'Amm may be defined as a word which applies to many things, not limited in number, and includes
everything to which it is applicable.
[42. Ghazali, Mustasfa, II, 12; Abdur Rahim, Jurisprudence, p. 79.]
An example of this is
the word 'insan' (human being) in the Qur'anic ayah, 'verily the human being is in loss' (al-'Asr, 103:1),
or the command, 'whoever enters this house, give him a dirham'. In both examples the application of
'human being' and 'whoever' is general and includes every human being without any limitation. 'Amm is
basically a word that has a single meaning, but which applies to an unlimited number without any
restrictions. All words, whether in Arabic or any other language, are basically general, and unless they
are specified or qualified in some way, they retain their generality. According to the reported ijma' of
the Companions and the accepted norms of Arabic, the words of the Qur'an and Sunnah apply in their
general capacity unless there is evidence to warrant a departure from the general to an alternative
meaning.
[43. Khallaf, 'Ilm, p. 178; Badran, Usul, p. 375.]
To say that the 'Amm has a single meaning differentiates the
'Amm from the homonym (Mushtarak) which has more than one meaning. Similarly, the statement that
the 'Amm applies to an unlimited number precludes the Khass from the definition of 'Amm.
p. 370.]
A word may be general either by its form, such as men, students, judges, etc., or by its meaning
only, such as people, community, etc., or by way of substitution, such as by prefixing pronouns like all,
every, entire, etc., to common nouns. Thus the Qur'anic ayah which provides that 'every soul shall taste
of death' (Al-'Imran, 3: 185), or the statement that 'every contract consists of two parties' are both
general in their import.
The 'Amm must include everything to which it is applicable. Thus when a command is issued in the
form of an 'Amm it is essential that it is implemented as such. In this way, if A commands his servant to
give a dirham to everyone who enters his house, the proper fulfillment of this command would require
that the servant does not specify the purport of A's command to, say, A's relatives only. If the servant
gives a dirham only to A's relatives with the explanation that he understood that this was what A had
wanted, the explanation would be unacceptable and the servant would be at fault.
When a word is applied to a limited number of things, including everything to which it can be applied,
say one or two or a hundred, it is referred to as 'specific' (Khass). A word of this kind may denote
particular individual such as Ahmad, or Zayd, or an individual belonging to a certain species such as a
horse or a bird, or an individual belonging to a genus such as a human being.
Principles of Islamic Jurisprudence ~ Kamali 102
[44. Badran, Usul,
[45. Abdur Rahim, Jurisprudence, p.79.]
As opposed to the general, the specific word applies to a limited number, be it a genus, or a species, or a
particular individual. So long as it applies to a single subject, or specified number thereof, it is Khass.
But if there is no such limitation to the scope of its application, it is classified as 'Amm.
Legal rules which are conveyed in specific terms are definite in application and are normally not open
to ta'wil. Thus the Qur'anic ayah which enacts the 'feeding of ten poor persons' as the expiation for
futile oaths is specific and definite in that the number 'ten' does not admit of any ta'wil. However, if
there be exceptional reasons to warrant recourse to ta'wil, then the Khass may be open to it. For
example, the requirement to feed ten poor persons in the foregoing ayah has been interpreted by the
Hanafis as either feeding ten persons or one such person ten times. The Hanafis have, however, been
overruled by the majority on this point who say that the Khass, as a rule, is not amenable to ta'wil.
In determining the scope of the 'Amm, reference is made not only to the rules of the language but also to
the usage of the people, and should there be a conflict between the two priority is given to the latter.
The Arabs normally use words in their general sense. But this statement must be qualified by saying
that linguistic usage has many facets. Words are sometimes used in the form of 'Amm but the purpose of
the speaker may actually be less than 'Amm or even Khass. The precise scope of the 'Amm has thus to be
determined with reference to the conditions of the speaker and the context of the speech. When, for
example, a person says that ' honoured the people' or 'I fought the enemy forces', he must surely mean
only those whom he met. 'Amm as a rule applies to all that it includes especially when it is used on its
own. But when it is used in combination with other words, then there are two possibilities: either the
'Amm remains as before, or it is specified by other words.
[46. Shatibi, Muwafaqat, III, 154.]
It thus appears that there are three types of 'Amm, which are a follows: Firstly, the 'Amm which is
absolutely general, which may be indicated by a prefix in the form of a pronoun. Note for example the
Qur'anic ayat, 'there is no living creature on earth [wa ma min dabbatin fi'l-ard] that God does not
provide for' (Hud, 11:6); and 'We made everything [kulla shay'in] alive from water' (al-Anbiya', 21:30).
In the first ayah, the prefix 'ma min' ('no one', 'no living creature'), and in the second ayah, the word
'kull' (i.e. 'all' or 'every') are expressions which identify the 'Amm. Both of these ayat consist of general
propositions which preclude specification of any kind. Hence they remain absolutely general and
include all to which they apply without any exception. Secondly, there is the 'Amm which is meant to
imply a Khass. This usage of 'Amm is also indicated by evidence which suggests that the 'Amm
comprises some but not absolutely all the individuals to whom it could possibly apply. An example of
this is the word 'al-nas' ('the people') in the Qur'anic ayah, 'pilgrimage to the House is a duty owed to
God by all people who are able to undertake it' (Al-'Imran, 3:97). Here the indications provided by the
text imply that children and lunatics or anyone who cannot afford to perform the required duty are not
included in the scope of this ayah Thirdly, there is the 'Amm which is not accompanied by either of the
foregoing two varieties of indications as to its scope. An example of this is the Qur'anic word mu'allaqat
('divorced
women') in the text which provides that 'divorced women must observe three courses upon themselves' (al-Baqarah, 2:228). This type of 'Amm is Zahir in respect of its generality,which means that it remains general unless there is evidence to justify specification (takhsis). In this instance, however, there is another Qur'anic ruling which qualifies the general requirement of the waiting period, or 'iddah, that the divorced women must observe. This ruling occurs in sura al-Ahzab
(33:49)which is as follows: 'O believers! When you enter the contract of marriage with believing
women and then divorce them before consummating the marriage, they do not have to observe any 'iddah'.In this way, women who are divorced prior to consummating the marriage are excluded from
Principles of Islamic Jurisprudence ~
Kamali 103
the general requirement of the first ayah. The second ayah, in other words, specifies the first.
Usul, pp. 386-387; Khallaf, 'Ilm, p. 185.]
In grammatical terms, the 'Amm in its Arabic usage takes a variety of identifiable forms. The
grammatical forms in which the 'Amm occurs are, however, numerous, and owing to the dominantly
linguistic and Arabic nature of the subject, I shall only attempt to explain some of the well-known
patterns of the 'Amm.
When a singular or a plural form of a noun is preceded by the definite article al it is identified as 'Amm.
For example the Qur'anic text which provides, 'the adulterer, whether a woman or a man, flog them one
hundred lashes' (al-Nur, 24:2). Here the article al preceding 'adulterer' (al-zaniyah wa'l-zani) indicates
that all adulterers must suffer the prescribed punishment. Similarly, when the plural form of a noun is
preceded by al, it is identified as 'Amm. The example that we gave above relating to the waiting period
of the divorced women (al-mutallaqat) is a case in point. The ayah in question begins by the word 'almutallaqat',
that is, 'the divorced women'
[48. Khallaf, 'Ilm, p. 182 ff; Badran, Usul, p. 371 ff; Abdur Rahim, Jurisprudence, p. 86 ff.]
who are required to observe a waiting period of three courses before they can marry again. 'The
divorced women' is an 'Amm which comprises all to whom this expression can apply.
The Arabic expressions jami', kaffah and kull ('all', 'entire'), are generic in their effect, and when they
precede or succeed a word, the latter comprises all to which it is applicable. We have already illustrated
the occurrence of 'kull' in the Qur'anic text where we read 'We made everything [kulla shay'in] alive
from water'. The word jami' has a similar effect when it precedes or follows another word. Thus the
Qur'anic text which reads, 'He has created for you all that is in the earth' [khalaqa lakum ma fi'l-ard
jami'a] (al-Baqarah, 2:29) means that everything in the earth is created for the benefit of man.
Similarly, when a word, usually a plural noun, is prefixed by a conjunctive such as walladhina ('those
men who') and wallati ('those women who'), it becomes generic in its effect. An example of this in the
Qur'an occurs in sura al-Nur (24:21): 'Those who [walladhina] accuse chaste women of adultery and
fail to bring four witnesses, flog them eighty lashes.' This ruling is general as it applies to all those who
can possibly be included in its scope, and it remains so unless there is evidence to warrant specification.
As it happens, this ruling has, in so far as it relates to the proof of slanderous accusation, been specified
by a subsequent ayah in the same passage. This second ayah makes an exception in the case of the
husband who is allowed to prove a charge of adultery against his wife by taking four solemn oaths
instead of four witnesses, but the wife can rebut the charge by taking four solemn oaths herself (al-Nur,
24:6). The general ruling of the first ayah has thus been qualified insofar as it concerns a married
couple.
Principles of Islamic Jurisprudence ~
Kamali 104
An indefinite word (al-nakirah) when used to convey the negative is also generic in its effect. For
instance the Hadith la darar wa la dirar fi'l-Islam ('no harm shall be inflicted or reciprocated in Islam')
is general in its import, as 'la darar' and 'la dirar' are both indefinite words which convey their concepts
in the negative, thereby negating all to which they apply.
The word 'man' ('he who') is specific in its application, but when used in a conditional speech, it has the
effect of a general word. To illustrate this in the Qur'an, we may refer to the text which provides:
'Whoever [wa-man] kills a believer in error, must release a believing slave' (al-Nisa', 4:92); and
'Whoever [fa-man] among you sees the new moon must observe the fast' (al-Baqarah, 2:185).
There is general agreement to the effect that the Khass is definitive (qat'i) in its import, but the ulema
have differed as to whether the 'Amm is definitive or speculative (zanni). According to the Hanafis, the
application of 'Amm to all that it includes is definitive, the reason being that the language of the law is
usually general and if its application were to be confined to only a few of the cases covered by its words
without a particular reason or authority to warrant such limited application, the intention of the
Lawgiver would be frustrated.
[49. Shatibi, Muwafaqat, III, 153; Abu Zahrah, Usul, p.124; Abdur Rahim, Jurisprudence, p. 82.]
The
majority of ulema, including the Shafi'is, Malikis and Hanbalis, maintain on the other hand that the
application of 'Amm to all that it includes is speculative as it is open to limitation and ta'wil, and so long
as there is such a possibility, it is not definitive. The result of this disagreement becomes obvious in the
event of a conflict between the 'Amm of the Qur'an and the Khass of the Hadith, especially the weak or
the solitary Hadith. According to the majority view, a solitary Hadith may specify a general provision
of the Qur'an, for the 'Amm of Qur'an is zanni and the Khass of a solitary Hadith, although definitive in
meaning, is of speculative authenticity. A zanni may be specified by a qat'i or another zanni.
Usul, p.125; Badran, Usul, p.381.]
To the Hanafis, however, the 'Amm of Qur'an is definite, and the solitary Hadith,
or qiyas for that matter, is speculative. A definitive may not be limited nor specified by a speculative.
The two views may be illustrated with reference to the Qur'anic text concerning the slaughter of
animals, which provides 'eat not [of meat] on which God's name has not been pronounced' (al-An'am, 6:
121). In conjunction with this general ruling, there is a solitary Hadith which provides that 'the believer
slaughters in the name of God whether he pronounces the name of God or not'.
240; Badran, Usul, p.383.]
Principles of Islamic Jurisprudence ~ Kamali 105
[50. Abu Zahrah,
[51. Bayhaqi, Al-Sunan al-Kubra, VII,
According to the majority, this Hadith specifies the Qur'anic ayah, with the result that slaughter by a
Muslim, even without pronouncing the name of God, is lawful for consumption. But to the Hanafis, it is
not lawful, as the 'Amm of the Qur'an may not be specified by solitary (Ahad) Hadith. This
disagreement between the juristic schools, however, arises in respect of the solitary Hadith only. As for
the Mutawatir (and the Mashhur) there is no disagreement on the point that either of these may specify
the general in the Qur'an just as the Qur'an itself sometimes specifies its own general provisions.
Shawkani, Irshad, p. 157; Abu Zahrah, Usul, p.125.]
A general proposition may be qualified either by a dependent clause, that is, a clause which occurs in
the same text, or by an independent locution. The majority of ulema consider either of these
eventualities as two varieties of takhsis. According to the Hanafis, however, an independent locution
can specify another locution only if it is established that the two locutions are chronologically parallel
to one another. but if they are not so parallel, the later in time abrogates the former, and the case is one
of abrogation rather than takhsis. In the event where the qualifying words relate to what has preceded
and do not form a complete locution by themselves, they are not regarded as independent propositions.
According to the majority, but not the Hanafis, a dependent clause may qualify a general proposition by
introducing an exception (istithna'), a condition (shart), a quality (sifah), or indicating the extent
(ghayah) of the original proposition. Each of such clauses will have the effect of limiting and specifying
the operation of the general proposition. An example of specification in the form of istithna' is the
general ruling which prescribes documentation of commercial transactions that involve deferred
payments in sura al-Baqarah (2:282). This general provision is then followed, in the same ayah, by the
exception 'unless it be a transaction handled on the spot that you pass around among yourselves in
which case it will not be held against you if you did not reduce it into writing'. This second portion of
the ayah thus embodies an exception to the first. Specification (takhsis) in the form of a condition
(shart) to a general proposition may be illustrated by reference to the Qur'anic text which prescribes the
share of the husband in the estate of his deceased wife. The text thus provides, 'in what your wives
leave, you are entitled to one half if they have no children' (al-Nisa' , 4:12). The application of the
general rule in the first portion of the ayah has thus been qualified by the condition which the text itself
has provided in its latter part, namely the absence of children. And then to illustrate takhsis by way of
providing a description or qualification (sifah) to a general proposition, we may refer to the Qur'anic
text regarding the prohibition of marriage with one's step-daughter where we read '[and forbidden to
you are] your step-daughters under your guardianship from your wives with whom you have
consummated the marriage' (al-Nisa', 4:23). Thus the general prohibition in the first part of the ayah has
been qualified by the description that is provided in the latter part. And lastly, to illustrate takhsis in the
form of ghayah, or specifying the extent of application of a general proposition, we may refer to the
Qur'anic text on ablutions for salah. The text prescribes the 'washing of your hands up to the elbows'
(al-Ma'idah, 5:6). Washing the hands, which is a general ruling, is thus specified in regard to the area
which must be covered in washing. Similarly when it is said 'respect your fellow citizens unless they
violate the law', the word 'citizens' includes all, but the succeeding phrase specifies the extent of the
operation of the general ruling.
[53. Abdur Rahim, Jurisprudence, pp. 83-84; Khallaf, 'Ilm, p.187; Badran, Usul, pp. 375-378.]
Principles of Islamic Jurisprudence ~
Kamali 106
general locution itself, but by an independent locution, the latter may consist of a separate text, or of a
reference to the general requirements of reason, social custom, or the objectives of Shari'ah (hikmah altashri').
It
is by virtue of reason, for example, that infants and lunatics are excluded from the scope of
the
Qur'anic obligation of hajj,
which
occurs in sura Al-'Imran (3:97). Similarly, the general text of the
Qur'an
which reads that '[a wind] will destroy everything by the command of its Lord' (al-Ahqaf,
46:25),
customarily denotes everything which is capable of destruction. Similarly, in the area of
commercial
transactions, the general provisions of the law are often qualified in the light of the custom
prevailing
among people. We have already illustrated specification of one text by another in regard to
the
waiting period ('iddah)
of
divorced women. The general provision that such women must observe a
'iddah
consisting
of three menstrual cycles occurs in sura al-Baqarah (2:228). This has in turn been
qualified
by another text in sura al-Ahzab (33:49) which removes the requirement of 'iddah
in
cases
where
divorce takes place prior to the consummation of marriage.
Jurisprudence, p. 84; Badran, Usul, p. 379.]
[54. Abu Zahrah, Usul, p. 128; Abdur Rahim,
And lastly, the general provision of the Qur'an concerning retaliation in
injuries on an 'equal for equal' basis (al-Ma'idah, 5:48) is qualified in the light of the objectives of the
Lawgiver in the sense that the offender is not to be physically wounded in the manner that he injured
his victim, but is to be punished in proportion to the gravity of his offence.
Next, there arises the question of chronological order between the general and the specifying
provisions. The specifying clause is either parallel in origin to the general, or is of later origin, or their
chronological order is unknown. According to the Hanafis, when the specifying clause is of a later
origin than the general proposition, the former abrogates the latter and is no longer regarded as takhsis,
but as a partial abrogation of one text by another. According to the Hanafis, takhsis can only take place
when the 'Amm and the Khass are chronologically parallel to one another; in cases where this order
cannot be established between them, they are presumed to be parallel. The difference between
abrogation and takhsis is that abrogation consists of a total or partial suspension of a ruling at a later
date, whereas takhsis essentially limits the application of the 'Amm ab initio. To the majority of ulema
takhsis is a form of explanation (bayan) in all of its varieties, but to the Hanafis it is a form of bayan
only when the specifying clause is independent of the general proposition, chronologically parallel to it,
and is of the same degree of strength as the 'Amm in respect of being a qat'i or a zanni. But when the
specifying clause is of a later origin than the general proposition, the effect which it has on the latter,
according to the Hanafis, is one of abrogation rather than bayan.
[55. Badran, Usul, p. 376.]
The majority view on
takhsis thus differs from the Hanafis in that takhsis according to the majority may be by means of both
a dependent or an independent locution, and the specifying clause need not be chronologically parallel
to the general proposition. This is because in the majority opinion, the specifying clause explains and
does not abrogate or invalidate the general proposition.
[56. Abu Zahrah, Usul, pp. 128-129.]
Principles of Islamic Jurisprudence ~
Kamali 107
Notwithstanding the ulema's disagreement regarding the nature of takhsis, it would appear that takhsis
is not a partial invalidation of the 'Amm, but an explanation or qualification thereof. This is the majority
view, and seems to be preferable to the Hanafi view which equates takhsis with partial abrogation.
Zahrah, Usul, p. 129.]
Imam Ghazali discusses the Hanafi position at some length, and refutes it by saying that
a mere discrepancy in time does not justify the conclusion that takhsis changes its character into
abrogation. Nor is it justified to say that a discrepancy in the strength of the indication (dalil)
determines the difference between takhsis and abrogation.
[58. Ghazali, Mustasfa, II, 103-105.]
The effect of 'Amm is that it remains in force, and action upon it is required, unless there is a specifying
clause which would limit its application. In the event where a general provision is partially specified, it
still retains its legal authority in respect of the part which remains unspecified. According to the
majority of ulema, the 'Amm is speculative as a whole, whether before or after takhsis, and as such it is
open to qualification and ta'wil in either case. For the Hanafis, however, the 'Amm is definitive in the
first place, but when it is partially specified, it becomes speculative in respect of the part which still
remains unspecified; hence it will be treated as zanni and would be susceptible to further specification
by another zanni.
[59. Khallaf, 'Ilm, p. 183; Abu Zahrah, Usul, p. 129.]
As for the question of whether the cause of a general ruling can operate as a limiting factor in its
general application, it will be noted that the cause never specifies a general ruling. This is relevant, as
far as the Qur'an is concerned, to the question of asbab al-nuzul, or the occasions of its revelation. One
often finds general rulings in the Qur'an which were revealed with reference to specific issues. Whether
the cause of the revelation contemplated a particular situation or not, it does not operate as a limiting
factor on the application of the general ruling. Thus the occasion of the revelation of the ayah of
imprecation (li'an) in sura al-Nur (24:6) was a complaint that a resident of Madinah, Hilal ibn
Umayyah, made to the Prophet about the difficulty experienced by the spouse in proving, by four
eyewitnesses, the act of adultery on the part of the other spouse. The cause of the revelation was
specific but the ruling remains general. Similarly, the Hadith which provides that 'when any hide is
tanned, it is purified'
[60. Abu Dawud, Sunan (Hasan's trans.), II, 1149; Hadith no. 4111; Abu Zabrah, Usul, p. 130.]
was, according to reports, uttered with reference to a sheepskin, but the ruling is nevertheless applicable
to all types of skins. The actual wording of a general ruling is therefore to be taken into consideration
regardless of its cause. If the ruling is conveyed in general terms, it must be applied as such even if the
cause behind it happens to be specific.
[61. Abu Zahrah, Usul, p.130; Khallaf, 'Ilm, p. 189.]
Principles of Islamic Jurisprudence ~
Kamali 108
Conflict between 'Amm and Khass
Should there be two textual rulings on one and the same subject in the Qur'an, one being 'Amm and the
other Khass, there will be a case of conflict between them according to the Hanafis, but not according to
the majority. The reason is that to the Hanafis, 'Amm and Khass are both definitive (qat'i) and as such a
conflict between them is possible, whereas to the majority, only the Khass is qat'i and it would always
prevail over the 'Amm, which is zanni.
The Hanafis maintain that in the event of a conflict between the general and the specific in the Qur'an,
one must ascertain the chronological order between them first; whether, for example, they are both
Makki or Madani ayat or whether one is Makki and the other Madani. If the two happen to be parallel
in time, the Khass specifies the 'Amm. If a different chronological sequence can be established between
them, then if the 'Amm is of a later origin, it abrogates the Khass, but if the Khass is later, it only
partially abrogates the 'Amm. This is because the Hanafis maintain that the Khass specifies the 'Amm
only when they are chronologically parallel, both are qat'i, and both are independent locutions.
The majority of ulema, as already noted, do not envisage the possibility of a conflict between the 'Amm
and the Khass: when there are two rulings on the same point, one being 'Amm and the other Khass, the
latter becomes explanatory to the former and both are retained. For the majority, the 'Amm is like the
Zahir in that both are speculative and both are open to qualification and ta'wil.
Usul, p. 383.]
[62.Abu Zahrah, Usul, p. 131; Badran,
The two foregoing approaches to takhsis may be illustrated by the conflict arising in the following two
ahadith concerning legal alms (zakah). One of these provides, 'whatever is watered by the sky is subject
to a tithe'.
The second Hadith provides that 'there is no charity in less than five awsaq'.
nos. 1794 & 1797; Abu Zahrah, Usul, p. 131.]
[63. Al-Tabrizi, Mishkat, I, 563-65, Hadith
Principles of Islamic Jurisprudence ~
Kamali 109
A wasaq (sing. of awsaq) is a quantitative measure equivalent to about ten kilograms. The first Hadith
contains a general ruling in respect of any quantity of agricultural crops, but the second Hadith is
specific on this point. The majority of ulema (including the Shafi'is) have held that the second Hadith
explains and qualifies the first. The first Hadith lays down the general principle and the second enacts
the quorum (nisab) of zakah. For the Hanafis, however, the first Hadith abrogates the second, as they
consider that the first Hadith is of a later origin than the second. According to the Hanafis, when the
'Amm is of a later origin than the Khass, the former abrogates the latter completely. Hence there is no
case for takhsis and the Hanafis as a result impose no minimum quantitative limit with regard to zakah
on produce obtained through dry farming. The two views remain far apart, and there is no meeting
ground between them. However, as already indicated, the majority opinion is sound, and recourse to
abrogation in cases of conflict between the 'Amm and Khass is often found to be unnecessary. In
modern law too one often notices that the particular usually qualifies the general, and the two can coexist.
The 'Amm
and
the Khass
can
thus each operate in their respective spheres with or without a
discrepancy
in their time of origin and the degree of their respective strength.
Classification III: The Absolute (Mutlaq) and the Qualified (Muqayyad)
[64. Cf. Abu Zahrah, Usul, p. 132.]
Mutlaq denotes a word which is neither qualified nor limited in its application. When we say, for
example, a 'book', a 'bird' or a 'man', each one is a generic noun which applies to any book, bird or man
without any restriction. In its original state, the Mutlaq is unspecified and unqualified. The Mutlaq
differs from the 'Amm, however, in that the latter comprises all to which it applies whereas the former
can apply to any one of a multitude, but not to all.
[65. Khallaf, 'Ilm, p. 192; Badran, Usul, pp.351, 371.]
However, the
ulema have differed regarding the Mutlaq and the Muqayyad. To some ulema, including al-Baydawi,
the Mutlaq resembles the 'Amm, and the Muqayyad resembles the Khass. Hence anything which
specifies the 'Amm can qualify the Mutlaq. Both are open to ta'wil and Mutlaq/Muqayyad are
complementary to 'Amm/Khass respectively.
[66. Ansari, Ghayat al-Wusul, p. 84.]
When the Mutlaq is qualified by
another word or words it becomes a Muqayyad, such as qualifying 'a book' as 'a green book', or 'a bird'
as 'a huge bird' or 'a man' as 'a wise man'. The Muqayyad differs from the Khass in that the former is a
word which implies an unspecified individual/s who is merely distinguished by certain attributes and
qualifications. An example of Mutlaq in the Qur'an is the expiation (kaffarah) of futile oaths, which is
freeing a slave (fa-tahriru raqabatin) in sura al-Ma'idah, (5:92). The command in this text is not limited
to any kind of slaves, whether Muslim or non-Muslim. Yet in another Qur'anic passage the expiation of
erroneous killing consists of 'freeing a Muslim slave' (fa-tahriru raqabatin mu'minatin) (al-Nisa', 4:92).
Principles of Islamic Jurisprudence ~
Kamali 110
In contrast to the first text, which is conveyed in absolute terms, the command in the second ayah is
qualified in that the slave to be released must be a Muslim.
The Mutlaq remains absolute in its application unless there is a limitation to qualify it. Thus the
Qur'anic prohibition of marriage 'with your wives' mothers' in sura al-Nisa' (4:23) is conveyed in
absolute terms, and as such, marriage with one's mother-in-law is forbidden regardless as to whether the
marriage with her daughter has been consummated or not. Since there is no indication to qualify the
terms of the Qur'anic command, it is to be implemented as it is. But when a Mutlaq is qualified into a
Muqayyad, the latter is to be given priority over the former. Thus if we have two texts on one and the
same subject, and both convey the same ruling (hukm) as well as both having the same cause (sabab)
but one is Mutlaq and the other Muqayyad, the latter prevails over the former. To illustrate this in the
Qur'an, we refer to the two ayat on the prohibition of blood for human consumption. The first of these,
which occurs in absolute terms, provides, 'forbidden to you are the dead carcass and blood' (al-Ma'idah,
5:3). But elsewhere in the Qur'an there is another text on the same subject which qualifies the word
'blood' as 'blood shed forth' (daman masfuhan) (al-An'am, 6:145). This second ayah is a Muqayyad
whereas the first is Mutlaq, hence the Muqayyad prevails. It will be noted here that the two texts convey
the same ruling, namely prohibition, and that they have the same cause or subject in common (i.e.
consumption of blood). When this is the case, the ulema are in agreement that the Muqayyad qualifies
the Mutlaq and prevails over it.
[67. Khallaf, 'Ilm, p.193; Abdur Rahim, Jurisprudence, pp. 91-92.]
However if there are two texts on the same issue, one absolute and the other qualified, but they differ
with one another in their rulings and in their causes, or in both, then neither is qualified by the other and
each will operate as it stands. This is the view of the Hanafi and Maliki schools, and the Shafi'is concur
insofar as it relates to two texts which differ both in their respective rulings and their causes. However
the Shafi'is maintain the view that if the two texts vary in their ruling (hukm) but have the same cause in
common, the Mutlaq is qualified by the Muqayyad. This may be illustrated by referring to the two
Qur'anic ayat concerning ablution, one of which reads, in an address to the believers, to 'wash your
faces and your hands [aydikum] up to the elbows' (al-Ma'idah, 5:7). The washing of hands in this ayah
has been qualified by the succeeding phrase, that is 'up to the elbows'. The second Qur'anic provision
which we are about to quote occurs in regard to tayammum, that is, ablution with clean sand in the
event where no water can be found, in which case the Qur'an provides, 'take clean sand/earth and wipe
your faces and your hands' (al-Nisal, 4:43). The word 'aydikum' (your hands) occurs as a Muqayyad in
the first text but as a Mutlaq in the second. However the two texts have the same cause in common,
which is cleanliness for salah. There is admittedly a difference between the two rulings, in that the first
requires washing, and the second wiping, of the hands, but this difference is of no consequence. The
first is a Muqayyad in regard to the area of the hands to be washed whereas the second is conveyed in
Principles of Islamic Jurisprudence ~
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absolute terms. The second is therefore qualified by the first, and the Muqayyad prevails. Consequently
in wiping the hands in tayammum, too, one is required to wipe them up to the elbows.
And lastly we give another illustration, again of two texts, one Mutlaq, the other Muqayyad, both of
which convey the same ruling but differ in respect of their causes. Here we refer to the two Qur'anic
ayat on the subject of witnesses. One of these, which requires the testimony of two witness in all
commercial transactions, is conveyed in absolute terms, whereas the second is qualified. The first of the
two texts does not qualify the word 'men' when it provides 'and bring two witnesses from among your
men' (al-Baqarah, 2:282). But the second text on same subject, that is, of witnesses, conveys a qualified
command when it provides and bring two just witnesses [when you revoke a divorce]' (al-Talaq, 65:2).
The ruling in both of these texts is the same, namely the requirement of two witnesses, but the two
rulings differ in respect of their causes. The cause of the first text, as already noted, is commercial
transactions which must accordingly be testified to by two men; whereas the cause of the second ruling
is the revocation of talaq. In the first ayah witnesses are not qualified, but they are qualified in the
second ayah. The latter prevails over the former. Consequently, witnesses in both commercial
transactions and the revocation of talaq must be upright and just.
[68. Khallaf, 'Ilm, p.194; Badran, Usul, p.354.]
The foregoing basically represents the majority opinion. But the Hanafis maintain that when the
Muqayyad and the Mutlaq differ in their causes, the one does not qualify the other and that each should
be implemented independently. The Hanafis basically recognise only one case where the Muqayyad
qualifies the Mutlaq, namely when both convey the same ruling and have the same cause in common.
But when they differ in either of these respects or in both, then each must stand separately. In this way
the Hanafis do not agree with the majority in regard to the qualification of the area of the arms to be
wiped in tayammum by the same terms which apply to ablution by water (wudu'). The Hanafis argue
that the hukm in regard to tayammum is conveyed in absolute terms and must operate as such. They
contend that unlike wudu', tayammum is a shar'i concession, and the spirit of concession should prevail
in the determination of its detailed requirements, including the area of the arm that is to be wiped.
Khallaf, 'Ilm, pp. 193-194.]
Classification IV: The Literal (Haqiqi) and the Metaphorical (Majazi)
A word may be used in its literal sense, that is, for its original or primary meaning, or it may be used in
a secondary and metaphorical sense. When a word is applied literally, it keeps its original meaning, but
when it is used in a metaphorical sense, it is transferred from its original to a secondary meaning on
Principles of Islamic Jurisprudence ~
Kamali 112
grounds of a relationship between the two meanings.
[70. Abdur Rahim, Jurisprudence, p. 93; Badran, Usul, p. 394.]
There is
normally a logical connection between the literal and the metaphorical meanings of a word. The nature
of this relationship varies and extends over a wide range of possibilities. There are at least thirty to forty
variations in how the metaphorical usage of a word may relate to its literal meaning.
Irshad, pp. 23-24.]
The metaphorical usage of a word thus consists of a transfer from the original to a
connected meaning. Once such a transfer has taken place both the original and the metaphorical
meanings of a word cannot be assigned to it at one and the same time.
Words are normally used in their literal sense, and in the language of the law it is the literal meaning
which is relied upon most. Hence if a word is simultaneously used in both these senses, the literal will
prevail. When, for example, a person says in his will that 'I bequeath my property to the memorisers of
the Qur'an' or to 'my offspring', those who might have memorised the Qur'an but have forgotten it since
will not be entitled. Similarly, 'offspring (awlad)' primarily means sons and daughters, not
grandchildren. For applying 'awlad' to 'grandchildren' is a metaphorical usage which is secondary to its
original meaning.
[72. Badran, Usul, p. 395; Hitu, Wajiz, p.115.]
Both the Haqiqi and the Majazi occur in the Qur'an, and they each convey their respective meanings.
Thus when we read in the Qur'an to 'kill not [la taqtulu] the life which God has made sacrosanct', 'la
taqtulu' carries its literal meaning. Similarly the Majazi occurs frequently in the Qur'an. When, for
example, we read in the Qur'an that 'God sends down your sustenance from the heavens' (Ghafir,
40:13), this means rain which causes the production of food. Some ulema have observed that Majazi is
in the nature of a homonym which could comprise what may be termed as falsehood or that which has
no reality and truth, and that falsehood has no place in the Qur'an. Imam Ghazali discusses this
argument in some length and represents the majority view when he refutes it and acknowledges the
existence of the Majazi in the Qur'an. The Qur'anic expression, for example, that 'God is the light of the
heavens and the earth' (al-Nur, 24:35) and 'whenever they [the Jews] kindled the fire of war, God
extinguished it' (al-Ma'idah, 5:67), God being 'the light of the universe', and God having 'extinguished
the fire of war', are both metaphorical usages; and numerous other instances of the Majazi can be found
in the Qur'an.
[73. Ghazali, Mustasfa, 67-78.]
As already stated, the Haqiqi and the Majazi both occur in the Qur'an,
and they each convey their respective meanings. But this is only the case where the Majazi does not
represent the dominant usage. In the event where a word has both a literal and a metaphorical meaning
and the latter is well-established and dominant, it is likely to prevail over the former. Some ulema have,
however, held the opposite view, namely that the Haqiqi would prevail in any case; and according to
yet a third view, both are to be given equal weight. But the first of these views represents the view of
the majority. To give an example, the word 'talaq' literally means 'release' or 'removal of restriction'
(izalah al-qayd), be it from the tie of marriage, slavery, or ownership, etc. But since the juridical
Principles of Islamic Jurisprudence ~ Kamali 113
[71. See for details Shawkani,
everything to which it is applicable.
[42. Ghazali, Mustasfa, II, 12; Abdur Rahim, Jurisprudence, p. 79.]
An example of this is
the word 'insan' (human being) in the Qur'anic ayah, 'verily the human being is in loss' (al-'Asr, 103:1),
or the command, 'whoever enters this house, give him a dirham'. In both examples the application of
'human being' and 'whoever' is general and includes every human being without any limitation. 'Amm is
basically a word that has a single meaning, but which applies to an unlimited number without any
restrictions. All words, whether in Arabic or any other language, are basically general, and unless they
are specified or qualified in some way, they retain their generality. According to the reported ijma' of
the Companions and the accepted norms of Arabic, the words of the Qur'an and Sunnah apply in their
general capacity unless there is evidence to warrant a departure from the general to an alternative
meaning.
[43. Khallaf, 'Ilm, p. 178; Badran, Usul, p. 375.]
To say that the 'Amm has a single meaning differentiates the
'Amm from the homonym (Mushtarak) which has more than one meaning. Similarly, the statement that
the 'Amm applies to an unlimited number precludes the Khass from the definition of 'Amm.
p. 370.]
A word may be general either by its form, such as men, students, judges, etc., or by its meaning
only, such as people, community, etc., or by way of substitution, such as by prefixing pronouns like all,
every, entire, etc., to common nouns. Thus the Qur'anic ayah which provides that 'every soul shall taste
of death' (Al-'Imran, 3: 185), or the statement that 'every contract consists of two parties' are both
general in their import.
The 'Amm must include everything to which it is applicable. Thus when a command is issued in the
form of an 'Amm it is essential that it is implemented as such. In this way, if A commands his servant to
give a dirham to everyone who enters his house, the proper fulfillment of this command would require
that the servant does not specify the purport of A's command to, say, A's relatives only. If the servant
gives a dirham only to A's relatives with the explanation that he understood that this was what A had
wanted, the explanation would be unacceptable and the servant would be at fault.
When a word is applied to a limited number of things, including everything to which it can be applied,
say one or two or a hundred, it is referred to as 'specific' (Khass). A word of this kind may denote
particular individual such as Ahmad, or Zayd, or an individual belonging to a certain species such as a
horse or a bird, or an individual belonging to a genus such as a human being.
Principles of Islamic Jurisprudence ~ Kamali 102
[44. Badran, Usul,
[45. Abdur Rahim, Jurisprudence, p.79.]
As opposed to the general, the specific word applies to a limited number, be it a genus, or a species, or a
particular individual. So long as it applies to a single subject, or specified number thereof, it is Khass.
But if there is no such limitation to the scope of its application, it is classified as 'Amm.
Legal rules which are conveyed in specific terms are definite in application and are normally not open
to ta'wil. Thus the Qur'anic ayah which enacts the 'feeding of ten poor persons' as the expiation for
futile oaths is specific and definite in that the number 'ten' does not admit of any ta'wil. However, if
there be exceptional reasons to warrant recourse to ta'wil, then the Khass may be open to it. For
example, the requirement to feed ten poor persons in the foregoing ayah has been interpreted by the
Hanafis as either feeding ten persons or one such person ten times. The Hanafis have, however, been
overruled by the majority on this point who say that the Khass, as a rule, is not amenable to ta'wil.
In determining the scope of the 'Amm, reference is made not only to the rules of the language but also to
the usage of the people, and should there be a conflict between the two priority is given to the latter.
The Arabs normally use words in their general sense. But this statement must be qualified by saying
that linguistic usage has many facets. Words are sometimes used in the form of 'Amm but the purpose of
the speaker may actually be less than 'Amm or even Khass. The precise scope of the 'Amm has thus to be
determined with reference to the conditions of the speaker and the context of the speech. When, for
example, a person says that ' honoured the people' or 'I fought the enemy forces', he must surely mean
only those whom he met. 'Amm as a rule applies to all that it includes especially when it is used on its
own. But when it is used in combination with other words, then there are two possibilities: either the
'Amm remains as before, or it is specified by other words.
[46. Shatibi, Muwafaqat, III, 154.]
It thus appears that there are three types of 'Amm, which are a follows: Firstly, the 'Amm which is
absolutely general, which may be indicated by a prefix in the form of a pronoun. Note for example the
Qur'anic ayat, 'there is no living creature on earth [wa ma min dabbatin fi'l-ard] that God does not
provide for' (Hud, 11:6); and 'We made everything [kulla shay'in] alive from water' (al-Anbiya', 21:30).
In the first ayah, the prefix 'ma min' ('no one', 'no living creature'), and in the second ayah, the word
'kull' (i.e. 'all' or 'every') are expressions which identify the 'Amm. Both of these ayat consist of general
propositions which preclude specification of any kind. Hence they remain absolutely general and
include all to which they apply without any exception. Secondly, there is the 'Amm which is meant to
imply a Khass. This usage of 'Amm is also indicated by evidence which suggests that the 'Amm
comprises some but not absolutely all the individuals to whom it could possibly apply. An example of
this is the word 'al-nas' ('the people') in the Qur'anic ayah, 'pilgrimage to the House is a duty owed to
God by all people who are able to undertake it' (Al-'Imran, 3:97). Here the indications provided by the
text imply that children and lunatics or anyone who cannot afford to perform the required duty are not
included in the scope of this ayah Thirdly, there is the 'Amm which is not accompanied by either of the
foregoing two varieties of indications as to its scope. An example of this is the Qur'anic word mu'allaqat
('divorced
women') in the text which provides that 'divorced women must observe three courses upon themselves' (al-Baqarah, 2:228). This type of 'Amm is Zahir in respect of its generality,which means that it remains general unless there is evidence to justify specification (takhsis). In this instance, however, there is another Qur'anic ruling which qualifies the general requirement of the waiting period, or 'iddah, that the divorced women must observe. This ruling occurs in sura al-Ahzab
(33:49)which is as follows: 'O believers! When you enter the contract of marriage with believing
women and then divorce them before consummating the marriage, they do not have to observe any 'iddah'.In this way, women who are divorced prior to consummating the marriage are excluded from
Principles of Islamic Jurisprudence ~
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the general requirement of the first ayah. The second ayah, in other words, specifies the first.
Usul, pp. 386-387; Khallaf, 'Ilm, p. 185.]
In grammatical terms, the 'Amm in its Arabic usage takes a variety of identifiable forms. The
grammatical forms in which the 'Amm occurs are, however, numerous, and owing to the dominantly
linguistic and Arabic nature of the subject, I shall only attempt to explain some of the well-known
patterns of the 'Amm.
When a singular or a plural form of a noun is preceded by the definite article al it is identified as 'Amm.
For example the Qur'anic text which provides, 'the adulterer, whether a woman or a man, flog them one
hundred lashes' (al-Nur, 24:2). Here the article al preceding 'adulterer' (al-zaniyah wa'l-zani) indicates
that all adulterers must suffer the prescribed punishment. Similarly, when the plural form of a noun is
preceded by al, it is identified as 'Amm. The example that we gave above relating to the waiting period
of the divorced women (al-mutallaqat) is a case in point. The ayah in question begins by the word 'almutallaqat',
that is, 'the divorced women'
[48. Khallaf, 'Ilm, p. 182 ff; Badran, Usul, p. 371 ff; Abdur Rahim, Jurisprudence, p. 86 ff.]
who are required to observe a waiting period of three courses before they can marry again. 'The
divorced women' is an 'Amm which comprises all to whom this expression can apply.
The Arabic expressions jami', kaffah and kull ('all', 'entire'), are generic in their effect, and when they
precede or succeed a word, the latter comprises all to which it is applicable. We have already illustrated
the occurrence of 'kull' in the Qur'anic text where we read 'We made everything [kulla shay'in] alive
from water'. The word jami' has a similar effect when it precedes or follows another word. Thus the
Qur'anic text which reads, 'He has created for you all that is in the earth' [khalaqa lakum ma fi'l-ard
jami'a] (al-Baqarah, 2:29) means that everything in the earth is created for the benefit of man.
Similarly, when a word, usually a plural noun, is prefixed by a conjunctive such as walladhina ('those
men who') and wallati ('those women who'), it becomes generic in its effect. An example of this in the
Qur'an occurs in sura al-Nur (24:21): 'Those who [walladhina] accuse chaste women of adultery and
fail to bring four witnesses, flog them eighty lashes.' This ruling is general as it applies to all those who
can possibly be included in its scope, and it remains so unless there is evidence to warrant specification.
As it happens, this ruling has, in so far as it relates to the proof of slanderous accusation, been specified
by a subsequent ayah in the same passage. This second ayah makes an exception in the case of the
husband who is allowed to prove a charge of adultery against his wife by taking four solemn oaths
instead of four witnesses, but the wife can rebut the charge by taking four solemn oaths herself (al-Nur,
24:6). The general ruling of the first ayah has thus been qualified insofar as it concerns a married
couple.
Principles of Islamic Jurisprudence ~
Kamali 104
An indefinite word (al-nakirah) when used to convey the negative is also generic in its effect. For
instance the Hadith la darar wa la dirar fi'l-Islam ('no harm shall be inflicted or reciprocated in Islam')
is general in its import, as 'la darar' and 'la dirar' are both indefinite words which convey their concepts
in the negative, thereby negating all to which they apply.
The word 'man' ('he who') is specific in its application, but when used in a conditional speech, it has the
effect of a general word. To illustrate this in the Qur'an, we may refer to the text which provides:
'Whoever [wa-man] kills a believer in error, must release a believing slave' (al-Nisa', 4:92); and
'Whoever [fa-man] among you sees the new moon must observe the fast' (al-Baqarah, 2:185).
There is general agreement to the effect that the Khass is definitive (qat'i) in its import, but the ulema
have differed as to whether the 'Amm is definitive or speculative (zanni). According to the Hanafis, the
application of 'Amm to all that it includes is definitive, the reason being that the language of the law is
usually general and if its application were to be confined to only a few of the cases covered by its words
without a particular reason or authority to warrant such limited application, the intention of the
Lawgiver would be frustrated.
[49. Shatibi, Muwafaqat, III, 153; Abu Zahrah, Usul, p.124; Abdur Rahim, Jurisprudence, p. 82.]
The
majority of ulema, including the Shafi'is, Malikis and Hanbalis, maintain on the other hand that the
application of 'Amm to all that it includes is speculative as it is open to limitation and ta'wil, and so long
as there is such a possibility, it is not definitive. The result of this disagreement becomes obvious in the
event of a conflict between the 'Amm of the Qur'an and the Khass of the Hadith, especially the weak or
the solitary Hadith. According to the majority view, a solitary Hadith may specify a general provision
of the Qur'an, for the 'Amm of Qur'an is zanni and the Khass of a solitary Hadith, although definitive in
meaning, is of speculative authenticity. A zanni may be specified by a qat'i or another zanni.
Usul, p.125; Badran, Usul, p.381.]
To the Hanafis, however, the 'Amm of Qur'an is definite, and the solitary Hadith,
or qiyas for that matter, is speculative. A definitive may not be limited nor specified by a speculative.
The two views may be illustrated with reference to the Qur'anic text concerning the slaughter of
animals, which provides 'eat not [of meat] on which God's name has not been pronounced' (al-An'am, 6:
121). In conjunction with this general ruling, there is a solitary Hadith which provides that 'the believer
slaughters in the name of God whether he pronounces the name of God or not'.
240; Badran, Usul, p.383.]
Principles of Islamic Jurisprudence ~ Kamali 105
[50. Abu Zahrah,
[51. Bayhaqi, Al-Sunan al-Kubra, VII,
According to the majority, this Hadith specifies the Qur'anic ayah, with the result that slaughter by a
Muslim, even without pronouncing the name of God, is lawful for consumption. But to the Hanafis, it is
not lawful, as the 'Amm of the Qur'an may not be specified by solitary (Ahad) Hadith. This
disagreement between the juristic schools, however, arises in respect of the solitary Hadith only. As for
the Mutawatir (and the Mashhur) there is no disagreement on the point that either of these may specify
the general in the Qur'an just as the Qur'an itself sometimes specifies its own general provisions.
Shawkani, Irshad, p. 157; Abu Zahrah, Usul, p.125.]
A general proposition may be qualified either by a dependent clause, that is, a clause which occurs in
the same text, or by an independent locution. The majority of ulema consider either of these
eventualities as two varieties of takhsis. According to the Hanafis, however, an independent locution
can specify another locution only if it is established that the two locutions are chronologically parallel
to one another. but if they are not so parallel, the later in time abrogates the former, and the case is one
of abrogation rather than takhsis. In the event where the qualifying words relate to what has preceded
and do not form a complete locution by themselves, they are not regarded as independent propositions.
According to the majority, but not the Hanafis, a dependent clause may qualify a general proposition by
introducing an exception (istithna'), a condition (shart), a quality (sifah), or indicating the extent
(ghayah) of the original proposition. Each of such clauses will have the effect of limiting and specifying
the operation of the general proposition. An example of specification in the form of istithna' is the
general ruling which prescribes documentation of commercial transactions that involve deferred
payments in sura al-Baqarah (2:282). This general provision is then followed, in the same ayah, by the
exception 'unless it be a transaction handled on the spot that you pass around among yourselves in
which case it will not be held against you if you did not reduce it into writing'. This second portion of
the ayah thus embodies an exception to the first. Specification (takhsis) in the form of a condition
(shart) to a general proposition may be illustrated by reference to the Qur'anic text which prescribes the
share of the husband in the estate of his deceased wife. The text thus provides, 'in what your wives
leave, you are entitled to one half if they have no children' (al-Nisa' , 4:12). The application of the
general rule in the first portion of the ayah has thus been qualified by the condition which the text itself
has provided in its latter part, namely the absence of children. And then to illustrate takhsis by way of
providing a description or qualification (sifah) to a general proposition, we may refer to the Qur'anic
text regarding the prohibition of marriage with one's step-daughter where we read '[and forbidden to
you are] your step-daughters under your guardianship from your wives with whom you have
consummated the marriage' (al-Nisa', 4:23). Thus the general prohibition in the first part of the ayah has
been qualified by the description that is provided in the latter part. And lastly, to illustrate takhsis in the
form of ghayah, or specifying the extent of application of a general proposition, we may refer to the
Qur'anic text on ablutions for salah. The text prescribes the 'washing of your hands up to the elbows'
(al-Ma'idah, 5:6). Washing the hands, which is a general ruling, is thus specified in regard to the area
which must be covered in washing. Similarly when it is said 'respect your fellow citizens unless they
violate the law', the word 'citizens' includes all, but the succeeding phrase specifies the extent of the
operation of the general ruling.
[53. Abdur Rahim, Jurisprudence, pp. 83-84; Khallaf, 'Ilm, p.187; Badran, Usul, pp. 375-378.]
Principles of Islamic Jurisprudence ~
Kamali 106
general locution itself, but by an independent locution, the latter may consist of a separate text, or of a
reference to the general requirements of reason, social custom, or the objectives of Shari'ah (hikmah altashri').
It
is by virtue of reason, for example, that infants and lunatics are excluded from the scope of
the
Qur'anic obligation of hajj,
which
occurs in sura Al-'Imran (3:97). Similarly, the general text of the
Qur'an
which reads that '[a wind] will destroy everything by the command of its Lord' (al-Ahqaf,
46:25),
customarily denotes everything which is capable of destruction. Similarly, in the area of
commercial
transactions, the general provisions of the law are often qualified in the light of the custom
prevailing
among people. We have already illustrated specification of one text by another in regard to
the
waiting period ('iddah)
of
divorced women. The general provision that such women must observe a
'iddah
consisting
of three menstrual cycles occurs in sura al-Baqarah (2:228). This has in turn been
qualified
by another text in sura al-Ahzab (33:49) which removes the requirement of 'iddah
in
cases
where
divorce takes place prior to the consummation of marriage.
Jurisprudence, p. 84; Badran, Usul, p. 379.]
[54. Abu Zahrah, Usul, p. 128; Abdur Rahim,
And lastly, the general provision of the Qur'an concerning retaliation in
injuries on an 'equal for equal' basis (al-Ma'idah, 5:48) is qualified in the light of the objectives of the
Lawgiver in the sense that the offender is not to be physically wounded in the manner that he injured
his victim, but is to be punished in proportion to the gravity of his offence.
Next, there arises the question of chronological order between the general and the specifying
provisions. The specifying clause is either parallel in origin to the general, or is of later origin, or their
chronological order is unknown. According to the Hanafis, when the specifying clause is of a later
origin than the general proposition, the former abrogates the latter and is no longer regarded as takhsis,
but as a partial abrogation of one text by another. According to the Hanafis, takhsis can only take place
when the 'Amm and the Khass are chronologically parallel to one another; in cases where this order
cannot be established between them, they are presumed to be parallel. The difference between
abrogation and takhsis is that abrogation consists of a total or partial suspension of a ruling at a later
date, whereas takhsis essentially limits the application of the 'Amm ab initio. To the majority of ulema
takhsis is a form of explanation (bayan) in all of its varieties, but to the Hanafis it is a form of bayan
only when the specifying clause is independent of the general proposition, chronologically parallel to it,
and is of the same degree of strength as the 'Amm in respect of being a qat'i or a zanni. But when the
specifying clause is of a later origin than the general proposition, the effect which it has on the latter,
according to the Hanafis, is one of abrogation rather than bayan.
[55. Badran, Usul, p. 376.]
The majority view on
takhsis thus differs from the Hanafis in that takhsis according to the majority may be by means of both
a dependent or an independent locution, and the specifying clause need not be chronologically parallel
to the general proposition. This is because in the majority opinion, the specifying clause explains and
does not abrogate or invalidate the general proposition.
[56. Abu Zahrah, Usul, pp. 128-129.]
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Kamali 107
Notwithstanding the ulema's disagreement regarding the nature of takhsis, it would appear that takhsis
is not a partial invalidation of the 'Amm, but an explanation or qualification thereof. This is the majority
view, and seems to be preferable to the Hanafi view which equates takhsis with partial abrogation.
Zahrah, Usul, p. 129.]
Imam Ghazali discusses the Hanafi position at some length, and refutes it by saying that
a mere discrepancy in time does not justify the conclusion that takhsis changes its character into
abrogation. Nor is it justified to say that a discrepancy in the strength of the indication (dalil)
determines the difference between takhsis and abrogation.
[58. Ghazali, Mustasfa, II, 103-105.]
The effect of 'Amm is that it remains in force, and action upon it is required, unless there is a specifying
clause which would limit its application. In the event where a general provision is partially specified, it
still retains its legal authority in respect of the part which remains unspecified. According to the
majority of ulema, the 'Amm is speculative as a whole, whether before or after takhsis, and as such it is
open to qualification and ta'wil in either case. For the Hanafis, however, the 'Amm is definitive in the
first place, but when it is partially specified, it becomes speculative in respect of the part which still
remains unspecified; hence it will be treated as zanni and would be susceptible to further specification
by another zanni.
[59. Khallaf, 'Ilm, p. 183; Abu Zahrah, Usul, p. 129.]
As for the question of whether the cause of a general ruling can operate as a limiting factor in its
general application, it will be noted that the cause never specifies a general ruling. This is relevant, as
far as the Qur'an is concerned, to the question of asbab al-nuzul, or the occasions of its revelation. One
often finds general rulings in the Qur'an which were revealed with reference to specific issues. Whether
the cause of the revelation contemplated a particular situation or not, it does not operate as a limiting
factor on the application of the general ruling. Thus the occasion of the revelation of the ayah of
imprecation (li'an) in sura al-Nur (24:6) was a complaint that a resident of Madinah, Hilal ibn
Umayyah, made to the Prophet about the difficulty experienced by the spouse in proving, by four
eyewitnesses, the act of adultery on the part of the other spouse. The cause of the revelation was
specific but the ruling remains general. Similarly, the Hadith which provides that 'when any hide is
tanned, it is purified'
[60. Abu Dawud, Sunan (Hasan's trans.), II, 1149; Hadith no. 4111; Abu Zabrah, Usul, p. 130.]
was, according to reports, uttered with reference to a sheepskin, but the ruling is nevertheless applicable
to all types of skins. The actual wording of a general ruling is therefore to be taken into consideration
regardless of its cause. If the ruling is conveyed in general terms, it must be applied as such even if the
cause behind it happens to be specific.
[61. Abu Zahrah, Usul, p.130; Khallaf, 'Ilm, p. 189.]
Principles of Islamic Jurisprudence ~
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Conflict between 'Amm and Khass
Should there be two textual rulings on one and the same subject in the Qur'an, one being 'Amm and the
other Khass, there will be a case of conflict between them according to the Hanafis, but not according to
the majority. The reason is that to the Hanafis, 'Amm and Khass are both definitive (qat'i) and as such a
conflict between them is possible, whereas to the majority, only the Khass is qat'i and it would always
prevail over the 'Amm, which is zanni.
The Hanafis maintain that in the event of a conflict between the general and the specific in the Qur'an,
one must ascertain the chronological order between them first; whether, for example, they are both
Makki or Madani ayat or whether one is Makki and the other Madani. If the two happen to be parallel
in time, the Khass specifies the 'Amm. If a different chronological sequence can be established between
them, then if the 'Amm is of a later origin, it abrogates the Khass, but if the Khass is later, it only
partially abrogates the 'Amm. This is because the Hanafis maintain that the Khass specifies the 'Amm
only when they are chronologically parallel, both are qat'i, and both are independent locutions.
The majority of ulema, as already noted, do not envisage the possibility of a conflict between the 'Amm
and the Khass: when there are two rulings on the same point, one being 'Amm and the other Khass, the
latter becomes explanatory to the former and both are retained. For the majority, the 'Amm is like the
Zahir in that both are speculative and both are open to qualification and ta'wil.
Usul, p. 383.]
[62.Abu Zahrah, Usul, p. 131; Badran,
The two foregoing approaches to takhsis may be illustrated by the conflict arising in the following two
ahadith concerning legal alms (zakah). One of these provides, 'whatever is watered by the sky is subject
to a tithe'.
The second Hadith provides that 'there is no charity in less than five awsaq'.
nos. 1794 & 1797; Abu Zahrah, Usul, p. 131.]
[63. Al-Tabrizi, Mishkat, I, 563-65, Hadith
Principles of Islamic Jurisprudence ~
Kamali 109
A wasaq (sing. of awsaq) is a quantitative measure equivalent to about ten kilograms. The first Hadith
contains a general ruling in respect of any quantity of agricultural crops, but the second Hadith is
specific on this point. The majority of ulema (including the Shafi'is) have held that the second Hadith
explains and qualifies the first. The first Hadith lays down the general principle and the second enacts
the quorum (nisab) of zakah. For the Hanafis, however, the first Hadith abrogates the second, as they
consider that the first Hadith is of a later origin than the second. According to the Hanafis, when the
'Amm is of a later origin than the Khass, the former abrogates the latter completely. Hence there is no
case for takhsis and the Hanafis as a result impose no minimum quantitative limit with regard to zakah
on produce obtained through dry farming. The two views remain far apart, and there is no meeting
ground between them. However, as already indicated, the majority opinion is sound, and recourse to
abrogation in cases of conflict between the 'Amm and Khass is often found to be unnecessary. In
modern law too one often notices that the particular usually qualifies the general, and the two can coexist.
The 'Amm
and
the Khass
can
thus each operate in their respective spheres with or without a
discrepancy
in their time of origin and the degree of their respective strength.
Classification III: The Absolute (Mutlaq) and the Qualified (Muqayyad)
[64. Cf. Abu Zahrah, Usul, p. 132.]
Mutlaq denotes a word which is neither qualified nor limited in its application. When we say, for
example, a 'book', a 'bird' or a 'man', each one is a generic noun which applies to any book, bird or man
without any restriction. In its original state, the Mutlaq is unspecified and unqualified. The Mutlaq
differs from the 'Amm, however, in that the latter comprises all to which it applies whereas the former
can apply to any one of a multitude, but not to all.
[65. Khallaf, 'Ilm, p. 192; Badran, Usul, pp.351, 371.]
However, the
ulema have differed regarding the Mutlaq and the Muqayyad. To some ulema, including al-Baydawi,
the Mutlaq resembles the 'Amm, and the Muqayyad resembles the Khass. Hence anything which
specifies the 'Amm can qualify the Mutlaq. Both are open to ta'wil and Mutlaq/Muqayyad are
complementary to 'Amm/Khass respectively.
[66. Ansari, Ghayat al-Wusul, p. 84.]
When the Mutlaq is qualified by
another word or words it becomes a Muqayyad, such as qualifying 'a book' as 'a green book', or 'a bird'
as 'a huge bird' or 'a man' as 'a wise man'. The Muqayyad differs from the Khass in that the former is a
word which implies an unspecified individual/s who is merely distinguished by certain attributes and
qualifications. An example of Mutlaq in the Qur'an is the expiation (kaffarah) of futile oaths, which is
freeing a slave (fa-tahriru raqabatin) in sura al-Ma'idah, (5:92). The command in this text is not limited
to any kind of slaves, whether Muslim or non-Muslim. Yet in another Qur'anic passage the expiation of
erroneous killing consists of 'freeing a Muslim slave' (fa-tahriru raqabatin mu'minatin) (al-Nisa', 4:92).
Principles of Islamic Jurisprudence ~
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In contrast to the first text, which is conveyed in absolute terms, the command in the second ayah is
qualified in that the slave to be released must be a Muslim.
The Mutlaq remains absolute in its application unless there is a limitation to qualify it. Thus the
Qur'anic prohibition of marriage 'with your wives' mothers' in sura al-Nisa' (4:23) is conveyed in
absolute terms, and as such, marriage with one's mother-in-law is forbidden regardless as to whether the
marriage with her daughter has been consummated or not. Since there is no indication to qualify the
terms of the Qur'anic command, it is to be implemented as it is. But when a Mutlaq is qualified into a
Muqayyad, the latter is to be given priority over the former. Thus if we have two texts on one and the
same subject, and both convey the same ruling (hukm) as well as both having the same cause (sabab)
but one is Mutlaq and the other Muqayyad, the latter prevails over the former. To illustrate this in the
Qur'an, we refer to the two ayat on the prohibition of blood for human consumption. The first of these,
which occurs in absolute terms, provides, 'forbidden to you are the dead carcass and blood' (al-Ma'idah,
5:3). But elsewhere in the Qur'an there is another text on the same subject which qualifies the word
'blood' as 'blood shed forth' (daman masfuhan) (al-An'am, 6:145). This second ayah is a Muqayyad
whereas the first is Mutlaq, hence the Muqayyad prevails. It will be noted here that the two texts convey
the same ruling, namely prohibition, and that they have the same cause or subject in common (i.e.
consumption of blood). When this is the case, the ulema are in agreement that the Muqayyad qualifies
the Mutlaq and prevails over it.
[67. Khallaf, 'Ilm, p.193; Abdur Rahim, Jurisprudence, pp. 91-92.]
However if there are two texts on the same issue, one absolute and the other qualified, but they differ
with one another in their rulings and in their causes, or in both, then neither is qualified by the other and
each will operate as it stands. This is the view of the Hanafi and Maliki schools, and the Shafi'is concur
insofar as it relates to two texts which differ both in their respective rulings and their causes. However
the Shafi'is maintain the view that if the two texts vary in their ruling (hukm) but have the same cause in
common, the Mutlaq is qualified by the Muqayyad. This may be illustrated by referring to the two
Qur'anic ayat concerning ablution, one of which reads, in an address to the believers, to 'wash your
faces and your hands [aydikum] up to the elbows' (al-Ma'idah, 5:7). The washing of hands in this ayah
has been qualified by the succeeding phrase, that is 'up to the elbows'. The second Qur'anic provision
which we are about to quote occurs in regard to tayammum, that is, ablution with clean sand in the
event where no water can be found, in which case the Qur'an provides, 'take clean sand/earth and wipe
your faces and your hands' (al-Nisal, 4:43). The word 'aydikum' (your hands) occurs as a Muqayyad in
the first text but as a Mutlaq in the second. However the two texts have the same cause in common,
which is cleanliness for salah. There is admittedly a difference between the two rulings, in that the first
requires washing, and the second wiping, of the hands, but this difference is of no consequence. The
first is a Muqayyad in regard to the area of the hands to be washed whereas the second is conveyed in
Principles of Islamic Jurisprudence ~
Kamali 111
absolute terms. The second is therefore qualified by the first, and the Muqayyad prevails. Consequently
in wiping the hands in tayammum, too, one is required to wipe them up to the elbows.
And lastly we give another illustration, again of two texts, one Mutlaq, the other Muqayyad, both of
which convey the same ruling but differ in respect of their causes. Here we refer to the two Qur'anic
ayat on the subject of witnesses. One of these, which requires the testimony of two witness in all
commercial transactions, is conveyed in absolute terms, whereas the second is qualified. The first of the
two texts does not qualify the word 'men' when it provides 'and bring two witnesses from among your
men' (al-Baqarah, 2:282). But the second text on same subject, that is, of witnesses, conveys a qualified
command when it provides and bring two just witnesses [when you revoke a divorce]' (al-Talaq, 65:2).
The ruling in both of these texts is the same, namely the requirement of two witnesses, but the two
rulings differ in respect of their causes. The cause of the first text, as already noted, is commercial
transactions which must accordingly be testified to by two men; whereas the cause of the second ruling
is the revocation of talaq. In the first ayah witnesses are not qualified, but they are qualified in the
second ayah. The latter prevails over the former. Consequently, witnesses in both commercial
transactions and the revocation of talaq must be upright and just.
[68. Khallaf, 'Ilm, p.194; Badran, Usul, p.354.]
The foregoing basically represents the majority opinion. But the Hanafis maintain that when the
Muqayyad and the Mutlaq differ in their causes, the one does not qualify the other and that each should
be implemented independently. The Hanafis basically recognise only one case where the Muqayyad
qualifies the Mutlaq, namely when both convey the same ruling and have the same cause in common.
But when they differ in either of these respects or in both, then each must stand separately. In this way
the Hanafis do not agree with the majority in regard to the qualification of the area of the arms to be
wiped in tayammum by the same terms which apply to ablution by water (wudu'). The Hanafis argue
that the hukm in regard to tayammum is conveyed in absolute terms and must operate as such. They
contend that unlike wudu', tayammum is a shar'i concession, and the spirit of concession should prevail
in the determination of its detailed requirements, including the area of the arm that is to be wiped.
Khallaf, 'Ilm, pp. 193-194.]
Classification IV: The Literal (Haqiqi) and the Metaphorical (Majazi)
A word may be used in its literal sense, that is, for its original or primary meaning, or it may be used in
a secondary and metaphorical sense. When a word is applied literally, it keeps its original meaning, but
when it is used in a metaphorical sense, it is transferred from its original to a secondary meaning on
Principles of Islamic Jurisprudence ~
Kamali 112
grounds of a relationship between the two meanings.
[70. Abdur Rahim, Jurisprudence, p. 93; Badran, Usul, p. 394.]
There is
normally a logical connection between the literal and the metaphorical meanings of a word. The nature
of this relationship varies and extends over a wide range of possibilities. There are at least thirty to forty
variations in how the metaphorical usage of a word may relate to its literal meaning.
Irshad, pp. 23-24.]
The metaphorical usage of a word thus consists of a transfer from the original to a
connected meaning. Once such a transfer has taken place both the original and the metaphorical
meanings of a word cannot be assigned to it at one and the same time.
Words are normally used in their literal sense, and in the language of the law it is the literal meaning
which is relied upon most. Hence if a word is simultaneously used in both these senses, the literal will
prevail. When, for example, a person says in his will that 'I bequeath my property to the memorisers of
the Qur'an' or to 'my offspring', those who might have memorised the Qur'an but have forgotten it since
will not be entitled. Similarly, 'offspring (awlad)' primarily means sons and daughters, not
grandchildren. For applying 'awlad' to 'grandchildren' is a metaphorical usage which is secondary to its
original meaning.
[72. Badran, Usul, p. 395; Hitu, Wajiz, p.115.]
Both the Haqiqi and the Majazi occur in the Qur'an, and they each convey their respective meanings.
Thus when we read in the Qur'an to 'kill not [la taqtulu] the life which God has made sacrosanct', 'la
taqtulu' carries its literal meaning. Similarly the Majazi occurs frequently in the Qur'an. When, for
example, we read in the Qur'an that 'God sends down your sustenance from the heavens' (Ghafir,
40:13), this means rain which causes the production of food. Some ulema have observed that Majazi is
in the nature of a homonym which could comprise what may be termed as falsehood or that which has
no reality and truth, and that falsehood has no place in the Qur'an. Imam Ghazali discusses this
argument in some length and represents the majority view when he refutes it and acknowledges the
existence of the Majazi in the Qur'an. The Qur'anic expression, for example, that 'God is the light of the
heavens and the earth' (al-Nur, 24:35) and 'whenever they [the Jews] kindled the fire of war, God
extinguished it' (al-Ma'idah, 5:67), God being 'the light of the universe', and God having 'extinguished
the fire of war', are both metaphorical usages; and numerous other instances of the Majazi can be found
in the Qur'an.
[73. Ghazali, Mustasfa, 67-78.]
As already stated, the Haqiqi and the Majazi both occur in the Qur'an,
and they each convey their respective meanings. But this is only the case where the Majazi does not
represent the dominant usage. In the event where a word has both a literal and a metaphorical meaning
and the latter is well-established and dominant, it is likely to prevail over the former. Some ulema have,
however, held the opposite view, namely that the Haqiqi would prevail in any case; and according to
yet a third view, both are to be given equal weight. But the first of these views represents the view of
the majority. To give an example, the word 'talaq' literally means 'release' or 'removal of restriction'
(izalah al-qayd), be it from the tie of marriage, slavery, or ownership, etc. But since the juridical
Principles of Islamic Jurisprudence ~ Kamali 113
[71. See for details Shawkani,
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