meaning of talaq, which is dissolution of marriage, or divorce, has become totally dominant, it is this
meaning that is most likely to prevail, unless there be evidence to suggest otherwise.
The Haqiqi is sub-divided, according to the context in which it occurs, into linguistic (lughawi),
customary (urfi) and juridical (shar'i). The linguistic Haqiqi is a word which is used in its dictionary
meaning, such as 'lion' for that animal, and 'man' for the male gender of the human being. The
customary Haqiqi occurs in the two varieties of general and special: when a word is used in a
customary sense and the custom is absolutely common among people, the customary Haqiqi is
classified as general, that is, in accord with the general custom. An example of this in Arabic is the
word 'dabbah' which in its dictionary meaning applies to all living beings that walk on the face of the
earth, but which has been assigned a different meaning by general custom, that is, an animal walking on
four legs. But when the customary Haqiqi is used for a meaning that is common to a particular
profession or group, the customary Haqiqi is classified as special, that is, in accord with a special
custom. For example the Arabic word raf ('nominative') and nasb ('accusative') have each acquired a
technical meaning that is common among grammarians and experts in the language.
There is some disagreement as to the nature of the juridical Haqiqi, as some ulema consider this to be a
variety of the Majazi, but having said this, the juridical Haqiqi is defined as a word which is used for a
juridical meaning that the Lawgiver has given it in the first place, such as 'salah', which literally means
'supplication' but which, in its well-established juridical sense, is a particular form of worship.
Similarly, the word 'zakah literally means 'purification', but in its juridical sense, denotes a particular
form of charity whose details are specified in the Shari'ah.
[75. Badran, Usul, p.394; Hitu,Wajiz, p. 112 .]
It would take us too far afield to describe the sub-divisions of the Majazi, as we are not primarily
concerned with technical linguistic detail. Suffice it to point out here that the Majazi has also been
divided into linguistic, customary and juridical varieties. However, there is one other classification
which merits our attention. This is the division of the Haqiqi and Majazi into plain (Sarih) and allusive
(Kinayah).
If the application of a word is such that it clearly discloses the speaker's intention, it is plain, otherwise
it is allusive. The highest degree of clarity in expression is achieved by the combination of the plain
(Sarih) and the literal (Haqiqi) such as the sentence 'Ahmad bought a house', or 'Fatimah married
Ahmad'. The plain may also be combined with the metaphorical, as in the sentence 'I ate from this tree',
while it is intended to mean 'from the fruit of this tree'.
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[74. Hitu, Wajiz, p. 115.] Kamali 114
The 'allusive' or Kinayah denotes a form of speech , which does not clearly disclose the intention of its
speaker. It can occur in combination with the literal or the metaphorical. When a person wishes, for
example, to confide in his colleague in front of others, he might say 'I met your friend and spoke to him
about the matter that you know'. This is a combination of the literal and the allusive in which all the
words used convey their literal meanings but where the whole sentence is allusive in that it does not
disclose the purpose of the speaker with clarity. Supposing that a man addresses his wife and tells her in
Arabic 'i'taddi' (start counting) while intending to divorce her. This utterance is allusive, as 'counting'
literally means taking a record of numbers, but is used here in reference to counting the days of the
waiting period of 'iddah. This speech is also metaphorical in that the 'iddah which is caused by divorce
is used as a substitute for 'divorce'. It is a form of Majazi in which the effect is used as a substitute for
the cause.
[76. See for further detail on the various forms of the Majazi, Abdur Rahim, Jurisprudence, pp. 94-97; Badran, Usul, p. 397 ff.]
When a speech consists of plain words, the intention of the person using them is to be gathered from the
words themselves, and there is no room for further enquiry as to the intention of the speaker. Thus when
a man tells his wife 'you are divorced', the divorce is pronounced in plain words and occurs regardless
of the husband's intention. But in the case of allusive words, one has to ascertain the intention behind
them and the circumstances in which they were uttered. Thus when a man tells his wife 'you are
forbidden to me', or when he asks her to 'join your relatives', no divorce will take place unless there is
evidence to show that the husband intended a divorce.
[77. Badran, Usul, p. 398]
Legal matters which require certainty, such as offences entailing the hadd punishment, cannot be
established by language which is not plain. For example when a person confesses to such offences in
allusive words, he is not liable to punishment.
[78. Abdur Rahim, Jurisprudence, p. 98.]
The jurists are in agreement that a word may be used metaphorically while still retaining its literal
meaning, such as the word 'umm' (mother) which the Arabs sometimes use metaphorically for
'grandmother' and yet still retains its literal meaning. But there is disagreement among the ulema of usul
as to whether both the literal and metaphorical meanings of a word can be applied simultaneously.
When, for example, a man orders his servant to 'kill the lion', could this also include a brave person?
The Hanafis and the Mu'tazilah have answered this question in the negative, saying that words normally
carry their literal meanings unless there is evidence to warrant a departure to another meaning. The
Shafi'is and the ulema of Hadith have held, on the other hand, that the literal and the metaphorical
meaning of a word can be simultaneously applied. They have thus validated either of the two meanings
of the Qur'anic provision 'or when you have touched women' (al-Nisa', 4:43), which could mean
touching the women with the hand, or touching in the sense of having sexual intercourse. The text in
Principles of Islamic Jurisprudence ~
Kamali 115
which this ayah occurs spells out the circumstances that break the state of purity. Thus when a Muslim
'touches a woman' he must take a fresh ablution for the next salah. But according to the Hanafis, the
Qur'anic ayah on this point only conveys the metaphorical meaning of 'touching', that is, sexual
intercourse. Hence when a person is in the state of ablution, and then touches a woman by the hand, his
ablution remains intact. For the Shafi'is, however, the key word in this ayah carries both its literal and
metaphorical meanings simultaneously. Consequently the state of purity is broken, not only by sexual
intercourse, but also by a mere touch such as a handshake with a woman who is not of one's family.
Badran, Usul, p. 397.]
The Homonym (Mushtarak)
A homonym is a word which has more than one meaning. Some ulema, including al-Shafi'i, have held
the view that the homonym is a variety of 'Amm. The two are, however, different in that the homonym
inherently possesses more than one meaning, which is not necessarily the case with the 'Amm. An
example of the Mushtarak in Arabic is the word "ayn' which means several things, including eye,
water-spring, gold, and spy. Similarly the word 'qur" has two meanings, namely menstruation, and the
clean period between two menstruations. The Hanafis, the Hanbalis and the Zaydis have upheld the
first, while the Shafi'is, Malikis and Ja'faris have upheld the second meaning of qur'.
132; EI2, IV, 101.]
The plurality of meanings in a homonym may be due to the usage of different Arab tribes and
communities. Some used it for one meaning, others for the other. Otherwise a word may have acquired
a metaphorical meaning which became literal in course of time. When Mushtarak occurs in the Qur'an
or Sunnah, it denotes one meaning alone, not more than one. For the Lawgiver does not intend more
than one meaning for a word at any given time. The Shafi'is and some Mutazilah have taken exception
to this view as they maintain that in the absence of any indication in support of one of the two or more
meanings of a Mushtarak, both or all may be upheld simultaneously provided that they do not
contradict one another. According to a variant view, however, plurality of meanings on a simultaneous
basis is permissible in negation or denial (nafy) but not in affirmation and proof (ithbat). If, for
example, Ahmad says 'I did not see a 'ayn (ma ra'aytu 'aynan)', 'ayn in this negative statement could
comprise all of its various meanings. But if Ahmad says 'I saw a 'ayn', than 'ayn in this statement must
be used for only one of its several meanings.
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[80. Abu Zahrah, Usul, p.
[81. Shawkani, Irshad, p. 21; Isnawi, Nihayah, I, 166; Abu Zahrah, Usul, p. 133.]
This
view, however, does not extend to commands and prohibitions which do not admit of affirmation or
denial as such. The rule in regard to commands and prohibitions of the Shari'ah is that the Lawgiver
does not intend to uphold more than one of the different meanings of a homonym at any given time. An
example of a homonym which occurs in the context of a Qur'anic command is the word 'yad' (hand) in
'as for the thief, male or female, cut off their hands' (al-Ma'idah, 5:38). 'Hand' in this ayah has not been
qualified in any way, hence it can mean 'hand' from the tip of the fingers up to the wrist, or up to the
elbow, or even up to the shoulder; it also means left or right hand. But the ulema have agreed on the
first and the last of these meanings, that is, the right hand, up to the wrist.
[82. Khallaf, 'Ilm, p. 180.]
To illustrate
the homonym in the context of a prohibitory order in the Qur'an we refer to the word 'nakaha' in sura
al-Nisa' (4:22) which reads, 'and marry not women whom your fathers had married (ma nakaha
aba'ukum)'. 'Nakaha' is a homonym which means both marriage and sexual intercourse. The Hanafis,
the Hanbalis, al-Awza'i and others have upheld the latter, whereas the Shafi'is and the Malikis have
upheld the former meaning of nakaha. According to the first view, a woman who has had sexual
intercourse with a man is forbidden to his children and grandchildren; a mere contract of marriage,
without consummation, would thus not amount to a prohibition in this case. The Shafi'is and Malikis,
however, maintain that the text under discussion only refers to the contract of marriage. Accordingly a
woman who has entered a contract of marriage with one's father or grandfather is unlawful for one to
marry regardless as to whether the marriage had been consummated or not .
[83. Badran, Bayan, pp. 103-104.]
To determine which of the two or more meanings of the Mushtarak is to be upheld in a particular
locution, reference is usually made to the context and circumstances in which it occurs. If it is a
locution that pertains to the Shari'ah, then determining the precise purport of its words must also take
into consideration the general principles and objectives of the Shari'ah. The Mushtarak is in the nature
of Mushkil (difficult) and it is for the Mujtahid to determine its correct meaning by means of research
and ijtihad; it is his duty to do so in the event where Mushtarak constitutes the basis of a judicial order
.
[84. Abu Zahrah, Usul, p.133; Khallaf, 'Ilm, p.179.]
The mujtahid will normally look into the context. When, for example,
a homonym has two meanings, one literal and the other juridical, and it occurs in a juridical context,
than as a rule the juridical meaning will prevail. With words such as salah and talaq, for example, each
possesses a literal meaning, that is 'supplication' and 'release' respectively, but when they occur in a
juridical context, then their juridical meanings will take priority. As such, salah would be held to refer
to a particular form of worship, and talaq would mean 'dissolution of marriage'.
Finally it will be noted in passing that Mushtarak as a concept is not confined to nouns but also includes
verbs. In our discussion of commands and prohibitions in a separate chapter, we have shown how a
word in its imperative mood can impart more than one meaning. We have also discussed and illustrated
the words of the Qur'an that occur in the imperative mood, but the juridical value that they convey can
either be an obligatory command, a recommendation, or mere permissibility.
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Chapter Five: Rules of Interpretation II: Al-Dalalat (Textual Implications)
The law normally requires compliance not only with the obvious meaning of its text but also with its
implied meaning, and indirect indications and inferences that could be drawn from it. With reference to
the textual rulings of the Qur'an and the Sunnah, the ulema of usul have distinguished several shades of
meaning that a nass may be capable of imparting. The Hanafi jurists have distinguished four levels of
meaning in an order which begins with the explicit or immediate meaning of the text. Next in this order
is the 'alluded' meaning which is followed by the 'inferred' meaning, and lastly by the 'required'
meaning. There is yet a fifth variety of meaning, namely the 'divergent' meaning, which is somewhat
controversial but has, in principle, been accepted, as our discussion will show. The explicit meaning
(ibarah al-nass), which is based on the words and sentences of the text, is the dominant and most
authoritative meaning which takes priority over the other levels of implied meanings that might be
detectable in the text. In addition to its obvious meaning, a text may impart a meaning which is
indicated by the signs and allusions that it might contain. This secondary meaning is referred to as
isharah al-nass, that is the alluded meaning. A legal text may also convey a meaning which may not
have been indicated by the words or signs and yet is a complementary meaning which is warranted by
the logical and juridical purport of the text. This is known as dalalah al-nass, or the inferred meaning,
which is one degree below the alluded meaning by virtue of the fact that it is essentially extraneous to
the text. But as will later be discussed, there is a difference of opinion between the Hanafi and the
Shafi'i, jurists as to whether the inferred meaning should necessarily be regarded as inferior to the
alluded meaning. Next in this order is the iqtida' al-nass, or the required meaning, which is once again a
logical and necessary meaning without which the text would remain incomplete and would fail to
achieve its desired purpose.
[1. Khallaf, 'Ilm, p.143; Badran, Usul, p. 417.]
When there is a conflict between the first and
the second meanings, priority is given to the first. Similarly, the second will take priority over the third
and the third over the fourth, as we shall presently explain.
I. The Explicit Meaning (Ibarah al-Nass)
As already stated, this is the immediate meaning of the text which is derived from its obvious words
and sentences. The explicit meaning represents the principal theme and purpose of the text, especially
in cases where the text might impart more than one meaning and comprises in its scope a subsidiary
theme or themes in addition to the one which is obvious. In its capacity as the obvious and dominant
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Kamali 118
meaning, the 'ibarah al-nass is always given priority over the secondary and subsidiary themes or
meanings of the text. To illustrate this, we refer to the Qur'anic passage on the subject of polygamy, a
text which conveys more than one meaning, as follows 'And if you fear that you may be unable to treat
the orphans fairly, then marry of the women who seem good to you, two, three or four. But if you fear
that you cannot treat [your co-wives] equitably, then marry only one. . .' (al-Nisa', 4:3). At least three or
four meanings are distinguishable in this text which are: first, the legality of marriage, a meaning which
is conveyed by the phrase fankihu ma taba lakum min al-nisa' ('marry of the women who seem good to
you'); second, limiting polygamy to the maximum of four; third, remaining monogamous if polygamy
may be feared to lead to injustice; and fourth, the requirement that orphaned girls must be accorded fair
treatment, a meaning which is indicated in the first part of the text. All of these are conveyed in the
actual words and sentences of the text. But the first and the last are subsidiary and incidental whereas
the second and the third represent the explicit themes and meanings of the text, that is, the 'ibarah alnass.
Limiting
polygamy to the maximum of four is the explicit meaning which takes absolute priority
over
all the implied and incidental meanings that this text might convey.
[2. Khallaf, 'Ilm, p. 145.]
Most of the nusus of Shari'ah convey their rulings by way of 'ibarah al-nass. Thus the command to
perform the obligatory prayers, to observe the fast during Ramadan, to enforce the prescribed penalties
for certain offences, to give specified shares to the legal heirs in inheritance, etc., are all instances of
'ibarah al-nass. The effect of 'ibarah al-nass is that it conveys a definitive ruling hukm qat'i on its own
and is in no need of corroborative evidence. But if the text is conveyed in general terms, it may be
susceptible to qualification, in which case it may not impart a definitive rule of law but a speculative
(zanni) evidence only.
[3. Badran, Usul, pp. 419-420; Khudari, Usul, p. 119.]
II. The Alluded Meaning (Isharah al-Nass)
The text itself may not be obvious with regard to its alluded meaning, but it imparts, nevertheless, a
rationally concomitant meaning which is obtained through further investigation of the signs that might
be detectable therein. Since the alluded meaning does not represent the principal theme of the text and
yet embodies a necessary inference, it is called isharah al-nass. The alluded meaning may be easily
detectable in the text, or may be reached through deeper investigation and ijtihad. An example of the
isharah al-nass in the Qur'an is the text concerning the maintenance of young children which provides:
'It is his [father's] duty to provide them with maintenance and clothing according to custom' (alBaqarah,
2:233). The explicit meaning of this text obviously determines that it is the father's duty to
support
his child. It is also understood from the wording of the text, especially from the use of the
pronoun
'lahu'
(his) that only the father and no-one else bears this obligation. This much is easily
Principles of Islamic Jurisprudence ~
Kamali 119
detectable and constitutes the explicit meaning of this text. But to say that the child's descent is solely
attributed to the father and his identity is determined with reference to that of the father is a rational and
concomitant meaning which is derived through further investigation of the signs that are detectable in
the text.
[4. Abu Zahrah, Usul, p. 111; Khudari, Usul, p. 120.]
Similarly, the rule that the father, when in dire need, may
take what he needs of the property of his offspring without the latter's permission is yet another
meaning which is derived by way of isharah al-nass. This meaning is derived from the combination of
the text under discussion and the Hadith of the Prophet which proclaims that 'you and your property
both belong to your father'.
[5. Tabrizi, Mishkat, II, 1002, Hadith no.3354; Khallaf, 'Ilm, p.146.]
Another example of a combination of the explicit and alluded meanings occurring in the same text is
the Qur'anic ayah on the permissibility of divorce which provides, in an address to the believers: 'There
shall be no blame on you if you divorce your wives with whom you had no sexual intercourse, nor had
you assigned for them a dower' (al-Baqarah, 2:236). The explicit meaning of this text is that divorce is
permissible prior to the consummation of marriage and the assignment of a dower. The alluded meaning
here is the legality of concluding a contract of marriage without the assignment of a dower (mahr). For
a divorce can only occur when there is a subsisting marriage. The text implies this to be the case' and
that a marriage can legally exist even without the assignment of a mahr.
[6. Badran, Usul, p. 420.]
To give yet another example of isharah al-nass we may refer to the Qur'anic text on consultation
(shura) where we read, in an address to the Prophet, 'So pardon them [the Companions] and ask for
[God's] forgiveness for them and consult them in affairs' (Al-'Imran, 3:159). The 'ibarah al-nass in this
text requires that community affairs must be conducted through consultation. The alluded meaning of
this text requires the creation of a consultative body in the community to facilitate the consultation
which is required in the obvious text.
The effect of isharah al-nass is similar to that of 'ibarah al-nass in that both constitute the basis of
obligation, unless there is evidence to suggest otherwise. To illustrate this, we may refer once again to
the Qur'anic text (al-Baqarah, 2:233) which laid down the rule that the child follows the descent of his
father. This is a definitive ruling (hukm qat'i) which has, however, been set aside by ijma' in respect of
slavery to the effect that the offspring of a slave does not necessarily acquire the status of his father. In
this example, the isharah al-nass initially laid down a definitive ruling but it has been set aside in
respect of slavery by another definitive evidence, namely the ijma'.
III. The Inferred Meaning (Dalalah al-Nass)
[7. Badran, Usul, p. 421.]
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Kamali 120
This is a meaning which is derived from the spirit and rationale of a legal text even if it is not indicated
in its words and sentences. Unlike the explicit meaning and the alluded meaning which are both
indicated in the words and signs of the text, the inferred meaning is not so indicated. Instead, it is
derived through analogy and the identification of an effective cause ('illah) which is in common
between the explicit meaning and the meaning that is derived through inference. This might explain
why some ulema have equated dalalah al-nass with analogical deduction, namely qiyas jali. To
illustrate this, we may refer to the Qur'anic text on the obligation to respect one's parents. In particular,
the text provides, 'and say not uff to them' (al-Isra' 17:23), which obviously forbids the utterance of the
slightest word of contempt to the parents. The effective cause of this prohibition is honouring the
parents and avoiding offence to them. There are, of course, other forms of offensive behaviour, besides
a mere contemptuous word such as uff, to which the effective cause of this prohibition would apply.
The inferred meaning of this text is thus held to be that all forms of abusive words and acts which
offend the parents are forbidden even if they are not specifically mentioned in the text under
consideration.
[8. Abu Zahrah, Usul, p. 112.]
To give another example, the Qur'an proclaims, concerning the property of orphans, that 'those who
unjustly devour the property of the orphans only devour fire into their bodies' (al-Nisa', 4:10). The
explicit meaning of this text forbids guardians and executors from devouring the property of their
orphaned wards for their personal gain. But by way of inference the same prohibition is extended to
other forms of destruction and waste which might have been caused, for example, through financial
mismanagement that does not involve personal gain and yet leads to the loss and destruction of the
property of the orphans. Although the text provides no indication as to the different ways in which
destruction can be caused, they are nevertheless equally forbidden. As already stated, this kind of
inference is equivalent to what is known as obvious analogy (qiyas jali) which consists of identifying
the effective cause of a textual ruling, and when this is identified the original ruling is analogically
extended to all similar cases. The effective cause of the ruling in the foregoing ayah is protection of the
orphans' property, and any act which causes destruction or loss of such property falls under the same
prohibition.
[9. Khallaf, 'Ilm, p. 150.]
IV. The Required Meaning (Iqtida' al-Nass)
This is a meaning on which the text itself is silent and yet which must be read into it if it is to fulfill its
proper objective. To give an example, the Qur'an proclaims concerning the prohibited degrees of
relations in marriage: 'unlawful to you are your mothers and your daughters . . .' (al-Nisa', 4:22). This
Principles of Islamic Jurisprudence ~
Kamali 121
text does not mention the word 'marriage', but even so it must be read into the text to complete its
meaning. Similarly we read elsewhere in the Qur'an: 'unlawful to you are the dead carcass and blood'
(al-Ma'idah, 5:3), without mentioning that these are unlawful 'for consumption'. But the text requires the
missing element to be supplied in order that it may convey a complete meaning.
To give a slightly different example of iqtida' al-nass, we may refer to the Hadith which provides:
"There is no fast (la siyama) for anyone who has not intended it from the night before."
The missing element could either be that the fasting is 'invalid' or that it is 'incomplete'. The Hanafis
have upheld the latter whereas the Shafi'is have read the former meaning into this Hadith. Whichever
meaning is upheld, the consequences that it may lead to will vary accordingly.
no. 1700; Badran, Usul, p. 424.]
[10. Ibn Majah, Sunan, I, 542, Hadith
To summarise, a legal text may be interpreted through the application of any one or more of the four
varieties of textual implications. The meaning that is arrived at may be indicated in the words of the
text, by the signs which occur therein, by inference, or by the supplementation of a missing element.
These methods of legal construction may be applied individually or in combination with one another,
and they are all designed to carry the text to its proper and logical conclusions.
As stated above, in the event of a conflict between the 'ibarah al-nass and the isharah al-nass, the
former prevails over the latter. This may be illustrated by a reference to the two Qur'anic ayat
concerning the punishment of murder. One of these explicitly proclaims that 'retaliation is prescribed
for you in cases of murder' (al-Baqarah, 2:178). But elsewhere in the Qur'an, it is provided: 'Whoever
deliberately kills a believer, his punishment will be permanent hellfire' (al-Nisa', 4:93). The explicit
meaning of the first ayah provides that the murderer must be retaliated against; the explicit meaning of
the second ayah is that the murderer is punished with permanent hellfire. The alluded meaning of the
second ayah is that retaliation is not a required punishment for murder; instead the murderer will,
according to the explicit terms of this ayah be punished in the hereafter. There is no conflict in the
explicit meanings of the two texts, but only between the explicit meaning of the first and the alluded
meaning of the second. A conflict thus arises as to which of the two punishments are to be upheld. But
since the first ruling constitutes the explicit meaning of the text and the second is an alluded meaning,
the former prevails over the latter.
[11. Abu Zahrah, Usul, p.115; Khallaf, 'Ilm, p.150.]
For another illustration of a conflict between the explicit and the alluded meanings, we refer to the
Qur'anic text which informs the believers of the dignified status of the martyrs, as follows: 'And think
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Kamali 122
not of those who are slain in God's way as dead; they are alive, finding their sustenance in the presence
of God' (Al-'Imran, 3:169). The explicit terms of this text obviously declare the martyrs to be alive and
that anyone who thinks they are dead is mistaken. The alluded meaning of this text is held to be that no
funeral prayer is necessary for the martyr as he is deemed to be still alive. However, this conclusion
conflicts with the explicit meaning of another Qur'anic text which orders, concerning the dead in
general, to 'pray on their behalf [salli 'alayhim] as your prayers are a source of tranquility for them' (alTawbah,
9:103). This text explicitly requires prayers for everyone, martyr or otherwise, as they are dead
literally
and juridically and their property may be inherited by their legal heirs, etc. This is the explicit
meaning
of this second text and it prevails over the alluded meaning of the first.
[12. Badran, Usul, p. 428.]
To illustrate the conflict between the alluded meaning and the inferred meaning, we refer firstly to the
Qur'anic text on the expiation of erroneous homicide which provides: 'The expiation (kaffarah) of
anyone who erroneously kills a believer is to set free a Muslim slave' (al-Nisa', 4:92). The explicit
meaning of this ayah is that erroneous homicide must be expiated by releasing a Muslim slave. By way
of inference, it is further understood that freeing a Muslim slave would also be required in intentional
homicide. For the purpose of kaffarah is compensation and atonement for a sin. It is argued that the
murderer is also a sinner and has committed a sin far greater then the one who kills as a result of error.
The inferred meaning derived in this way is that the murderer is liable, at least, to the same kaffarah
which is required in erroneous homicide. However, according to the next ayah in the same passage, to
which reference has already been made: 'Whoever deliberately kills a believer, his punishment is
permanent hellfire' (al-Nisa', 4:93). The alluded meaning of this text is that freeing a slave is not
required in intentional killing. This meaning is understood from the explicit terms of this ayah which
provide that the punishment of deliberate homicide is a permanent abode in hell. This would in turn
imply that murder is an unpardonable sin, and as such there is no room for kaffarah in cases of murder.
This is the alluded meaning of the second ayah; and a conflict arises between this and the inferred
meaning of the first ayah. The alluded meaning, which is that the murderer is not required to pay a
kaffarah, takes priority over the inferred meaning that renders him liable to payment.
Khallaf, 'Ilm, p. 153.]
The Shafi'is are in disagreement with the Hanafis on the priority of the alluded meaning over the
inferred meaning. According to the Shafi'is, the inferred meaning takes priority over the alluded
meaning. The reason given for this is that the former is founded in both the language and rationale of
the text whereas the latter is not; that the alluded meaning is only derived from a sign which is basically
weaker than the words and the rationale of the text, and that the inferred meaning is a closer meaning
and should therefore be given priority over the alluded meaning. It is on the basis of this analysis that,
in the foregoing example, the Shafi'is have given priority to the inferred meaning of the text with the
result that the murderer is also required to pay the kaffarah.
[14. Abu Zahrah, Usul, p.115.]
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[13. Badran, Usul, p. 429; Kamali 123
V. Divergent Meaning (Mafhum al-Mukhalafah) and the Shafi'i Classification of al-Dalalat
The basic rule to be stated at the outset here is that a legal text never implies its opposite meaning, and
that any interpretation which aims at reading a divergent meaning into a given text is unwarranted and
untenable. If a legal text is at all capable of imparting a divergent meaning, then there needs to be a
separate text to validate it. But any attempt to obtain two divergent meanings from one and the same
text is bound to defy the very essence and purpose of interpretation. This argument has been more
forcefully advanced by the Hanafis, who are basically of the view that mafhum al-mukhalafah is not a
valid method of interpretation.
[15. Khallaf, 'Ilm, p.153.]
Having said this, however, mafhum al-mukhalafah is
upheld on a restrictive basis not only by the Shafi'is but even by the Hanafis; they have both laid down
certain conditions which must be fulfilled so as to ensure the proper use of this method.
Mafhum al-mukhalafah may be defined as a meaning which is derived from the words of the text in
such a way that it diverges from the explicit meaning thereof.
[16. Hitu, Wajiz, p. 125.]
To give an example, the
Qur'an proclaims the general rule of permissibility (ibahah) of foodstuffs for human consumption with
a few exceptions which are specified in the following text: 'Say, I find nothing in the message that is
revealed to me forbidden for anyone who wishes to eat except the dead carcass and blood shed forth'
(daman masfuhan) (al-An'am, 6:145). With reference to the latter part of this text, would it be valid to
suggest that blood which is not shed forth (dam ghayr masfuh) is lawful for human consumption? The
answer to this question is in the negative. For otherwise the text would be subjected to an interpretation
which is most likely to oppose its obvious meaning. As for the permissibility of unspilt blood such as
liver and spleen, which consist of clotted blood, this is established, not by the ayah under consideration,
but by a separate text. Liver and spleen are lawful to eat by virtue of the Hadith of the Prophet which
proclaims that 'lawful to us are two types of corpses and two types of blood. These are the fish, the
locust, the liver and the spleen.
[17. Tabrizi, Mishkat, II, 203, Hadith no. 4132; Khallaf, 'Ilm, p. I54.]
As already indicated, the Shafi'is have adopted a different approach to mafhum al-mukhalafah. But to
put this matter in its proper perspective, we would need to elaborate on the Shafi'i approach to textual
implications (al-dalalat') as a whole, and in the course of this general discussion, we shall turn to
mafhum al-mukhalafah in particular.
Principles of Islamic Jurisprudence ~
Kamali 124
Unlike the Hanafi classification of textual implications into four types, the Shafi'is have initially divided
al-dalalat into the two main varieties of dalalah al-mantuq (pronounced meaning) and dalalah almafhum
(implied
meaning). Both of these are derived from the words and sentences of the text. The
former
form the obvious text and the latter come through logical and juridical construction thereof. An
example
of dalalah
al-mantuq is
the
Qur'anic ayah
which
proclaims that 'God has permitted sale and
prohibited
usury' (al-Baqarah, 2:275). This text clearly speaks of the legality of sale and the prohibition
of
usury. Dalalah
al-mantuq has
in turn been subdivided into two types, namely dalalah
al-iqtida
(required
meaning), and dalalah
al-isharah (alluded
meaning). Both of these are either indicated in the
words
of the text or constitute a necessary and integral part of its meaning. As will be noted, even from
this
brief description, the difference between the Shafi'i and Hanafi approaches to the classification of
al-dalalat
is
more
formal than real.
[18. Badran, Usul, p. 429; Khudari, Usul, pp. 121-122; Hitu, Wajiz, p. 120.]
Abu Zahrah has
aptly observed that essentially all of the four Hanafi varieties of al-dalalat are, in one way or another,
founded in the actual words and sentences of the text. Despite the technical differences that might exist
between the four types of implications, they are basically all founded in the text. In this way all of the
four-fold Hanafi divisions of al-dalalat can be classified under dalalah al-mantuq.
[19. Abu Zahrah, Usul, p. 116.]
Dalalah al-mafhum is an implied meaning which is not indicated in the text but is arrived at by way of
inference. This is to a large extent concurrent with what the Hanafis have termed dalalah al-nass. But
the Shafi'is have more to say on dalalah al-mafhum in that they sub-divide this into the two types of
mafhum al-muwafaqah (harmonious meaning) and mafhum al-mukhalafah (divergent meaning). The
former is an implicit meaning on which the text may be silent but is nevertheless in harmony with its
pronounced meaning. This harmonious meaning (mafhum al-muwafaqah) may be equivalent to the
pronounced meaning (dalalah al-mantuq), or may be superior to it. If it is the former, it is referred to as
lahn al-khitab (parallel meaning) and if the latter, it is known as fahwa al-khitab (superior meaning).
For example, to extend the Qur'anic ruling in sura al-Nisa' (4:10) which only forbids 'devouring the
property of orphans' to other forms of mismanagement and waste, is a 'parallel' meaning (lahn alkhitab).
But
to extend the Qur'anic text which forbids the utterance of 'uff',
that is the slightest word of
contempt,
to, for instance, physical abuse of one's parents, is a meaning which is 'superior' to the
pronounced
meaning of the text.
[20. Hitu, Wajiz, p.124; Salih, Mabahith, p. 301.]
The validity of these forms of
harmonious meanings is approved by the ulema of all schools (except the Zahiris) who are generally in
agreement with the basic concept of mafhum al-muwafaqah. But this is not the case with regard to
mafhum al-mukhalafah, on which the ulema have disagreed.
[21. Badran, Usul, p. 430.]
As noted above, mafhum al-mukhalafah diverges from the pronounced meaning (dalalah al-mantuq) of
the text, which may, however, be either in harmony or in disharmony with it. It is only when mafhum
al-mukhalafah is in harmony with the pronounced meaning of the text that it is accepted as a valid form
of interpretation, otherwise it is rejected. For an example of the divergent meaning which is in harmony
Principles of Islamic Jurisprudence ~
Kamali 125
with the pronounced meaning of the text, we may refer to the Hadith which provides: 'When the water
reaches the level of qullatayn (approximately two feet) it does not carry dirt.'
518.]
[22. Ibn Majah, Sunan I, 172, Hadith no.
In this way when a polluting substance falls into water of this depth, it is still regarded as clean for
purposes of ablution. This is the pronounced, or explicit, meaning of the text. By way of mafhum almukhalafah,
it
is understood that water below this level is capable of 'retaining' dirt. This is an
interpretation
which is deemed to be in harmony with the pronounced meaning of the Hadith.
Usul, II, 114.]
According to the Shafi'is, deduction by way of mafhum al-mukhalafah is acceptable only if it fulfills
certain conditions, which are as follows: firstly, that the divergent meaning does not exceed the scope of
the pronounced meaning. For example, the Qur'anic ayah which prohibits 'saying uff' to one's parents
may not be given a divergent meaning so as to make physical abuse of them permissible. Secondly, that
the divergent meaning has not been left out in the first place for a reason such as fear or ignorance; for
example, if a man orders his servant to 'distribute this charity among the Muslims', but by saying so he
had actually intended people in need, whether Muslims or non-Muslims, and yet omitted to mention the
latter for fear of being accused of disunity by his fellow Muslims. Should there be evidence as to the
existence of such a fear, then no divergent meaning should be deduced. A similar case would be when a
person says that 'maintenance is obligatory for ascendants and descendants', while he did not know that
collaterals are also entitled to maintenance. Should there be evidence as to his ignorance on this point,
then no divergent meaning should be attempted to the effect, for example, of saying that maintenance is
not obligatory for collaterals. Thirdly, that the divergent meaning does not go against that which is
dominant and customary in favour of something which is infrequent and rare. To give an example: the
Qur'an provides concerning the prohibited degrees of relationship in marriage: 'and forbidden to you are
[...] your step-daughters who live with you, born of your wives with whom you have consummated the
marriage; but there is no prohibition if you have not consummated the marriage' (al-Nisa', 4:23). This
text is explicit on the point that marriage to a step-daughter who is under the guardianship of her stepfather
is forbidden to the latter. By way of mafhum
al-mukhalafah, this ayah might be taken to mean that a step-daughter who does not live in the house of her mother's husband may be lawfully married by the latter. But this would be a meaning which relies on what would be a rare situation. The probable and customary situation in this case would be that the step-daughter lives with her mother and her stepfather, which is why the Qur'an refers to this qualification, and not because it was meant to legalise marriage with the step-daughter who did not live with him .
[24. Hitu, Wajiz, p.125; Badran, Usul, p. 433.]
Fourthly, that
the original text is not formulated in response to a particular question or event. For instance, the Prophet
Principles of Islamic Jurisprudence ~
[23. Zuhayr,Kamali 126
was once asked if free-grazing livestock was liable to zakah; and he answered in the affirmative. But
this answer does not imply that the stall-fed livestock is not liable to zakah. The answer was originally
given to a question which specified the free-grazing livestock and not in order to exempt the stall-fed
variety from zakah. Fifthly, that the divergent meaning does not depart from the reality, or the particular
state of affairs, which the text is known to have envisaged. For example the Qur'an provides in a
reference to relations between Muslims and non-Muslims: 'Let not the believers befriend the
unbelievers to the exclusion of their fellow believers' (Al-'Imran, 3:28). This ayah apparently forbids
friendship with the unbelievers, but this is not the purpose of the text. This ayah was, in fact, revealed
in reference to a particular state of affairs, namely concerning a group of believers who exclusively
befriended the unbelievers, and they were forbidden from doing this; it did not mean to impose a ban on
friendship with unbelievers. The text, in other words, contemplated a particular situation and not the
enactment of a general principle, and should therefore not be taken out of context by recourse to
mafhum al-mukhalafah.
[25. Hitu, Wajiz, p. 126; Badran, Usul, p.434.]
Sixthly, that the divergent meaning does not lead
to a conclusion that would oppose another textual ruling. To give an example, we refer to the Qur'anic
text on the requirement of retaliation which provides: 'Retaliation is prescribed for you in cases of
murder: the free for the free, the slave for the slave, the woman for the woman [ ... ]' (alBaqarah, 2:178).
This text may not be taken by way of mafhum al mukhalafah to mean that a man is not retaliated against
for murdering a woman. For such a conclusion would violate the explicit ruling of another Qur'anic text
which requires retaliation for all intentional homicides on the broadest possible basis of 'life for life' (alMa'idah,
5:45).
The main restriction that the Hanafis have imposed on mafhum al mukhalafah is that it must not be
applied to a revealed text, namely the Qur'an and the Sunnah. As a method of interpretation, mafhum al
mukhalafah is thus validated only with regard to a non-revealed text. Only in this context, that is, in
regard to rational proofs and man-made law, can it provide a valid basis of hukm and ijtihad. The main
reason that the Hanafis have given in support of this view is that the Qur'an itself discourages reliance
on mafhum al-mukhalafah, for there are many injunctions in the Qur'an and Sunnah whose meaning
will be distorted if they were to be given divergent interpretation. To give an example, we read in the
Qur'an, in a reference to the number of months that God enacted on the day He created the universe,
that there shall be twelve months in a year. The text then continues to provide that 'four of them are
sacred, so avoid committing acts of oppression [zulm] therein' (al Tawbah, 9:36).
Muharram, Dhu al-Hijjah, Dhu al-Qi'dah and Rajab]
[26. These are the months of
By way of mafhum al-mukhalafah, this text could be taken to mean
that acts of oppression are permissible during the rest of the year. This would obviously corrupt the
purpose of this text, as oppression is always forbidden regardless of the time in which it is
committed.
[27. Badran, Usul, p. 435.]
Similarly, there is a Hadith which instructs the believers that 'none of you
may urinate in permanently standing water nor may you take a bath therein to cleanse yourselves of
major pollution (janabah)'.
[28. Tabrizi, Mishkat, I, 148; Hadith no. 474.]
Principles of Islamic Jurisprudence ~
Kamali 127
By way of mafhum al mukhalafah, this text could be taken to mean that taking a bath other than the one
specifically for janabah is permissible in such water, or that urinating is permissible in flowing water,
neither of which would be correct. Bathing in small ponds below a certain depth is not permitted
whether it be for janabah or otherwise.
The Hanafis have further concluded that whenever necessary the Qur'an itself has stated the divergent
implications of its own rulings, and when this is the case, the divergent meaning becomes an integral
part of the text and must be implemented accordingly. This style of the Qur'anic legislation suggests
that if recourse to mafhum al-mukhalafah were generally valid, there would be no need for it to be
explicitly spelled out in the Qur'anic text. The Qur'an, in other words, is self-contained and does not
leave it to us to deduce the law from it by recourse to divergent interpretation. Note, for example, the
text which instructs the husband to avoid sexual intercourse with his wife during her menstruation. The
text then immediately follows on to specify its own divergent implication: 'And approach them not until
they are clean. But when they have purified themselves, you may approach them' (al-Baqarah, 2:223).
In the same sura, there is another text, to which reference has already been made, concerning the
prohibition of marriage between the step-daughter and her step-father who has consummated the
marriage with her mother. The text then continues to specify its divergent meaning by providing that
'there is no prohibition if you have not consummated the marriage' (al-Baqarah, 2:23). The Hanafis have
thus concluded that mafhum al-mukhalafah is not applicable to the nusus of the Qur'an and Sunnah. We
only deduce from the nusus such rules as are in harmony with their explicit terms.
118.]
[29. Abu Zahrah, Usul, pp. 117-
The Shafi'is and the Malikis who validate the application of mafhum al-mukhalafah to the nusus have,
in addition to the conditions that were earlier stated, imposed further restrictions which consist of
specifying exactly what forms of linguistic expressions are amenable to this method of interpretation.
For this purpose the Shafi'is have sub-divided mafhum al-mukhalafah into four types. The main purpose
of this classification is to introduce greater accuracy into the use of mafhum al-mukhalafah, specifying
that it is an acceptable method of deduction only when it occurs in any of the following forms but not
otherwise:
1. Mafhum al-Sifah (Implication of the Attribute). When the ruling of a text is dependent on the
fulfillment of a quality or an attribute then the ruling in question obtains only when that quality is
present; otherwise it lapses. This can be shown in the Qur'anic text on the prohibited degrees of
Principles of Islamic Jurisprudence ~
Kamali 128
relations in marriage which includes 'the wives of your sons proceeding from your loins' (al-Nisa' 4:23).
The pronounced meaning of this text is the prohibition of the wife of one's own son in marriage. The
son has thus been qualified in the text by the phrase 'proceeding from your loins'. By way of mafhum almukhalafah,
it
is concluded from this qualification that the wife of an adopted son, or of a son by
fosterage
(rada'a),
that
is a child who has suckled the breast of one's wife, is not prohibited.
p. 432; Salih, Mabahith, p. 302; Khudari, Usul, p. 123.]
2. Mafhum al-Shart (Implication of the Condition). When the ruling of a text is contingent on a
condition, then the ruling obtains only in the presence of that condition, and lapses otherwise. An
example of this is the Qur'anic text on the entitlement to maintenance of divorced women who are
observing their waiting period ('iddah). The text proclaims: 'If they are pregnant, then provide them
with maintenance until they deliver the child' (al-Talaq, 65:6). The condition here is pregnancy and the
hukm applies only when this condition is present. By way of mafhum al-mukhalafah, it is concluded, by
those who validate this method at least, that maintenance is not required if the divorced woman, who is
finally divorced, is not pregnant. Similarly, the Qur'anic text which provides for a concession in regard
to fasting is conveyed in conditional terms. Having laid down the duty of fasting, the text then
continues: 'but if any one is ill or traveling, the prescribed fasting should be observed later' (al-Baqarah,
2:185). By way of mafhum al-mukhalafah, it is concluded that the concession to break the fast does not
apply if one is neither ill nor traveling, which is a valid interpretation.
[31. Hitu, Wajiz, p. 127;]
3. Mafhum al-Ghayah (Implication of the Extent). When the text itself demarcates the extent or scope
of the operation of its ruling, the latter will obtain only within the scope of the stated limits and will
lapse when the limit is surpassed. To illustrate this, the Qur'anic text on the time of fasting provides the
farthest limit beyond which one must stop eating and drinking during Ramadan: 'Eat and drink until you
see the white streak [of dawn in the horizon] distinctly from the black' (al-Baqarah, 2:187). By way of
mafhum al-mukhalafah, it is concluded that when whiteness appears in the horizon, one may neither eat
nor drink.
[32. Khudari, Usul, p. 123]
4. Mafhum al-Adad (Implication of the Stated Number). When the ruling of a text is conveyed in terms
of a specified number, the number so stated must be carefully observed. Thus the Qur'anic text on the
punishment of adultery is clearly stated to be one hundred lashes (al-Nur, 24:2) By way of mafhum almukhalafah
this
text is taken to mean that it is not permissible either to increase or decrease the stated
number
of lashes.
[33. Khudari, Usul, p. 123.]
In conclusion, it may be said that the foregoing methods are generally designed to encourage rational
enquiry in the deduction of the ahkam from the divinely revealed sources. They provide the jurist and
the mujtahid with guidelines so as to ensure the propriety of interpretation and ijtihad. The restrictions
Principles of Islamic Jurisprudence ~
[30. Badran, Usul,Kamali 129
that are imposed on the liberty of the mujtahid are obvious enough in that the textual rulings of the
Qur'an and Sunnah must be treated carefully so that they are not stretched beyond the limits of their
correct implications. Yet the main thrust of the guidelines that are provided is one of encouragement to
the exercise of rational enquiry in the understanding and implementation of the nusus. The rules of
interpretation that are discussed under this and the preceding chapter are once again indicative of the
primacy of revelation over reason, and yet they are, at the same time, an embodiment of the significant
role that reason must play side by side with the revelation. The two are substantially concurrent and
complementary to one another.Chapter Six: Commands and Prohibitions
The language of the Qur'an (and the Sunnah) differs from that of modern statutes in that Qur'anic
legislation is not confined to commands and prohibitions and their consequences, but is often coupled
with an appeal to the conscience of the individual. This moral appeal may consist of a persuasion or a
warning, an allusion to the possible benefit or harm that may accrue from observing or violating an
injunction, or a promise of reward/punishment in the hereafter. Modern laws are often devoid of such
appeals, as they are usually confined to an exposition of imperative rules anti their tangible results.
Shaltut, Islam, p 499.]
Commands and prohibitions in the Qur'an occur in a variety of forms. While an injunction is normally
expected to be in the imperative mood, there are occasions where a simple past is used as a substitute.
For example, the injunctions that `retaliation is prescribed for you in cases of murder' and that `fasting
is prescribed for you' (al-Baqarah, 2:178 and 183) are both expressed in the past tense. Similarly, a
Qur'anic injunction may occur in the form of a moral condemnation of a certain form of conduct, such
as the rule on the sanctity of private dwellings which provides: 'It is no virtue to enter houses from the
back' (al-Baqarah, 2: 189)
[2. This is one of the several ayat which occur in the Qur’an concerning the privacy of one's home.]
. Also, a
Qur'anic command/prohibition may be conveyed in the form of an allusion to the consequences of a
form of conduct, such as a promise of reward or punishment in the hereafter. For example, after
expounding the rules of inheritance in sura al-Nisa' (4:13-14) the text goes on to promise to those who
observe them a reward, and warns violators of a punishment, in the hereafter.
I. Commands
A command proper (amr) is defined as a verbal demand to do something issued from a position of
superiority over who is inferior.
[3. Badran, Usul, p. 360.]
Command in this sense differs from both supplication
(du`a') and request (iltimas) in that the former is a demand from an inferior to one who is superior,
whereas a request is a demand among people of equal or near-equal status. Since a verbal command can
mean different things, namely an obligatory order, a mere recommendation, or even permissibility, the
ulema have differed as to which of these is the primary and which the secondary meaning of a
command. Some have held the view that amr is in the nature of a homonym (mushtarak) which imparts
all of these meanings. Others have held that amr partakes in only two of these concepts, namely
obligation and recommendation, butt not permissibility. Still others have held that amr implies a
Principles of Islamic Jurisprudence ~ Kamali 131
[1. Cf
meaning that is most likely to prevail, unless there be evidence to suggest otherwise.
The Haqiqi is sub-divided, according to the context in which it occurs, into linguistic (lughawi),
customary (urfi) and juridical (shar'i). The linguistic Haqiqi is a word which is used in its dictionary
meaning, such as 'lion' for that animal, and 'man' for the male gender of the human being. The
customary Haqiqi occurs in the two varieties of general and special: when a word is used in a
customary sense and the custom is absolutely common among people, the customary Haqiqi is
classified as general, that is, in accord with the general custom. An example of this in Arabic is the
word 'dabbah' which in its dictionary meaning applies to all living beings that walk on the face of the
earth, but which has been assigned a different meaning by general custom, that is, an animal walking on
four legs. But when the customary Haqiqi is used for a meaning that is common to a particular
profession or group, the customary Haqiqi is classified as special, that is, in accord with a special
custom. For example the Arabic word raf ('nominative') and nasb ('accusative') have each acquired a
technical meaning that is common among grammarians and experts in the language.
There is some disagreement as to the nature of the juridical Haqiqi, as some ulema consider this to be a
variety of the Majazi, but having said this, the juridical Haqiqi is defined as a word which is used for a
juridical meaning that the Lawgiver has given it in the first place, such as 'salah', which literally means
'supplication' but which, in its well-established juridical sense, is a particular form of worship.
Similarly, the word 'zakah literally means 'purification', but in its juridical sense, denotes a particular
form of charity whose details are specified in the Shari'ah.
[75. Badran, Usul, p.394; Hitu,Wajiz, p. 112 .]
It would take us too far afield to describe the sub-divisions of the Majazi, as we are not primarily
concerned with technical linguistic detail. Suffice it to point out here that the Majazi has also been
divided into linguistic, customary and juridical varieties. However, there is one other classification
which merits our attention. This is the division of the Haqiqi and Majazi into plain (Sarih) and allusive
(Kinayah).
If the application of a word is such that it clearly discloses the speaker's intention, it is plain, otherwise
it is allusive. The highest degree of clarity in expression is achieved by the combination of the plain
(Sarih) and the literal (Haqiqi) such as the sentence 'Ahmad bought a house', or 'Fatimah married
Ahmad'. The plain may also be combined with the metaphorical, as in the sentence 'I ate from this tree',
while it is intended to mean 'from the fruit of this tree'.
Principles of Islamic Jurisprudence ~
[74. Hitu, Wajiz, p. 115.] Kamali 114
The 'allusive' or Kinayah denotes a form of speech , which does not clearly disclose the intention of its
speaker. It can occur in combination with the literal or the metaphorical. When a person wishes, for
example, to confide in his colleague in front of others, he might say 'I met your friend and spoke to him
about the matter that you know'. This is a combination of the literal and the allusive in which all the
words used convey their literal meanings but where the whole sentence is allusive in that it does not
disclose the purpose of the speaker with clarity. Supposing that a man addresses his wife and tells her in
Arabic 'i'taddi' (start counting) while intending to divorce her. This utterance is allusive, as 'counting'
literally means taking a record of numbers, but is used here in reference to counting the days of the
waiting period of 'iddah. This speech is also metaphorical in that the 'iddah which is caused by divorce
is used as a substitute for 'divorce'. It is a form of Majazi in which the effect is used as a substitute for
the cause.
[76. See for further detail on the various forms of the Majazi, Abdur Rahim, Jurisprudence, pp. 94-97; Badran, Usul, p. 397 ff.]
When a speech consists of plain words, the intention of the person using them is to be gathered from the
words themselves, and there is no room for further enquiry as to the intention of the speaker. Thus when
a man tells his wife 'you are divorced', the divorce is pronounced in plain words and occurs regardless
of the husband's intention. But in the case of allusive words, one has to ascertain the intention behind
them and the circumstances in which they were uttered. Thus when a man tells his wife 'you are
forbidden to me', or when he asks her to 'join your relatives', no divorce will take place unless there is
evidence to show that the husband intended a divorce.
[77. Badran, Usul, p. 398]
Legal matters which require certainty, such as offences entailing the hadd punishment, cannot be
established by language which is not plain. For example when a person confesses to such offences in
allusive words, he is not liable to punishment.
[78. Abdur Rahim, Jurisprudence, p. 98.]
The jurists are in agreement that a word may be used metaphorically while still retaining its literal
meaning, such as the word 'umm' (mother) which the Arabs sometimes use metaphorically for
'grandmother' and yet still retains its literal meaning. But there is disagreement among the ulema of usul
as to whether both the literal and metaphorical meanings of a word can be applied simultaneously.
When, for example, a man orders his servant to 'kill the lion', could this also include a brave person?
The Hanafis and the Mu'tazilah have answered this question in the negative, saying that words normally
carry their literal meanings unless there is evidence to warrant a departure to another meaning. The
Shafi'is and the ulema of Hadith have held, on the other hand, that the literal and the metaphorical
meaning of a word can be simultaneously applied. They have thus validated either of the two meanings
of the Qur'anic provision 'or when you have touched women' (al-Nisa', 4:43), which could mean
touching the women with the hand, or touching in the sense of having sexual intercourse. The text in
Principles of Islamic Jurisprudence ~
Kamali 115
which this ayah occurs spells out the circumstances that break the state of purity. Thus when a Muslim
'touches a woman' he must take a fresh ablution for the next salah. But according to the Hanafis, the
Qur'anic ayah on this point only conveys the metaphorical meaning of 'touching', that is, sexual
intercourse. Hence when a person is in the state of ablution, and then touches a woman by the hand, his
ablution remains intact. For the Shafi'is, however, the key word in this ayah carries both its literal and
metaphorical meanings simultaneously. Consequently the state of purity is broken, not only by sexual
intercourse, but also by a mere touch such as a handshake with a woman who is not of one's family.
Badran, Usul, p. 397.]
The Homonym (Mushtarak)
A homonym is a word which has more than one meaning. Some ulema, including al-Shafi'i, have held
the view that the homonym is a variety of 'Amm. The two are, however, different in that the homonym
inherently possesses more than one meaning, which is not necessarily the case with the 'Amm. An
example of the Mushtarak in Arabic is the word "ayn' which means several things, including eye,
water-spring, gold, and spy. Similarly the word 'qur" has two meanings, namely menstruation, and the
clean period between two menstruations. The Hanafis, the Hanbalis and the Zaydis have upheld the
first, while the Shafi'is, Malikis and Ja'faris have upheld the second meaning of qur'.
132; EI2, IV, 101.]
The plurality of meanings in a homonym may be due to the usage of different Arab tribes and
communities. Some used it for one meaning, others for the other. Otherwise a word may have acquired
a metaphorical meaning which became literal in course of time. When Mushtarak occurs in the Qur'an
or Sunnah, it denotes one meaning alone, not more than one. For the Lawgiver does not intend more
than one meaning for a word at any given time. The Shafi'is and some Mutazilah have taken exception
to this view as they maintain that in the absence of any indication in support of one of the two or more
meanings of a Mushtarak, both or all may be upheld simultaneously provided that they do not
contradict one another. According to a variant view, however, plurality of meanings on a simultaneous
basis is permissible in negation or denial (nafy) but not in affirmation and proof (ithbat). If, for
example, Ahmad says 'I did not see a 'ayn (ma ra'aytu 'aynan)', 'ayn in this negative statement could
comprise all of its various meanings. But if Ahmad says 'I saw a 'ayn', than 'ayn in this statement must
be used for only one of its several meanings.
Principles of Islamic Jurisprudence ~ Kamali 116
[80. Abu Zahrah, Usul, p.
[81. Shawkani, Irshad, p. 21; Isnawi, Nihayah, I, 166; Abu Zahrah, Usul, p. 133.]
This
view, however, does not extend to commands and prohibitions which do not admit of affirmation or
denial as such. The rule in regard to commands and prohibitions of the Shari'ah is that the Lawgiver
does not intend to uphold more than one of the different meanings of a homonym at any given time. An
example of a homonym which occurs in the context of a Qur'anic command is the word 'yad' (hand) in
'as for the thief, male or female, cut off their hands' (al-Ma'idah, 5:38). 'Hand' in this ayah has not been
qualified in any way, hence it can mean 'hand' from the tip of the fingers up to the wrist, or up to the
elbow, or even up to the shoulder; it also means left or right hand. But the ulema have agreed on the
first and the last of these meanings, that is, the right hand, up to the wrist.
[82. Khallaf, 'Ilm, p. 180.]
To illustrate
the homonym in the context of a prohibitory order in the Qur'an we refer to the word 'nakaha' in sura
al-Nisa' (4:22) which reads, 'and marry not women whom your fathers had married (ma nakaha
aba'ukum)'. 'Nakaha' is a homonym which means both marriage and sexual intercourse. The Hanafis,
the Hanbalis, al-Awza'i and others have upheld the latter, whereas the Shafi'is and the Malikis have
upheld the former meaning of nakaha. According to the first view, a woman who has had sexual
intercourse with a man is forbidden to his children and grandchildren; a mere contract of marriage,
without consummation, would thus not amount to a prohibition in this case. The Shafi'is and Malikis,
however, maintain that the text under discussion only refers to the contract of marriage. Accordingly a
woman who has entered a contract of marriage with one's father or grandfather is unlawful for one to
marry regardless as to whether the marriage had been consummated or not .
[83. Badran, Bayan, pp. 103-104.]
To determine which of the two or more meanings of the Mushtarak is to be upheld in a particular
locution, reference is usually made to the context and circumstances in which it occurs. If it is a
locution that pertains to the Shari'ah, then determining the precise purport of its words must also take
into consideration the general principles and objectives of the Shari'ah. The Mushtarak is in the nature
of Mushkil (difficult) and it is for the Mujtahid to determine its correct meaning by means of research
and ijtihad; it is his duty to do so in the event where Mushtarak constitutes the basis of a judicial order
.
[84. Abu Zahrah, Usul, p.133; Khallaf, 'Ilm, p.179.]
The mujtahid will normally look into the context. When, for example,
a homonym has two meanings, one literal and the other juridical, and it occurs in a juridical context,
than as a rule the juridical meaning will prevail. With words such as salah and talaq, for example, each
possesses a literal meaning, that is 'supplication' and 'release' respectively, but when they occur in a
juridical context, then their juridical meanings will take priority. As such, salah would be held to refer
to a particular form of worship, and talaq would mean 'dissolution of marriage'.
Finally it will be noted in passing that Mushtarak as a concept is not confined to nouns but also includes
verbs. In our discussion of commands and prohibitions in a separate chapter, we have shown how a
word in its imperative mood can impart more than one meaning. We have also discussed and illustrated
the words of the Qur'an that occur in the imperative mood, but the juridical value that they convey can
either be an obligatory command, a recommendation, or mere permissibility.
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Kamali 117
Chapter Five: Rules of Interpretation II: Al-Dalalat (Textual Implications)
The law normally requires compliance not only with the obvious meaning of its text but also with its
implied meaning, and indirect indications and inferences that could be drawn from it. With reference to
the textual rulings of the Qur'an and the Sunnah, the ulema of usul have distinguished several shades of
meaning that a nass may be capable of imparting. The Hanafi jurists have distinguished four levels of
meaning in an order which begins with the explicit or immediate meaning of the text. Next in this order
is the 'alluded' meaning which is followed by the 'inferred' meaning, and lastly by the 'required'
meaning. There is yet a fifth variety of meaning, namely the 'divergent' meaning, which is somewhat
controversial but has, in principle, been accepted, as our discussion will show. The explicit meaning
(ibarah al-nass), which is based on the words and sentences of the text, is the dominant and most
authoritative meaning which takes priority over the other levels of implied meanings that might be
detectable in the text. In addition to its obvious meaning, a text may impart a meaning which is
indicated by the signs and allusions that it might contain. This secondary meaning is referred to as
isharah al-nass, that is the alluded meaning. A legal text may also convey a meaning which may not
have been indicated by the words or signs and yet is a complementary meaning which is warranted by
the logical and juridical purport of the text. This is known as dalalah al-nass, or the inferred meaning,
which is one degree below the alluded meaning by virtue of the fact that it is essentially extraneous to
the text. But as will later be discussed, there is a difference of opinion between the Hanafi and the
Shafi'i, jurists as to whether the inferred meaning should necessarily be regarded as inferior to the
alluded meaning. Next in this order is the iqtida' al-nass, or the required meaning, which is once again a
logical and necessary meaning without which the text would remain incomplete and would fail to
achieve its desired purpose.
[1. Khallaf, 'Ilm, p.143; Badran, Usul, p. 417.]
When there is a conflict between the first and
the second meanings, priority is given to the first. Similarly, the second will take priority over the third
and the third over the fourth, as we shall presently explain.
I. The Explicit Meaning (Ibarah al-Nass)
As already stated, this is the immediate meaning of the text which is derived from its obvious words
and sentences. The explicit meaning represents the principal theme and purpose of the text, especially
in cases where the text might impart more than one meaning and comprises in its scope a subsidiary
theme or themes in addition to the one which is obvious. In its capacity as the obvious and dominant
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Kamali 118
meaning, the 'ibarah al-nass is always given priority over the secondary and subsidiary themes or
meanings of the text. To illustrate this, we refer to the Qur'anic passage on the subject of polygamy, a
text which conveys more than one meaning, as follows 'And if you fear that you may be unable to treat
the orphans fairly, then marry of the women who seem good to you, two, three or four. But if you fear
that you cannot treat [your co-wives] equitably, then marry only one. . .' (al-Nisa', 4:3). At least three or
four meanings are distinguishable in this text which are: first, the legality of marriage, a meaning which
is conveyed by the phrase fankihu ma taba lakum min al-nisa' ('marry of the women who seem good to
you'); second, limiting polygamy to the maximum of four; third, remaining monogamous if polygamy
may be feared to lead to injustice; and fourth, the requirement that orphaned girls must be accorded fair
treatment, a meaning which is indicated in the first part of the text. All of these are conveyed in the
actual words and sentences of the text. But the first and the last are subsidiary and incidental whereas
the second and the third represent the explicit themes and meanings of the text, that is, the 'ibarah alnass.
Limiting
polygamy to the maximum of four is the explicit meaning which takes absolute priority
over
all the implied and incidental meanings that this text might convey.
[2. Khallaf, 'Ilm, p. 145.]
Most of the nusus of Shari'ah convey their rulings by way of 'ibarah al-nass. Thus the command to
perform the obligatory prayers, to observe the fast during Ramadan, to enforce the prescribed penalties
for certain offences, to give specified shares to the legal heirs in inheritance, etc., are all instances of
'ibarah al-nass. The effect of 'ibarah al-nass is that it conveys a definitive ruling hukm qat'i on its own
and is in no need of corroborative evidence. But if the text is conveyed in general terms, it may be
susceptible to qualification, in which case it may not impart a definitive rule of law but a speculative
(zanni) evidence only.
[3. Badran, Usul, pp. 419-420; Khudari, Usul, p. 119.]
II. The Alluded Meaning (Isharah al-Nass)
The text itself may not be obvious with regard to its alluded meaning, but it imparts, nevertheless, a
rationally concomitant meaning which is obtained through further investigation of the signs that might
be detectable therein. Since the alluded meaning does not represent the principal theme of the text and
yet embodies a necessary inference, it is called isharah al-nass. The alluded meaning may be easily
detectable in the text, or may be reached through deeper investigation and ijtihad. An example of the
isharah al-nass in the Qur'an is the text concerning the maintenance of young children which provides:
'It is his [father's] duty to provide them with maintenance and clothing according to custom' (alBaqarah,
2:233). The explicit meaning of this text obviously determines that it is the father's duty to
support
his child. It is also understood from the wording of the text, especially from the use of the
pronoun
'lahu'
(his) that only the father and no-one else bears this obligation. This much is easily
Principles of Islamic Jurisprudence ~
Kamali 119
detectable and constitutes the explicit meaning of this text. But to say that the child's descent is solely
attributed to the father and his identity is determined with reference to that of the father is a rational and
concomitant meaning which is derived through further investigation of the signs that are detectable in
the text.
[4. Abu Zahrah, Usul, p. 111; Khudari, Usul, p. 120.]
Similarly, the rule that the father, when in dire need, may
take what he needs of the property of his offspring without the latter's permission is yet another
meaning which is derived by way of isharah al-nass. This meaning is derived from the combination of
the text under discussion and the Hadith of the Prophet which proclaims that 'you and your property
both belong to your father'.
[5. Tabrizi, Mishkat, II, 1002, Hadith no.3354; Khallaf, 'Ilm, p.146.]
Another example of a combination of the explicit and alluded meanings occurring in the same text is
the Qur'anic ayah on the permissibility of divorce which provides, in an address to the believers: 'There
shall be no blame on you if you divorce your wives with whom you had no sexual intercourse, nor had
you assigned for them a dower' (al-Baqarah, 2:236). The explicit meaning of this text is that divorce is
permissible prior to the consummation of marriage and the assignment of a dower. The alluded meaning
here is the legality of concluding a contract of marriage without the assignment of a dower (mahr). For
a divorce can only occur when there is a subsisting marriage. The text implies this to be the case' and
that a marriage can legally exist even without the assignment of a mahr.
[6. Badran, Usul, p. 420.]
To give yet another example of isharah al-nass we may refer to the Qur'anic text on consultation
(shura) where we read, in an address to the Prophet, 'So pardon them [the Companions] and ask for
[God's] forgiveness for them and consult them in affairs' (Al-'Imran, 3:159). The 'ibarah al-nass in this
text requires that community affairs must be conducted through consultation. The alluded meaning of
this text requires the creation of a consultative body in the community to facilitate the consultation
which is required in the obvious text.
The effect of isharah al-nass is similar to that of 'ibarah al-nass in that both constitute the basis of
obligation, unless there is evidence to suggest otherwise. To illustrate this, we may refer once again to
the Qur'anic text (al-Baqarah, 2:233) which laid down the rule that the child follows the descent of his
father. This is a definitive ruling (hukm qat'i) which has, however, been set aside by ijma' in respect of
slavery to the effect that the offspring of a slave does not necessarily acquire the status of his father. In
this example, the isharah al-nass initially laid down a definitive ruling but it has been set aside in
respect of slavery by another definitive evidence, namely the ijma'.
III. The Inferred Meaning (Dalalah al-Nass)
[7. Badran, Usul, p. 421.]
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Kamali 120
This is a meaning which is derived from the spirit and rationale of a legal text even if it is not indicated
in its words and sentences. Unlike the explicit meaning and the alluded meaning which are both
indicated in the words and signs of the text, the inferred meaning is not so indicated. Instead, it is
derived through analogy and the identification of an effective cause ('illah) which is in common
between the explicit meaning and the meaning that is derived through inference. This might explain
why some ulema have equated dalalah al-nass with analogical deduction, namely qiyas jali. To
illustrate this, we may refer to the Qur'anic text on the obligation to respect one's parents. In particular,
the text provides, 'and say not uff to them' (al-Isra' 17:23), which obviously forbids the utterance of the
slightest word of contempt to the parents. The effective cause of this prohibition is honouring the
parents and avoiding offence to them. There are, of course, other forms of offensive behaviour, besides
a mere contemptuous word such as uff, to which the effective cause of this prohibition would apply.
The inferred meaning of this text is thus held to be that all forms of abusive words and acts which
offend the parents are forbidden even if they are not specifically mentioned in the text under
consideration.
[8. Abu Zahrah, Usul, p. 112.]
To give another example, the Qur'an proclaims, concerning the property of orphans, that 'those who
unjustly devour the property of the orphans only devour fire into their bodies' (al-Nisa', 4:10). The
explicit meaning of this text forbids guardians and executors from devouring the property of their
orphaned wards for their personal gain. But by way of inference the same prohibition is extended to
other forms of destruction and waste which might have been caused, for example, through financial
mismanagement that does not involve personal gain and yet leads to the loss and destruction of the
property of the orphans. Although the text provides no indication as to the different ways in which
destruction can be caused, they are nevertheless equally forbidden. As already stated, this kind of
inference is equivalent to what is known as obvious analogy (qiyas jali) which consists of identifying
the effective cause of a textual ruling, and when this is identified the original ruling is analogically
extended to all similar cases. The effective cause of the ruling in the foregoing ayah is protection of the
orphans' property, and any act which causes destruction or loss of such property falls under the same
prohibition.
[9. Khallaf, 'Ilm, p. 150.]
IV. The Required Meaning (Iqtida' al-Nass)
This is a meaning on which the text itself is silent and yet which must be read into it if it is to fulfill its
proper objective. To give an example, the Qur'an proclaims concerning the prohibited degrees of
relations in marriage: 'unlawful to you are your mothers and your daughters . . .' (al-Nisa', 4:22). This
Principles of Islamic Jurisprudence ~
Kamali 121
text does not mention the word 'marriage', but even so it must be read into the text to complete its
meaning. Similarly we read elsewhere in the Qur'an: 'unlawful to you are the dead carcass and blood'
(al-Ma'idah, 5:3), without mentioning that these are unlawful 'for consumption'. But the text requires the
missing element to be supplied in order that it may convey a complete meaning.
To give a slightly different example of iqtida' al-nass, we may refer to the Hadith which provides:
"There is no fast (la siyama) for anyone who has not intended it from the night before."
The missing element could either be that the fasting is 'invalid' or that it is 'incomplete'. The Hanafis
have upheld the latter whereas the Shafi'is have read the former meaning into this Hadith. Whichever
meaning is upheld, the consequences that it may lead to will vary accordingly.
no. 1700; Badran, Usul, p. 424.]
[10. Ibn Majah, Sunan, I, 542, Hadith
To summarise, a legal text may be interpreted through the application of any one or more of the four
varieties of textual implications. The meaning that is arrived at may be indicated in the words of the
text, by the signs which occur therein, by inference, or by the supplementation of a missing element.
These methods of legal construction may be applied individually or in combination with one another,
and they are all designed to carry the text to its proper and logical conclusions.
As stated above, in the event of a conflict between the 'ibarah al-nass and the isharah al-nass, the
former prevails over the latter. This may be illustrated by a reference to the two Qur'anic ayat
concerning the punishment of murder. One of these explicitly proclaims that 'retaliation is prescribed
for you in cases of murder' (al-Baqarah, 2:178). But elsewhere in the Qur'an, it is provided: 'Whoever
deliberately kills a believer, his punishment will be permanent hellfire' (al-Nisa', 4:93). The explicit
meaning of the first ayah provides that the murderer must be retaliated against; the explicit meaning of
the second ayah is that the murderer is punished with permanent hellfire. The alluded meaning of the
second ayah is that retaliation is not a required punishment for murder; instead the murderer will,
according to the explicit terms of this ayah be punished in the hereafter. There is no conflict in the
explicit meanings of the two texts, but only between the explicit meaning of the first and the alluded
meaning of the second. A conflict thus arises as to which of the two punishments are to be upheld. But
since the first ruling constitutes the explicit meaning of the text and the second is an alluded meaning,
the former prevails over the latter.
[11. Abu Zahrah, Usul, p.115; Khallaf, 'Ilm, p.150.]
For another illustration of a conflict between the explicit and the alluded meanings, we refer to the
Qur'anic text which informs the believers of the dignified status of the martyrs, as follows: 'And think
Principles of Islamic Jurisprudence ~
Kamali 122
not of those who are slain in God's way as dead; they are alive, finding their sustenance in the presence
of God' (Al-'Imran, 3:169). The explicit terms of this text obviously declare the martyrs to be alive and
that anyone who thinks they are dead is mistaken. The alluded meaning of this text is held to be that no
funeral prayer is necessary for the martyr as he is deemed to be still alive. However, this conclusion
conflicts with the explicit meaning of another Qur'anic text which orders, concerning the dead in
general, to 'pray on their behalf [salli 'alayhim] as your prayers are a source of tranquility for them' (alTawbah,
9:103). This text explicitly requires prayers for everyone, martyr or otherwise, as they are dead
literally
and juridically and their property may be inherited by their legal heirs, etc. This is the explicit
meaning
of this second text and it prevails over the alluded meaning of the first.
[12. Badran, Usul, p. 428.]
To illustrate the conflict between the alluded meaning and the inferred meaning, we refer firstly to the
Qur'anic text on the expiation of erroneous homicide which provides: 'The expiation (kaffarah) of
anyone who erroneously kills a believer is to set free a Muslim slave' (al-Nisa', 4:92). The explicit
meaning of this ayah is that erroneous homicide must be expiated by releasing a Muslim slave. By way
of inference, it is further understood that freeing a Muslim slave would also be required in intentional
homicide. For the purpose of kaffarah is compensation and atonement for a sin. It is argued that the
murderer is also a sinner and has committed a sin far greater then the one who kills as a result of error.
The inferred meaning derived in this way is that the murderer is liable, at least, to the same kaffarah
which is required in erroneous homicide. However, according to the next ayah in the same passage, to
which reference has already been made: 'Whoever deliberately kills a believer, his punishment is
permanent hellfire' (al-Nisa', 4:93). The alluded meaning of this text is that freeing a slave is not
required in intentional killing. This meaning is understood from the explicit terms of this ayah which
provide that the punishment of deliberate homicide is a permanent abode in hell. This would in turn
imply that murder is an unpardonable sin, and as such there is no room for kaffarah in cases of murder.
This is the alluded meaning of the second ayah; and a conflict arises between this and the inferred
meaning of the first ayah. The alluded meaning, which is that the murderer is not required to pay a
kaffarah, takes priority over the inferred meaning that renders him liable to payment.
Khallaf, 'Ilm, p. 153.]
The Shafi'is are in disagreement with the Hanafis on the priority of the alluded meaning over the
inferred meaning. According to the Shafi'is, the inferred meaning takes priority over the alluded
meaning. The reason given for this is that the former is founded in both the language and rationale of
the text whereas the latter is not; that the alluded meaning is only derived from a sign which is basically
weaker than the words and the rationale of the text, and that the inferred meaning is a closer meaning
and should therefore be given priority over the alluded meaning. It is on the basis of this analysis that,
in the foregoing example, the Shafi'is have given priority to the inferred meaning of the text with the
result that the murderer is also required to pay the kaffarah.
[14. Abu Zahrah, Usul, p.115.]
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[13. Badran, Usul, p. 429; Kamali 123
V. Divergent Meaning (Mafhum al-Mukhalafah) and the Shafi'i Classification of al-Dalalat
The basic rule to be stated at the outset here is that a legal text never implies its opposite meaning, and
that any interpretation which aims at reading a divergent meaning into a given text is unwarranted and
untenable. If a legal text is at all capable of imparting a divergent meaning, then there needs to be a
separate text to validate it. But any attempt to obtain two divergent meanings from one and the same
text is bound to defy the very essence and purpose of interpretation. This argument has been more
forcefully advanced by the Hanafis, who are basically of the view that mafhum al-mukhalafah is not a
valid method of interpretation.
[15. Khallaf, 'Ilm, p.153.]
Having said this, however, mafhum al-mukhalafah is
upheld on a restrictive basis not only by the Shafi'is but even by the Hanafis; they have both laid down
certain conditions which must be fulfilled so as to ensure the proper use of this method.
Mafhum al-mukhalafah may be defined as a meaning which is derived from the words of the text in
such a way that it diverges from the explicit meaning thereof.
[16. Hitu, Wajiz, p. 125.]
To give an example, the
Qur'an proclaims the general rule of permissibility (ibahah) of foodstuffs for human consumption with
a few exceptions which are specified in the following text: 'Say, I find nothing in the message that is
revealed to me forbidden for anyone who wishes to eat except the dead carcass and blood shed forth'
(daman masfuhan) (al-An'am, 6:145). With reference to the latter part of this text, would it be valid to
suggest that blood which is not shed forth (dam ghayr masfuh) is lawful for human consumption? The
answer to this question is in the negative. For otherwise the text would be subjected to an interpretation
which is most likely to oppose its obvious meaning. As for the permissibility of unspilt blood such as
liver and spleen, which consist of clotted blood, this is established, not by the ayah under consideration,
but by a separate text. Liver and spleen are lawful to eat by virtue of the Hadith of the Prophet which
proclaims that 'lawful to us are two types of corpses and two types of blood. These are the fish, the
locust, the liver and the spleen.
[17. Tabrizi, Mishkat, II, 203, Hadith no. 4132; Khallaf, 'Ilm, p. I54.]
As already indicated, the Shafi'is have adopted a different approach to mafhum al-mukhalafah. But to
put this matter in its proper perspective, we would need to elaborate on the Shafi'i approach to textual
implications (al-dalalat') as a whole, and in the course of this general discussion, we shall turn to
mafhum al-mukhalafah in particular.
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Kamali 124
Unlike the Hanafi classification of textual implications into four types, the Shafi'is have initially divided
al-dalalat into the two main varieties of dalalah al-mantuq (pronounced meaning) and dalalah almafhum
(implied
meaning). Both of these are derived from the words and sentences of the text. The
former
form the obvious text and the latter come through logical and juridical construction thereof. An
example
of dalalah
al-mantuq is
the
Qur'anic ayah
which
proclaims that 'God has permitted sale and
prohibited
usury' (al-Baqarah, 2:275). This text clearly speaks of the legality of sale and the prohibition
of
usury. Dalalah
al-mantuq has
in turn been subdivided into two types, namely dalalah
al-iqtida
(required
meaning), and dalalah
al-isharah (alluded
meaning). Both of these are either indicated in the
words
of the text or constitute a necessary and integral part of its meaning. As will be noted, even from
this
brief description, the difference between the Shafi'i and Hanafi approaches to the classification of
al-dalalat
is
more
formal than real.
[18. Badran, Usul, p. 429; Khudari, Usul, pp. 121-122; Hitu, Wajiz, p. 120.]
Abu Zahrah has
aptly observed that essentially all of the four Hanafi varieties of al-dalalat are, in one way or another,
founded in the actual words and sentences of the text. Despite the technical differences that might exist
between the four types of implications, they are basically all founded in the text. In this way all of the
four-fold Hanafi divisions of al-dalalat can be classified under dalalah al-mantuq.
[19. Abu Zahrah, Usul, p. 116.]
Dalalah al-mafhum is an implied meaning which is not indicated in the text but is arrived at by way of
inference. This is to a large extent concurrent with what the Hanafis have termed dalalah al-nass. But
the Shafi'is have more to say on dalalah al-mafhum in that they sub-divide this into the two types of
mafhum al-muwafaqah (harmonious meaning) and mafhum al-mukhalafah (divergent meaning). The
former is an implicit meaning on which the text may be silent but is nevertheless in harmony with its
pronounced meaning. This harmonious meaning (mafhum al-muwafaqah) may be equivalent to the
pronounced meaning (dalalah al-mantuq), or may be superior to it. If it is the former, it is referred to as
lahn al-khitab (parallel meaning) and if the latter, it is known as fahwa al-khitab (superior meaning).
For example, to extend the Qur'anic ruling in sura al-Nisa' (4:10) which only forbids 'devouring the
property of orphans' to other forms of mismanagement and waste, is a 'parallel' meaning (lahn alkhitab).
But
to extend the Qur'anic text which forbids the utterance of 'uff',
that is the slightest word of
contempt,
to, for instance, physical abuse of one's parents, is a meaning which is 'superior' to the
pronounced
meaning of the text.
[20. Hitu, Wajiz, p.124; Salih, Mabahith, p. 301.]
The validity of these forms of
harmonious meanings is approved by the ulema of all schools (except the Zahiris) who are generally in
agreement with the basic concept of mafhum al-muwafaqah. But this is not the case with regard to
mafhum al-mukhalafah, on which the ulema have disagreed.
[21. Badran, Usul, p. 430.]
As noted above, mafhum al-mukhalafah diverges from the pronounced meaning (dalalah al-mantuq) of
the text, which may, however, be either in harmony or in disharmony with it. It is only when mafhum
al-mukhalafah is in harmony with the pronounced meaning of the text that it is accepted as a valid form
of interpretation, otherwise it is rejected. For an example of the divergent meaning which is in harmony
Principles of Islamic Jurisprudence ~
Kamali 125
with the pronounced meaning of the text, we may refer to the Hadith which provides: 'When the water
reaches the level of qullatayn (approximately two feet) it does not carry dirt.'
518.]
[22. Ibn Majah, Sunan I, 172, Hadith no.
In this way when a polluting substance falls into water of this depth, it is still regarded as clean for
purposes of ablution. This is the pronounced, or explicit, meaning of the text. By way of mafhum almukhalafah,
it
is understood that water below this level is capable of 'retaining' dirt. This is an
interpretation
which is deemed to be in harmony with the pronounced meaning of the Hadith.
Usul, II, 114.]
According to the Shafi'is, deduction by way of mafhum al-mukhalafah is acceptable only if it fulfills
certain conditions, which are as follows: firstly, that the divergent meaning does not exceed the scope of
the pronounced meaning. For example, the Qur'anic ayah which prohibits 'saying uff' to one's parents
may not be given a divergent meaning so as to make physical abuse of them permissible. Secondly, that
the divergent meaning has not been left out in the first place for a reason such as fear or ignorance; for
example, if a man orders his servant to 'distribute this charity among the Muslims', but by saying so he
had actually intended people in need, whether Muslims or non-Muslims, and yet omitted to mention the
latter for fear of being accused of disunity by his fellow Muslims. Should there be evidence as to the
existence of such a fear, then no divergent meaning should be deduced. A similar case would be when a
person says that 'maintenance is obligatory for ascendants and descendants', while he did not know that
collaterals are also entitled to maintenance. Should there be evidence as to his ignorance on this point,
then no divergent meaning should be attempted to the effect, for example, of saying that maintenance is
not obligatory for collaterals. Thirdly, that the divergent meaning does not go against that which is
dominant and customary in favour of something which is infrequent and rare. To give an example: the
Qur'an provides concerning the prohibited degrees of relationship in marriage: 'and forbidden to you are
[...] your step-daughters who live with you, born of your wives with whom you have consummated the
marriage; but there is no prohibition if you have not consummated the marriage' (al-Nisa', 4:23). This
text is explicit on the point that marriage to a step-daughter who is under the guardianship of her stepfather
is forbidden to the latter. By way of mafhum
al-mukhalafah, this ayah might be taken to mean that a step-daughter who does not live in the house of her mother's husband may be lawfully married by the latter. But this would be a meaning which relies on what would be a rare situation. The probable and customary situation in this case would be that the step-daughter lives with her mother and her stepfather, which is why the Qur'an refers to this qualification, and not because it was meant to legalise marriage with the step-daughter who did not live with him .
[24. Hitu, Wajiz, p.125; Badran, Usul, p. 433.]
Fourthly, that
the original text is not formulated in response to a particular question or event. For instance, the Prophet
Principles of Islamic Jurisprudence ~
[23. Zuhayr,Kamali 126
was once asked if free-grazing livestock was liable to zakah; and he answered in the affirmative. But
this answer does not imply that the stall-fed livestock is not liable to zakah. The answer was originally
given to a question which specified the free-grazing livestock and not in order to exempt the stall-fed
variety from zakah. Fifthly, that the divergent meaning does not depart from the reality, or the particular
state of affairs, which the text is known to have envisaged. For example the Qur'an provides in a
reference to relations between Muslims and non-Muslims: 'Let not the believers befriend the
unbelievers to the exclusion of their fellow believers' (Al-'Imran, 3:28). This ayah apparently forbids
friendship with the unbelievers, but this is not the purpose of the text. This ayah was, in fact, revealed
in reference to a particular state of affairs, namely concerning a group of believers who exclusively
befriended the unbelievers, and they were forbidden from doing this; it did not mean to impose a ban on
friendship with unbelievers. The text, in other words, contemplated a particular situation and not the
enactment of a general principle, and should therefore not be taken out of context by recourse to
mafhum al-mukhalafah.
[25. Hitu, Wajiz, p. 126; Badran, Usul, p.434.]
Sixthly, that the divergent meaning does not lead
to a conclusion that would oppose another textual ruling. To give an example, we refer to the Qur'anic
text on the requirement of retaliation which provides: 'Retaliation is prescribed for you in cases of
murder: the free for the free, the slave for the slave, the woman for the woman [ ... ]' (alBaqarah, 2:178).
This text may not be taken by way of mafhum al mukhalafah to mean that a man is not retaliated against
for murdering a woman. For such a conclusion would violate the explicit ruling of another Qur'anic text
which requires retaliation for all intentional homicides on the broadest possible basis of 'life for life' (alMa'idah,
5:45).
The main restriction that the Hanafis have imposed on mafhum al mukhalafah is that it must not be
applied to a revealed text, namely the Qur'an and the Sunnah. As a method of interpretation, mafhum al
mukhalafah is thus validated only with regard to a non-revealed text. Only in this context, that is, in
regard to rational proofs and man-made law, can it provide a valid basis of hukm and ijtihad. The main
reason that the Hanafis have given in support of this view is that the Qur'an itself discourages reliance
on mafhum al-mukhalafah, for there are many injunctions in the Qur'an and Sunnah whose meaning
will be distorted if they were to be given divergent interpretation. To give an example, we read in the
Qur'an, in a reference to the number of months that God enacted on the day He created the universe,
that there shall be twelve months in a year. The text then continues to provide that 'four of them are
sacred, so avoid committing acts of oppression [zulm] therein' (al Tawbah, 9:36).
Muharram, Dhu al-Hijjah, Dhu al-Qi'dah and Rajab]
[26. These are the months of
By way of mafhum al-mukhalafah, this text could be taken to mean
that acts of oppression are permissible during the rest of the year. This would obviously corrupt the
purpose of this text, as oppression is always forbidden regardless of the time in which it is
committed.
[27. Badran, Usul, p. 435.]
Similarly, there is a Hadith which instructs the believers that 'none of you
may urinate in permanently standing water nor may you take a bath therein to cleanse yourselves of
major pollution (janabah)'.
[28. Tabrizi, Mishkat, I, 148; Hadith no. 474.]
Principles of Islamic Jurisprudence ~
Kamali 127
By way of mafhum al mukhalafah, this text could be taken to mean that taking a bath other than the one
specifically for janabah is permissible in such water, or that urinating is permissible in flowing water,
neither of which would be correct. Bathing in small ponds below a certain depth is not permitted
whether it be for janabah or otherwise.
The Hanafis have further concluded that whenever necessary the Qur'an itself has stated the divergent
implications of its own rulings, and when this is the case, the divergent meaning becomes an integral
part of the text and must be implemented accordingly. This style of the Qur'anic legislation suggests
that if recourse to mafhum al-mukhalafah were generally valid, there would be no need for it to be
explicitly spelled out in the Qur'anic text. The Qur'an, in other words, is self-contained and does not
leave it to us to deduce the law from it by recourse to divergent interpretation. Note, for example, the
text which instructs the husband to avoid sexual intercourse with his wife during her menstruation. The
text then immediately follows on to specify its own divergent implication: 'And approach them not until
they are clean. But when they have purified themselves, you may approach them' (al-Baqarah, 2:223).
In the same sura, there is another text, to which reference has already been made, concerning the
prohibition of marriage between the step-daughter and her step-father who has consummated the
marriage with her mother. The text then continues to specify its divergent meaning by providing that
'there is no prohibition if you have not consummated the marriage' (al-Baqarah, 2:23). The Hanafis have
thus concluded that mafhum al-mukhalafah is not applicable to the nusus of the Qur'an and Sunnah. We
only deduce from the nusus such rules as are in harmony with their explicit terms.
118.]
[29. Abu Zahrah, Usul, pp. 117-
The Shafi'is and the Malikis who validate the application of mafhum al-mukhalafah to the nusus have,
in addition to the conditions that were earlier stated, imposed further restrictions which consist of
specifying exactly what forms of linguistic expressions are amenable to this method of interpretation.
For this purpose the Shafi'is have sub-divided mafhum al-mukhalafah into four types. The main purpose
of this classification is to introduce greater accuracy into the use of mafhum al-mukhalafah, specifying
that it is an acceptable method of deduction only when it occurs in any of the following forms but not
otherwise:
1. Mafhum al-Sifah (Implication of the Attribute). When the ruling of a text is dependent on the
fulfillment of a quality or an attribute then the ruling in question obtains only when that quality is
present; otherwise it lapses. This can be shown in the Qur'anic text on the prohibited degrees of
Principles of Islamic Jurisprudence ~
Kamali 128
relations in marriage which includes 'the wives of your sons proceeding from your loins' (al-Nisa' 4:23).
The pronounced meaning of this text is the prohibition of the wife of one's own son in marriage. The
son has thus been qualified in the text by the phrase 'proceeding from your loins'. By way of mafhum almukhalafah,
it
is concluded from this qualification that the wife of an adopted son, or of a son by
fosterage
(rada'a),
that
is a child who has suckled the breast of one's wife, is not prohibited.
p. 432; Salih, Mabahith, p. 302; Khudari, Usul, p. 123.]
2. Mafhum al-Shart (Implication of the Condition). When the ruling of a text is contingent on a
condition, then the ruling obtains only in the presence of that condition, and lapses otherwise. An
example of this is the Qur'anic text on the entitlement to maintenance of divorced women who are
observing their waiting period ('iddah). The text proclaims: 'If they are pregnant, then provide them
with maintenance until they deliver the child' (al-Talaq, 65:6). The condition here is pregnancy and the
hukm applies only when this condition is present. By way of mafhum al-mukhalafah, it is concluded, by
those who validate this method at least, that maintenance is not required if the divorced woman, who is
finally divorced, is not pregnant. Similarly, the Qur'anic text which provides for a concession in regard
to fasting is conveyed in conditional terms. Having laid down the duty of fasting, the text then
continues: 'but if any one is ill or traveling, the prescribed fasting should be observed later' (al-Baqarah,
2:185). By way of mafhum al-mukhalafah, it is concluded that the concession to break the fast does not
apply if one is neither ill nor traveling, which is a valid interpretation.
[31. Hitu, Wajiz, p. 127;]
3. Mafhum al-Ghayah (Implication of the Extent). When the text itself demarcates the extent or scope
of the operation of its ruling, the latter will obtain only within the scope of the stated limits and will
lapse when the limit is surpassed. To illustrate this, the Qur'anic text on the time of fasting provides the
farthest limit beyond which one must stop eating and drinking during Ramadan: 'Eat and drink until you
see the white streak [of dawn in the horizon] distinctly from the black' (al-Baqarah, 2:187). By way of
mafhum al-mukhalafah, it is concluded that when whiteness appears in the horizon, one may neither eat
nor drink.
[32. Khudari, Usul, p. 123]
4. Mafhum al-Adad (Implication of the Stated Number). When the ruling of a text is conveyed in terms
of a specified number, the number so stated must be carefully observed. Thus the Qur'anic text on the
punishment of adultery is clearly stated to be one hundred lashes (al-Nur, 24:2) By way of mafhum almukhalafah
this
text is taken to mean that it is not permissible either to increase or decrease the stated
number
of lashes.
[33. Khudari, Usul, p. 123.]
In conclusion, it may be said that the foregoing methods are generally designed to encourage rational
enquiry in the deduction of the ahkam from the divinely revealed sources. They provide the jurist and
the mujtahid with guidelines so as to ensure the propriety of interpretation and ijtihad. The restrictions
Principles of Islamic Jurisprudence ~
[30. Badran, Usul,Kamali 129
that are imposed on the liberty of the mujtahid are obvious enough in that the textual rulings of the
Qur'an and Sunnah must be treated carefully so that they are not stretched beyond the limits of their
correct implications. Yet the main thrust of the guidelines that are provided is one of encouragement to
the exercise of rational enquiry in the understanding and implementation of the nusus. The rules of
interpretation that are discussed under this and the preceding chapter are once again indicative of the
primacy of revelation over reason, and yet they are, at the same time, an embodiment of the significant
role that reason must play side by side with the revelation. The two are substantially concurrent and
complementary to one another.Chapter Six: Commands and Prohibitions
The language of the Qur'an (and the Sunnah) differs from that of modern statutes in that Qur'anic
legislation is not confined to commands and prohibitions and their consequences, but is often coupled
with an appeal to the conscience of the individual. This moral appeal may consist of a persuasion or a
warning, an allusion to the possible benefit or harm that may accrue from observing or violating an
injunction, or a promise of reward/punishment in the hereafter. Modern laws are often devoid of such
appeals, as they are usually confined to an exposition of imperative rules anti their tangible results.
Shaltut, Islam, p 499.]
Commands and prohibitions in the Qur'an occur in a variety of forms. While an injunction is normally
expected to be in the imperative mood, there are occasions where a simple past is used as a substitute.
For example, the injunctions that `retaliation is prescribed for you in cases of murder' and that `fasting
is prescribed for you' (al-Baqarah, 2:178 and 183) are both expressed in the past tense. Similarly, a
Qur'anic injunction may occur in the form of a moral condemnation of a certain form of conduct, such
as the rule on the sanctity of private dwellings which provides: 'It is no virtue to enter houses from the
back' (al-Baqarah, 2: 189)
[2. This is one of the several ayat which occur in the Qur’an concerning the privacy of one's home.]
. Also, a
Qur'anic command/prohibition may be conveyed in the form of an allusion to the consequences of a
form of conduct, such as a promise of reward or punishment in the hereafter. For example, after
expounding the rules of inheritance in sura al-Nisa' (4:13-14) the text goes on to promise to those who
observe them a reward, and warns violators of a punishment, in the hereafter.
I. Commands
A command proper (amr) is defined as a verbal demand to do something issued from a position of
superiority over who is inferior.
[3. Badran, Usul, p. 360.]
Command in this sense differs from both supplication
(du`a') and request (iltimas) in that the former is a demand from an inferior to one who is superior,
whereas a request is a demand among people of equal or near-equal status. Since a verbal command can
mean different things, namely an obligatory order, a mere recommendation, or even permissibility, the
ulema have differed as to which of these is the primary and which the secondary meaning of a
command. Some have held the view that amr is in the nature of a homonym (mushtarak) which imparts
all of these meanings. Others have held that amr partakes in only two of these concepts, namely
obligation and recommendation, butt not permissibility. Still others have held that amr implies a
Principles of Islamic Jurisprudence ~ Kamali 131
[1. Cf
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