... another question is which came first, the general ruling or the particularizing agent?

In this quarter we will discuss takhsees or particularization by external indicators. Mutassil and Mukhasas.

What are the possible sources of external sources takhsees?

The following is a list from classroom discussion, we will enumerate and clarify it later

1. Another verse of the Qur’an

2. Authentic Hadith or statement of Prophet (saws): Note: (weak hadith is excluded, only Mutawaatir and Ahad (non-Mutawaatir))

3. Action of the Prophet which can be divided into two categories as well, mutawaatir and non-mutawaatir

4. Ijmaa of the sahabah (Could a later ijmaa be an agent of takhsees, is this a possibility?)

5. Ijmaa in general

6. Qiyaas

7. Actions of the people of Madinah

8. Necessity or Need

9. Actions of the Sahabah

10. Statements of the Sahabah

11. Mafhoom (i.e. understood meaning of the text rather than the stated meaning of the text i.e. mantooq).

12. Aql

13. Al Hiss (perception)

14. Urf or Adat (Custom or Habits)

Note: In general what is stronger, Actions or statement? Statements are stronger since actions are more ambiguous.

There will be some scholars or madhab who do not consider all of the above as sources or agents of takhsees. Also the takhsees is done on Aam text, because by definition particularization occurs on a general ruling.

We will discuss the use of verse of Quran as an agent or source of takhsees.

Case I:

General text from Quran, and the agent of takshees is also verse in the Quran.

There are some scholars who say that one cannot make takhsees of one verse of the Quran with the other verse of the Quran. There are some Dhahiris who claim this and their proof is that basing it on 16:44

Sahih International

[We sent them] with clear proofs and written ordinances. And We revealed to you the message that you may make clear to the people what was sent down to them and that they might give thought.

They say, Takhsees is kind of Bayan, and the bayan can only be found in  sunnah of Prophet (saws), since the verse says “He may explain to the people” thus they conclude that “only found in sunnah”. Majority of scholars disagree with this view.

As response to this  scholars quote the following verse 16:89

ۚ وَنَزَّلْنَا عَلَيْكَ الْكِتَابَ تِبْيَانًا لِّكُلِّ شَيْءٍ وَهُدًى وَرَحْمَةً وَبُشْرَىٰ لِلْمُسْلِمِينَ

And We have sent down to you the Book as clarification for all things and as guidance and mercy and good tidings for the Muslims.

However, the general understanding of this “it points” and does not mean that “it in itself” has everything.

It is definatly clear Ijmah from the time of sahabah that they made takshees of Quran with Quran. This is also principal of Tafsir and this is based on 3:7 which says there are some “mutashabih” and then these “mutashabih” will be cleared by “foundation of quran”

هُوَ الَّذِي أَنزَلَ عَلَيْكَ الْكِتَابَ مِنْهُ آيَاتٌ مُّحْكَمَاتٌ هُنَّ أُمُّ الْكِتَابِ وَأُخَرُ مُتَشَابِهَاتٌ

It is He who has sent down to you, [O Muhammad], the Book; in it are verses [that are] precise - they are the foundation of the Book - and others unspecific.

Also in some ways what Dhahiris says is correct that it is left to Prophet (saws) to explain the Quran. The example is the explanation of “Dhulm” where he did takshees in the light of other verse in Quran.

The majority of scholars agree to this that the takshees of one verse can be done by other verse.

Example, “Wa Ahallahu bay wa harrama riba”

وَأَحَلَّ اللَّهُ الْبَيْعَ وَحَرَّمَ الرِّبَا ۚ

But Allah has permitted trade and has forbidden interest.

This verse in the point of view of Hanafi, this is case of Takshees, as we translate “and He made interest forbidden” which is complete statement.

Example: Surah Baqarah verse 228

وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ

Divorced women remain in waiting for three periods,

In this verse, is there a general statement in there ? “Al-Mutallaqath” is general and this should apply to every divorced women where they have to wait for three period. One case of takshees is when divorce before consumation.

يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَن تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا ۖ فَمَتِّعُوهُنَّ وَسَرِّحُوهُنَّ سَرَاحً

Sahih International

O You who have believed, when you marry believing women and then divorce them before you have touched them, then there is not for you any waiting period to count concerning them. So provide for them and give them a gracious release.

And there is another example of takshees for Surah Baqarah verse 228, is Surat Talaq verse 4, in which the idda for a pregnant women the idda period is until they give birth.

وَأُولَاتُ الْأَحْمَالِ أَجَلُهُنَّ أَن يَضَعْنَ حَمْلَهُنَّ ۚ ا

Sahih International

And for those who are pregnant, their term is until they give birth.

We have text from the Sahabah that Surat Talaq came after Surat Al-Baqarah, if we could prove the general text came after the particularised text they apply naskh.

The question of takshees from one verse with other verse, in general the scholars accept it and there is time issue that has to be considered.

One case which no one mentioned especially for Hanafi’s, If you have general text this is Dhanni for majority of non-hanafi scholars, the strength of the particularising can be Dhanni. But if this is Qata’i and the particularising agent also need to be Qatai’

2012-04-02 Class Notes

We are talking about takhsees of the Quran by Quran. The indicator of takhsees has to be of the same value as the verse it is particularizing. When a verse of the Quran is particularizing agent, it is not a problem since both of equal value. What about the case of dhanni dalalah and not qatai dalalah for the particularizing agent, how would Hanafis handle this case? And does this question even make sense? Is this a trick question?

Because a General text, for the hanafis it is Qatai and Khass is Qatee, with this does the question make sense ? Could it possibly be Dhanni?

Question 1: Suppose you have a set,  and this set is the radius of the meaning of the text. The close you are to the center the more possibility and closer to the relation and the meaning. The more you move away from the centre the more you distance from the meaning. The Hanafi call this “Khaffiy”. e.g. the word “sariq” is a “thief” but one who goes to the grave and steals a shroud, then who owns a shroud. Since stealing requires that the item has to have value, has to be owned by someone and it has to be in a secure place (from where it was stolen). So regarding the “shroud robber” from the grave, the verse of the Sariq is Dhanni al Dalalah and Hanafi also call it Khafiy. Now imagine there is another set of a general verse with application to some subset, the can the Khafiy of the first set make takhsees of the second set (the right circle on the picture of the board below).

For the Hanafis, the general term is qatiee dalalah and the application of the word ‘saariq’ to the shaded area is dhanni dalalah. Hence one cannot make takhsees of the general term by the dhanni dalalah.

This is a hypothetical case. Shaykh Jamaal hasn’t found an example of this yet.

Question 2: We were talking about verse of the Quan being indicator for another verse, what about the verse of the Quran being indicator of takhsees for a hadeeth ? There is no problem, What about the fact (see 16:44)

وَأَنزَلْنَا إِلَيْكَ الذِّكْرَ لِتُبَيِّنَ لِلنَّاسِ مَا نُزِّلَ إِلَيْهِمْ وَلَعَلَّهُمْ يَتَفَكَّرُونَ

Sahih International

[We sent them] with clear proofs and written ordinances. And We revealed to you the message that you may make clear to the people what was sent down to them and that they might give thought.

The bayan of the Quran is in the sunnah of the Prophet (saw), the role of the sunnah is to explain the Quran, if the Quran is making the takshsees to Sunnah, which means explanation to be given the something which in and itself came to explain. If the sunnah come to explain the Quran, which means explanation is in the Sunnah since takshees is kind of Bayan which means we have to go back to Quran to explain the hadith. Is it acceptable for this to happen ?

Some shafi’ee scholars and there is one narration from the Ahmed, they say it is not allowed for the Quran to make takhsees,

Some of the tabiee .. the sunnah came to explain to Quran, and we look to Sunnah to understand Quran.

Ahmed Hanbal commenting on this statement say “I am not bold enough to make this statement, however I say that the sunnah explains the book and elaborates on it and points to it and expresses its meaning.” He stops here. Takshees is kind of Bayan, sunnah should be making takhsees to Quran and not vice versa.

The majority of the scholar say Muthawathir sunnah can make takhsees to Quran. For example, everyone here, except the idea the Quran can make takhsees to sunnah.

ۚ وَنَزَّلْنَا عَلَيْكَ الْكِتَابَ تِبْيَانًا لِّكُلِّ شَيْءٍ وَهُدًى وَرَحْمَةً وَبُشْرَىٰ لِلْمُسْلِمِينَ

[16:89] And We have sent down to you the Book as clarification for all things and as guidance and mercy and good tidings for the Muslims.

The majority opinion is that Quran make takshees to Sunnah. Since the Quran and Sunnah have to be taken together as one unit.

What about Quran particularising non muthawathir hadith ? For no one this is the issue.

For non hanafis general text is dhanni and dalala and the khaas is qatai

For hanafis there is other type called as Mashhoor (where there is one or two chain from Prophet (saws) but then after that there are many chains as shown in red below).


For Non hanafis the mashhoor is Ahad and for Hanafis this is Qatiee

Hadith says: “Whatever is cut-off from a live animal and it is considered carrion”. What verse can make takhsees of it?

وَاللَّهُ جَعَلَ لَكُم مِّن بُيُوتِكُمْ سَكَنًا وَجَعَلَ لَكُم مِّن جُلُودِ الْأَنْعَامِ بُيُوتًا تَسْتَخِفُّونَهَا يَوْمَ ظَعْنِكُمْ وَيَوْمَ إِقَامَتِكُمْ ۙ وَمِنْ أَصْوَافِهَا وَأَوْبَارِهَا وَأَشْعَارِهَا أَثَاثًا وَمَتَاعًا إِلَىٰ حِينٍ

Sahih International

And Allah has made for you from your homes a place of rest and made for you from the hides of the animals tents which you find light on your day of travel and your day of encampment; and from their wool, fur and hair is furnishing and enjoyment for a time.

عن ابن عمر رضي الله عنهما أن رسول الله صلى الله عليه وسلم قال ( أمرت أن أقاتل الناس حتى يشهدوا أن لا إلاه إلا الله وأن محمدا رسول الله ويقيموا الصلاة ويؤتوا الزكاة فإذا فعلوا ذلك عصموا مني دمائهم وأموالهم إلا بحق الإسلام وحسابهم على الله تعالى ) متفق عليه

قَاتِلُوا الَّذِينَ لَا يُؤْمِنُونَ بِاللَّهِ وَلَا بِالْيَوْمِ الْآخِرِ وَلَا يُحَرِّمُونَ مَا حَرَّمَ اللَّهُ وَرَسُولُهُ وَلَا يَدِينُونَ دِينَ الْحَقِّ مِنَ الَّذِينَ أُوتُوا الْكِتَابَ حَتَّىٰ يُعْطُوا الْجِزْيَةَ عَن يَدٍ وَهُمْ صَاغِرُونَ

Sahih International

Fight those who do not believe in Allah or in the Last Day and who do not consider unlawful what Allah and His Messenger have made unlawful and who do not adopt the religion of truth from those who were given the Scripture - [fight] until they give the jizyah willingly while they are humbled.

Hadith says: “Take from me. Take from me. Al-Bikr wal Bikr; Al Thayib wal Thayib. Allah has made a way out for them. For non-married person is to be flogged 100 times and banished for one year and the married person is to be flogged 100 times and then stoned to death”

فَإِذَا أُحْصِنَّ فَإِنْ أَتَيْنَ بِفَاحِشَةٍ فَعَلَيْهِنَّ نِصْفُ مَا عَلَى الْمُحْصَنَاتِ مِنَ الْعَذَابِ ۚ

But once they are sheltered in marriage, if they should commit adultery, then for them is half the punishment for free [unmarried] women.

2012-04-09 Class Notes

Last time we studied examples of how quran can perform takhsees on hadith. And now we will discuss hadith performs takhsees of the Quran.

Theoretically speaking what type of issues can exist when takhsees of the Quran is performed by the hadith.

There is plenty of evidence that it was the role of the prophet to perform explanation of the Quran. If any verse needs takhsees then it is the role of the prophet to do so.

You can find evidence for it in the Quran, Allah swt says in the Quran,

[Surah Al-Imran:164]

لَقَدْ مَنَّ اللَّهُ عَلَى الْمُؤْمِنِينَ إِذْ بَعَثَ فِيهِمْ رَسُولًا مِّنْ أَنفُسِهِمْ يَتْلُو عَلَيْهِمْ آيَاتِهِ وَيُزَكِّيهِمْ وَيُعَلِّمُهُمُ الْكِتَابَ وَالْحِكْمَةَ وَإِن كَانُوا مِن قَبْلُ لَفِي ضَلَالٍ مُّبِينٍ

Sahih International (3:164)

Certainly did Allah confer [great] favor upon the believers when He sent among them a Messenger from themselves, reciting to them His verses and purifying them and teaching them the Book and wisdom, although they had been before in manifest error.

Allah has clearly shown grace to the mankind by sending the messenger and he recites to them the verses of the Quran, and he teaches them the book and Sunnah.

It already is mentioned that he is passing on the book, and the teaching of the quran is more than simply passing on the verse.

بِالْبَيِّنَاتِ وَالزُّبُرِ ۗ وَأَنزَلْنَا إِلَيْكَ الذِّكْرَ لِتُبَيِّنَ لِلنَّاسِ مَا نُزِّلَ إِلَيْهِمْ وَلَعَلَّهُمْ يَتَفَكَّرُونَ

Sahih International (16:44)

[We sent them] with clear proofs and written ordinances. And We revealed to you the message that you may make clear to the people what was sent down to them and that they might give thought.

Many scholars said that Allah will not burden Prophet (saws) unless Allah provides assistance in this.

ثُمَّ إِنَّ عَلَيْنَا بَيَانَهُ

Sahih International (75:19)

Then upon Us is its clarification [to you].

One of the main roles of Prophet (saws) was to explain the meaning of Quran. And Takhsees is kind of bayan, Prophet (saws) making takhsees to the quran it should be acceptable. There is Ijma of the fact that the sunnah is acceptable indicators of takhsees.

Number of Scholars said that they don’t know about any differences of opinion regarding this. Now, we have the issue that, sunnah is one thing and we know sunnah through hadeeth. Now things becomes tricky, i.e. Agent of takshees has to be as strong as what is been particularized.  Once again we have different views for Hanafis and Non Hanafis

For Hanafis General text of the Quran is Qatai thaboot and Qatai dalala

For Non Hanafis General text of the Quran is Dhanni

Now the question is that to make takshees, Acceptable Hadith, does it need to be as strong as general text ?

For Hanafis it has to be Qatai and for non hanafi we will get back to this.

What does it mean by hadith has to be Qatai ? Hadith is Khaas, since it is indicator of takshees, thus with respect to dalala it is going to be Qatai and with respect to affirmation i.e. thaboot it has to be mutawathir. This is tricky issue, in the life time of Prophet (saw) was there any issue of Qatai or Dhanni. In his lifetime for the people around him whatever he said is at the level of Quran. The idea of Mutwattir and non-Mutwattir was introduced by Mutazila, but unfortunately became part of the Jurisprudence vocabulary.

Actual number of hadith which has same exact wording and muthawathir is very small. Now since one of the role of Prophet (saws) was to explain the Quran and only takshees which is done by was only through the handful of muthawathir hadith. This argument does fit good.

One way to fix it that divide Mutwattir into two categories: 1) Mutwattir in wording and 2) Mutwattir in meaning.

Mutawathir in meaning, you are not talking about one narration, you put different hadith together and they are conveying the same meaning. This is one way to bring more hadith. Other way is to look at it is, to look at how this text were applied by sahabah. We have plenty of reports showing that sahabah applied in particularized way.

From the point of Usooliyyeen regarding mutawattir is not really about the numbers but feeling confident about the strength of the report. For example, if someone says that your house is on fire, this report in and itself might not be strong enough, but as you go closer to your house you see more evidence which confirms the report, like seeing the smoke, people runing away.

So the question of Usuliyeen is what produces certain knowledge. The confidence can be built through other means. The ulitmate goal is to make it Qatai and to have same confidence of hadith like what you have for the Quran.

For Hanafis, they introduced one more category to make it definite and that category is “mashoor”, this starts with isolated chain but as it goes the fame of this hadith is established. Thus this is enough to put it at the level of certainty.

To look at this in negative way, is that, since you have requirement that to make takshees of quran it has be mutwattir or mashoor, what Sh noticed is that this is used in poor manner where people used this to reject the hadith which people don’t want to use as opposed to accepting the hadith.

For example, we have verse in Quran and this has 2 possible meaning,

1. Takshees has been made by Hadith.

2. Meaning Where there is no takshees made.

Suppose madhab says the correct understanding is 2, when other school tries makes takshees by hadith and they defend it saying that that is not true since it is not mutwathir

Other case if your madhab says 1, then they won’t confirm if the hadith is mutawathir or not as there was already conclusion was there made by madhab.

Even today if someone does not want to accept a matter in Aqeedah then they will say that the hadith is not Mutwattir. This is done while the hadith is Mutwattir by meaning. But many time you study the hadith you will find that it is muthawathir by meaning. Unfortunately this is been used as rejecting principle.

Even in the books of usool-al-fiqh the example they give it shows that it is mutawathir. If hadith is Mutwattir, then every shcolar will accept it as the agent of takhsees.

يُوصِيكُمُ اللَّهُ فِي أَوْلَادِكُمْ ۖ لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ ۚ فَإِن كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَكَ ۖ وَإِن كَانَتْ وَاحِدَةً فَلَهَا النِّصْفُ ۚ وَلِأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِّنْهُمَا السُّدُسُ مِمَّا تَرَكَ إِن كَانَ لَهُ وَلَدٌ ۚ فَإِن لَّمْ يَكُن لَّهُ وَلَدٌ وَوَرِثَهُ أَبَوَاهُ فَلِأُمِّهِ الثُّلُثُ ۚ فَإِن كَانَ لَهُ إِخْوَةٌ فَلِأُمِّهِ السُّدُسُ ۚ مِن بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ ۗ آبَاؤُكُمْ وَأَبْنَاؤُكُمْ لَا تَدْرُونَ أَيُّهُمْ أَقْرَبُ لَكُمْ نَفْعًا ۚ فَرِيضَةً مِّنَ اللَّهِ ۗ إِنَّ اللَّهَ كَانَ عَلِيمًا حَكِيمًا

Sahih International (4:11)

Allah instructs you concerning your children: for the male, what is equal to the share of two females. But if there are [only] daughters, two or more, for them is two thirds of one's estate. And if there is only one, for her is half. And for one's parents, to each one of them is a sixth of his estate if he left children. But if he had no children and the parents [alone] inherit from him, then for his mother is one third. And if he had brothers [or sisters], for his mother is a sixth, after any bequest he [may have] made or debt. Your parents or your children - you know not which of them are nearest to you in benefit. [These shares are] an obligation [imposed] by Allah . Indeed, Allah is ever Knowing and Wise.

Allah is laying down the basic principle of inheritance, “Awladikum” is general. What is the takshees for this verse ? The takhsees of this ayah is the statement of Prophet (saws)  in the meaning that the child who kills his father does not inherit from them. There is another hadith which makes takhsees from Bukhari in the meaning that a disbeliever does not inherit from the believer.

One of the thing which is invoked is the statement of Prophet (Saws) “The killer will not be inherited”

Another example:

حُرِّمَتْ عَلَيْكُمُ الْمَيْتَةُ وَالدَّمُ وَلَحْمُ الْخِنزِيرِ

Sahih International (5:3)

Prohibited to you are dead animals, blood, the flesh of swine, and that which has been dedicated to other than Allah ,

Takhsees for mayta is the dead animals from the sea. Similarly locusts can be eaten dead. The takhsees for the blood is the blood in spleen and liver. This exception comes from a hadith which is well established from the time of Sahabah.

What is the good definition of Sunnah from the Usul-ul-fiqh point of view? It is statements, actions and tacit approval of Prophet (saw) and these have legal authority. And each of these is going to be bayan and each of one of these is indicators of taskshees

Suppose we have a mutwattir hadith related to action of Prophet (saws). Can we use it as agent of takhsees? Here the problem is that when we deal with the actions of Prophet (saws) then there are different categories of these actions.

So we have to first find out that

1) this has to be particular for Prophet (saws): [this cannot be used in takhsees since it is khass for Prophet(saws) and Ummah cannot follow him on this]

2) the personal like or dislike of Prophet (saws): [this will fall in Mubah category anyways]

Vast majority of scholars say that it is permissible to use the action of Prophet (saws) to use as takhsees of Quran. One Hanafi scholar is an exception to this who says no that action cannot make takhsees of the Quran. The scholars who base their view that action of Prophet (saws) as an agent of takhsees use (16:44) to say that action is a form of bayan.

Has there ever been a case that we get takhsees of Quran by the action of Prophet (saws)?

Example #1

وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا جَزَاءً بِمَا كَسَبَا نَكَالًا مِّنَ اللَّهِ ۗ وَاللَّهُ عَزِيزٌ حَكِيمٌ

Sahih International (5:38)

[As for] the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent [punishment] from Allah . And Allah is Exalted in Might and Wise.

Imam Ahmad says that here the action of Prophet (saws) makes takhsees where he amputated only to the wrist even though in the Arabic language Yadd can be all the way to the shoulder.

Example #2

Sh. Jamaal says that it is OK example but not very conclusive for action making takhsees of the Quran. This has to do with the Taqrabahunna in the verse regarding menses.

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

Sahih International (2:222)

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

We have hadith that Prophet (saws) reciting Quran in the lap of Ayesha when she was menstruating and other hadith which indicates the action of Prophet (saws)

The tacit approval of Prophet (saws) is authority since he (saws) would have corrected it if it was wrong according to Islam. Since Prophet (saws) is of strongest imaan so he (saws) could not show the dislike in his heart only. On this issue whether Mutwattir tacit approval is enough for takhsees has scholars divided on this issue.

How can this happen, that we have takreer of Prophet (saw) and it does takshees of the Quran?

2012-04-16 Class Notes

Back to the question: Can takreer make takhsees of Quran? How could it be? Se we are talking about existence of the verse of the Quran and Sahabah are doing something that is particularizing and Prophet (saws) sees it and approves of it.

From Hanafi point of view it will be partial abrogation. What could happen makes some ijtihad and the verse under his circumstances does not apply in its general case or the Sahabi made a mistake but Prophet (saws) saw it and approved of it.

Surah Maeda verse 6

يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا قُمْتُمْ إِلَى الصَّلَاةِ فَاغْسِلُوا وُجُوهَكُمْ وَأَيْدِيَكُمْ إِلَى الْمَرَافِقِ وَامْسَحُوا بِرُءُوسِكُمْ وَأَرْجُلَكُمْ إِلَى الْكَعْبَيْنِ ۚ وَإِن كُنتُمْ جُنُبًا فَاطَّهَّرُوا ۚ وَإِن كُنتُم مَّرْضَىٰ أَوْ عَلَىٰ سَفَرٍ أَوْ جَاءَ أَحَدٌ مِّنكُم مِّنَ الْغَائِطِ أَوْ لَامَسْتُمُ النِّسَاءَ فَلَمْ تَجِدُوا مَاءً فَتَيَمَّمُوا صَعِيدًا طَيِّبًا فَامْسَحُوا بِوُجُوهِكُمْ وَأَيْدِيكُم مِّنْهُ ۚ مَا يُرِيدُ اللَّهُ لِيَجْعَلَ عَلَيْكُم مِّنْ حَرَجٍ وَلَٰكِن يُرِيدُ لِيُطَهِّرَكُمْ وَلِيُتِمَّ نِعْمَتَهُ عَلَيْكُمْ لَعَلَّكُمْ تَشْكُرُونَ

Sahih International

O you who have believed, when you rise to [perform] prayer, wash your faces and your forearms to the elbows and wipe over your heads and wash your feet to the ankles. And if you are in a state of janabah, then purify yourselves. But if you are ill or on a journey or one of you comes from the place of relieving himself or you have contacted women and do not find water, then seek clean earth and wipe over your faces and hands with it. Allah does not intend to make difficulty for you, but He intends to purify you and complete His favor upon you that you may be grateful.

Sunan abu dawood --- Amr ibn Aas was in an expedition and due to the extreme cold weather, he had a wet dream. In the morning he made tayammum instead of ghusl. And then he lead the people for the morning prayers. And Prophet (saws) asked him did you lead the people in the prayer. Amr ibn Aas replied and quoted the verse from the Quran, Surah Nisa verse 29 (وَلَا تَقْتُلُوا أَنفُسَكُمْ ۚ إِنَّ اللَّهَ كَانَ بِكُمْ رَحِيمًا).  On hearing this reply, the Prophet laughed and did not say anything.

So Prophet (saws) not saying anything is his approval. Is this a type of takhsees?

Shaikh Jamaal then mentioned another example of tacit approval of the Prophet, where he did not say anything to an action of a sahabah. Since he did not say anything, it is an approval. But in our case of Amr ibn Aas, is it takhsees? For hanafis it is an example of naskh since the verse of wudu was revealed earlier. However our example is an indicator of takhsees.

For the Hanafis, the general text is qatiee. And for something to make takhsees to it, should also be qatiee.  Let us say our example of Amr ibn Aas is mutawatir.

Those who say that it is not qatiee, is due to the specificity of the event and it is not general. Is this a strong argument? The other side will argue that we know that the prophet will not approve of an action that is wrong. And then they will quote the example of Amr when he was sexually defiled and he rolled in the dirt to make tayammum, here the Prophet did not approve of this action.

حَدَّثَنَا مُحَمَّدُ بْنُ كَثِيرٍ، أَخْبَرَنَا شُعْبَةُ، عَنِ الْحَكَمِ، عَنْ ذَرٍّ، عَنِ ابْنِ عَبْدِ الرَّحْمَنِ بْنِ أَبْزَى، عَنْ عَبْدِ الرَّحْمَنِ، قَالَ قَالَ عَمَّارٌ لِعُمَرَ تَمَعَّكْتُ فَأَتَيْتُ النَّبِيَّ صلى الله عليه وسلم فَقَالَ ‏ "‏ يَكْفِيكَ الْوَجْهُ وَالْكَفَّانِ ‏"‏‏.

`Ammar said to `Umar "I rolled myself in the dust and came to the Prophet who said, 'Passing dusted hands over the face and the backs of the hands is sufficient for you.' "  (

And they say that the Prophet would not approve of a specific action unless he mentions that this approval is for a specific reason. For example, somebody slaughtered an animal during Hajj before salah. The Prophet (saws) did not approve of it and since the sahabi only had a small goat so Prophet (saws) said that slaughter it but he added that it will not suffice for anyone other than you (meaning that apart from this sahabi this exception is for no one else after him).

Some of the scholars put a condition that, the Prophet (saws) did approve this more than once, this is to remove the fear of the specificity. As per sheikh, in shariah it i not required to have the incident to be repeated to make it as a law, in shariah if there is a statement of Prophet (saw) which is general this is enough to make it as a law.

What about takhsees of the Sunnah by the Sunnah?

In case of takhsees of Sunnah by Sunnah there are some minority scholars who object (e.g. Daud al Dhahiri).  What could be the reasoning to this?

Their argument is that the Sunnah is supposed to be Bayan i.e. explanation. If bayan is in need of bayan then where will you go to? Sunnah is Bayan and Bayan should not be in need of Takhsees. This opinion is called Shadh opinion by many scholars. It is not consistent with the way of the Sahabah (ra) and many example can be presented where hadith is making takhsees of another hadith.

What about takhsees of the mutawathir hadith by mutawathir hadith ?

Takhsees of Mutwattir hadith is possible by Mutwattir hadith, this should not be the problem. For Hanafis, they allow also takhsees by Mashoor hadith.

What about takhsees of Quran by Mashoor hadith?

Hanafi’s allow this. Is it true that when they allow mashoor hadith to make takhsees of Quran the Hanafi’s are embracing more hadith compared to the other scholars. The idea of Mashoor for Hanafis is increasing the number of ahadeeth Hanafi are accepting.

What about takhsees of Quran by Ahad hadith?

So on this question of Takhsees of the Quran based upon Khabar al Ahad has 4 opinions:

Opinion #1) Majority of scholars allow this in an absolute sense.

Opinion #2) it is absolutely not allowed under any case. Al Ghazali attributes this to Mutazilla and some of the mutaqallimoon on philosophy point of view (i.e. philosophers called mutakalimoon).

Opinion #3) Yes, but under certain conditions and it is attributed to Isa ibn Hibban but it is official Hanafi position. It is allowed when the general verse is already particularized. Then the general verse becomes dhanni and can be particularized by ahad hadith (which is dhanni)

Opinion #4) Waqafite opinion: This is view of Al-Baqillani. In this view one deals with the hadith differently but does not use the same hadith to make a takhsees. (So this opinion is suspending the judgement).

Since vast majority of ahadeeth are ahad so it is an important topic and explains a lot of differences between hanafi and non-hanafi….......e.g.  If you were to ask non hanafi, is reciting surah fatiha is one of the arkaan on salat? Yes, it is one of the arkaan they base this on the ahadith that there is no salaah except fatiha.

For hanafis reciting the fatiha is not one of the arkaan of the salat, they based it on the verse on the Quran “Faqraoo ma tayaasara min al quran”. Ma is a general word and thus you cannot make takhsees of “Ma” based on Ahad Hadeeth. There are number of argument which can be made, first there can be argument to make that this is not ahad hadeeth. At the same time they cannot negate the fact that this is not authentic hadeeth, then how would they get around it? They will say “la salat” this la means there is no complete and virtues of the salat, they will say you should recite fatiha but this is not from arkaan and some books says this is not fard but wajib or mustahabb. They deal with the hadith but they will not make takhsees to it.

Hanafi say that it is not allowed to add something extra to the Quran, like tama3neena (resting the bones), they say this is not part of Quran, because the verse in the Quran ordered us to make bow and sajada, now to say ruku’ means that you should ruku with tam3neena, this is to add what is there in the Quran. They accept the hadith but this is not enough to do takhsees to the verse in Quran.

There are two basic premises:

#1 General text is Qatai dalala and

#2 Ahad hadith is Dhanni thaboot.

Note: If Ahad hadith is strong enough to be accepted in the matter of Aqeedah then we can take it to make takhsees of general text. So the question is what level of knowledge is the ahad ahadeeth? What is level of certainty regarding the ahad ahadeeth?

One of the thing which is interesting phenomenon, people who are specialized in their field they think they are superior and they don’’t give the due respect to other field of expertise. This is true in the field of usool-al-fiqh. Usooliyeen they look at their field and conclude that it is Qatai’ and they dont give the same respect to the field of uloom-al-hadeeth. At the same time scholars of hadith, since they know what is going on their field and they can make the judgement on what is in their field. With the above presumption there are 5 different views.

Five different views on this question

Opinion #1) Ahad are Dhanni and cannot be considered proof in Islamic Law or Aqeedah. This is view of Shia (atleast at one time), Khwarij (even though they did not write about it too much). So hadith has to be Mutwattir. This opinion has been attributed to Mutazilla but it is not a correct statements. If you read Az-Zamakshari tafseer this is his not his view too. Only Azamam is the Mutazilla who held this view. To be fair as a whole this should not be attributed to the Mutazilah.

Opinion #2) Ahad ahadeeth bring only Dhann and they are not Qatai. Thus, they can be used in restricted sense of Shariah and fiqh but cannot be used in Aqeedah. This idea originated with the Mutazilla and later picked up by later scholars of Ahlul Kalam like Al-Ghazzali and it was picked up by some Hanafis, e.g. Al Ashqar wrote about this point and mentioned that it is the view of later scholars of Usul. This is the view of many people now a days that they even consider it Ijma, even though neither Sahabah, Tabieen or Taba Tabeen or the 4 imams (among many other names) who held this view. Al Ashqar says that some later scholars of hadith who were affected by such Usuluyeen but still came to the conclusion that the opinion 2 that we discuss is not correct.

Opinion #3) dhanni (dhann ar rajih) but can be used in both aqeedah and fiqh e.g. Nawawi held this opinion. According to Al-Ashqar even the Hanafi Scholar Sarakshi held this opinion. In the first place the distinction between action and belief is very unnatural, e.g. someone asks for refuge from Azabul Qabar and then if you ask him do you believe is it and he says no I do not believe in it.

Opinion #4) ahad hadith can be qatii so can be used in both aqeedah and fiqh.

Opinion #5) ahad hadith are always qatii and should always be accepted for both aqeedah and fiqh.

2012-04-23 Class Notes

Analogy to make the points we are discussing more clear. In the US justice, we have criminal courts and civil courts. In order to convict somebody of murder in criminal courts has to be beyond reasonable doubt. Whereas in civil court, all you need is a preponderance of evidence to win the case. The levels required in these two courts are different.

O J Simpson went on trial for murdering his wife and housekeeper, he was acquitted for those two murders. But in civil court, he was sued by his in-laws and he was found guilty and had to pay damages for the crime. Given this scenario, is it true that he contributed to the killing of his wife?

According to the court of California, he was responsible for killing of his wife.

When we are discussing ahad hadith are qatiee or dhanni is similar to the above analogy. Qatiee is similar to the Criminal Court conviction and Dhanni is similar to the Civil Court conviction.

Dhanni does not mean that the evidence is weak by itself, however it is not strong enough to be used for Qatiee. It might not be strong enough for takhsees but it could be used for something else. So our question is whether ahad hadith can be used for Qatiee or Dhanni, and do we have shariah evidence for it?

By mafhoom al muwafaqah, if it is good enough for aqeedah, then it is good enough for fiqh.

We were discussing the five different levels of evidence for ahad hadith.

We are trying to determine how strong are the ahad hadith and how can they be used. We will begin by stating the four opinions about the ahad hadith.

According to ibn Abdul Barr, Ibn Taymiyyah, Imam Malik and a number of Maliki Scholars, ahad hadith produce knowledge or ilm, in other words they are Qatiee. Imam Shafiee also is very clear that ahad hadith produce knowledge, they are qatiee, but there are different levels of knowledge. Imam Ahmed is very clear that they produce knowledge, that they are qatiee.

With respect to Imam Abu Hanifa, Abu Zahra who produced books on each of the four Imams (these books are translated into English and combined as one), says that we do not have explicit statement from Abu Hanifa about the status of ahad hadith. Shaikh has seen statements from student of Abu Hanifa that they produce knowledge, which means that they are qatiee.

So there is no doubt that the ahad hadith are acceptable in matters of aqeedah and fiqh after the time of Imam Shaafi.

However after the Mutazilah, who introduced qatiee and dhanni, the others incorporated the mutazilah view into their books. So we can see that the later usooliyeen who were influenced by Mutazila are rejecting that the ahad hadith are qatiee.

Ibn al Qayyim has presented proof that ahad hadith are acceptable and are qatiee, he presents 20 proofs. One time ibn al Qayyim was trying to prove that Sada al Darai. (blocking the means i.e. you should prohibit something which leads to haram) and he was trying to prove this concept in shariah and he had 96 examples.

Evidence #1

He starts by giving example of the Muslims who were praying towards Jerusalem when the direction of the prayer was changed. One of the sahaba came and told some sahaba about the change of direction while they were praying and they changed their orientation.

So here we have khabar al wahid, it is one individual. But what is he describing? He is describing abrogation of what all of them knew. And none of them said that we should wait until we receive more reports.

Evidence #2

Surah Taubah verse 122, in which Allah swt says,

وَمَا كَانَ الْمُؤْمِنُونَ لِيَنفِرُوا كَافَّةً ۚ فَلَوْلَا نَفَرَ مِن كُلِّ فِرْقَةٍ مِّنْهُمْ طَائِفَةٌ لِّيَتَفَقَّهُوا فِي الدِّينِ وَلِيُنذِرُوا قَوْمَهُمْ إِذَا رَجَعُوا إِلَيْهِمْ لَعَلَّهُمْ يَحْذَرُونَ

Sahih International

And it is not for the believers to go forth [to battle] all at once. For there should separate from every division of them a group [remaining] to obtain understanding in the religion and warn their people when they return to them that they might be cautious.

Both of the words Nafr and Taifa words can apply to one or two.

Evidence #3

He also quotes the verse

“fas’aloo ahl-al dhkir”

ask the people if you do not know.

Here the word Ahl-al-Dhikr it can be one or more, it does not have to be a group.

Evidence #4

He describes the meaning of al balagh. He says that it means that you are giving knowledge to someone and they have no excuse not to accept this knowledge.

وَأَطِيعُوا اللَّهَ وَأَطِيعُوا الرَّسُولَ وَاحْذَرُوا ۚ فَإِن تَوَلَّيْتُمْ فَاعْلَمُوا أَنَّمَا عَلَىٰ رَسُولِنَا الْبَلَاغُ الْمُبِينُ

Sahih International (5:92)

And obey Allah and obey the Messenger and beware. And if you turn away - then know that upon Our Messenger is only [the responsibility for] clear notification.

Prophet (saws) said “Balligh 3anni”

And the Prophet (saaw) sent sometimes only one individual to convey the message. After sura Taubah was revealed, He sent Ali to the people who were performing Hajj. ANd he sent Muadh ibn Jabal (ra) to Yemen and if this conveyance of knowledge is not balaagh then the Prophet (saaw) is not acting upon al Balaagh. So he says that if he was wrong, then he would have sent more people to convey the message and knowledge.

Mutawatir hadith (here quoted closest in meaning) that says may Allah (swt) bless somebody who memorizes my statement and then passes that statement and for he who receives it may understand it better than the one who heard it. So here is saying one person can pass on knowledge.

Hadith about spilling wine. One of the sahaba conveyed the final prohibition of khamar and they spilled their wine on this one individual’s report. And this report was abrogation of a verse of the Qur’an. You can say that at least a hukum has been added.

He then gives many examples from the time of the sahaba and they would make takhsees based on individual report and that there was ijmaa among the sahaba on this point.

If you look at the verse of the Quran about obeying the prophet, these verse are muttlaq and they are not conditional on how you received this verse. This is not a very strong point today for us.

We are obligated to accept reports that are less than mutawattir. And this is similar to the criminal court conviction case.

The above quotations are from “Al-Sawaiq al Mursal Ala Al Jahmite” by Ibn Al-Qayyim.

Counter argument for acceptance of Ahad hadith is not Qatai’:

Are we following dhann here? No this is not a correct argument. Allah swt uses the word dhann, even describing some certainties as dhann.

There is a famous story related to Umar al Khattab about maintenance of a divorced woman, where Fatima bint Qays claimed that she did not receive maintenance. And Umar (ra) replied that we would not forsake a verse from the Quran for a woman’s report..

What about the story of Umar (ra) and Abu Musa al Ashari (ra) when Abu Musa knocked on the door 3 times and when no answer came then Abu Musa started to walk away and Umar came out and asked why he left. When abu Musa said that he heard Prophet (saaw) to knock 3 times and leave if no answer.  Then Umar said that if you do not have evidence for it, then I will have you punished. So abu Musa provided another person who had heard the hadith. Here Umar (ra) made it clear to Abu Musa that I did not doubt but just wanted to set an example so people are careful in narrating the hadith.

What about the hadith of Dhul yadeen, who came to the prophet and asked him has the prayer been shortened, since the prophet had shortened the prayers, and prophet confirmed with others whether what Dhul Yadeen said was correct? Here there was a conflict between what Dhul Yadeen reported and what Prophet (saaw) thought. So further investigation was needed to remove the doubt. So this is an acceptable principle. However, a ahad hadith which has no conflict, then this principle does not apply.

So we have these stories and we have general practice.

When scholars are saying that ahad hadith are qatiee, they are saying it about acceptable hadith. No one from the Imam, accepts any ahad hadith and says that it produces knowledge. Would they say that any mutawatir hadith produce knowledge?

So the scholars are talking about acceptable hadith. So in some of the examples from the sahaba, then if you have no reason to doubt, then you accept it and act upon it. Contrast it with the case of Dhul Yadeen. So these stories are teaching us something valuable.

If we have a conflict, then we have to look into the matter.

Mutawattir hadith is qatee

The Sahih Hadith (Ahad Hadith) has 5 conditions to it:

1) It should have unbroken chain

2) Every narrator is Adl

3) Every narrator is Dhabit

4) No Shudoodh (i.e. contradicting stronger sources)

5) No Illah (i.e. hidden damaging defect)

It is lack of appreciations of these 5 conditions, that people start to say that Ahad hadith is Dhanni. The scholars of hadith do not call a hadith Sahih, until it reached definiteness that it is from the Prophet (saaw). Hence, the question of definiteness should not depend on number of chains. If one of these conditions is lax, then we may say that it is less than definite knowledge (called Hasan Li Ghairihi) and scholars differ regarding its acceptability. Some scholars say even if we accept Hasan Li Ghairihi then we will not use it for takhsees.   

Strongest opinion --- ahad hadith is qatee.

2012-04-30 Class Notes

(Note: Alhamdulillah I was able to transcribe the audio lecture, the text of hadith and verses are still missing - Humair)

PoP quiz: Takhsees through ahad hadith is a commonly misunderstood and applied topic so we want to make sure that it is understood properly.

One student: If it is sahih it is qatai’, not all non-mutwaatir hadith are dhanni. Scholars of hadith would consider sahih hadith to be qatai’. Another student: Mutazila had a view on the categorization of hadith, we should not stick to that categorization, if we find hadith to be authentic then it does not matter if it is mutwaatir or not.

If hadith is sahih and it meets the criteria for authentic hadith, those criteria are very strict, there is no reason to not call it qatai’. Practically there is diff of opinion if the hadith is sahih or not, if scholars or umma agreed upon it to be sahih, the later point is worth noting as there are some hadith which the umma has considered authentic and have applied them even though the scholars may not consider them to be authentic and according to fuqhas these are considered sahih hadith. Fuqhas grade hadith very diff than the scholars of hadith, they will take the majority of scholar’s opinion about a hadith and go with that. What we are talking about is the kind of ahad hadith which scholars of hadith consider to be sahih for these hadith there is no doubt that these are qatai’. On top of that we have them agree on and umma agree on that, these kind of hadith are definitely qatai’, the only problem is when you get to borderline, hasan, and hasan li-ghairi there is diff of opinion even among the scholars of hadith and in this case you may not consider qatai’, the onlytime this will be an issue if there is a contradicting evidence, if you have a hasan hadith and there is no contradiction to it and has a good meaning, then all scholars will consider it to be authentic and apply it.

Even in question of takhsees scholars will accept any kind of hadith unless it goes against the opinion of their madhad, they are not going to analyze if the hadith is mutwaatir or not, they will apply these hadith in general and will not go into the analysis unless they see it going against their madhab.

Strongest opinion is that these kind of sahih ahad hadith are qati’ and can be used for the takhsees of the Quran and sunnah. This applies Shairah and logically speaking. These should be considered definitive sharaih and logically speaking. Logically speaking is that we have verified the authenticity of hadith there is reason to believe in these reports, the criteria they have to meet is acceptable. We can come to the conclusion that logically these are acceptable, but then we see that from shariah point of view they are not acceptable or cannot be applied. E.g. if prophet (s) would send the messengers, he would send three or four at a time, then we can say that logically it may be acceptable but from shariah point of view we need to set higher standard. Both from the shariah perspective, what prophet (s) and sahaba did (naqali proof) and aqalee proof we should be satisfied that these hadith meet the criteria to be definitive.

There is also another thing that is attributed to the maliki school, some people say that in the maliki school they do not accept ahad hadith for the takhsees of general verses of Quran unless it meets certain criteria:

1.       Cannot be contradicting to the practice of people of Medina

2.       Cannot be contradicting to the qiyaas and other things

There is some aspect of truth and there is some exaggeration to that, the way it is presented by Abu Zahra on his book on Imam Malik, the way it is described above. Actually that is not quite accurate. We have scholars of hadith and they say that for hadith to be sahih there are 5 criteria, in the Maliki school and also in the hanfi school, the last category which is to be free of defects (illa), from the point of view of scholars of hadith the defect is very clear when they study all of the narrations of the hadith they do not find something contradicting or something strange going on, for the malikis what they mean by defect is that it contradics the practice of people of Medina and some would say that it also includes the contradiction to qiyas but the last point is not considered too much. However in Maliki school if a hadith contradicts the practice of the people of Medina this would be considered a defect from Imam Malik point of view. Does it make any sense, what is his justification? People of medina have to be aware of hadith, he is pretty close to the time of prophet, esp if they agree on it is taking as something as the living or the continuous sunnah, he takes this as a sign if there is some defect going on that hadith. Imam Malik and malikis in general will reject the hadith completely, so it is not that they will not consider it for the takhsees, they will reject the hadith to begin with. Other schools disagree with them on this point.

Some scholars say that Imam Malik himself was not very consistent on applying this principal. One example of that nature is, with respect to the verse of Quran, wa uhilla lakum ma wara dhalikum, after the women who are not permissible, all the other women are permissible for you. This verse in Quran, is there some takhsees of this verse from the hadith, is there another category that is mentioned by prophet (s)? Prophet said that “you cannot marry a woman and her maternal or paternal aunt at the same time”. The verse in the Quran just prohibits the marrying of two sisters and after this verse comes this verse that wa uhilla lakum ma wara dhalikum, first of all is this verse general? Yes, word “ma” is general. Usually when speaking about the inanimate objects you use “ma” and for animate objects you use “man” but in this verse “ma” is used which is topic for another discussion later.

Imam Malik accepts this hadith to make takhsees of this verse of Quran, the reason he would accept this hadith is that there was not practice in the people of Medina that would contradict this hadith. In another case, we see two hadith related to the same issue, Al-anam v145, “what is forbidden for us to eat, carrion, blood put forth,…” there is a hadith in which prophet (s) prohibited animals that have claws. Is this kind of takhsees for this verse? Yes, the general permissibility of everything except spoken is changed, now we have another category added to that, Imam Malik does not apply this hadith even though he knew this hadith. He did not explain what was the reason he did not apply this hadith. However there is another hadith that it is unlawful to eat animals with fangs (not claws). This hadith Imam Malik accepts and makes takhsees of this verse, why? Because he says that it is practice is among us, this hadith has support in the practice of medina even though it is ahad hadith. In the previous hadith he did not explain why he did not allow that takhsees.

In case of hanafi, the ahad hadith are dhanni, they are not going to accept ahad hadith to make takhsees of a verse in Quran which is qatai’. When we say takhsees that also applies adding anything to the Quran, Maida v6, when you get up for prayer, faghsaloo wujoohukum …. Simple question about wudu. Is it obligatory to go in order to make wudu? Hanafis and some maliki say it is not obligatory. Why would you say it is obligatory? The verse in the quran describes it like. The counter is that the conjunction between them is through “wau” which does not imply any order. Does not say, thumma or fa. There is nothing in the language that would say it is obligatory. In hanafi school it is sunnah. Is there any evidence we can provide say for shafai who would say it is obligatory. We have action of prophet (s) would it be enough to make it obligatory? Is it kind of takhsees to say that it must be in order? Is it takhsees? It is almost opposite of takhsees as we are adding something to the verse of the Quran. It shows the same approach of hanafi that since this is definitive text we cannot touch it with anything that is dhanni. Actually the evidence the other side use is not even an authentic hadith. This is the hadith where the prophet (s) is described as making wudu and he says “this is the wudu and Allah (swt) does not accept salaat except with it”. This is definitely not an acceptable hadith you only find it in the books of fiqh. This is opposite to what we are discussing that people are very strict in applying hadith for the takhsees, but the reality is that you find them using week hadith to add to the Quran or to make takhsees.

Which is stronger? There is no explicit strong evidence that the order is obligatory. It is safer as it was the practice of prophet (s), according to Al-albani there is even a hadith in which prophet (s) made wudu in a slightly different order. That leads to another problem which we will not discuss it here.

In the hanafi school when something has gone through takhsees, e.g. a verse has been particularized then you can go ahead and use something which is dhanni to make further takhsees as when takhsees has been made to the verse of the Quran then it becomes dhanni itself. Hanafi accept the hadith that you cannot marry a woman and her maternal or paternal aunt, they do not accept that hadith for takhsees of the verse because it is mutwaatir or mashhoor, they accept the takhsees of the verse “wa uhilla lakum ma wara dhalikum” as the takhsees of this verse has already been made in a proper manner for them. What is the takhsees they are talking about? It has to be as strong as the verse. The takhsees of that verse is in Surah al-Baqra V221 “wala tankihu mushrikaat hatta yumin”. The verse say that you can marry any other women but this verse is restricting it by saying that you cannot marry a mushrik women until  they believe. Once takhsees is made the general text becomes dhanni, that is something all schools are agreed upon. If you are going to come to a conclusion on a principal it is very important that you apply that principal consistently. You find this to be not the case for the hanafis and they have been critiqued for that. The reason for this is that their usool is based on the fiqh that was already established with the fiqh of abu hanifa and his students and it is very difficult. Sometimes they have the conclusions and that they do not know what text was used, this is not an easy task, that is why you see this glaring contradiction, like the issue of riba between  Muslim and non Muslim in dar al harb.

Is riba halal between Muslim and non Muslim in dar al harab? No. One thing that all scholars agreed upon that it is not halal for a Muslim to pay riba to a non Muslim in dar al harb. However, according to abu hanifa and Mohammed ibn al hasan al shaibaani (his student), as well as Nakhai’ and one narration from Imam Ahmed, it is permissible for a Muslim to take riba from non Muslim in dar al harb. Would you say that the evidence in Quran about riba is definitive? Would you say that riba is definitively haram? Do you know of any takhsees for the prohibition of riba? There is a hadith “la riba bain al muslimi wa harbi fi dar al harb”. Based on this hadith abu hanifa and Mohammed say that it is permissible for Muslim to take riba from non Muslim in dar al harb. What do you say about that? Must be a very strong hadith for them to do takhsees of verse. Has to be mutwaatir or mashhoor, this is weak hadith even according to hanafi scholars of hadith is weak. Sarakhsi says that even though this hadith is mursal, the one who narrated it is Makhool, who is faqih and thiqah so we will accept his hadith. Even if you are going to argue like hanafi and say that mursal hadith are acceptable. How can you then use the mursal hadith to argue that this hadith can make takhsees of verse of the Quran which is qatai’? There are two issues, 1) the hadith is not authentic,  mursal, 2) the dhalala of the hadith is dhanni as well. The meaning of it is not definitive, “la riba” here can be “la” of nafi or la of nahi. It could be implying of prohibition (nahi) of riba. That you cannot have riba as “la fusuuq wa la jidaal fil hajj”. Or it it may mean the non-existence (nafi) of riba, there is no such thing as riba between Muslim and harbi in dar al harb. Not only the hadith is weak, rather it is mursal and is not qatai’ in thaboot, and then it is not even qatai’s in dhalalah so how in the world can you apply this hadith to make takhsees of a general (qatai’) verse of the Quran? Unless they had this as statement of abu hanifa and consider the exception. They also make the takhsees of the hadith, as they allow Muslim to get riba from the harbi and not vice versa, even though the hadith does not make this distinction. This hanafi position it has led to different fatwas leading to buying houses in west. They claim that hadith has to be mutwaatir or mashhoor and has to be qatai’ in dhalalah. In general the particular (khaas) texts are qatai’ dhalalah, but the problem here is the ambiguity in the word “la” can lead to different meanings.

Also hanafi do not believe in establishing hadd for dhina in dar al harb. The difference between them and non hanafi is that when the Muslim commits this dhina in dar al harb and gets back to the Muslim land they will apply this hadd to him. While the hanafi will say no. This is based on a hadith “la tuqaam al-hadood fi dar al harb”. They used this hadith as a takhsees and definitely this is not an authentic hadith at all. The issue is that they have this view of Abu hanifa or Mohammed shaibani, but they do not have this statement from Abu Hanifa that the hadith which is ahad cannot be used for the takhsees of the quran. Hanafi scholars of Samarqand say that you can make takhsees of verses of Quran through ahad hadith. What they have is that they saw that abu hanifa did not make takhsees of Quran through some specific hadith and based on that they argue that you cannot make takhsees of the Quran through ahad hadith and also based on some rational arguments based on the effect of mutazila as well. When you are putting these conclusion together and you see your imam contradicting with that principal where you make takhsees of the Quran with that hadith which is not mutwaatir or mashhoor. In books of fiqh like Sarakhsi for example does not even mention that we are making takhsees of a verse with a hadith which is not mashhoor or mutwaatir. In other cases they will say that we cannot make the takhsees because it is not mutwaatir or mashhoor, but in these cases where the takhsees was made they do not bring up the issue at all. It is clear that there is some inconsistency here, one of the two things is happening, (1) this principal is close to what abu hanifa was using but this is not exactly his view, those examples that they give they are fine but they did not capture the exact view of abu hanifa on this issue (2) or abu Hanifa was not consistent in applying this principal, over a period of time he changed his opinion or (3) A mistake was made, this is quite possible that he made a mistake in some of these cases while applying his principal. Of course you follow the madhab the last option is off the table.

There are well known cases where the differences between hanafi and others is based on applying these hadith to the general verses of Quran, like the issue of not mentioning the name of Allah (swt) while slaughtering the animal, surah al-anam Allah (swt) says “wala takulu mimma lam yazkuru ismillhi alihi wa innahu fisq” Do not eat that upon which the name of Allah is not mentioned for verily that is transgression. When someone slaughters an animal is it obligatory that he mentions the name of Allah upon the animal? Someone intentionally does not mention the name of Allah upon slaughtering the animal are we saying that animal is not permissible? This is the issue where hanafi and shafai differ that whether it is obligatory to mention the name of Allah on animals while slaughtering. Shafai and one narration from Imam Ahmed say that the mentioning the name of Allah is sunnah and leaving it even intentionally still leaves the food halal. They either do not take the apparent meaning of the verse or they have some kind of takhsees for this. This is your homework to find out what is this takhsees.

2012-05-07 Class Notes

The question we left off last week: The issue of slaughtering an animal without mentioning the name of Allah (swt). Is it required to say the name of Allah (swt) or is it just a recommendation?

There is a verse in the Quran and a hadith of Prophet (pbuh) that one should not eat on what Allah’s name was not mentioned for slaughtering.  

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].

There are three opinions on this issue:

1) It is recommended according to Shafii madhab

2) It is permissibility of saying the name but if one forgets it then it is allowed to eat. This is Hanbali, Mailiki and Hanafi opinion.

3) It is requirement to say it. It is Dhahiri opinion, One opinion of Imam Malik, one from Ahmad Hanbal, it is opinion of many Salaf and it is opinion of Ibn Taymiyyah.

For the number 2, the reason is that the person intended to say Bismillah, however he forgot so there the ruling is that it is the same ruling as if he said it. For the Shafee school, which says that it is recommended, it is based on the narration in Bukhari in which Prophet (pbuh) was asked that some people come to us with meat and is not known whether they mention the name of Allah (swt) on it or not. So Prophet (saaw) allowed the consumption after having mentioned the name of Allah (swt) on it. Then the hadith continues that those people were recently in the state of Kufr (i.e. they are Muslims now). This hadith has a strong context, so it makes it clear that it is not a general text. There is a hadith in Abul Yala, which says when you go to your brother’s house (i.e. another Muslim) you eat from what he gives you and do not ask about the food. If you doubt then you mention the name of Allah (swt).

There is another hadith in Abu Daud in the book called Al-Maraseel: “Slaughtering of a Muslim is permissible whether he mentioned the name of Allah on it or not, for if he would have mentioned it he would have mentioned only the name of Allah.”

This hadith will not be sufficient for the Hanafis, however Maliki’s and Hanbali’s agree with Hanafi’s here.

The problem with the above hadith is broken, and it is a weak hadith. So it cannot be used to make takhsees of the Quran. There are similar hadiths on the topic but all of them are weak. Daralqutni, who himself is a Shafee scholar, mentions weakness in these hadith. It looks like Imam Shafee considered some of these ahadeeth authentic and hence gave the opinion on it.

What about the slaughtered meat from the Ahl ul Kitaab? When you talk about the food of the people of the book, the Arab Christians and Jews to this date slaughter. Some of the scholars think that no matter how the Ahl e Kitaab slaughter, it is halaal for us. Majority of scholars say that the meat of the people of the book is halal for us as they are supposed to slaughter with the name of Allah (SWT).

Ibn Rushd, the Maliki scholar has a different approach. He says that you should not eat that animal which is carrion, who was not slaughtered or was not intended to be slaughtered (in the name of Allah). This is from the book Bayah al Tahseel, and here he is not presenting any proof and is going against the Maliki opinion.

It looks like we have not strong evidence for Takhsees, so one cannot make takhsees. It looks like the Shafee opinion is a weak opinion. This example shows up in Fiqh books for an example of takhsees based on non-Mutawattir hadith, however this is a poor example, since it is based on weak hadith. There are cases where there is takhsees of one hadith of Prophet (saaw) in another hadith of Prophet (saaw).

Takhsees by Ijma:

Ijma has to be complete unanimous agreement of the Ulema (theoretically it is called Ijma of Ummah, since Ulema are only allowed to make ijtihad and the masses are not allowed to make ijtihad). Theoretically there is not time constraint, but practically speaking it has to go back to early scholars, since later many strange schools of thought came along, e.g. Dhahiris. So the Dhahiris fall out since they have a different Usool of thought that differed from the foundations of the basic framework from the Sunni schools of thought.

In reality, Ijma has many limited usage.

In this class, we are just looking at Ijma as an indicator of takhsees. Ijma itself cannot make takhsees, but it can indicate that takhsees was made.

Ijma can raise the level of some hadith which then can be used for takhsees. Ijma has to be based on something but we do not need to know what it is based on.

What if the news of Ijma reaches us based on the dhanni resources. Can we use it to make takhsees of the Quran and Hadith which are Qatai?

Two types of Ijma

There is Ijma al Qawli and Ijma al Sukooti. Ijma al Qawli where everyone gave the opinion and they all agree.

Ijma al Qawli is considered as defintive.

In the Ijma al Sukooti it is when an opinion came out in public and then there is no record of any one objecting to it. This is Dhanni. So one cannot use this to make Takhsees.  

Sh. Jamaal does not know anyone who has opposed the idea of Ijma as an indicator of takhsees. Keep in mind only as an indicator i.e. it shows that takhsees was made.  

يُوصِيكُمُ اللَّهُ فِي أَوْلَادِكُمْ ۖ لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ ۚ فَإِن كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَكَ ۖ وَإِن كَانَتْ وَاحِدَةً فَلَهَا النِّصْفُ ۚ وَلِأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِّنْهُمَا السُّدُسُ مِمَّا تَرَكَ إِن كَانَ لَهُ وَلَدٌ ۚ فَإِن لَّمْ يَكُن لَّهُ وَلَدٌ وَوَرِثَهُ أَبَوَاهُ فَلِأُمِّهِ الثُّلُثُ ۚ فَإِن كَانَ لَهُ إِخْوَةٌ فَلِأُمِّهِ السُّدُسُ ۚ مِن بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ ۗ آبَاؤُكُمْ وَأَبْنَاؤُكُمْ لَا تَدْرُونَ أَيُّهُمْ أَقْرَبُ لَكُمْ نَفْعًا ۚ فَرِيضَةً مِّنَ اللَّهِ ۗ إِنَّ اللَّهَ كَانَ عَلِيمًا حَكِيمًا

Sahih International (4:11)

Allah instructs you concerning your children: for the male, what is equal to the share of two females. But if there are [only] daughters, two or more, for them is two thirds of one's estate. And if there is only one, for her is half. And for one's parents, to each one of them is a sixth of his estate if he left children. But if he had no children and the parents [alone] inherit from him, then for his mother is one third. And if he had brothers [or sisters], for his mother is a sixth, after any bequest he [may have] made or debt. Your parents or your children - you know not which of them are nearest to you in benefit. [These shares are] an obligation [imposed] by Allah . Indeed, Allah is ever Knowing and Wise.

Ijma --- Slave does not inherit. Does that make takhsis of the above verse?

So Awladikum is Aam due to the Dhameer (pronoun suffix) attached to it. So Ijma is making takhsees here.

Ijma --- If a slave falsely accuses a woman for illegal sexual intercourse, than that slave is flogged 40 times.

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

Sahih International

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,

Nisa v25 --- punishment of zina for slave is half. This is the source of ijma.

ۚ فَإِذَا أُحْصِنَّ فَإِنْ أَتَيْنَ بِفَاحِشَةٍ فَعَلَيْهِنَّ نِصْفُ مَا عَلَى الْمُحْصَنَاتِ مِنَ الْعَذَابِ ۚ ذَٰلِكَ لِمَنْ خَشِيَ الْعَنَتَ مِنكُمْ ۚ وَأَن تَصْبِرُوا خَيْرٌ لَّكُمْ ۗ وَاللَّهُ غَفُورٌ رَّحِيمٌ

But once they are sheltered in marriage, if they should commit adultery, then for them is half the punishment for free [unmarried] women. This [allowance] is for him among you who fears sin, but to be patient is better for you. And Allah is Forgiving and Merciful.

Ijma --- women not required to attend the Juma prayer

The verse in Surah Jumuah is general.

يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نُودِيَ لِلصَّلَاةِ مِن يَوْمِ الْجُمُعَةِ فَاسْعَوْا إِلَىٰ ذِكْرِ اللَّهِ وَذَرُوا الْبَيْعَ ۚ ذَٰلِكُمْ خَيْرٌ لَّكُمْ إِن كُنتُمْ تَعْلَمُونَ

Sahih International

O you who have believed, when [the adhan] is called for the prayer on the day of Jumu'ah [Friday], then proceed to the remembrance of Allah and leave trade. That is better for you, if you only knew.

For this case there is explicit hadith which says that Jumah is not obligation on women, sick? (Sh. probably said slaves here) and travellers. Ijma has raised the level of certainty of the hadith.

2012-05-14 Class Notes

Today we discuss Qiyas as an indicator of takhsees. Qiyas is analogy, and it has 4 components to it

1) Al Farq (new case)

2) Al Asl (the original case)

3) Illah (legal cause)

4) Hukm (ruling).

Let us take the example of Khamr (technically it is wine). So what about whisky, which is slightly different from the Khamr and its fermentation process is different from Khamr. For whisky (new case) the Asl is KHamr and the Illah is intoxication (which is common for whisky and Khamr) so Hukm is that whisky is haraam as well.

Say we have a general (Aam) text and then we have another text which is Khass. So imagine two sets (one of Aam text the other of the Khass text) which are overlapping. It is possible that the Khass text can be extended by Qiyas to restrict the Aam text.  

Footnote: The qiyas is not accepted by Dhahiris, some Mutazilite and later Shias only.

For the case of the intoxicant example is not very good for Qiyas since there is a hadith which forbids all kinds of intoxicants. So our example above is good only if we ignore this hadith. In most cases the illah is not defined in the text and it is generally deduced from the text, so Illah is always Dhanni and not Qatai. Second issue is that how well the illah fits the new case. What about Codeine? Can we consider it intoxicant? Technically speaking, it is not intoxicant. Intoxicant affects the sense and makes you do things which you may not intend. One question which is related does illah apply to secondary cases. Sometimes we have problems to find out about Illah and then to apply to illah. In general. Qiyas is going to be Dhanni but not Qatai (however, there are some cases where illah can be Qatai but we are not talking about it today).

Is Qiyas textual proof? It is not a textual proof and one resorts to Qiyas when you do not have textual proof directly related to the issue at hand.

Back to the above two overlapping sets. Since Aam text is already dealing with the case, then how can Khass text make takhsees of it.

وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا جَزَاءً بِمَا كَسَبَا نَكَالًا مِّنَ اللَّهِ ۗ وَاللَّهُ عَزِيزٌ حَكِيمٌ

Sahih International

[As for] the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent [punishment] from Allah . And Allah is Exalted in Might and Wise.

وَمَن لَّمْ يَسْتَطِعْ مِنكُمْ طَوْلًا أَن يَنكِحَ الْمُحْصَنَاتِ الْمُؤْمِنَاتِ فَمِن مَّا مَلَكَتْ أَيْمَانُكُم مِّن فَتَيَاتِكُمُ الْمُؤْمِنَاتِ ۚ وَاللَّهُ أَعْلَمُ بِإِيمَانِكُم ۚ بَعْضُكُم مِّن بَعْضٍ ۚ فَانكِحُوهُنَّ بِإِذْنِ أَهْلِهِنَّ وَآتُوهُنَّ أُجُورَهُنَّ بِالْمَعْرُوفِ مُحْصَنَاتٍ غَيْرَ مُسَافِحَاتٍ وَلَا مُتَّخِذَاتِ أَخْدَانٍ ۚ فَإِذَا أُحْصِنَّ فَإِنْ أَتَيْنَ بِفَاحِشَةٍ فَعَلَيْهِنَّ نِصْفُ مَا عَلَى الْمُحْصَنَاتِ مِنَ الْعَذَابِ ۚ ذَٰلِكَ لِمَنْ خَشِيَ الْعَنَتَ مِنكُمْ ۚ وَأَن تَصْبِرُوا خَيْرٌ لَّكُمْ ۗ وَاللَّهُ غَفُورٌ رَّحِيمٌ

Sahih International

And whoever among you cannot [find] the means to marry free, believing women, then [he may marry] from those whom your right hands possess of believing slave girls. And Allah is most knowing about your faith. You [believers] are of one another. So marry them with the permission of their people and give them their due compensation according to what is acceptable. [They should be] chaste, neither [of] those who commit unlawful intercourse randomly nor those who take [secret] lovers. But once they are sheltered in marriage, if they should commit adultery, then for them is half the punishment for free [unmarried] women. This [allowance] is for him among you who fears sin, but to be patient is better for you. And Allah is Forgiving and Merciful.

So the author uses (4:25) to make takhsees for the slaves having half the punishment in (5:38). This is wrong since he is applying the Qiyas wrong in the first place. The above text is only referring to female slaves. Can we make an analogy between male slaves and female slaves. So in analogy to the above sets, the Aam text is one of those who commit zina and the Khass set is female slaves and the overlapping area is the male slaves. However, there is a fact, that when it comes to Hudud the rule is the same for both male and females. All the madhabs accept that the male slave gets the same punishment as the female slave. It looks like there is also Ijma on this point. Since it is Ijma, there might be another text which did not come to us, so this throws the wrench in the Qiyas part. However, interestingly enough, most usul books give this as an example of takhsees by Qiyas. It looks like there is no known example in usul al fiqh which is impacted by this takhsees by Qiyas. Still we will discuss 4 views which are given.

Footnote: there are two kinds of Qiyas a) Qiyas al jalli and b) Qiyas al khafi. There is no difference of opinion that Qiyas al Jalli can be indicator of takhsees (e.g. if illah is mentioned in the text then it is example of al Jalli). For the hanafis what establishes Qiyas al Jalli is textual argument in the first place so not a problem. However, for al khafi, there are 4 opinions below:

1) Qiyas can be indicator of takhsees under all circumstances. In the book of Usul al fiqh this opinion is attributed to Imam Shafi, Ahmed and Malik and it can also be seen that this is the view of Abu Hanifa (this attribution to abu hanifa is problematic and Sh. does not know why it is attributed). By istiqraa they think, that all Aam text has takhsees...??...Ghazali does not accept this he claims the qiyas is not always coming from qualified mujtahideen.

2) Qiyas cannot be the indicator of takhsees under any circumstances. It is basic view of Hanafis, it is view of Fakharuddin ar Razi. This argument works for them since they do not accept ahad hadith for takhsees in the first place. The general text covers the case anyways. Ghazali also has some responses to this view and does not accept this one either, so he is acting as Waqafites here.  

3) Qiyas is indicator of takhsees under certain conditions. For non Hanafis these conditions are how strong is the Qiyas. So if you use the method A, B then it is good if one used method C, D to find illah then not it is not good to make tahsees. For Hanafis it is only acceptable, if the Aam text has been made takhsees of by some other indicator.  

4) Waqafite position which is to suspend judgement. Examples are Baqillani, Ghazali, al Juwayni who hold this position and they say there is no default case that we can point to so one should suspend judgment until one finds some other piece of evidence. This piece of evidence is called by them Tarjeeh, which will allow the case to be decided whether one is strong or the other.

Sh. Jamaal mentions that there is not valid example of any of this (i.e. Qiyas as indicator of takhsees). He found 2 examples, but both of them has Ijma as indicator of takhsees which overrules the Qiyas as indicator of takhsees. The question which Sh. Jamaal says is that in presence of Mantuq text it is very hard to imagine how can one accept Qiyas as indicator of takhsees. Even the cases we did above have Ijma from the time of Sahabah.

Conclusion: So there is no good known example of Qiyas as indicator of takhsees. It is a good possibility to know but practically speaking it is not a great concern in studying or practising the Usul-al-Fiqh.

2012-05-21 Class Notes

last week we discussed qiyas as an indicator of takhsees. The problem is that qiyas that it is invoked when there is no general text in the first place. e.g. in the Quran on Riba in (2:275)

وَأَحَلَّ اللَّهُ الْبَيْعَ وَحَرَّمَ الرِّبَا ۚ

Now in hadith there is Riba al Fadl, which says that if trade is made with gold then it cannot be delayed and it has to be hand to hand. Similarly for date-for-date, barley for barley, etc. So the Ayah is the general text and the hadith is khass text. Some Ulema include rice and oil based on analogy. Trading rice-for-rice and oil-to-oil may not have to hand-to-hand due to the aam text in the verse. Ibn Hazm will reject though but all the other Ulema will accept this analogy. The reason is that the 2:275 have been made takhsees for it many times. So there are all sorts of Gharar transactions which have restricted so it is a very weak general text, so we can make takhsees via qiyas. It looks like Waqafite case is the strongest here and one has to look at each case by itself and see if aam text can be made takhsees of based on qiyas. This is only true for some very limited cases.

Mafhoom as indicator of takhsees

What about takhsees by Mafhoom? Can mafhoom be used as indicator of takhsees.

Al-Amadi (who wrote ahkam fil usul al ahkam), mentions that he knows of any disagreement on this issue of mafhoom making takhsees whether it is mafhoom al muwafaqa or mukhalafa. However, Hanafis do not accept mukhalafa so it is problematic statement. Sh. Jamaal thinks, probably he meant Shafi school only. Some other scholars have called it the most difficult issue in Usul al fiqh.

Say we have a set due to the aam text and it is covering it in the way of Mantooq (i.e. stated). In the other set we have a mafhoom based set, then can mafhoom make takhsees. We are running into the problem that khass is stronger than the aam and mantooq is stronger than the mafhoom. For the Hanafi, as a default case, mantooq has precedence over mafhoom and both aam and khaas is Qatai, so they will not accept the takhsees by mafhoom.  

Most of the scholars do accept Mafhoom al muwafaqah as an indicator of takhsees. They argue that Mafhoom al Muwafaqah is what is accepted by everyone. The usuliyeen do not abandon any argument and they actually put different arguments together to understand a ruling rather than abandoning an argument. So they say since Mafhoom al Muwafaqah is a strong and well accepted argument so it should be accepted.

Hadith: If the one who has the means to repay back a loan delays in repaying back the loan then his honor becomes permissible (i.e. one can back-bite) and punishing him is permissible.

Now Quran says that one cannot say Uff to his parents.  

وَقَضَىٰ رَبُّكَ أَلَّا تَعْبُدُوا إِلَّا إِيَّاهُ وَبِالْوَالِدَيْنِ إِحْسَانًا ۚ إِمَّا يَبْلُغَنَّ عِندَكَ الْكِبَرَ أَحَدُهُمَا أَوْ كِلَاهُمَا فَلَا تَقُل لَّهُمَا أُفٍّ وَلَا تَنْهَرْهُمَا وَقُل لَّهُمَا قَوْلًا كَرِيمًا

Sahih International

And your Lord has decreed that you not worship except Him, and to parents, good treatment. Whether one or both of them reach old age [while] with you, say not to them [so much as], "uff," and do not repel them but speak to them a noble word.

So the takhsees is being made by the mafhoom al muwafaqah that parents cannot be back-bit against or imprisoned for not repaying back the loan.

The mafhoom al mukhalafah is going to be problem. Not everyone accepts Mafhoom al mukhalafa, which includes hanafis and many non-hanafis. Mafhoom al Mukhalafah has many types, some types are accepted and some types are rejected. The conclusions from Mafhoom al mukhalafah is going to be Dhanni so that is a problem. Even if hanafis accepted mukhalafa will havee problem with Dhanni conclusion anyways.  

Those who accept mafhoom al mukhalafah as indicator of takhsees are the majority of Hambali, Malikis and Shafiees. So in each madhab there are some who do not accept it as an indicator of takhsees.

Basic argument for those who accept is that in this you are applying both pieces of evidence instead of rejecting one. Ibn ….. that this issue has two well known opinions. The khass will generally will take precedence and mantooq will also take precedence. However, recall that there are some conditions which need to be satisfied before we accept mafhoom al mukhalafah. So here we have to make sure that mukhlafah is strong enough and fulfills all the conditions before we accept it. Lets do few examples to show how difficult this is:

Example: If we come out from Ruku and stand up in Salat, do the followers and imam say the same thing. According to majority opinion the imam says “samiAllahu leman Hamida” but the followers say “Rabbana wa lakal hamd”. This is one opinion. The other opinion is that imam and followers say the same statement i.e. “samiAllah hu leman Hamida Rabbana wa lakal hamd”. The third opinion is that imam says both and followers only say Rabbana wa lakal hamd”.  

Based on the understanding of two hadiths

One hadith says that Imam is meant to be followed. If he is standing then you stand, if he bows then you bow......and if he say Sami Allah hu liman hamida then follower says Rabana wal lakal hamd.

In this case the generality of the hadith, the followers have to say what is in the end.

Another hadith When prophet (pbuh) raised from ruku he said “samiAllah hu leman Hamida Rabbana wa lakal hamd”

Mantooq of second hadith says that imam says the whole thing. The mafhoom of the first hadith shows that the imam did not say “Rabbana lakal Hamd”. So mantooq of the second takes precedence over the mafhoom of the first. In the first hadith the mafhoom we get that the imam is not saying Rabbana wal lakal hamd. The first hadith does not say that the followers have to say SamiAllah hu liman hamida. However, it is in mafhoom since the imam is to be followed.

Which one is stronger?

If you come to the Jumah prayer and you catch the imam in the last Ruku what do you do after Imam says tasleem.Then you pray 1. If you catch the imam after the last ruku then do pray 2 or 4?

Evidence says in hadith: whatever you have caught of the prayers you pray and you complete what you missed.

Just based on this hadith what is appropriate it is 2, since you missed Jumah so pray to 2.

Another hadith: Whoever catches a rakah of the salah has caught the salah.

So Mafhoom al Mukhalafah of this hadith suggests pray Zuhr if you miss the ruku of second rakat of Jumah. So from mafhoom if you have missed the second ruku then you have missed the salah and you have to pray Dhuhr.

The second hadith is Khaas of the first Aam hadith.

Should the Mafhoom of this khass hadith take precedence over the mantooq of the aam hadith?

we discuss it next week, InshaAllah.

2012-05-28 Class Notes

From last week, the issue of Sami ullah hu liman Hamida:

Imam has been appointed to be followed so they are taking it as a general case. So when the Imam says Sami ullah liman hamida (as in hadith) then you say Rabbana wa lakal hamd. Perhaps the mafhoom is that followers do not say Sami ullah hu liman hamida. For the Rabbana lakal hamd the mafhoom is much stronger that imam does not say this (i.e. Rabbana lakal hamd). The big question is to find the khass text describing the Prophet (saaw) saying or praying in which he says both. This is the evidence from Ibn Umar (ra) statement in which he (saaw) as an imam said both. So the question left is do the followers say Samiullah liman Hamida or not? From Mafhoom al Mukhalifa the followers do not say Sami ullah liman hamida, however some schools do not accept Mafhoom al-Mukhalifa. Another evidence is the hadith, “Pray as you see me praying”. This hadith looks like is saying that followers should say Sami ullah liman hamida but then the question comes why would Prophet (saaw) would highlight the ‘Sami ullah liman hamida’ and ‘Rabbana wa lakal hamd’ part so strictly.

Sh. Jamaal 15 years ago thought that followers say both but this time looking at the evidence new he is not that convinced. He does not remember why he concluded that 15 years ago.

For Jumah and Zuhr issue it appears stronger opinion is that if you miss Jumah then one should pray 4 rakat of Zuhr.

Takhsis by Urf (custom) wal Aada (habit):

It (Urf) is not source of legislation in Islamic Law but it has value in Islamic law, for example dowry value is based on Urf. However, can it be used to make takhsees?

4 conditions that Urf should fulfil:

1) It should be related to all people (Urf has to be of the land and contemporary) and not just the sub-set of the people.

2) It has to be Urf at time of the transaction or case at hand. It has a role to play in business transaction since a contract may have expectations due to Urf not spelled out in the contract. For example in USA (compared to UK) the french fries the ketch-up comes free but in UK one has to pay some minimal amount. So it is understood in USA that salt and ketchup is free but not necessarily in another country.

3) Urf cannot contradict a clear stipulation of an agreement. If you enter into a restaurant which says that in this restaurant the condiments are not free then customer has to stick to it.

4) Urf cannot violate any text of Shariah.

There is Urf al Qawli and Urf al Faili:

Urf al Qawli

There are 3 haqiqas 1) Al-Shariah; 2) Al Urfiyyah and 3) Al Lughawiyyah

Haqiqa means the literal meaning of the word. The Shariah meaning takes precedence over all other Haqiqas. However, there can be literal meaning due to common usage of the earth. For example. the word Daaba can be anything which is crawls on this earth. However, in some customs it just means a horse. However, between the Urfiyyah and Lughawiyyah, it is Urfiyyah for majority scholars so they allow takhsees due to Urf al qawli. Some even claim that there is Ijma on this point. They argue that when Quran and Hadith address people it is addressing them in the language they understood (i.e. the people in Arabia at that time). So they used term in Urfiyyah sense rather than the Lughwiyyah sense.

So this is why they say that takhsees is allowed. For example, 4:43

يَا أَيُّهَا الَّذِينَ آمَنُوا لَا تَقْرَبُوا الصَّلَاةَ وَأَنتُمْ سُكَارَىٰ حَتَّىٰ تَعْلَمُوا مَا تَقُولُونَ وَلَا جُنُبًا إِلَّا عَابِرِي سَبِيلٍ حَتَّىٰ تَغْتَسِلُوا ۚ وَإِن كُنتُم مَّرْضَىٰ أَوْ عَلَىٰ سَفَرٍ أَوْ جَاءَ أَحَدٌ مِّنكُم مِّنَ الْغَائِطِ أَوْ لَامَسْتُمُ النِّسَاءَ فَلَمْ تَجِدُوا مَاءً فَتَيَمَّمُوا صَعِيدًا طَيِّبًا فَامْسَحُوا بِوُجُوهِكُمْ وَأَيْدِيكُمْ ۗ إِنَّ اللَّهَ كَانَ عَفُوًّا غَفُورًا

Sahih International (4:43)

O you who have believed, do not approach prayer while you are intoxicated until you know what you are saying or in a state of janabah, except those passing through [a place of prayer], until you have washed [your whole body]. And if you are ill or on a journey or one of you comes from the place of relieving himself or you have contacted women and find no water, then seek clean earth and wipe over your faces and your hands [with it]. Indeed, Allah is ever Pardoning and Forgiving.

The Al-Ghaith is anything which comes out of the body as an act of relief. This was the understanding in the time of the revelation of the Quran in Arabian Peninsula. However, the later kind of Urf cannot make takhsees. Only the Urf at the time of Prophet (saaw) can make takhsees of the text. After Prophet (saaw) time only for fiqhi aspects Urf al Qawli can clarify understanding. For example, in English is poultry part of meat or is fish part of meat. If someone swore that he is not going to eat meat but he eats fish, so he has not broken his oath. From Shariah point of view if he said that I am not going to eat Lahm, then eating fish breaks his oath, since Quran calls fish Lahm al Tariyya. In later times, now fish is called Samk so one cannot today say that one has broken his oath if he eats fish since in Urf today fish is understood to be Samk and not called Lahm.

Urf al Faili:

In the custom of the people Taa’m meant wheat so the hadith which says do not exchange Taa’m for Taa’m is considered applicable only to wheat due to Urf (this is Hanafi claim). So this is takhsees by Urf al Faili (however, Sh. Jamaal has few reservations for this example which I missed and could not get the whole argument). Urf al Faili is different from Qawli since in Qawli you know what the word (being used for takhsees) is related to. Here it is a whole practice and it is hard to apply it for takhsees. Even in the case of the Taa’m example above, it is not decisive that Taa’m meant wheat only.

Imam Malik was against the Urf al Faili for takhsees and thought that one can over-rule whole Shariah if one accepts Urf al Faili for takhsees. Hanafi and Hanbali do allow takhsees by Urf al Faili.

Burden of proof is on the plaintiff and defendant can take oath. So say that this is takhsees by Urf al Faili. Maliki give an example, that a man lives in a building for 15 years and then 15 years later someone comes and claims that he owns the building and it does not belong to the one living in the building. The Maliki says that from Urf we know no one for 15 years does not remain silent regarding the property. So the plaintiff has to bring proof why he was quiet for 15 years.

Prophet (saaw) that be just in giving gifts between your children.

The Hanbali say that we can accept takhsees if it can be shown that it was Urf at time of Prophet (saaw). However, then it is part of the takreer of Prophet (saaw). So the Hanbali have not answered this question.

(We stopped here due to the Iqamah for Isha. I think, the discussion is not finished yet).