TURUQ ISTINBATTURUQ ISTINBATDEDUCING THE LAW FROM ITS SOURCESDEDUCING THE LAW FROM ITS SOURCES

Rules of Interpretation IRules of Interpretation I

(Interpretation of words)(Interpretation of words)

Why Rules of Interpretation?Why Rules of Interpretation?

To interpret the Quran or the Sunnah, or to To interpret the Quran or the Sunnah, or to deduce legal rules from the indication from deduce legal rules from the indication from the nusus.the nusus. However, it is necessary that the language of However, it is necessary that the language of

the Quran and the Sunnah is clearly the Quran and the Sunnah is clearly understood.understood.

Must obtain a firm grasp of the words and the Must obtain a firm grasp of the words and the precise implications.precise implications.

Function of the rulesFunction of the rules

To discover the intention of the Law Giver To discover the intention of the Law Giver or of any person from his speech and or of any person from his speech and conduct.conduct.

Primarily concerned with the discovery of Primarily concerned with the discovery of that which is not self evident.that which is not self evident. If the text is clear, then there is no need for If the text is clear, then there is no need for

rules of interpretationrules of interpretation

Objective of the rulesObjective of the rules

To ascertain the intention of the Lawgiver To ascertain the intention of the Lawgiver with regard to what has been left with regard to what has been left unexpressed as a matter of necessary unexpressed as a matter of necessary inference from the surrounding inference from the surrounding circumstances.circumstances.

After deriving hukm from the legal texts, After deriving hukm from the legal texts, the jurists will then interpret the number or the jurists will then interpret the number or categories of acts that are affected by the categories of acts that are affected by the hukm or the categories of persons who are hukm or the categories of persons who are affected or even the categories of objects affected or even the categories of objects based on the words used. based on the words used.

Classification of wordsClassification of words

From the viewpoints of:From the viewpoints of: (i) their clarity(i) their clarity

Clear and unclear wordsClear and unclear words (ii) their scope(ii) their scope

‘‘am and khasam and khas (iii) their capacity to convey certain (iii) their capacity to convey certain

meaning.meaning.

From the view point of scope, words are From the view point of scope, words are classified into:classified into:

General(‘Amm)

Specific(Khass)

The general (‘Amm)The general (‘Amm)

‘‘Amm may be defined as a word which Amm may be defined as a word which applies to many things, not limited in applies to many things, not limited in number and includes everything to which it number and includes everything to which it is applicable.is applicable. In other word ‘am is a word that has single In other word ‘am is a word that has single

meaning but it applies to an unlimited number meaning but it applies to an unlimited number without restriction.without restriction.

All words are basically general unless they All words are basically general unless they are specified or qualified in some way. The are specified or qualified in some way. The words of the Quran and Sunnah are the words of the Quran and Sunnah are the examples.examples.

Examples:Examples: the word ‘insan’ (human being) – al -’Asr:2)the word ‘insan’ (human being) – al -’Asr:2) the word ‘man’ (whoever) the word ‘man’ (whoever) منمن ““everyevery soul shall have a taste of death” - ali- soul shall have a taste of death” - ali-

Imran:185 Imran:185 ““the the womanwoman and the and the manman guilty of adultery or guilty of adultery or

fornication…” – al-Nur (24:2) fornication…” – al-Nur (24:2)

In determining the scope of the ‘amm, In determining the scope of the ‘amm, reference is made not only to the rules of reference is made not only to the rules of the language but also to the usage of the the language but also to the usage of the people.people.

In conflict between rules of language and In conflict between rules of language and usage, usage prevails.usage, usage prevails.

Types of ‘AmmTypes of ‘Amm

1.1. The ‘amm which is absolutely general The ‘amm which is absolutely general and may be indicated in the form of a and may be indicated in the form of a pronoun (eg: he, she, it, they, all, every, pronoun (eg: he, she, it, they, all, every, entire etc. entire etc.

2.2. The ‘amm which is meant to imply khassThe ‘amm which is meant to imply khass

3. The ‘amm which is not accompanied by 3. The ‘amm which is not accompanied by either of the foregoing two varieties of either of the foregoing two varieties of indications as to its scope (has been indications as to its scope (has been specified elsewhere)specified elsewhere) عامعام مخصوصمخصوص

TYPES OF ‘AMM

absolutely general

meant to imply khass

not accompanied by either of the foregoing

two varieties

Eg: “There is no living creature on earth that God does not provide for it.” – Hud (11:6)““We made everything alive from water (al-Anbiya:30)“…and God have knowledge of all things.” - al-Nisa’ (4:176)

There is evidence that it comprises some but not absolute to all.Eg: “Pilgrimage to the House is a duty owed toGod by all people who are able to undertake it”(Ali Imran:97)

“Divorced women must observe three courses uponthemselves…” – al-Baqarah (2: 228)-qualified by the following verse“O believers, when you enter the contract of marriage with women and then divorce them before consummating the marriage, they do not have to observe ‘iddah” (al-Ahzab:49)

How to identify ‘Amm?How to identify ‘Amm?

When a singular or plural form of a noun is When a singular or plural form of a noun is preceded by the definite article ‘al’.preceded by the definite article ‘al’. الذانيةالذانية والذانيوالذاني al-zaniah (the adulterer, al-zaniah (the adulterer,

whether a woman or a man, flog them with whether a woman or a man, flog them with one hundred lashes (an-Nur:2)one hundred lashes (an-Nur:2)

al-mutallaqat (the divorced women)al-mutallaqat (the divorced women) المطلقاتالمطلقات السارقالسارق والسارقةوالسارقة a thief (male and female)a thief (male and female)

The word jami’ (The word jami’ (جميعجميع), kaffah (), kaffah (كافةكافة) and ) and kull (- kull (- كلكل all and entire) are generic in their all and entire) are generic in their effect. effect.

When a word is prefixed by a conjunctive When a word is prefixed by a conjunctive such as such as والنوالن ينين and and والالتيوالالتي it becomes it becomes generic in its effect.generic in its effect.

If any of your women are guilty of If any of your women are guilty of والالتيوالالتي“ “ lewdness, take the evidence of four (reliable) lewdness, take the evidence of four (reliable) witnesses from amongst you against them…”witnesses from amongst you against them…”

If two men among you are guilty of If two men among you are guilty of والذانوالذان lewdness, punish them both…”lewdness, punish them both…”

““Those (Those ( والنوالن ينين ) who accuse chaste women of ) who accuse chaste women of adultery and fail to bring four witnesses flog adultery and fail to bring four witnesses flog them eighty lashes.” - al-Nur (24) : 21 them eighty lashes.” - al-Nur (24) : 21

This ruling is general as it applies to all those This ruling is general as it applies to all those who can possibly be included in its scope, who can possibly be included in its scope, and it remains so unless there is evidence to and it remains so unless there is evidence to warrant specification.warrant specification.

However, the general ruling of chapter 24:21 However, the general ruling of chapter 24:21 is specified by verse 6 of the same chapter is specified by verse 6 of the same chapter that a husband is allowed to prove a charge of that a husband is allowed to prove a charge of adultery against his wife by taking four solemn adultery against his wife by taking four solemn oaths instead of four witnesses, but the wife oaths instead of four witnesses, but the wife can rebut the charge by taking four solemn can rebut the charge by taking four solemn oaths herself.oaths herself.

An indeterminate word (al-nakirah) when An indeterminate word (al-nakirah) when used to convey the negative.used to convey the negative. Eg: La dhararar wa la dhirar fil IslamEg: La dhararar wa la dhirar fil Islam الال ضررضرر والوال ضرارضرار فيفي اإلسالماإلسالم ‘‘No harm shall be inflicted nor tolerated in No harm shall be inflicted nor tolerated in

Islam’Islam’

““ التقلالتقل لهمالهما افاف والوال تنهرهماتنهرهما … …say not to them a say not to them a word of contempt, nor repel them…” – al-Isra’ word of contempt, nor repel them…” – al-Isra’ (17:23)(17:23)

والوال تقتلتقتل النفسالنفس التيالتي حرمحرم اللهالله االاال بالحقبالحق

The word “The word “منمن” ” (he who) used in a (he who) used in a conditional speechconditional speech ““whoever (whoever (ومنومن) kills a believer by error, he ) kills a believer by error, he

must release a believing slave” – 4:92must release a believing slave” – 4:92 ““whoever (whoever ( منمنفف ) among you sees the new ) among you sees the new

moon must observe the fast…” – 2:185moon must observe the fast…” – 2:185

Implication of ‘amm : definitive Implication of ‘amm : definitive ?(?(ظنيظني) or speculative () or speculative (قطعيقطعي))

Hanafi Jurists:Hanafi Jurists: Application of ‘amm is definitive!Application of ‘amm is definitive! WHY?WHY?

• The language of the law is usually general and if The language of the law is usually general and if its application were to be confined to a few only of its application were to be confined to a few only of the cases covered by its words WITHOUT a the cases covered by its words WITHOUT a particular reason/authority, then the intention of the particular reason/authority, then the intention of the Lawgiver would be frustrated. Lawgiver would be frustrated.

Majority (Shafi’e, Maliki and Hanbali Majority (Shafi’e, Maliki and Hanbali jurists): jurists): Application of ‘amm is speculative as it is Application of ‘amm is speculative as it is

open to limitation and interpretation.open to limitation and interpretation.

The consequence of differences in opinion The consequence of differences in opinion lead to the discussion on takhsis lead to the discussion on takhsis .or specification(.or specification(تخصيصتخصيص))

TAKHSIS TAKHSIS (SPECIFICATION)(SPECIFICATION)

Literally - specification, particularisation, Literally - specification, particularisation, individualisationindividualisation

Technically – different meaningsTechnically – different meanings Hanafi - is a limitation of the general provision Hanafi - is a limitation of the general provision

to some of its subjects by an independent and to some of its subjects by an independent and joined proof.joined proof.

Shafi’e jurists:Shafi’e jurists: Basri – excluding some meanings included by the text Basri – excluding some meanings included by the text

due to the conflict between the two.due to the conflict between the two. Shirazi- the explanation of what was not intended by Shirazi- the explanation of what was not intended by

the general word.the general word. Ibn al-Hajib- the limitation of the general to its subject.Ibn al-Hajib- the limitation of the general to its subject. Baydawi- excluding some meaning from the scope of Baydawi- excluding some meaning from the scope of

the word.the word.

Varieties of takhsisVarieties of takhsis

Takhsis by a dependant clause which Takhsis by a dependant clause which occurs in the same text andoccurs in the same text and

Takhsis by independent speechTakhsis by independent speech

According to Hanafi jurists, an According to Hanafi jurists, an independent speech can specify another independent speech can specify another speech only if it is established that the two speech only if it is established that the two speeches are chronologically parallel to speeches are chronologically parallel to one another.one another.

If not the later in time abrogates the former If not the later in time abrogates the former and the case is not takhsis but nasakh and the case is not takhsis but nasakh (abrogation).(abrogation).

The difference between abrogation and The difference between abrogation and takhsis:takhsis: Abrogation consists of a total or partial Abrogation consists of a total or partial

suspension of a ruling at a later datesuspension of a ruling at a later date Takhsis essentially limits the application of the Takhsis essentially limits the application of the

‘amm ‘amm

According to the majority, a dependent According to the majority, a dependent clause may qualify general proposition by clause may qualify general proposition by way of introducing an exception, a way of introducing an exception, a condition, a quality or indicate the extent of condition, a quality or indicate the extent of the original proposition. the original proposition.

Each of the clauses will have the effect of Each of the clauses will have the effect of limiting and specifying the operation of the limiting and specifying the operation of the general proposition.general proposition.

Form of takhsis by a dependant Form of takhsis by a dependant clauseclause

Istithna-i (Istithna-i (استثنائياستثنائي) – the specification is by ) – the specification is by the word ‘except or unless or but’the word ‘except or unless or but’ Al-Baqarah : 282Al-Baqarah : 282

• “…“…Be not averse to writing down the contract be it Be not averse to writing down the contract be it small or great….small or great….unlessunless it be a transaction handled it be a transaction handled on the spot that you pass around among on the spot that you pass around among yourselves (yourselves ( االاال أنأن تکونتکون تجارةتجارة حاضرةحاضرة ) in which case ) in which case it will not be held against you if you do not reduce it will not be held against you if you do not reduce it into writing.”it into writing.”

An-Nur: 4-5An-Nur: 4-5• ““And those who accuse chaste women, and And those who accuse chaste women, and

produce not four witnesses, flog them eighty produce not four witnesses, flog them eighty stripes, and reject their testimony forever; they stripes, and reject their testimony forever; they indeed are evil doers. (verse 4)indeed are evil doers. (verse 4)

• ExceptExcept those who repent thereafter and do those who repent thereafter and do righteous deed. Verily, God is Oft-Forgiving and righteous deed. Verily, God is Oft-Forgiving and Most Merciful.” (verse 5)Most Merciful.” (verse 5)

In both verses, the second portion of the In both verses, the second portion of the verses embodies an exception to the first verses embodies an exception to the first but to the extend of the second but to the extend of the second punishment that is rejection of their punishment that is rejection of their evidence. The punishment of flogging evidence. The punishment of flogging remains even though they repented. remains even though they repented.

Al-Maidah (5:33)Al-Maidah (5:33)• ““The punishment of those who wage war against The punishment of those who wage war against

God and His Apostle, and strive with might and God and His Apostle, and strive with might and main for mischief through the land is execution or main for mischief through the land is execution or crucifixion, or the cutting off of hands and feet from crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land…”opposite sides, or exile from the land…”

Specified by the ayah (34) following it:Specified by the ayah (34) following it:• ““Except for those who repent before they fall into Except for those who repent before they fall into

your power; in that case know that God is Oft-your power; in that case know that God is Oft-forgiving, Most Merciful.”forgiving, Most Merciful.”

Al-syart (Al-syart (الشرطالشرط) - By giving a condition to ) - By giving a condition to a general propositiona general proposition Example contains in verses of inheritance so Example contains in verses of inheritance so

far as the portion of the husband or wife is far as the portion of the husband or wife is concernedconcerned• Al-Nisa’ (4) : 12Al-Nisa’ (4) : 12• ““In what your wives leave, you are entitled to one In what your wives leave, you are entitled to one

half half ifif they have no children.” they have no children.”

• The application of the general rule in the first The application of the general rule in the first portion of the verse has been qualified by the portion of the verse has been qualified by the condition provided in the second portion of the condition provided in the second portion of the verse that is in the absence of any child.verse that is in the absence of any child.

• Al-Baqarah (2:180)Al-Baqarah (2:180) ““It is prescribed when death approaches any of you, if he It is prescribed when death approaches any of you, if he

leaves any goods, that he makes a bequest to parents leaves any goods, that he makes a bequest to parents and next of kin…”and next of kin…”

The generality of the ayah of making a wasiyyah is The generality of the ayah of making a wasiyyah is specified by the same ayah that only if he leaves any specified by the same ayah that only if he leaves any goods.goods.

Attribute (Attribute (الصفةالصفة) In a form of description or ) In a form of description or qualificationqualification (al-Nisa’:23)(al-Nisa’:23)

• ““And forbidden to you are step daughters under And forbidden to you are step daughters under your guardianship from your wives with whom you your guardianship from your wives with whom you have consummated the marriage.” have consummated the marriage.”

Extent (Extent (الغايةالغاية): In a form of specifying the ): In a form of specifying the extent of application of a general extent of application of a general proposition. (signified by proposition. (signified by ilaila ( (الىالى) or ) or hatta hatta ((حتىحتى)) (al-Maidah:6)(al-Maidah:6)

• ““O you who believe, when you rise up for prayer, wash your O you who believe, when you rise up for prayer, wash your faces, and your hands faces, and your hands up to up to the elbow, rub your heads with the elbow, rub your heads with water and wash your legs water and wash your legs up to up to your ankle.”your ankle.”

.”.”

• Al-Baqarah (2:222) Al-Baqarah (2:222) ““They question you (Muhammad) concerning They question you (Muhammad) concerning

menstruation. Say it is an ailment. So let women alone at menstruation. Say it is an ailment. So let women alone at such times and go not unto them such times and go not unto them untiluntil they are they are cleansed.”cleansed.”

• Al-Baqarah (2:196)Al-Baqarah (2:196) “…“…and do not shave your heads and do not shave your heads untiluntil the offering (animal the offering (animal

to be slaughtered) reaches the place of sacrifices…”to be slaughtered) reaches the place of sacrifices…”

Takhsis by independent speechTakhsis by independent speech

By another Quranic verse:By another Quranic verse: Al-Baqarah (2:228) – ‘amm Al-Baqarah (2:228) – ‘amm

• ““Divorced women must observe three courses Divorced women must observe three courses upon themselves…”upon themselves…”

The generality of 2:228 is specified by al-The generality of 2:228 is specified by al-Talaq verse 4:Talaq verse 4:• ““Such of your women as have passed the age of Such of your women as have passed the age of

monthly courses, for them the prescribed period, if monthly courses, for them the prescribed period, if you have any doubts, is three months and for you have any doubts, is three months and for those who have no courses, (it is the same); for those who have no courses, (it is the same); for those who carry (life within their wombs) their those who carry (life within their wombs) their period is until they deliver…”period is until they deliver…”

Also by al-ahzab (33:49) which removes the Also by al-ahzab (33:49) which removes the requirement of iddah in cases where divorce requirement of iddah in cases where divorce takes place prior to the consummation of takes place prior to the consummation of marriage.marriage.

By hadith -By hadith - It is agreed by all jurists that hadith may also It is agreed by all jurists that hadith may also

specify verses of al-Quran as long as the specify verses of al-Quran as long as the hadith is the Mutawatir and Mashhur hadith is the Mutawatir and Mashhur

In al-Maidah : 3In al-Maidah : 3 ““It is prohibited to you dead carcase (carrion), It is prohibited to you dead carcase (carrion),

blood, pork….”blood, pork….”- Dead carcase covers every dead animals.Dead carcase covers every dead animals.- Then came a Hadith that specify the verse:Then came a Hadith that specify the verse:

- ““Its (sea) water is pure (for ablution) and its dead is Its (sea) water is pure (for ablution) and its dead is permissible (as food)permissible (as food)

Another example – al-Baqarah (2:275):Another example – al-Baqarah (2:275): ““Allah allows sale and prohibits riba”Allah allows sale and prohibits riba” The verse is qualified by the hadith prohibiting The verse is qualified by the hadith prohibiting

voidable sale.voidable sale.• Ibnu Umar said:Ibnu Umar said:

انان رسولرسول اللهالله نهىنهى عنعن بيعبيع حبلحبل الحبلةالحبلة ““The prophet prohibits the sale of the unborn child of a The prophet prohibits the sale of the unborn child of a

camel while still in the womb.”camel while still in the womb.”

Jurist, however, differ as to whether a Jurist, however, differ as to whether a solitary hadith can specify Quranic solitary hadith can specify Quranic verses?verses?

Majority – solitary hadith may specify a Majority – solitary hadith may specify a general provision of the Qurangeneral provision of the Quran

Hanafi – solitary hadith cannot specify the Hanafi – solitary hadith cannot specify the general provision of the Qurangeneral provision of the Quran

Example:Example: al-an’am (6) : 121al-an’am (6) : 121

• “…“…eat not (of meat) on which God’s name has not eat not (of meat) on which God’s name has not been pronounced…”been pronounced…”

There is a solitary hadith:There is a solitary hadith:• “…“…the believer slaughters are lawful whether he the believer slaughters are lawful whether he

pronounces the name of God or not…”pronounces the name of God or not…”

By Ijma’By Ijma’ Al-Nisa’ (4:11) prescribing that children of a Al-Nisa’ (4:11) prescribing that children of a

deceased person can inheritdeceased person can inherit However, the generality of the verse (children) However, the generality of the verse (children)

is qualified by ijma’ of the ulama’ that children is qualified by ijma’ of the ulama’ that children exclude child slave (child of a man with his exclude child slave (child of a man with his slave).slave).

Takhsis or specification may also be Takhsis or specification may also be performed by the independent proofs performed by the independent proofs such as:such as:

Reasoning (‘aql)Reasoning (‘aql) Verbal tradition and customs (‘Urf Qawli)Verbal tradition and customs (‘Urf Qawli)

Effect of ‘ammEffect of ‘amm

Remains in force and action upon it is Remains in force and action upon it is required unless there is a specifying required unless there is a specifying clause which would limit its applicationclause which would limit its application