intelligence and discernment are hidden qualities which are not readily apparent to the senses, the law
has linked personal responsibility with the attainment of the age of majority (bulugh), which is an
obvious phenomenon and can be established by factual evidence. However, it is the intellectual faculty
of the individual rather than age as such which determines his legal capacity. This is why an adult who
is insane, or an adult of any age who is asleep, is not held responsible for his conduct. The principle
here is dearly stated in the Hadith which provides: `The pen is lifted from three persons: the one who is
asleep until he wakes, the child until he attains puberty, and the insane person until he regains sanity.
Tabrizi, Mishkat, II, 980, Hadith no. 3287.]
Receptive legal capacity may either be 'deficient' or 'complete'. The receptive legal capacity of a child
in the womb is incomplete in the sense that it can only receive certain rights, such as inheritance and
bequest, but cannot bear any obligation toward others. Receptive legal capacity is complete when a
person can both have rights and bear obligations. This type of legal capacity is acquired by every
human being as of the moment of birth. During its infancy and later stages of childhood, a child is
capable of discharging, albeit through his guardian, certain obligations in respect, for example, of
maintenance, liability for loss (daman), and payment for services rendered to him.
As for the active legal capacity, three possible situations are envisaged. First, a person may be totally
lacking of active legal capacity, as in the case of a child during infancy or an insane person of any age.
Since neither is endowed with the faculty of intellect, no legal consequences accrue from their words
and acts. When a child or a madman kills someone or destroys the property of another person, they can
only be held liable with reference to their property, but not to their persons. They cannot be subjected,
for example, to retaliation, or to any other type of punishment.
Second, a person may be partially lacking in active legal capacity. Thus a discerning child (al-sabi almumayyiz),
that is, a child between seven and fifteen years of age, or an idiot (ma'tuh)
who is neither
insane
nor totally lacking in intellect but whose intellect is defective and weak, possess a legal capacity
which
is deficient. Both of them possess an active legal capacity which is incomplete and partial.
idiot (ma`tuh) is a person who is markedly defective of understanding. A foolish and reckless person (sufih) is also regarded as being of defective legal capacity, in
a lesser degree than the ma'tuh. Cf. Abdur Rahim, Jurisprudence, p. 240.]
The discerning child and the idiot are capable only of
concluding acts and transactions that are totally to their benefit, such as accepting a gift or charity, even
without the permission of their guardians. But if the transaction in question is totally disadvantageous to
them, such as giving a gift or making a will, or pronouncing a divorce, these are not valid at all even it
their guardians happen to approve of them. As for transactions which partake in both benefit and loss,
they are valid but only with the permission of the guardian (wali), otherwise they are null and void.
Thirdly, active legal capacity is complete upon the attainment of intellectual maturity. Hence every
major person who has acquired this ability is presumed to possess active legal capacity unless there is
evidence to show that he or she is deficient of intellect or insane.
Principles of Islamic Jurisprudence ~ Kamali 305
[73. An
[72.Persons who are fully competent may sometimes be put under interdiction (hajr) with a view to
protecting the rights of others. A person may be interdicted by means of a judicial order which might
restrict his powers to conclude certain transactions. A debtor may thus be interdicted so that the rights
of his creditors may be protected.
A person in his death-illness (marad al-mawt) is also deficient of legal capacity, as severe illness and
fear of imminent death affect the physical and mental faculties of the individual. But ordinary illness
and other conditions which do not impair the intellectual capacity of a person have no bearing on his
active legal capacity. This is partly why Imam Abu Hanifah has differed with the majority of jurists by
holding the view that foolishness (safahah), indebtedness and carelessness (ghaflah), do not affect the
active legal capacity of a person. Abu Hanifah refuses to accept these as proper grounds of interdiction,
as in his view the benefit of interdiction in these cases is far outweighed by its possible harm.
`Ilm, p.140; Abdur Rahim, Jurisprudence, p. 220.]
Principles of Islamic Jurisprudence ~ Kamali 306
[74. Khallaf,Chapter Eighteen: Conflict of Evidences
Conflict (ta`arud) occurs when each of two evidences of equal strength requires the opposite of the
other. This would mean that if one of them affirms something, the other would negate it at the same
time and place. A conflict is thus not expected to arise between two evidences of unequal strength, as in
this case the stronger of the two evidences would naturally prevail. Thus a genuine conflict cannot arise
between a definitive (qat'i) and a speculative (zanni) evidence, nor could there be a conflict between the
nass and ijma', nor between ijma` and qiyas, as some of these are stronger than others and would
prevail over them. A conflict may, however, be encountered between two texts of the Qur'an, or
between two rulings of Hadith, or between a Qur'anic ayah and a Mutawatir Hadith, or between two
non-Mutawatir Hadith, or between two rulings of qiyas. When there is a conflict between two Qur'anic
ayat, or between one Hadith and a pair of ahadith, or between one qiyas and a pair of analogies, it is a
case of conflict between equals, because strength does not consist in number and consequently a single
ayah, Hadith or qiyas is not necessarily set aside to make room for the pair. The strength of two
conflicting evidences is determined by reference to the evidence itself or to the extraneous/additional
factors which might tip the balance in favour of the one over the other. For example, of the two
conflicting solitary or Ahad Hadith, the one which is narrated by a faqih is considered to be stronger
than that which is narrated by, non-faqih.
[1. Badran, Usul, p. 461; Khudari, Usul, p. 359; Aghnides, Muhammedan Theories, p. 66.]
Conflict can only arise between two evidences which cannot be reconciled, in the sense that the subjectmatter
of one cannot be distinguished from the other, nor can they be so distinguished in respect of the
time
of their application. There are, for example, three different rulings in the Qur'an on wine-drinking,
but
since they were each revealed one after the other, not simultaneously, there is consequently no case
of
conflict between them. Similarly, if investigation reveals that each of two apparently conflicting rules
can
be applied to the same issue under a different set of circumstances, then once again there will be no
conflict.
A genuine conflict can arise between two speculative (zanni) evidences, but not between definitive
(qat`i) proofs. In this way, all cases of conflict between the definitive rulings of the Qur'an and Sunnah
are deemed to be instances of apparent, not genuine, conflict. Furthermore, the ulema have maintained
the view that a genuine conflict between two ayat or two ahadith, or between an ayah and a Hadith,
does not arise; whenever a conflict is observed between these proofs, it is deemed to be only apparent
(zahiri), and lacking in reality and substance. For the all-pervasive wisdom of the Lawgiver cannot
countenance the enactment of contradictory laws. It is only the mujtahid who is deemed unable to
envision the purpose and intention of the Lawgiver in its entirety who may therefore find cases of
apparent conflict in the divinely-revealed law. Only in cases of evident abrogation (naskh), which are
Principles of Islamic Jurisprudence ~
Kamali 307
largely identified and determined by the Prophet himself, could it be said that a genuine conflict had
existed between the rulings of divine revelation.
[2. Ghazali, Mustasfa, II. 126; Khallaf, 'Ilm, p. 230.]
When there is a case
of apparent conflict between the rulings of the nusus, one must try to discover the objective of the
Lawgiver and remove the conflict in the light of that objective. Indeed, the rules of reconciliation and
preference proceed on the assumption that no genuine conflict can exist in the divine laws; hence it
becomes necessary to reconcile them or to prefer one to the other. This would mean that either both or
at least one of the evidences at issue can be retained and implemented. The mujtahid must therefore try
to reconcile them as far as possible, but if he reaches the conclusion that they cannot be reconciled, then
he must attempt to prefer one over the other. If the attempt at reconciliation and preference fails, then
one must ascertain whether recourse can be had to abrogation, which should be considered as the last
resort. But when abrogation also fails to offer a way out of the problem, then action must be suspended
altogether and both of the conflicting texts are abandoned.
[3. Khallaf, `Ilm; p. 229; Khudari, Usul, p.359.]
A case of conflict between the nusus and ijma', or between two rulings of the latter, is inconceivable for
the obvious reason that no ijma' can be concluded which is contrary to the Qur'an and Sunnah in the
first place. Should a conflict arise between two analogies or proofs other than the nusus and ijma'; and
neither can be given preference over the other and they cannot be reconciled, both must be suspended.
Abrogation in this case does not offer an alternative course of action. For abrogation is basically
confined to the definitive rulings of the Qur'an and Sunnah; it is irrelevant to ijma' and can be of little
help in cases of conflict between speculative evidences.
Among the many instances of abrogation which the ulema have identified in the Qur'an, we may refer
to only two; but in both cases a closer analysis will show that the conflict at issue is not genuine. Our
first illustration is concerned with the precise duration of the waiting period ('iddah) of widows.
According to one of the two ayat on this subject (al-Baqarah, 2:234), the widow must observe a `iddah
of four months and ten days following the death of her husband. This ayah consists of a general
provision which applies to every widow regardless as to whether she is pregnant at the time her
husband dies or not. But elsewhere in the Qur'an, there is another ruling concerning the `iddah of
pregnant women. This ayah (al-Talaq, 65:4) also conveys a general ruling to the effect that the `iddah
of pregnant women continues until the delivery of the child. This ruling also applies to a pregnant
widow, who must wait until the termination of her pregnancy. Thus a pregnant woman whose husband
dies and who gives birth to a child on the same day would have completed her `iddah according to the
second of the two rulings, whereas she must, under the first ruling, still wait for four months and ten
days. The two texts thus appear to be in conflict regarding the `iddah of a pregnant widow.
For a second illustration of an apparent conflict in the Qur'an, we refer to the two texts concerning the
validity of making a bequest to one's relatives. This is explicitly permitted in sura al-Baqarah (2:180)
which provides: `It is prescribed when death approaches any of you, if he leaves any assets, that he
makes a bequest to his parents and relatives.' This ruling is deemed to have been abrogated by another
Principles of Islamic Jurisprudence ~
Kamali 308
text (al-Nisa', 4:11) which prescribes for each of the close relatives a share in inheritance. This share is
obviously determined, not by the will of the testator, but by the will of God. The two texts thus appear
to be in conflict; however the conflict is not genuine as they can be reconciled, and both can be
implemented under different circumstances. The first of the two rulings may, for example, be reserved
for a situation where the parent, of the testator are barred from inheritance by a disability such as
difference of religion. Since the parents in this case would be excluded from the scope of the second
ayah, the conflict would consequently not arise and there would be no case for abrogation. The same
approach can be taken regarding the foregoing ayat on the waiting period of widows. Whereas the first
of the two texts prescribed the `iddah of widows to be four months and ten days, the second enacted the
`iddah of pregnant women until the termination of pregnancy. The two texts could be reconciled if
widows were to observe whichever of the two periods were the longer. If the pregnant widow delivers
her child before the expiry of four months and ten days following the death of her husband, then she
should wait until this period expires. But if she waits four months and ten days and has still not
delivered the child, then her `iddah should continue until the birth of the child. Thus the apparent
conflict between the ayat under discussion is removed by recourse to specification (takhsis): the second
ayah in this case specifies the general ruling of the first insofar as it concerns pregnant widows.
Zahrah, Usul, p.245; Badran, Usul, p. 467; Khallaf, `Ilm; p.231.]
To reconcile two evidences both of which are general ('Amm), one may distinguish the scope and
subject-matter of their application from one another by recourse to allegorical interpretation (ta'wil).
Supposing there were two conflicting orders on salah, one providing that `salah is obligatory on my
ummah' and the other that `salah is not obligatory on my ummah.' To reconcile these two, one may
assume the first to have contemplated the adult and competent members of the community and the
second the minors and lunatics. If this is not possible, then the two rulings may be distinguished in
regard to the notes of their respective application, or they might be assumed to have each envisaged a
different set of circumstances. It is possible that one or both of the two rulings are in the nature of a
manifest (Zahir) provision and may thus be open to ta'wil. The Zahir may be given an interpretation
other than that of its obvious meaning so as to avoid a clash. This may be illustrated by the two
apparently conflicting Hadiths on the subject of testimony. In the first of the two reports, the Prophet is
quoted to have addressed an audience as follows: `Should I inform you who makes the best of
witnesses?' To this, the audience responded, `Yes O Messenger of God', and the Prophet said, `It is one
who gives testimony before he is requested to do so.'
[5. Muslim, Sahih, p. 281, Hadith no. 1059; Badran, Usul, p. 465.]
However, according to another Hadith, the Prophet said, 'The best generation is the one in which I live,
then the generation after that and then the next one, but after that there will be people who will give
testimony although they are not invited to give it.'
[6. Tabrizi, Mishkat, III, 1695, Hadith no. 6001.]
Thus the first Hadith recommends something which the second seems to be discouraging. The best form
of testimony under the first Hadith is unsolicited testimony, whereas this is frowned upon in the second.
Principles of Islamic Jurisprudence ~ Kamali 309
[4. AbuSince neither of the two Hadith have specified a particular context, it is suggested by way of ta'wil that
the first Hadith contemplates the Rights of God (huquq Allah) whereas the second Hadith contemplates
the Rights of Men (huquq al-'ibad). In this way, the apparent conflict between the two texts is removed
through an allegorical interpretation.
[7. Badran, Usul, pp. 466.]
Allegorical interpretations may offer a solution even in cases where two conflicting orders are both
specific (Khass). Recourse to ta'wil in this case would once again serve the purpose of distinguishing
the subject matter and scope of each of the two conflicting orders. For example, if Ahmad issues two
orders to his employee, one of which tells the latter to 'pay 1000 dinars to Zayd' and the other tells him
`do not pay 1000 dinars to Zayd', then if circumstances would so permit, the first order may be assumed
to have contemplated normal relations between Zayd and Ahmad while the second had envisaged a
hostile situation between the two parties.
[8. Cf. Khudari, Usul, p. 361.]
In the event where one of the two conflicting rulings is general ('Amm) and the other specific (Khass),
they can be reconciled by excepting the latter from the scope of the former through a procedure which
is known as takhsis al-`Amm, that is, `specifying a part of the general'. This would once again mean that
each of the two rulings applied separately from one another to a different subject-matter, and both can
remain operative. Similarly, a text may be absolute in its wording and appear to be in conflict with
another text. They could be reconciled and the conflict between them removed if one of them is so
interpreted as to limit and qualify the absolute terms of the other. Examples to illustrate these and other
methods of interpretation can be found in the separate chapter of this work devoted to the rules of
interpretation.
Should the attempt at reconciliation fail, the next step in resolving a conflict, as stated above, is to give
preference to one over the other. Investigation may reveal that one of the two texts is supported by
stronger evidence, in which case we are basically dealing with two texts of unequal strength. To prefer
the one over the other in this case may even amount to a form of clarification or explanation of one by
the other. Inequality in strength may be in content (matn) or in proof of authenticity (riwayah). The
former is concerned with the clarity or otherwise of the language of the text, and the latter with the
historical reliability of the transmitters. Preference on the basis of content would require that the literal
is preferred to the metaphorical, the clear (Sarih) to the implicit (Kinayah), the explicit meaning
(`ibarah al-nass) to the allusive meaning (isharah al-nass), and the latter is preferred to the inferred
meaning of the text (dalalah al-nass). Similarly, words which convey greater clarity are to be preferred
to those which are less clear. Thus the Muhkam (perspicuous) will be preferred to the Mufassar
(unequivocal), the latter to the Nass (explicit) and the Nass to the Zahir (manifest). Among unclear
words, the Khafi (obscure) takes priority over the Mushkil (difficult), the latter over the Mujmal
(ambivalent) and the Mujmal over the Mutashabih (intricate), in an order of priority which again has
been stated elsewhere under the rules of interpretation.
Principles of Islamic Jurisprudence ~
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Inequality in respect of transmission is mainly concerned with the Hadith: when, for example, the
Mutawatir is compared to the Mashhur, the former is preferred to the latter. Similarly the Mashhur
takes priority over the solitary (Ahad) Hadith, and the report of a transmitter who is faqih is preferred to
the report of a transmitter who is not. Reports by persons who are known to be retentive of memory
take priority over those which are transmitted by persons whose retentiveness is uncertain. On a similar
note, ahadith that are transmitted by leading Companions are given preference to those transmitted by
Companions who are less well known for their prominence and continuity of contact with the Prophet.
The Hanafis also consider the action of the transmitter upon his own narration to be a supportive factor
which adds to the strength of a Hadith. The Malikis on the other hand prefer a Hadith that is in
agreement with the practice of the people of Madinah over one which is not. Similarly, the report of a
transmitter who is directly involved in an incident is preferable to other reports. Thus with the Hadith
which is reported by the Prophet's wife Maymunah, to the effect that the Prophet married her while both
of them were halal, that is outside the sacred state of ihram for the hajj ceremonies; this report is
preferred to that of Ibn `Abbas to the effect that the Prophet married Maymunah while he was in the
sacred state of ihram.
[9. Abu Dawud, Sunan, II, 486-87, Hadith, no. 1839 and 1840; Ghazali, Mustasfa, II, 128; Khudari, Usul, p. 367.]
In this
way, a Hadith which is supported by a more reliable chain of transmission is preferred to a Hadith
which is weak in its proof of authenticity.
At times the mujtahid may be confronted with a situation where each of the two conflicting Hadiths is
stronger in respect of some of these factors but weaker in regard to others, in which case it is for the
mujtahid to assess and determine the overall strength or weakness of the Hadith according to his own
ijtihad.
The ulema of Hadith are in agreement that a Hadith which is reported by all the six imams of Hadith,
namely al-Bukhari, Muslim, Abu Dawud, al-Nasa'i, al-Tirmidhi, and Ibn Majah, takes priority over that
which might have been reported only by some and not all of these authorities. Among ahadith which
are not reported by all the six authorities, those which are reported by the first two are preferred, and if
one of the two conflicting Hadith is reported by al-Bukhari and the other by Muslim, the former is
preferred to the latter.
[10. Abu Zahrah, Usul, p. 246.]
According to another rule of preference, affirmative evidence takes priority over the negative. This may
be illustrated by the two rulings of Hadith concerning the right of a slave-woman to a divorce upon her
release from slavery. It is reported that a slave woman by the name of Barirah was owned by `A'ishah
and was married to another slave, Mughith. `A'ishah set her free, and she wanted to be separated from
Mughith, who was still a slave. The case was brought to the attention of the Prophet, who gave Barirah
the choice either to remain married to Mughith or be separated. But a second report on the same subject
informs us that Barirah's husband was a free man when she was emancipated. The two reports are thus
conflicting with regard to the status of the husband. But since it is known for certain that Mughith was
originally a slave, and there is no dispute over this, the report which negates this original state is
Principles of Islamic Jurisprudence ~
Kamali 311
therefore ignored in view of the general rule that the affirmative, that is, the evidence which affirms
continuation of the original state, takes priority over that which negates it. The jurists have
consequently held that when a slave-woman is set free while married to a slave, she will have the
choice of repudiating or retaining the marriage. If the husband is a free man, she will have no such
choice according to Malik, Shafi'i, and the majority of scholars. Abu Hanifah, however, maintains that
she will have the option even when her husband is a free man.
footnote no. 1548; Badran, Usul, p. 465; Khudari, Usul, p.367.]
[11. Abu Dawud, Sunan, II, 601-602, Hadith nos. 2223-7 and
Another rule of preference which may be mentioned briefly is that prohibition takes priority over
permissibility. Thus if there are two conflicting rules of equal strength on the same issue, one
prohibitory and the other permissive, the former will take priority over the latter. Having said this,
however, it is possible that the mujtahid may depart from this rule and instead apply that which brings
ease in preference to the one that entails hardship.
[12. Khallaf, `Ilm, p. 232; Badran, Usul, p. 470; Khudari, Usul, p. 367.]
If the attempt at reconciling two conflicting texts, or at preferring one over the other, have both failed,
recourse may be had to abrogation. This would necessitate an enquiry into the occasions of revelation
(asbab al-nuzul), the relevant materials in the Sunnah, and the chronological order between the two
texts. If this also proves unfeasible, then action must be suspended on both and the mujtahid may resort
to inferior evidences in order to determine the ruling for the issue. Thus if the conflict happens to be
between two rulings of the Qur'an, he may depart from both and determine the matter with reference to
the Sunnah. Should there be a conflict between two rulings of the Sunnah, then the mujtahid may refer,
in a descending order, to the fatwa of Companions, and failing that the issue may be determined on
grounds of qiyas. However, if the mujtahid fails to find a ruling in any of the lower categories of proofs,
then he may resort to the general norms of Shari'ah that may be applicable to the case. These may be
illustrated in the following example. A conflict is encountered between the two rulings of Qur'an
concerning the recitation of the portions of the Qur'an in congregational prayers. The question which
needs to be answered is, whether in a congregational salah, the congregation member, that is the
muqtadi, is required to recite the sura al-Fatihah after the imam, or whether he should remain silent.
Two conflicting answers can be derived for this question from the Qur'an. The first of the two ayat
under discussion provides: `And when the Qur'an is being read, listen to it attentively and pay heed, so
that you may receive mercy' (al-A'raf, 7:204). It would appear that the muqtadi, according to this ayah,
should remain silent when the imam recites the Qur'an. However, according to another ayah, everyone,
that is both the imam and the muqtadi, is ordered to `read whatever is easy for you of the Qur'an' (alMuzammil,
73:20). Although neither of the two texts make a particular reference to salah,
they appear
nevertheless
to be in conflict with regard to the position of the muqtadi.
There is no additional evidence
available
to enable the preference of one to the other; action is therefore suspended on both and the
issue
is determined with reference to the Sunnah.
It is thus reported that on one occasion when the
Prophet
led the salah,
he asked the members of the congregation whether they recited the Qur'an with
him,
and having heard their answers, he instructed them not to recite the Qur'an behind the imam. But
Principles of Islamic Jurisprudence ~
Kamali 312
there still remains a measure of inconsistency even in the ahadith that are reported on this point, which
would explain why the jurists have also differed on it: Abu Hanifah, Malik, Ibn Hanbal, and al-Shafi'i
(according to his former view which he revised later) have held that it is not necessary to recite alFatihah
behind the imam in those prayers in which he recites the Qur'an aloud, but that when the imam
recites
quietly, the worshippers should recite al-Fatihah. The later Hanafi jurists have, however, held the
view
that it is not necessary for the worshipper to recite the Qur'an behind the imam in either case.
Abu Dawud, Sunan, II, 211, Hadith no. 825 and footnote no. 373; Badran, Usul, pp. 468-69; Khudari, Usul, p. 359.]
In the event where an issue cannot be determined by reference to the Sunnah, the mujtahid may resort
to the fatwa of a Companion, and failing that, to qiyas. There is, for example, an apparent conflict
between the two reports concerning the way that the Prophet performed the salat al-kusuf, that is,
prayer offered on the occasion of a solar eclipse. According to one of the reports, the Prophet offered
two units (i.e. two rak'ahs) of salah, each consisting of two bowings (ruku`) and two prostration,
(sajdah). But according to another report, each of the two units contained four bowings and four
prostrations. There is yet another report to the effect that each of the two rak'ahs contained three
bowing, and three prostrations.
[14. Abu Dawud, Sunan, I, 304, Hadith nos. 1173-7.]
The conflicting contents of these
reports can neither be reconciled nor given preference one over the other. Hence action is suspended on
all and the matter is determined on grounds of qiyas. In this case, since salat al-kusuf is a variety of
salah, the normal rules of salah are applied to it. Since all obligatory salah, without any variation,
contains one bowing and two prostrations, this is also by way of analogy extended to salat al-kusuf.
Badran, Usul, p.469.]
In the event of a conflict occurring between two analogies, if they cannot be reconciled with one
another, then one of them must be given preference. The qiyas whose effective cause ('illah) is stated in
an explicit text is to be preferred to the one whose 'illah has been derived through inference (istinbat).
Similarly, a qiyas whose `illah is founded in an allusive text (isharah al-nass) takes priority over qiyas
whose 'illah is merely a proper or reasonable attribute which is derived through inference and ijtihad.
When the 'illah of qiyas is explicitly stated in the nass or when the result of qiyas is upheld by ijma', no
conflict is expected to arise. In the unlikely event when the mujtahid constructs an analogy on the basis
of an inferred effective cause ( 'illah mustanbatah) while the `illah is explicitly stated in the nass, and
he reaches a divergent result, it is put down to his ignorance of the nass, and the result that he has
reached will be ignored.
[16. Khallaf, 'Ilm, p.232; Badran, Usul, p. 470.]
A conflict may well arise between two analogies which are both founded on an inferred `illah, since this
type of `illah involves a measure of speculative reasoning and ijtihad. Two mujtahids may thus arrive at
different conclusions with regard to the identification of an 'illah. This is, for example, the case
regarding the `illah of compulsory guardianship (wilayah al-ijbar) in the marriage of a minor girl.
Imam Abu Hanifah considers the 'illah of the guardian's power of ijbar in marriage to be the minority
of the ward, whereas Imam Shafi'i considers the 'illah to be her virginity. This difference of ijtihad
Principles of Islamic Jurisprudence ~ Kamali 313
[13.
[15.would in turn give rise to analogies whose results diverge from one another depending on which of the
two effective causes they are based on. However, differences of this nature are tolerated and neither of
the two Imams have attempted to discourage diversity in ijtihad. In the event where neither of the two
conflicting analogies can be preferred to the other, it is for the mujtahid to choose the one that seems
good to him even if there is no basis for such preference other than his own personal opinion.
Usul, pp. 247-48; Khudari, Usul, p.360.]
If none of the foregoing methods can be applied in order to determine the ruling of an issue, then the
mujtahid may base his decision on the original norms of the Shari'ah. This would be done on the
assumption that no specific indication could be found in the Shari'ah on the case. An example of this is
to determine the ruling of the Shari`ah that might have to be applied to a hermaphrodite whose gender,
whether male or female, cannot be determined and where neither side could be preferred to the other. A
recourse to the original norms in this case means that the issue remains where it was in the first place.
Since neither of the two possibilities can be preferred to the other, action will be based on one side or
the other, not because of any evidence to warrant such a preference but as a precautionary measure
when the circumstances may indicate such a course of action. Thus in some situations, in the
distribution of shares in inheritance, for example, the hermaphrodite will be presumed a male, while he
will be presumed a female in other situations as considerations of caution and prevention of possible
harm to him may suggest.
[18. Badran, Usul, pp. 469-70.]
In making such decisions, it is essential that the mujtahid does not act against the general principles and
spirit of the Shari'ah. When he weighs the merits and demerits of conflicting evidences he must never
lose sight of the basic objectives of the Lawgiver.
Principles of Islamic Jurisprudence ~ Kamali 314
[17. Abu Zahrah,Chapter Nineteen: Ijtihad, or Personal Reasoning
Ijtihad is the most important source of Islamic law next to the Qur'an and the Sunnah. The main
difference between ijtihad and the revealed sources of the Shari'ah lies in the fact that ijtihad is a
continuous process of development whereas divine revelation and prophetic legislation discontinued
upon the demise of the Prophet. In this sense, ijtihad continues to be the main instrument of interpreting
the divine message and relating it to the changing conditions of the Muslim community in its
aspirations to attain justice, salvation and truth.
Since ijtihad derives its validity from divine revelation, its propriety is measured by its harmony with
the Qur'an and the Sunnah. The sources of Islamic law are therefore essentially monolithic, and the
commonly accepted division of the roots of jurisprudence into the primary and secondary is somewhat
formal rather than real. The essential unity of the Shari'ah lies in the degree of harmony that is achieved
between revelation and reason. Ijtihad is the principal instrument of maintaining this harmony. The
various sources of Islamic law that feature next to the Qur'an and the Sunnah are all manifestations of
ijtihad, albeit with differences that are largely procedural in character. In this way, consensus of
opinion, analogy, juristic preference, considerations of public interest (maslahah), etc., are all interrelated
not only under the main heading of ijtihad,
but via it to the Qur'an and the Sunnah.
(Islamic Law, p. 109) has thus aptly stated that: 'There are three prominent and fundamental sources of Islamic Law: the Holy Qur'an, the Sunnah of the holy
Prophet (p.b.u.h.) and ijtihad.]
It is partly due to the formalistic character of these sub-divisions that they are often
found to be overlapping and concurrent. Thus a ruling of ijma' is often based on analogy, maslahah, or
istihsan, and so on, despite its being designated as ijma'. Similarly, qiyas and istihsan are closely related
to one another in the sense that one of the two main varieties of istihsan consists of a selection between
two analogies on the same issue. The difference between maslahah and istihsan is largely procedural,
for they are essentially the same, the one being reflective of the Maliki and the other of the Hanafi
approach to ijtihad. It is thus evident that all the non-revealed proofs of Shari'ah are an embodiment of
the single phenomenon of ijtihad.
Being a derivation from the root word jahada, ijtihad literally means striving, or self-exertion in any
activity which entails a measure of hardship. It would thus be in order to use jahada in respect of one
who carries a heavy load, but not so if he carries only a trivial weight. Juridically, however, ijtihad
mainly consists not of physical, but of intellectual exertion on the part of the jurist. Ijtihad is defined as
the total expenditure of effort made by a jurist in order to infer, with a degree of probability, the rules of
Shari'ah from their detailed evidence in the sources.
Principles of Islamic Jurisprudence ~ Kamali 315
[1. Amin Islahi
[2. Amidi, Ihkam, IV, 162; Shawkani, Irshad, p. 250; Khudari, Usul, p. 367.]
Some ulema have defined ijtihad as the application by a jurist of all his faculties either in inferring the
rules of Shari'ah from their sources, or in implementing such rules and applying them to particular issues.
[3. Abu Zahrah, Usul, p.301.]
Ijtihad essentially consists of an inference (istinbat) that amounts to a
probability (zann), thereby excluding the extraction of a ruling from a clear text. It also excludes the
discovery of a hukm by asking a learned person or by consulting the relevant literature without the
exercise of one's own opinion and judgment. Thus a person who knows the rules of Shari'ah in detail
but is unable to exercise his judgment in the inference of the ahkam direct from their sources is not a
mujtahid. Ijtihad, in other words, consists of the formulation of an opinion in regard to a hukm shar'i.
The presence of an element of speculation in ijtihad implies that the result arrived at is probably correct,
while the possibility of its being erroneous is not excluded. Zann in this context is distinguished from
'ilm, which implies positive knowledge. Since the decisive rules of Shari'ah impart positive knowledge,
they are excluded from the scope of ijtihad.
[4. Shawkani, Irshad, p. 250; Zuhayr, Usul, IV, 223-25; Badran, Usul, p. 471.]
Essential
to the meaning of ijtihad is also the concept that the endeavour of the jurist involves a total expenditure
of effort in such a manner that the jurist feels an inability to exert himself further. If the jurist has failed
to discover the evidence which he was capable of discovering, his opinion is void.
Amidi, Ihkam, IV, 162.]
[5. Ghazali, Mustasfa, II, 102;
And lastly, the definition of ijtihad is explicit on the point that only a jurist (faqih) may
practice ijtihad. This is explained by the requirements of ijtihad, namely the qualifications that must be
fulfilled for attainment to the rank of mujtahid. When these requirements are met, it is inevitable that
the mujtahid must also be a faqih. Thus the definition of ijtihad precludes self-exertion by a layman in
the inference of ahkam.
[6. Shawkani, Irshad, p. 250.]
The subject of ijtihad must be a question of Shari'ah; more specifically, ijtihad is concerned with the
practical rules of Shari'ah which usually regulate the conduct of those to whom they apply (i.e. the
mukallaf). This would preclude from the scope of ijtihad purely intellectual (`aqli) and customary (urfi)
issues, or matters that are perceptible to the senses (hissi) and do not involve the inference of a hukm
shar'i from the evidence present in the sources. Thus ijtihad may not be exercised in regard to such
issues as the createdness of the universe, the existence of a Creator, the sending of prophets, and so
forth, because there is only one correct view in regard to these matters, and any one who differs from it
is wrong. Similarly, one may not exercise ijtihad on matters such as the obligatory status of the pillars
of the faith, or the prohibition of murder, theft, and adultery. For these are evident truths of the Shari'ah
which are determined in the explicit statements of the text.
Muhammedan Theories, p. 91; Badran, Usul, p. 471.]
[7. Shawkani, Irshad, p. 252; Zuhayr, Usul, IV, 225; Aghnides,
The detailed evidences found in the Qur'an and the Sunnah are divided into four types, as follows.
1) Evidence which is decisive both in respect of authenticity and meaning.
2) Evidence which is authentic but speculative in meaning.
3) That which is of doubtful authenticity, but definite in meaning.
Principles of Islamic Jurisprudence ~
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has linked personal responsibility with the attainment of the age of majority (bulugh), which is an
obvious phenomenon and can be established by factual evidence. However, it is the intellectual faculty
of the individual rather than age as such which determines his legal capacity. This is why an adult who
is insane, or an adult of any age who is asleep, is not held responsible for his conduct. The principle
here is dearly stated in the Hadith which provides: `The pen is lifted from three persons: the one who is
asleep until he wakes, the child until he attains puberty, and the insane person until he regains sanity.
Tabrizi, Mishkat, II, 980, Hadith no. 3287.]
Receptive legal capacity may either be 'deficient' or 'complete'. The receptive legal capacity of a child
in the womb is incomplete in the sense that it can only receive certain rights, such as inheritance and
bequest, but cannot bear any obligation toward others. Receptive legal capacity is complete when a
person can both have rights and bear obligations. This type of legal capacity is acquired by every
human being as of the moment of birth. During its infancy and later stages of childhood, a child is
capable of discharging, albeit through his guardian, certain obligations in respect, for example, of
maintenance, liability for loss (daman), and payment for services rendered to him.
As for the active legal capacity, three possible situations are envisaged. First, a person may be totally
lacking of active legal capacity, as in the case of a child during infancy or an insane person of any age.
Since neither is endowed with the faculty of intellect, no legal consequences accrue from their words
and acts. When a child or a madman kills someone or destroys the property of another person, they can
only be held liable with reference to their property, but not to their persons. They cannot be subjected,
for example, to retaliation, or to any other type of punishment.
Second, a person may be partially lacking in active legal capacity. Thus a discerning child (al-sabi almumayyiz),
that is, a child between seven and fifteen years of age, or an idiot (ma'tuh)
who is neither
insane
nor totally lacking in intellect but whose intellect is defective and weak, possess a legal capacity
which
is deficient. Both of them possess an active legal capacity which is incomplete and partial.
idiot (ma`tuh) is a person who is markedly defective of understanding. A foolish and reckless person (sufih) is also regarded as being of defective legal capacity, in
a lesser degree than the ma'tuh. Cf. Abdur Rahim, Jurisprudence, p. 240.]
The discerning child and the idiot are capable only of
concluding acts and transactions that are totally to their benefit, such as accepting a gift or charity, even
without the permission of their guardians. But if the transaction in question is totally disadvantageous to
them, such as giving a gift or making a will, or pronouncing a divorce, these are not valid at all even it
their guardians happen to approve of them. As for transactions which partake in both benefit and loss,
they are valid but only with the permission of the guardian (wali), otherwise they are null and void.
Thirdly, active legal capacity is complete upon the attainment of intellectual maturity. Hence every
major person who has acquired this ability is presumed to possess active legal capacity unless there is
evidence to show that he or she is deficient of intellect or insane.
Principles of Islamic Jurisprudence ~ Kamali 305
[73. An
[72.Persons who are fully competent may sometimes be put under interdiction (hajr) with a view to
protecting the rights of others. A person may be interdicted by means of a judicial order which might
restrict his powers to conclude certain transactions. A debtor may thus be interdicted so that the rights
of his creditors may be protected.
A person in his death-illness (marad al-mawt) is also deficient of legal capacity, as severe illness and
fear of imminent death affect the physical and mental faculties of the individual. But ordinary illness
and other conditions which do not impair the intellectual capacity of a person have no bearing on his
active legal capacity. This is partly why Imam Abu Hanifah has differed with the majority of jurists by
holding the view that foolishness (safahah), indebtedness and carelessness (ghaflah), do not affect the
active legal capacity of a person. Abu Hanifah refuses to accept these as proper grounds of interdiction,
as in his view the benefit of interdiction in these cases is far outweighed by its possible harm.
`Ilm, p.140; Abdur Rahim, Jurisprudence, p. 220.]
Principles of Islamic Jurisprudence ~ Kamali 306
[74. Khallaf,Chapter Eighteen: Conflict of Evidences
Conflict (ta`arud) occurs when each of two evidences of equal strength requires the opposite of the
other. This would mean that if one of them affirms something, the other would negate it at the same
time and place. A conflict is thus not expected to arise between two evidences of unequal strength, as in
this case the stronger of the two evidences would naturally prevail. Thus a genuine conflict cannot arise
between a definitive (qat'i) and a speculative (zanni) evidence, nor could there be a conflict between the
nass and ijma', nor between ijma` and qiyas, as some of these are stronger than others and would
prevail over them. A conflict may, however, be encountered between two texts of the Qur'an, or
between two rulings of Hadith, or between a Qur'anic ayah and a Mutawatir Hadith, or between two
non-Mutawatir Hadith, or between two rulings of qiyas. When there is a conflict between two Qur'anic
ayat, or between one Hadith and a pair of ahadith, or between one qiyas and a pair of analogies, it is a
case of conflict between equals, because strength does not consist in number and consequently a single
ayah, Hadith or qiyas is not necessarily set aside to make room for the pair. The strength of two
conflicting evidences is determined by reference to the evidence itself or to the extraneous/additional
factors which might tip the balance in favour of the one over the other. For example, of the two
conflicting solitary or Ahad Hadith, the one which is narrated by a faqih is considered to be stronger
than that which is narrated by, non-faqih.
[1. Badran, Usul, p. 461; Khudari, Usul, p. 359; Aghnides, Muhammedan Theories, p. 66.]
Conflict can only arise between two evidences which cannot be reconciled, in the sense that the subjectmatter
of one cannot be distinguished from the other, nor can they be so distinguished in respect of the
time
of their application. There are, for example, three different rulings in the Qur'an on wine-drinking,
but
since they were each revealed one after the other, not simultaneously, there is consequently no case
of
conflict between them. Similarly, if investigation reveals that each of two apparently conflicting rules
can
be applied to the same issue under a different set of circumstances, then once again there will be no
conflict.
A genuine conflict can arise between two speculative (zanni) evidences, but not between definitive
(qat`i) proofs. In this way, all cases of conflict between the definitive rulings of the Qur'an and Sunnah
are deemed to be instances of apparent, not genuine, conflict. Furthermore, the ulema have maintained
the view that a genuine conflict between two ayat or two ahadith, or between an ayah and a Hadith,
does not arise; whenever a conflict is observed between these proofs, it is deemed to be only apparent
(zahiri), and lacking in reality and substance. For the all-pervasive wisdom of the Lawgiver cannot
countenance the enactment of contradictory laws. It is only the mujtahid who is deemed unable to
envision the purpose and intention of the Lawgiver in its entirety who may therefore find cases of
apparent conflict in the divinely-revealed law. Only in cases of evident abrogation (naskh), which are
Principles of Islamic Jurisprudence ~
Kamali 307
largely identified and determined by the Prophet himself, could it be said that a genuine conflict had
existed between the rulings of divine revelation.
[2. Ghazali, Mustasfa, II. 126; Khallaf, 'Ilm, p. 230.]
When there is a case
of apparent conflict between the rulings of the nusus, one must try to discover the objective of the
Lawgiver and remove the conflict in the light of that objective. Indeed, the rules of reconciliation and
preference proceed on the assumption that no genuine conflict can exist in the divine laws; hence it
becomes necessary to reconcile them or to prefer one to the other. This would mean that either both or
at least one of the evidences at issue can be retained and implemented. The mujtahid must therefore try
to reconcile them as far as possible, but if he reaches the conclusion that they cannot be reconciled, then
he must attempt to prefer one over the other. If the attempt at reconciliation and preference fails, then
one must ascertain whether recourse can be had to abrogation, which should be considered as the last
resort. But when abrogation also fails to offer a way out of the problem, then action must be suspended
altogether and both of the conflicting texts are abandoned.
[3. Khallaf, `Ilm; p. 229; Khudari, Usul, p.359.]
A case of conflict between the nusus and ijma', or between two rulings of the latter, is inconceivable for
the obvious reason that no ijma' can be concluded which is contrary to the Qur'an and Sunnah in the
first place. Should a conflict arise between two analogies or proofs other than the nusus and ijma'; and
neither can be given preference over the other and they cannot be reconciled, both must be suspended.
Abrogation in this case does not offer an alternative course of action. For abrogation is basically
confined to the definitive rulings of the Qur'an and Sunnah; it is irrelevant to ijma' and can be of little
help in cases of conflict between speculative evidences.
Among the many instances of abrogation which the ulema have identified in the Qur'an, we may refer
to only two; but in both cases a closer analysis will show that the conflict at issue is not genuine. Our
first illustration is concerned with the precise duration of the waiting period ('iddah) of widows.
According to one of the two ayat on this subject (al-Baqarah, 2:234), the widow must observe a `iddah
of four months and ten days following the death of her husband. This ayah consists of a general
provision which applies to every widow regardless as to whether she is pregnant at the time her
husband dies or not. But elsewhere in the Qur'an, there is another ruling concerning the `iddah of
pregnant women. This ayah (al-Talaq, 65:4) also conveys a general ruling to the effect that the `iddah
of pregnant women continues until the delivery of the child. This ruling also applies to a pregnant
widow, who must wait until the termination of her pregnancy. Thus a pregnant woman whose husband
dies and who gives birth to a child on the same day would have completed her `iddah according to the
second of the two rulings, whereas she must, under the first ruling, still wait for four months and ten
days. The two texts thus appear to be in conflict regarding the `iddah of a pregnant widow.
For a second illustration of an apparent conflict in the Qur'an, we refer to the two texts concerning the
validity of making a bequest to one's relatives. This is explicitly permitted in sura al-Baqarah (2:180)
which provides: `It is prescribed when death approaches any of you, if he leaves any assets, that he
makes a bequest to his parents and relatives.' This ruling is deemed to have been abrogated by another
Principles of Islamic Jurisprudence ~
Kamali 308
text (al-Nisa', 4:11) which prescribes for each of the close relatives a share in inheritance. This share is
obviously determined, not by the will of the testator, but by the will of God. The two texts thus appear
to be in conflict; however the conflict is not genuine as they can be reconciled, and both can be
implemented under different circumstances. The first of the two rulings may, for example, be reserved
for a situation where the parent, of the testator are barred from inheritance by a disability such as
difference of religion. Since the parents in this case would be excluded from the scope of the second
ayah, the conflict would consequently not arise and there would be no case for abrogation. The same
approach can be taken regarding the foregoing ayat on the waiting period of widows. Whereas the first
of the two texts prescribed the `iddah of widows to be four months and ten days, the second enacted the
`iddah of pregnant women until the termination of pregnancy. The two texts could be reconciled if
widows were to observe whichever of the two periods were the longer. If the pregnant widow delivers
her child before the expiry of four months and ten days following the death of her husband, then she
should wait until this period expires. But if she waits four months and ten days and has still not
delivered the child, then her `iddah should continue until the birth of the child. Thus the apparent
conflict between the ayat under discussion is removed by recourse to specification (takhsis): the second
ayah in this case specifies the general ruling of the first insofar as it concerns pregnant widows.
Zahrah, Usul, p.245; Badran, Usul, p. 467; Khallaf, `Ilm; p.231.]
To reconcile two evidences both of which are general ('Amm), one may distinguish the scope and
subject-matter of their application from one another by recourse to allegorical interpretation (ta'wil).
Supposing there were two conflicting orders on salah, one providing that `salah is obligatory on my
ummah' and the other that `salah is not obligatory on my ummah.' To reconcile these two, one may
assume the first to have contemplated the adult and competent members of the community and the
second the minors and lunatics. If this is not possible, then the two rulings may be distinguished in
regard to the notes of their respective application, or they might be assumed to have each envisaged a
different set of circumstances. It is possible that one or both of the two rulings are in the nature of a
manifest (Zahir) provision and may thus be open to ta'wil. The Zahir may be given an interpretation
other than that of its obvious meaning so as to avoid a clash. This may be illustrated by the two
apparently conflicting Hadiths on the subject of testimony. In the first of the two reports, the Prophet is
quoted to have addressed an audience as follows: `Should I inform you who makes the best of
witnesses?' To this, the audience responded, `Yes O Messenger of God', and the Prophet said, `It is one
who gives testimony before he is requested to do so.'
[5. Muslim, Sahih, p. 281, Hadith no. 1059; Badran, Usul, p. 465.]
However, according to another Hadith, the Prophet said, 'The best generation is the one in which I live,
then the generation after that and then the next one, but after that there will be people who will give
testimony although they are not invited to give it.'
[6. Tabrizi, Mishkat, III, 1695, Hadith no. 6001.]
Thus the first Hadith recommends something which the second seems to be discouraging. The best form
of testimony under the first Hadith is unsolicited testimony, whereas this is frowned upon in the second.
Principles of Islamic Jurisprudence ~ Kamali 309
[4. AbuSince neither of the two Hadith have specified a particular context, it is suggested by way of ta'wil that
the first Hadith contemplates the Rights of God (huquq Allah) whereas the second Hadith contemplates
the Rights of Men (huquq al-'ibad). In this way, the apparent conflict between the two texts is removed
through an allegorical interpretation.
[7. Badran, Usul, pp. 466.]
Allegorical interpretations may offer a solution even in cases where two conflicting orders are both
specific (Khass). Recourse to ta'wil in this case would once again serve the purpose of distinguishing
the subject matter and scope of each of the two conflicting orders. For example, if Ahmad issues two
orders to his employee, one of which tells the latter to 'pay 1000 dinars to Zayd' and the other tells him
`do not pay 1000 dinars to Zayd', then if circumstances would so permit, the first order may be assumed
to have contemplated normal relations between Zayd and Ahmad while the second had envisaged a
hostile situation between the two parties.
[8. Cf. Khudari, Usul, p. 361.]
In the event where one of the two conflicting rulings is general ('Amm) and the other specific (Khass),
they can be reconciled by excepting the latter from the scope of the former through a procedure which
is known as takhsis al-`Amm, that is, `specifying a part of the general'. This would once again mean that
each of the two rulings applied separately from one another to a different subject-matter, and both can
remain operative. Similarly, a text may be absolute in its wording and appear to be in conflict with
another text. They could be reconciled and the conflict between them removed if one of them is so
interpreted as to limit and qualify the absolute terms of the other. Examples to illustrate these and other
methods of interpretation can be found in the separate chapter of this work devoted to the rules of
interpretation.
Should the attempt at reconciliation fail, the next step in resolving a conflict, as stated above, is to give
preference to one over the other. Investigation may reveal that one of the two texts is supported by
stronger evidence, in which case we are basically dealing with two texts of unequal strength. To prefer
the one over the other in this case may even amount to a form of clarification or explanation of one by
the other. Inequality in strength may be in content (matn) or in proof of authenticity (riwayah). The
former is concerned with the clarity or otherwise of the language of the text, and the latter with the
historical reliability of the transmitters. Preference on the basis of content would require that the literal
is preferred to the metaphorical, the clear (Sarih) to the implicit (Kinayah), the explicit meaning
(`ibarah al-nass) to the allusive meaning (isharah al-nass), and the latter is preferred to the inferred
meaning of the text (dalalah al-nass). Similarly, words which convey greater clarity are to be preferred
to those which are less clear. Thus the Muhkam (perspicuous) will be preferred to the Mufassar
(unequivocal), the latter to the Nass (explicit) and the Nass to the Zahir (manifest). Among unclear
words, the Khafi (obscure) takes priority over the Mushkil (difficult), the latter over the Mujmal
(ambivalent) and the Mujmal over the Mutashabih (intricate), in an order of priority which again has
been stated elsewhere under the rules of interpretation.
Principles of Islamic Jurisprudence ~
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Inequality in respect of transmission is mainly concerned with the Hadith: when, for example, the
Mutawatir is compared to the Mashhur, the former is preferred to the latter. Similarly the Mashhur
takes priority over the solitary (Ahad) Hadith, and the report of a transmitter who is faqih is preferred to
the report of a transmitter who is not. Reports by persons who are known to be retentive of memory
take priority over those which are transmitted by persons whose retentiveness is uncertain. On a similar
note, ahadith that are transmitted by leading Companions are given preference to those transmitted by
Companions who are less well known for their prominence and continuity of contact with the Prophet.
The Hanafis also consider the action of the transmitter upon his own narration to be a supportive factor
which adds to the strength of a Hadith. The Malikis on the other hand prefer a Hadith that is in
agreement with the practice of the people of Madinah over one which is not. Similarly, the report of a
transmitter who is directly involved in an incident is preferable to other reports. Thus with the Hadith
which is reported by the Prophet's wife Maymunah, to the effect that the Prophet married her while both
of them were halal, that is outside the sacred state of ihram for the hajj ceremonies; this report is
preferred to that of Ibn `Abbas to the effect that the Prophet married Maymunah while he was in the
sacred state of ihram.
[9. Abu Dawud, Sunan, II, 486-87, Hadith, no. 1839 and 1840; Ghazali, Mustasfa, II, 128; Khudari, Usul, p. 367.]
In this
way, a Hadith which is supported by a more reliable chain of transmission is preferred to a Hadith
which is weak in its proof of authenticity.
At times the mujtahid may be confronted with a situation where each of the two conflicting Hadiths is
stronger in respect of some of these factors but weaker in regard to others, in which case it is for the
mujtahid to assess and determine the overall strength or weakness of the Hadith according to his own
ijtihad.
The ulema of Hadith are in agreement that a Hadith which is reported by all the six imams of Hadith,
namely al-Bukhari, Muslim, Abu Dawud, al-Nasa'i, al-Tirmidhi, and Ibn Majah, takes priority over that
which might have been reported only by some and not all of these authorities. Among ahadith which
are not reported by all the six authorities, those which are reported by the first two are preferred, and if
one of the two conflicting Hadith is reported by al-Bukhari and the other by Muslim, the former is
preferred to the latter.
[10. Abu Zahrah, Usul, p. 246.]
According to another rule of preference, affirmative evidence takes priority over the negative. This may
be illustrated by the two rulings of Hadith concerning the right of a slave-woman to a divorce upon her
release from slavery. It is reported that a slave woman by the name of Barirah was owned by `A'ishah
and was married to another slave, Mughith. `A'ishah set her free, and she wanted to be separated from
Mughith, who was still a slave. The case was brought to the attention of the Prophet, who gave Barirah
the choice either to remain married to Mughith or be separated. But a second report on the same subject
informs us that Barirah's husband was a free man when she was emancipated. The two reports are thus
conflicting with regard to the status of the husband. But since it is known for certain that Mughith was
originally a slave, and there is no dispute over this, the report which negates this original state is
Principles of Islamic Jurisprudence ~
Kamali 311
therefore ignored in view of the general rule that the affirmative, that is, the evidence which affirms
continuation of the original state, takes priority over that which negates it. The jurists have
consequently held that when a slave-woman is set free while married to a slave, she will have the
choice of repudiating or retaining the marriage. If the husband is a free man, she will have no such
choice according to Malik, Shafi'i, and the majority of scholars. Abu Hanifah, however, maintains that
she will have the option even when her husband is a free man.
footnote no. 1548; Badran, Usul, p. 465; Khudari, Usul, p.367.]
[11. Abu Dawud, Sunan, II, 601-602, Hadith nos. 2223-7 and
Another rule of preference which may be mentioned briefly is that prohibition takes priority over
permissibility. Thus if there are two conflicting rules of equal strength on the same issue, one
prohibitory and the other permissive, the former will take priority over the latter. Having said this,
however, it is possible that the mujtahid may depart from this rule and instead apply that which brings
ease in preference to the one that entails hardship.
[12. Khallaf, `Ilm, p. 232; Badran, Usul, p. 470; Khudari, Usul, p. 367.]
If the attempt at reconciling two conflicting texts, or at preferring one over the other, have both failed,
recourse may be had to abrogation. This would necessitate an enquiry into the occasions of revelation
(asbab al-nuzul), the relevant materials in the Sunnah, and the chronological order between the two
texts. If this also proves unfeasible, then action must be suspended on both and the mujtahid may resort
to inferior evidences in order to determine the ruling for the issue. Thus if the conflict happens to be
between two rulings of the Qur'an, he may depart from both and determine the matter with reference to
the Sunnah. Should there be a conflict between two rulings of the Sunnah, then the mujtahid may refer,
in a descending order, to the fatwa of Companions, and failing that the issue may be determined on
grounds of qiyas. However, if the mujtahid fails to find a ruling in any of the lower categories of proofs,
then he may resort to the general norms of Shari'ah that may be applicable to the case. These may be
illustrated in the following example. A conflict is encountered between the two rulings of Qur'an
concerning the recitation of the portions of the Qur'an in congregational prayers. The question which
needs to be answered is, whether in a congregational salah, the congregation member, that is the
muqtadi, is required to recite the sura al-Fatihah after the imam, or whether he should remain silent.
Two conflicting answers can be derived for this question from the Qur'an. The first of the two ayat
under discussion provides: `And when the Qur'an is being read, listen to it attentively and pay heed, so
that you may receive mercy' (al-A'raf, 7:204). It would appear that the muqtadi, according to this ayah,
should remain silent when the imam recites the Qur'an. However, according to another ayah, everyone,
that is both the imam and the muqtadi, is ordered to `read whatever is easy for you of the Qur'an' (alMuzammil,
73:20). Although neither of the two texts make a particular reference to salah,
they appear
nevertheless
to be in conflict with regard to the position of the muqtadi.
There is no additional evidence
available
to enable the preference of one to the other; action is therefore suspended on both and the
issue
is determined with reference to the Sunnah.
It is thus reported that on one occasion when the
Prophet
led the salah,
he asked the members of the congregation whether they recited the Qur'an with
him,
and having heard their answers, he instructed them not to recite the Qur'an behind the imam. But
Principles of Islamic Jurisprudence ~
Kamali 312
there still remains a measure of inconsistency even in the ahadith that are reported on this point, which
would explain why the jurists have also differed on it: Abu Hanifah, Malik, Ibn Hanbal, and al-Shafi'i
(according to his former view which he revised later) have held that it is not necessary to recite alFatihah
behind the imam in those prayers in which he recites the Qur'an aloud, but that when the imam
recites
quietly, the worshippers should recite al-Fatihah. The later Hanafi jurists have, however, held the
view
that it is not necessary for the worshipper to recite the Qur'an behind the imam in either case.
Abu Dawud, Sunan, II, 211, Hadith no. 825 and footnote no. 373; Badran, Usul, pp. 468-69; Khudari, Usul, p. 359.]
In the event where an issue cannot be determined by reference to the Sunnah, the mujtahid may resort
to the fatwa of a Companion, and failing that, to qiyas. There is, for example, an apparent conflict
between the two reports concerning the way that the Prophet performed the salat al-kusuf, that is,
prayer offered on the occasion of a solar eclipse. According to one of the reports, the Prophet offered
two units (i.e. two rak'ahs) of salah, each consisting of two bowings (ruku`) and two prostration,
(sajdah). But according to another report, each of the two units contained four bowings and four
prostrations. There is yet another report to the effect that each of the two rak'ahs contained three
bowing, and three prostrations.
[14. Abu Dawud, Sunan, I, 304, Hadith nos. 1173-7.]
The conflicting contents of these
reports can neither be reconciled nor given preference one over the other. Hence action is suspended on
all and the matter is determined on grounds of qiyas. In this case, since salat al-kusuf is a variety of
salah, the normal rules of salah are applied to it. Since all obligatory salah, without any variation,
contains one bowing and two prostrations, this is also by way of analogy extended to salat al-kusuf.
Badran, Usul, p.469.]
In the event of a conflict occurring between two analogies, if they cannot be reconciled with one
another, then one of them must be given preference. The qiyas whose effective cause ('illah) is stated in
an explicit text is to be preferred to the one whose 'illah has been derived through inference (istinbat).
Similarly, a qiyas whose `illah is founded in an allusive text (isharah al-nass) takes priority over qiyas
whose 'illah is merely a proper or reasonable attribute which is derived through inference and ijtihad.
When the 'illah of qiyas is explicitly stated in the nass or when the result of qiyas is upheld by ijma', no
conflict is expected to arise. In the unlikely event when the mujtahid constructs an analogy on the basis
of an inferred effective cause ( 'illah mustanbatah) while the `illah is explicitly stated in the nass, and
he reaches a divergent result, it is put down to his ignorance of the nass, and the result that he has
reached will be ignored.
[16. Khallaf, 'Ilm, p.232; Badran, Usul, p. 470.]
A conflict may well arise between two analogies which are both founded on an inferred `illah, since this
type of `illah involves a measure of speculative reasoning and ijtihad. Two mujtahids may thus arrive at
different conclusions with regard to the identification of an 'illah. This is, for example, the case
regarding the `illah of compulsory guardianship (wilayah al-ijbar) in the marriage of a minor girl.
Imam Abu Hanifah considers the 'illah of the guardian's power of ijbar in marriage to be the minority
of the ward, whereas Imam Shafi'i considers the 'illah to be her virginity. This difference of ijtihad
Principles of Islamic Jurisprudence ~ Kamali 313
[13.
[15.would in turn give rise to analogies whose results diverge from one another depending on which of the
two effective causes they are based on. However, differences of this nature are tolerated and neither of
the two Imams have attempted to discourage diversity in ijtihad. In the event where neither of the two
conflicting analogies can be preferred to the other, it is for the mujtahid to choose the one that seems
good to him even if there is no basis for such preference other than his own personal opinion.
Usul, pp. 247-48; Khudari, Usul, p.360.]
If none of the foregoing methods can be applied in order to determine the ruling of an issue, then the
mujtahid may base his decision on the original norms of the Shari'ah. This would be done on the
assumption that no specific indication could be found in the Shari'ah on the case. An example of this is
to determine the ruling of the Shari`ah that might have to be applied to a hermaphrodite whose gender,
whether male or female, cannot be determined and where neither side could be preferred to the other. A
recourse to the original norms in this case means that the issue remains where it was in the first place.
Since neither of the two possibilities can be preferred to the other, action will be based on one side or
the other, not because of any evidence to warrant such a preference but as a precautionary measure
when the circumstances may indicate such a course of action. Thus in some situations, in the
distribution of shares in inheritance, for example, the hermaphrodite will be presumed a male, while he
will be presumed a female in other situations as considerations of caution and prevention of possible
harm to him may suggest.
[18. Badran, Usul, pp. 469-70.]
In making such decisions, it is essential that the mujtahid does not act against the general principles and
spirit of the Shari'ah. When he weighs the merits and demerits of conflicting evidences he must never
lose sight of the basic objectives of the Lawgiver.
Principles of Islamic Jurisprudence ~ Kamali 314
[17. Abu Zahrah,Chapter Nineteen: Ijtihad, or Personal Reasoning
Ijtihad is the most important source of Islamic law next to the Qur'an and the Sunnah. The main
difference between ijtihad and the revealed sources of the Shari'ah lies in the fact that ijtihad is a
continuous process of development whereas divine revelation and prophetic legislation discontinued
upon the demise of the Prophet. In this sense, ijtihad continues to be the main instrument of interpreting
the divine message and relating it to the changing conditions of the Muslim community in its
aspirations to attain justice, salvation and truth.
Since ijtihad derives its validity from divine revelation, its propriety is measured by its harmony with
the Qur'an and the Sunnah. The sources of Islamic law are therefore essentially monolithic, and the
commonly accepted division of the roots of jurisprudence into the primary and secondary is somewhat
formal rather than real. The essential unity of the Shari'ah lies in the degree of harmony that is achieved
between revelation and reason. Ijtihad is the principal instrument of maintaining this harmony. The
various sources of Islamic law that feature next to the Qur'an and the Sunnah are all manifestations of
ijtihad, albeit with differences that are largely procedural in character. In this way, consensus of
opinion, analogy, juristic preference, considerations of public interest (maslahah), etc., are all interrelated
not only under the main heading of ijtihad,
but via it to the Qur'an and the Sunnah.
(Islamic Law, p. 109) has thus aptly stated that: 'There are three prominent and fundamental sources of Islamic Law: the Holy Qur'an, the Sunnah of the holy
Prophet (p.b.u.h.) and ijtihad.]
It is partly due to the formalistic character of these sub-divisions that they are often
found to be overlapping and concurrent. Thus a ruling of ijma' is often based on analogy, maslahah, or
istihsan, and so on, despite its being designated as ijma'. Similarly, qiyas and istihsan are closely related
to one another in the sense that one of the two main varieties of istihsan consists of a selection between
two analogies on the same issue. The difference between maslahah and istihsan is largely procedural,
for they are essentially the same, the one being reflective of the Maliki and the other of the Hanafi
approach to ijtihad. It is thus evident that all the non-revealed proofs of Shari'ah are an embodiment of
the single phenomenon of ijtihad.
Being a derivation from the root word jahada, ijtihad literally means striving, or self-exertion in any
activity which entails a measure of hardship. It would thus be in order to use jahada in respect of one
who carries a heavy load, but not so if he carries only a trivial weight. Juridically, however, ijtihad
mainly consists not of physical, but of intellectual exertion on the part of the jurist. Ijtihad is defined as
the total expenditure of effort made by a jurist in order to infer, with a degree of probability, the rules of
Shari'ah from their detailed evidence in the sources.
Principles of Islamic Jurisprudence ~ Kamali 315
[1. Amin Islahi
[2. Amidi, Ihkam, IV, 162; Shawkani, Irshad, p. 250; Khudari, Usul, p. 367.]
Some ulema have defined ijtihad as the application by a jurist of all his faculties either in inferring the
rules of Shari'ah from their sources, or in implementing such rules and applying them to particular issues.
[3. Abu Zahrah, Usul, p.301.]
Ijtihad essentially consists of an inference (istinbat) that amounts to a
probability (zann), thereby excluding the extraction of a ruling from a clear text. It also excludes the
discovery of a hukm by asking a learned person or by consulting the relevant literature without the
exercise of one's own opinion and judgment. Thus a person who knows the rules of Shari'ah in detail
but is unable to exercise his judgment in the inference of the ahkam direct from their sources is not a
mujtahid. Ijtihad, in other words, consists of the formulation of an opinion in regard to a hukm shar'i.
The presence of an element of speculation in ijtihad implies that the result arrived at is probably correct,
while the possibility of its being erroneous is not excluded. Zann in this context is distinguished from
'ilm, which implies positive knowledge. Since the decisive rules of Shari'ah impart positive knowledge,
they are excluded from the scope of ijtihad.
[4. Shawkani, Irshad, p. 250; Zuhayr, Usul, IV, 223-25; Badran, Usul, p. 471.]
Essential
to the meaning of ijtihad is also the concept that the endeavour of the jurist involves a total expenditure
of effort in such a manner that the jurist feels an inability to exert himself further. If the jurist has failed
to discover the evidence which he was capable of discovering, his opinion is void.
Amidi, Ihkam, IV, 162.]
[5. Ghazali, Mustasfa, II, 102;
And lastly, the definition of ijtihad is explicit on the point that only a jurist (faqih) may
practice ijtihad. This is explained by the requirements of ijtihad, namely the qualifications that must be
fulfilled for attainment to the rank of mujtahid. When these requirements are met, it is inevitable that
the mujtahid must also be a faqih. Thus the definition of ijtihad precludes self-exertion by a layman in
the inference of ahkam.
[6. Shawkani, Irshad, p. 250.]
The subject of ijtihad must be a question of Shari'ah; more specifically, ijtihad is concerned with the
practical rules of Shari'ah which usually regulate the conduct of those to whom they apply (i.e. the
mukallaf). This would preclude from the scope of ijtihad purely intellectual (`aqli) and customary (urfi)
issues, or matters that are perceptible to the senses (hissi) and do not involve the inference of a hukm
shar'i from the evidence present in the sources. Thus ijtihad may not be exercised in regard to such
issues as the createdness of the universe, the existence of a Creator, the sending of prophets, and so
forth, because there is only one correct view in regard to these matters, and any one who differs from it
is wrong. Similarly, one may not exercise ijtihad on matters such as the obligatory status of the pillars
of the faith, or the prohibition of murder, theft, and adultery. For these are evident truths of the Shari'ah
which are determined in the explicit statements of the text.
Muhammedan Theories, p. 91; Badran, Usul, p. 471.]
[7. Shawkani, Irshad, p. 252; Zuhayr, Usul, IV, 225; Aghnides,
The detailed evidences found in the Qur'an and the Sunnah are divided into four types, as follows.
1) Evidence which is decisive both in respect of authenticity and meaning.
2) Evidence which is authentic but speculative in meaning.
3) That which is of doubtful authenticity, but definite in meaning.
Principles of Islamic Jurisprudence ~
Kamali 316
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