Arabs, whereas the Madinan suras are detailed and convey a sense of serenity that marks a difference of
style in the revelation of the Qur’an.
[Cf. von Denffer, ‘Ulum, p. 90.]
The distinction between the Meccan and Madinan parts of the Qur’an is based on the information that is
provided mainly by the Companions and the following generation of the 'successors': the Prophet
himself has said nothing on the subject. The distinction is also facilitated considerably by internal
evidence in the Qur’an, such as the theme itself: ayat about warfare were, for example, revealed only
after the Hijrah, but references to Abu Lahab in sura 111 and to the battle of Badr (3: 123) indicate the
Meccan origin of the suras in which they occur. Similarly the form of address is often different in the
two parts. The frequent address, 'O you who believe' and 'O people of the Book' indicates a Madinan
origin, while 'O people' or 'O mankind' are typically Meccan. There are nineteen suras in the Qur’an
which begin with abbreviated letters (al-muqatta'at); all of them are known to be Meccan except two,
namely al-Baqarah, and Al-Imran. All references to the munafiqun (hyprocrites) are Madinan and all
suras that contain sajdah, that is, an order to prostrate, are Meccan. The distinction between the Makki
and Madinese portions of the text is on the whole a well-established feature of the Qur’an, which is
normally indicated next to the title of each sura, and the best evidence of such distinction is internal
evidence in the Qur’an itself.
[Cf. von Denffer, ‘Ulum, p. 91.]
With regard to distinguishing the Makki from the Madani contents of the Qur’an, the ulema have
applied three different criteria: 1) The time of the revelation, meaning that the part of the Qur’an which
was revealed prior to the Prophet’s migration to Madinah is classified as Makki and the remaining part
which was revealed after the occasion is identified as Madani regardless of the locality in which they
were received. In this way the ayat which were actually revealed in Mecca after the Year of Victory
(‘am al-fath) or during the Farewell Pilgrimage (hajjah al-wida) are accounted as Madani. This is
considered to be the most preferred of the three methods under discussion. 2) The place of revelation,
which means that all the ayat that were revealed while the Prophet was in Mecca, or its neighbouring
areas, are classified as Makki, and ayat that were actually revealed in Madinah or its surrounding areas
are classified as Madani. This criterion is, however, not conclusive in that it leaves out the ayat which
were received while the Prophet was travelling to places such as Jerusalem or Tabuk. 3) The nature of
the audience, which means that all the parts of the Qur’an which are addressed to the people of Makkah
are classified as Makki and those which are addressed to the people of Madinah are classified as
Madani. In this way all passages which begin with phrases such as 'O mankind' or ‘O people' are Makki
and those which open with phrases, such as 'O believers' are typically Madarni.
[Cf. Qattan, Tashri’, 69-70.]
In the sense that legal material occupies only a small portion of the bulk of its text, the Qur’an is not a
legal or a constitutional document. The Qur’an calls itself huda, or guidance, not a code of law. Out of
over 6,200 ayat, less than one-tenth relate to law and Jurisprudence, while the remainder are largely
concerned with matters of belief and morality, the five pillars of the faith and a variety of other themes.
Principles of Islamic Jurisprudence ~
Kamali 26
Its ideas of economic and social justice, including its legal Contents, are on the whole Subsidiary to its
religious call.
The legal or practical contents of the Qur’an (al-ahkam al-‘amaliyyah) constitute the basis of what is
known as fiqh al-Qur’an, or the Juris corpus of the Qur’an. There are close to 350 legal ayat in the
Qur’an, most of which were revealed in response to problems that were encountered. Some were
revealed with the aim of repealing objectionable customs such as infanticide, usury, gambling and
unlimited polygamy. Others laid down penalties with which to enforce the reforms that the Qur’an had
introduced. But on the whole, the Qur’an confirmed and upheld the existing customs and institutions of
Arab society and only introduced changes that were deemed necessary.
[Cf. Abdur Rahim, Jurisprudence, P. 71.]
There are an estimated 140 ayat in the Qur’an on devotional matters such as salah, legal alms (zakah),
siyam (fasting), the Pilgrimage of hajj, jihad, charities, the taking of oaths and penances (kaffarat).
Another seventy ayat are devoted to marriage, divorce, the waiting period of 'iddah, revocation (rij'ah),
dower, maintenance, custody of children, fosterage, paternity, inheritance and bequest. Rules
concerning commercial transactions (mu'amalat) such as sale, lease, loan and mortgage, constitute the
subject of another seventy ayat. There are about thirty ayat on crimes and penalties such as murder,
highway robbery (hirabah), adultery and false accusation (qadhf). Another thirty ayat speak of justice,
equality, evidence, consultation, and the rights and obligations of citizens. There are about ten ayat
relating to economic matters regulating relations between the poor and the rich, workers' rights and so
on.
[Shaltut, Al-Islam, P. 494; Khallaf ‘Ilm, P32-33.]
It will be noted, however, that the fuqaha are not in agreement over
these figures, as calculations of this nature tend to differ according to one's understanding of, and
approach to, the contents of the Qur’an.
[Note, for example, Ghazali, who estimates the ayat al-ahkam at 500. While commenting on
Ghazali's estimate, Shawkani on the other hand observes that any such calculation can only amount to a rough estimate (Mustasfa, II, 101, and Shawkani, Irshad, p.
250)]
Characteristics of Qur’anic Legislation We have already described the phenomenon of graduality (tanjim) in Qur’anic legislation, its division
into Makki and Madani, and also the fact that the Qur’an has been revealed entirely in pure Arabic. In
the discussion below, I have also included ratiocination (ta'lil) among the characteristic features of
Qur’anic legislation despite the fact that the Qur’an specifies the effective cause or the rationale of only
some of its laws. The Qur’an is nevertheless quite expressive of the purpose, reason, objective, benefit,
reward and advantage of its injunctions. Since the Qur’an addresses the conscience of the individual
with a view to persuading and convincing him of the truth and divine origin of its message, it is often
combined with an allusion to the benefit that may accrue by the observance of its commands or the
harm that is prevented by its prohibitions. This is a feature of the Qur'anic legislation which is closely
Principles of Islamic Jurisprudence ~
Kamali 27
associated with ratiocination (ta'lil) and provides the mujtahid with a basis on which to conduct further
enquiry into ta'lil. However, of all the characteristic features of Qur’anic legislation, its division into
qat’i and zanni is perhaps the most significant and far-reaching, as it relates to almost any aspect of
enquiry into the Qur'anic legislation. I shall therefore take up this subject first.
I. The Definitive (qat’i) and the Speculative (zanni)
A ruling of the Qur’an may be conveyed in a text which is either unequivocal and clear, or in language
that is open to different interpretations. A definitive text is one which is clear and specific; it has only
one meaning and admits of no other interpretations. An example of this is the text on the entitlement of
the husband in the estate of his deceased wife, as follows: 'In what your wives leave, your share is a
half, if they leave no child" (al-Nisa', 4:12). Other examples are 'The adulterer, whether a man or a
woman, flog them each a hundred stripes' (al-Baqarah, 2:196), and those who accuse chaste women of
adultery and fail to bring four witnesses [to prove it], flog them eighty stripes' (al-Nur, 24:4). The
quantitative aspects of these rulings, namely one half, one hundred, and eighty are self-evident and
therefore not open to interpretation. The rulings of the Qur’an on the essentials of the faith such as
salah and fasting, the specified shares in inheritance and the prescribed penalties, are all qat’i their
validity may not be disputed by anyone, everyone is bound to follow them, and they are not open to
ijtihad.
The speculative ayat of the Qur’an are, on the other hand, open to interpretation and ijtihad. The best
interpretation is that which can be obtained from the Qur’an itself, that is, by looking at the Qur’an as a
whole and finding the necessary elaboration elsewhere in a similar or even a different context. The
Sunnah is another source which supplements the Qur’an and interprets its rulings. When the necessary
interpretation can be found in an authentic Hadith, it becomes an integral part of the Qur’an and both
together carry a binding force. Next in this order comes the Companions who are particularly wellqualified
to interpret the Qur'an in light of their close familiarity with its text, the surrounding
circumstances,
and the teachings of the Prophet.
[Khallaf, ‘Ilm, P. 35; Abu Zahrah, Usul, P. 71]
An example of the zanni in the Qur’an is the text which reads, 'Prohibited to you are your mothers and
your daughters' (al-Nisa 4:23). The text is definitive in regard to the prohibition of marriage with one’s
mother and daughter and there is no disagreement on this point. However, the word banatukum ('your
daughters') could be taken for its literal meaning, which would be a female child born to a person either
through marriage or through zina, or for its juridical meaning. In the latter sense 'banatukum' can only
mean a legitimate daughter.
Principles of Islamic Jurisprudence ~
Kamali 28
The jurists are in disagreement as to which of these meanings should be read into the text. The Hanafis
have upheld the first of the two meanings and have ruled on the prohibition of marriage to one's
illegitimate daughter, whereas the Shafi'is have upheld the second. According to this interpretation,
marriage with one's illegitimate daughter is not forbidden as the text only refers to a daughter through
marriage. It would follow from this that the illegitimate daughter has no right to inheritance, and the
rules of guardianship and custody would not apply to her.
[Sha’ban,'Manhaj', P. 31]
In a similar vein, the ulema have differed on the definition of futile, as opposed to deliberate, oaths,
which occur in sura al-Ma’idah (5:92): 'God will not call you to account for what is futile (al-laghw) in
your oaths, but He will call you to account for your deliberate oaths . . .' The text then continues to spell
out the expiation, or kaffarah, for deliberate oaths, which consists of either feeding ten hungry persons
who are in need, or setting a slave free, or fasting for three days. According to the Hanafis, a futile oath
is one which is taken on the truth of something that is suspected to be true but the opposite emerges to
be the case. The majority have, on the other hand, held it to mean taking an oath which is not intended,
that is, when taken in jest without any intention. Similar differences have arisen concerning the precise
definition of what may be considered as a deliberate oath (yamin al-mu'aqqadah).
when a person takes an oath on the truth of something which he knows to be untrue; this is called yamin al-ghamus, which is a variety of yamin al-mu'aqqadah.
[A typical form of a sinful oath is
However the Hanafis maintain that the latter only refers to the situation where a person pledges to do something in the future but then refuses to fulfill it. He is then
liable to pay the kaffarah.]
There is also disagreement as to whether the three days of fasting should be
consecutive or could be three separate days. Hence the text of this ayah, although definitive on the basic
requirement of kaffarah for futile oaths, is speculative as to the precise terms of the kaffarah and the
manner of its implementation.
To give another example of zanni in the Qur’an, we may refer to the phrase yunfaw min al-ard ('to be
banished from the earth') which occurs in sura al-Ma’idah (5:33). The phrase spells out the penalty for
highway robbery (hirabah), or according to an alternative but similar interpretation, for waging war on
the community and its legitimate leadership. Banishment (nafy) in this ayah can mean exile from the
place the offence is committed in the first place. This is, in fact, the obvious meaning of the phrase, and
the one which has been adopted by the majority of the ulema. But the Hanafi jurists maintain that the
phrase means imprisonment, not exile. According to the Hanafis, a literal approach to the interpretation
of this phrase does not prove to be satisfactory: if one is to be literal, then how can one be banished
from the face of the earth by any method but death? Nafy, or exile, on the other hand, is a penalty other
than killing. Furthermore, if the offender is to be banished from one place to another within the Muslim
territories, the harm is not likely to be prevented as he may commit further offences. The Hanafis have
further argued that banishing a Muslim outside the territory of Islam is not legally permissible. The only
proper meaning of the phrase which would achieve the Shari’ah purpose behind the penalty, is,
therefore, imprisonment.
Principles of Islamic Jurisprudence ~
Kamali 29
And lastly, the whole ayah of muharabah in which the phrase yunfaw min al-ard occurs is open to
divergent interpretations. The ayah in question reads:
The punishment of those who wage war against God and His
Messenger and strive to make mischief in the land is that they should
be killed or crucified or their hands and their feet should be cut off on
opposite sides, or they should be banished from the earth.
In this passage, confusion arises from the combination of phrases which contain differential penalties
for hirabah. This is mainly due to the use of the article aw, meaning 'and' between the three phrases
which provide three different penalties for the offence in question. It is thus not known for certain as to
which of the three penalties are to be applied to the offender, that is, the muharib. The majority view is
that the muharib is liable to execution when he actually robs and kills his victim, but if he only robs
him, the offender is liable to the mutilation of hands. And finally, if there be no killing involved and no
robbery, then the penalty is banishment. In the more intensified cases where the offender kills and robs
his victim, the former is to be killed and crucified. According to an alternative juristic opinion, it is for
the ruler to determine one or the other, or a combination of these penalties, in individual cases.
A Qur’anic injunction may simultaneously possess a definitive and a speculative meaning, in which
case each of the two meanings will convey a ruling independently of the other. An example of this is
the injunction concerning the requirement of ablution for prayers which reads in part ' . . . and wipe
your heads' (al-Ma’idah, 5:6). This text is definitive on the requirement of wiping (mash) of the head in
wudu', but since it does not specify the precise area of the head to be wiped, it is speculative in regard to
this point. Hence we find that the jurists are unanimous in regard to the first, but have differed in regard
to the second aspect of this injunction.
[Badran, Usul, p. 66.]
There are sometime instances where the scope of disagreement over the interpretation of the Qur’an is
fairly extensive. Mahmud Shaltut, for example, underlines this point by noting that at times seven or
eight different juristic conclusions have been arrived at on one and the same issue. And he goes on to
say that not all of these views can be said to be part of the religion, nor could they be legally binding.
These are ijtihadi opinions; ijtihad is not only permissible but is encouraged. For the Shari’ah does not
restrict the liberty of the individual to investigate and express an opinion. They may be right or they
may be wrong, and in either case, the diversity of opinion offers the political authority a range of choice
from which to select the view it deems to be most beneficial to the community. When the ruler
authorises a particular interpretation of the Qur’an and enacts it into law, it becomes obligatory for
everyone to follow only the authorised version .
[Shaltut, Al-Islam, P. 498.]
Principles of Islamic Jurisprudence ~
Kamali 30
The ulema are in agreement that the specific (Khass) of the Qur’an (and of Sunnah) is definitive, but
they are in disagreement as to whether the general ('Amm) is definitive or speculative. The Hanafis
maintain that the ‘Amm is definitive and binding: but the Malikis, Shafi’is and Hanbalis hold that the
‘Amm by itself is speculative and open to qualification and specification. We need not, at this point, go
into the details of the ‘Amm and the Khass as we shall have occasion to return to this subject later.
Suffice it here to explain how the ‘Amm and khass may be related to qat’i' and zanni.
First we may highlight the zanni content of the 'Amm by referring to the Qur’anic ruling which
provides: 'Forbidden to you (in marriage) are your mothers, your daughters, your sisters, your father's
sisters and your mother's sisters' (al-Nisa', 4:23). This is a general ruling in that mothers, daughters,
sisters, etc. are all 'Amm as they include, in the case of ‘mother’ not only the real mother but also the
step-mother and even the grandmother. Similarly, ‘daughters’ can include real daughters, stepdaughters,
granddaughters and even illegitimate daughters. The application of these terms to all of their various
meanings is qat’i according to the Hanafis, but is zanni according to the majority of ulema. Whenever
the zanni of the Qur’an is explained and clarified by the Qur’an itself or by the Sunnah, it may become
qat’i', in which case the clarification becomes an integral part of the original ruling. On the subject of
prohibited degrees in marriage, there is ample evidence both in the Qur’an and the Sunnah to specify
and elaborate the 'Amm of the Qur’an on this subject. Similarly, when the Qur’an or the Sunnah
specifies a general ruling of the Qur’an, the part which is so specified becomes qat’i'.
To give another example of the ‘Amm which can be clearly seen in its capacity as zanni we refer to the
Qur’anic proclamation that 'God has permitted sale but prohibited usury' (al-Baqarah, 2:275). This is a
general ruling in the sense that sale, that is any sale, is made lawful. But there are certain varieties of
sale which are specifically forbidden by the Sunnah. Consequently, the ‘Amm of this ayah is specified
by the Sunnah to the extent that some varieties of sale, such as sale of unripened fruit on a tree, were
forbidden and therefore excluded from the scope of this ayah. The ulema are all in agreement to the
effect that once the ‘Amm has been specified even in a narrow and limited sense, the part which still
remains unspecified is reduced to zanni and will be treated as such.
Broadly speaking, the Khass is definitive. When, for example, the Qur’an (al-Nur, 24:4) prescribes the
punishment of eighty lashes for slanderous accusation (qadhf), the quantitative aspect of this
punishment is specific (Khass) and not susceptible to any speculation. But then we find that the same
passage (al-Nur, 24:4) prescribes a supplementary penalty for the slanderous accuser (qadhif) where it
reads: 'Never accept their testimony, for they are evildoers (fasiqun), except for those who repent
afterwards and make amends.' This text is clear and definitive on the point that the qadhif is to be
disqualified as a witness, but then an element of doubt is introduced by the latter portion of the text
which tends to render ambiguous the precise scope of its application. Having enacted both the principal
and the supplementary penalties for slanderous accusers and fasiqun it becomes questionable whether
the qadhif should qualify as a witness after repentance. Does the text under discussion mean that the
Principles of Islamic Jurisprudence ~
Kamali 31
concession is only to be extended to the fasiqun and not necessarily to slanderous accusers? If the
answer is in the affirmative, then once the qadhif is convicted of the offence, no amount of repentance
will qualify him as an upright witness again. The whole confusion is due to uncertainty in the meaning
of a pronoun, namely al-ladhina (i.e. 'those') which is not known to refer to all or only part of the
preceding elements in the text. The Hanafis disqualify the qadhif permanently from being a witness,
whereas the Shafi’is would admit him as a witness after repentance. This example also serves to show
that it is not always self-evident whether a text is qat’i’ or zanni as this too may be open to
interpretation. But the main point of citing this example is to show that although the Khass is qat’i’, an
aspect thereof may be zanni in a way that might affect the definitive character of the Khass as a whole.
Although in principle the Khass is qat’i’ and, as such, is not open to speculative interpretation, there
may be exceptions to this general rule. For example, the penance (kaffarah) of a false oath according to
a textual ruling of the Qur’an (al-Ma’idah, 5:92) is of three types, one of which is to feed ten poor
persons. This is a specific ruling in the sense that 'ten poor persons' has only one meaning. But even so,
the Hanafis have given this text an alternative interpretation, which is that instead of feeding ten poor
persons, one such person may be fed ten times. The majority of ulema, however, do not agree with the
Hanafis on this point. Be that as it may, this example will serve to show that the scope of ijtihad is not
always confined to the 'Amm but that even the Khass and definitive rulings may require elaboration
which might be based on speculative reasoning.
Furthermore, the Khass of the Qur’an normally occurs in the form of a command or a prohibition
which, as discussed below in a separate chapter, can either be qat’i’ or zanni. The zanni component of a
command or a prohibition is readily identified by the fact that a command in the Qur’an may amount
either to wajib or to mandub or even to a mere mubah. Similarly, it is not always certain whether a
prohibition in the Qur’an amounts to a total ban (tahrim) or to a mere abomination (karahah).
The absolute (Mutlaq) and the qualified (Muqayyad) are also classified as the sub-varieties of Khass.
But these too can be related to the qat’i’ zanni division in at least two ways. Firstly, that somewhat like
the ‘Amm, the absolute is speculative in regard to the precise scope of its application. Secondly, the
qualification of the absolute, the grounds on which it is qualified and the nature of the relationship
between the qualified and the qualifier are not always a matter of certain knowledge. The absolute in
the Qur’an is sometimes qualified on speculative grounds, which is why the jurists are not in agreement
over the various aspects of qualifying the Mutlaq. Further detail on the subject of Mutlaq and
Muqayyad and juristic disagreements over its various aspects can be found in a separate chapter below.
Suffice it here to give an illustration: there are two separate rulings on the subject of witnesses in the
Qur’an, one of which is absolute and the other qualified in regard to the attributes of the witness. First it
is provided with regard to the transaction of sale to 'bring witnesses when you conclude a sale - washhidu
idha tabaya tum'
(al-Baqarah, 2:282). In this ayah,
the witness is not qualified in any way
whatsoever.
But elsewhere we find in a reference to the subject of revocation in divorce (rijah),
the
Principles of Islamic Jurisprudence ~
Kamali 32
command to 'bring two just witnesses' (al-Talaq, 65:2). The ulema have on the whole related these two
ayat to one another and the conclusion is drawn that the qualified terms of the second ayah must also be
applied to the first, which would mean that witnesses must be upright and just whether it be a case of a
commercial transaction or of revocation in divorce. This is the settled law, but to relate this to our
discussion over the qat’i’ and the zanni, it will be noted that determining the precise scope of the first
ayah is open to speculation. Does the requirement of witnesses apply only to sale or to all commercial
transactions? To enter a detailed discussion on this point might seem out of place in the face of the fact
that notwithstanding the clear terms of the Qur’anic injunction, the rules of fiqh as developed by the
majority of ulema, with the exception of the Zahiris, do not require any witnesses either in sale or in the
revocation of divorce. The ulema have, of course, found reasons in support of their rulings both from
within and outside the Qur’an. But even the bare facts we have discussed so far are enough to show that
the Mutlaq and Muqayyad are susceptible to speculative reasoning. But to discuss the foregoing
example a little further, it will be noted that the juxtaposition of the two ayat and the conclusion that the
one is qualified by the other is to a large extent based on speculative reasoning. And then the qualified
terms of the second of the two ayat may be taken a step further, and the question is bound to be asked,
as indeed it has been, as to the precise meaning of a just witness. The ulema of the various schools have
differed on the attribute of 'adalah in a witness and their conclusions are based largely on speculative
ijtihad,
We need not perhaps discuss in detail the point that the binary division of words into the literal (Haqiqi)
and metaphorical (Majazi) which we shall elsewhere elaborate can also be related to the qat’i’ and
zanni. Although relying on the literal meaning of a word is the norm and a requirement of certainty in
the enforcement of a legal text, it may be necessary at times to depart from the literal in favour of
adopting the metaphorical meaning of a word'. To give an example, talaq literally means release or
setting free, but as a technical term, it has acquired a specific meaning, and it is the metaphorical
meaning of talaq which is normally applied. The ulema have identified a large variety of grounds on
which the haqiqi and the Majazi can be related to one another. The Majazi is to a large extent
speculative and unreal. Some ulema have even equated the Majazi with falsehood, and, as such, it has
no place in the Qur'an. It is thus suggested that the Majazi is not to be relied upon in interpreting the
practical injunctions of the Qur'an. Be this as it may, the point is clear that speculative reasoning has a
wide scope in determining the meaning and application of Haqiqi and Majazi in the Qur’an, and indeed
in any other source of Shari’ah.
Furthermore, the ulema have deduced the rules of Shari'ah not only from the explicit word of the
Qur’an,, which is referred to as the mantuq, but also from the implicit meanings of the text through
inference and logical construction, which is referred to as the implied meaning, or mafhum. Once again,
this subject has been discussed in a separate chapter under al-dalalat, that is, textual implications. The
only purpose of referring to this subject here is to point out that the deduction of the rules of Shari'ah by
way of inference from the implied meaning of a text partakes in speculative reasoning and ijtihad.
Principles of Islamic Jurisprudence ~
Kamali 33
text can often command the same degree of authority as the explicit ruling of the same text. Having said
this, however, to extend, for example, the requirement of expiation (kaffarah) for erroneous killing
which is releasing a slave, or feeding sixty poor persons, or fasting for two months - to the case of
intentional killing on the analysts that the purpose of kaffarah is compensation for a sin and that this is
true of all types of homicide - is basically no more than speculative ijtihad. This is the implied meaning
the text in sura al-Nisa', 4:92, which is explicit on the kaffarah of erroneous killing. But the implied
meaning of this text does not command the same degree of certainty as the clear words thereof, which is
why the ulema are not in agreement on it.
In the discussion of the qat’i and zanni, the Qur’an and Sunnah are seen as complementary and integral
to one another. The reason is that the speculative of the Qur’an can be made definitive by the Sunnah
and vice versa. The zanni of the Qur'an may be elevated into qat’i’ by means of corroborative evidence
in the Qur’an itself or in the Sunnah. Similarly, the zanni of the Sunnah may be elevated into qat’i’ by
means of corroborative evidence in the Sunnah itself or in the Qur’an. And then the zanni of both the
Qur’an and Sunnah may be elevated into qat’i by means of a conclusive ijma’, especially the ijma of
Companions.
As stated above, a speculative indication in the text of the Qur’an or Hadith may be supported by a
definitive evidence in either, in which case it is as valid as one which was definitive in the first place.
To illustrate this, all the solitary (ahad) ahadith which elaborate the definitive Qur’anic prohibition of
usury (riba) in sura 2:275 are speculative by virtue of being Ahad. But since their substance is
supported by the definitive text of the Qur’an, they become definitive despite any doubt that may exist
in respect of their authenticity. Thus as a general rule, all solitary ahadith whose authenticity is open to
speculation are elevated to the rank of qat’i’ if they can be substantiated by clear evidence in the
Qur’an.
[Shatibi, Muwafaqat, III, 9; Qattan, Tashri’, p. 82.]
However, if the zanni cannot be so substantiated by the qat’i’,
it is not binding unless it can be validated by some evidence which may lead to one of the following
two possibilities. Firstly, the zanni is found to be in conflict with a qat’i of the Qur’an, in which case it
must be rejected. To illustrate this, it is reported that the widow of the Prophet, A'ishah, rejected the
alleged Hadith that the (soul of the) deceased is tortured by the weeping of his relatives over his death,
[Shatibi, Muwafaqat, III, 9.]
the reason being that this was contrary to the definitive text of the Qur’an (al-An'am,
6:164) which provides that 'no soul may be burdened with the burden of another soul'. And secondly,
the speculative indication may be such that it cannot be related to a definitive evidence in any way. The
ulema have differed on this; some would advise suspension while others would apply the presumption
of permissibility (ibahah), but the best view is that the matter is open to ijtihad.
[Shatibi, Muwafaqat, III, 12.]
The qat’i of the Qur’an is an integral part of the dogma, and anyone who rejects or denies its validity
automatically renounces Islam. But denying a particular interpretation of the zanni does not amount to
transgression. The mujtahid is entitled to give it an interpretation, and so is the ruler who may select one
Principles of Islamic Jurisprudence ~
Kamali 34
of the various interpretations for purposes of enforcement.
P. 35; Badran, Usul, p. 67.]
II. Brevity and Detail (al-ijmal wa'l-tafsil)
[Shaltut, Al-Islam, PP. 498-99, Abu Zahrah, Usul, P. 71; Khallaf, ‘Ilm,
By far the larger part of the Qur’anic legislation consists of an enunciation of general principles,
although in certain areas, the Qur'an also provides specific details. Being the principal source of the
Shari’ah, the Qur'an lays down general guidelines on almost every major topic of Islamic law. While
commenting on this point, Abu Zahrah concurs with Ibn Hazm's assessment that 'every single chapter
of fiqh finds its Origin in the Qur'an, which is then explained and elaborated by the Sunnah'.
Usul, p. 80, where he quotes Ibn Hazm in support of his own view.]
On a similar note, al-Shatibi makes the following
observation: Experience shows that every 'alim who has resorted to the Qur’an in search of the solution
to a problem has found in the Qur’an a principle that has provided him with some guidance on the
subject.
[Shatibi, Muwafaqat, III, 219.]
The often-quoted declaration that 'We have neglected nothing in the Book' (al-An'am, 6:38) is held to
mean that the ru'us al-ahkam, that is, the general of law and religion, are exhaustively treated in the
Qur’an.
[Abu Zahrah, Usul, P. 70.]
That the Qur’an is mainly concerned with general principles is borne out by
the fact that its contents require a great deal of elaboration, which is often provided, although not
exhaustively, by the Sunnah. To give an example, the following Qur’anic ayah provides the textual
authority for all the material sources of the Shari’ah, namely the Qur’an, the Sunnah, consensus and
analogy. The ayah reads: 'O you who believe, obey God and obey the Messenger, and those of you who
are in authority; and if you have a dispute concerning any matter refer it to God and to the Messenger . .
.' (al-Nisa', 4:58). 'Obey God' in this ayah refers to the Qur’an as the first source, 'and obey the
Messenger' refers to the Sunnah of the Prophet, 'and those of you who are in authority' authorises the
consensus of the ulema. The last portion of the ayah ('and if you have a dispute. . .') validates qiyas. For
a dispute can only be referred to God and to the Messenger by extending the rulings of the Qur’an and
Sunnah through analogy to similar cases. In this sense one might say that the whole body of usul al-fiqh
is a commentary on this single Qur’anic ayah.
of this work on the hujjiyyah of Sunnah, ijma’ and qiyas respectively.]
[Sabuni, Muwafaqat, P. 31. For a further discussion of this ayah see below in the sections
Al-Shatibi further observes that wherever the Qur’an
provides specific details it is related to the exposition and better understanding of its general principles.
[Shatibi, Muwafaqat, III, 217]
Most of the legal contents of the Qur’an consist of general rules, although it
contains specific injunctions on a number of topics. Broadly speaking, the Qur’an is specific on matters
which are deemed to be unchangeable, but in matters which are liable to change, it merely lays down
general guidelines.
Principles of Islamic Jurisprudence ~ Kamali 35
[Abu Zahrah,The Qur’anic legislation on civil, economic, constitutional and international affairs is, on the whole,
confined to an exposition of the general principles and objectives of the law. With regard to civil
transactions, for example, the nusus of the Qur’an on the fulfillment of contracts, the legality of sale,
the prohibition of usury, respect for the property of others, the documentation of loans and other forms
of deferred payments are all concerned with general principles. Thus in the area of contracts, the
Qur’anic legislation is confined to the bare minimum of detail,
[Of the two ayat on the subject of contracts, one is in the form
of a command and the other in the form of a question, as follows: 'O you believers, fulfill your contracts' (al-Ma’idah, 5: 1) . and 'O you believers, why do you say
things which you do not carry through?' (al-Saff, 61:2). These are, in turn, confirmed by another ayah (al-Nisa', 4:58) where an emphasis is laid on the fulfillment
of trusts and the principle of fair treatment: ‘God commands you to turn over trusts to those to whom they belong, and when you judge among people, judge
righteously.' Contracts must therefore not amount to a violation of justice, a breach of trust, or a departure from the moral ideals of the law.]
and in the
area of civil transactions and property, the believers are enjoined to 'devour not the properties of one
another unlawfully, but let there be lawful trade by mutual consent' (al-Nisa, 4:29). Elsewhere we read
in surah al-Baqarah (2:275) that 'God has permitted sale and prohibited usury'. The detailed varieties of
lawful trade, the forms of unlawful interference with the property of others, and the varieties of usurious
transactions, are matters which the Qur’an has not elaborated. Some of these have been explained and
elaborated by the Sunnah. As for the rest, it is for the scholars and the mujtahidun of every age to
specify them in the light of the general principles of the Shari’ah and the needs and interests of the
people.
[Cf. Badran, Bayan, pp. 2-3]
In the sphere of crimes and penalties, the Qur’anic legislation is specific with regard to only five
offences, namely murder, theft, highway robbery, zina and slanderous accusation. As for the rest, the
Qur’an authorises the community and those who are in charge of their affairs (i.e. the ulu al-amr) to
determine them in the light of the general principles of Shari’ah and the prevailing conditions of
society. Once again the Qur’an lays down the broad principles of penal law when it provides that 'the
punishment of an evil is an evil like it' (al-Shura, 42:40), and 'when you decide to punish then punish in
proportion to the offence committed against you' (al-Nahl, 16:126).
In the area of international relations, the Qur’an lays down rules which regulate war with the
unbelievers and expound the circumstances in which their property may be possessed in the form of
booty. But the general principle on which relations between Muslims and non-Muslims are to be
regulated is stated in the following passage:
God does not forbid you to act considerately towards those who have
never fought you over religion nor evicted you from your homes, nor
[does he forbid you] to act fairly towards them. God loves the
fairminded. He only forbids you to be friendly with the ones who have
fought you over [your] religion and evicted you from your homes and
have abetted others in your eviction. Those who befriend them are
wrongdoers (al-Mumtahinah, 60:8-9).
Principles of Islamic Jurisprudence ~
Kamali 36
style in the revelation of the Qur’an.
[Cf. von Denffer, ‘Ulum, p. 90.]
The distinction between the Meccan and Madinan parts of the Qur’an is based on the information that is
provided mainly by the Companions and the following generation of the 'successors': the Prophet
himself has said nothing on the subject. The distinction is also facilitated considerably by internal
evidence in the Qur’an, such as the theme itself: ayat about warfare were, for example, revealed only
after the Hijrah, but references to Abu Lahab in sura 111 and to the battle of Badr (3: 123) indicate the
Meccan origin of the suras in which they occur. Similarly the form of address is often different in the
two parts. The frequent address, 'O you who believe' and 'O people of the Book' indicates a Madinan
origin, while 'O people' or 'O mankind' are typically Meccan. There are nineteen suras in the Qur’an
which begin with abbreviated letters (al-muqatta'at); all of them are known to be Meccan except two,
namely al-Baqarah, and Al-Imran. All references to the munafiqun (hyprocrites) are Madinan and all
suras that contain sajdah, that is, an order to prostrate, are Meccan. The distinction between the Makki
and Madinese portions of the text is on the whole a well-established feature of the Qur’an, which is
normally indicated next to the title of each sura, and the best evidence of such distinction is internal
evidence in the Qur’an itself.
[Cf. von Denffer, ‘Ulum, p. 91.]
With regard to distinguishing the Makki from the Madani contents of the Qur’an, the ulema have
applied three different criteria: 1) The time of the revelation, meaning that the part of the Qur’an which
was revealed prior to the Prophet’s migration to Madinah is classified as Makki and the remaining part
which was revealed after the occasion is identified as Madani regardless of the locality in which they
were received. In this way the ayat which were actually revealed in Mecca after the Year of Victory
(‘am al-fath) or during the Farewell Pilgrimage (hajjah al-wida) are accounted as Madani. This is
considered to be the most preferred of the three methods under discussion. 2) The place of revelation,
which means that all the ayat that were revealed while the Prophet was in Mecca, or its neighbouring
areas, are classified as Makki, and ayat that were actually revealed in Madinah or its surrounding areas
are classified as Madani. This criterion is, however, not conclusive in that it leaves out the ayat which
were received while the Prophet was travelling to places such as Jerusalem or Tabuk. 3) The nature of
the audience, which means that all the parts of the Qur’an which are addressed to the people of Makkah
are classified as Makki and those which are addressed to the people of Madinah are classified as
Madani. In this way all passages which begin with phrases such as 'O mankind' or ‘O people' are Makki
and those which open with phrases, such as 'O believers' are typically Madarni.
[Cf. Qattan, Tashri’, 69-70.]
In the sense that legal material occupies only a small portion of the bulk of its text, the Qur’an is not a
legal or a constitutional document. The Qur’an calls itself huda, or guidance, not a code of law. Out of
over 6,200 ayat, less than one-tenth relate to law and Jurisprudence, while the remainder are largely
concerned with matters of belief and morality, the five pillars of the faith and a variety of other themes.
Principles of Islamic Jurisprudence ~
Kamali 26
Its ideas of economic and social justice, including its legal Contents, are on the whole Subsidiary to its
religious call.
The legal or practical contents of the Qur’an (al-ahkam al-‘amaliyyah) constitute the basis of what is
known as fiqh al-Qur’an, or the Juris corpus of the Qur’an. There are close to 350 legal ayat in the
Qur’an, most of which were revealed in response to problems that were encountered. Some were
revealed with the aim of repealing objectionable customs such as infanticide, usury, gambling and
unlimited polygamy. Others laid down penalties with which to enforce the reforms that the Qur’an had
introduced. But on the whole, the Qur’an confirmed and upheld the existing customs and institutions of
Arab society and only introduced changes that were deemed necessary.
[Cf. Abdur Rahim, Jurisprudence, P. 71.]
There are an estimated 140 ayat in the Qur’an on devotional matters such as salah, legal alms (zakah),
siyam (fasting), the Pilgrimage of hajj, jihad, charities, the taking of oaths and penances (kaffarat).
Another seventy ayat are devoted to marriage, divorce, the waiting period of 'iddah, revocation (rij'ah),
dower, maintenance, custody of children, fosterage, paternity, inheritance and bequest. Rules
concerning commercial transactions (mu'amalat) such as sale, lease, loan and mortgage, constitute the
subject of another seventy ayat. There are about thirty ayat on crimes and penalties such as murder,
highway robbery (hirabah), adultery and false accusation (qadhf). Another thirty ayat speak of justice,
equality, evidence, consultation, and the rights and obligations of citizens. There are about ten ayat
relating to economic matters regulating relations between the poor and the rich, workers' rights and so
on.
[Shaltut, Al-Islam, P. 494; Khallaf ‘Ilm, P32-33.]
It will be noted, however, that the fuqaha are not in agreement over
these figures, as calculations of this nature tend to differ according to one's understanding of, and
approach to, the contents of the Qur’an.
[Note, for example, Ghazali, who estimates the ayat al-ahkam at 500. While commenting on
Ghazali's estimate, Shawkani on the other hand observes that any such calculation can only amount to a rough estimate (Mustasfa, II, 101, and Shawkani, Irshad, p.
250)]
Characteristics of Qur’anic Legislation We have already described the phenomenon of graduality (tanjim) in Qur’anic legislation, its division
into Makki and Madani, and also the fact that the Qur’an has been revealed entirely in pure Arabic. In
the discussion below, I have also included ratiocination (ta'lil) among the characteristic features of
Qur’anic legislation despite the fact that the Qur’an specifies the effective cause or the rationale of only
some of its laws. The Qur’an is nevertheless quite expressive of the purpose, reason, objective, benefit,
reward and advantage of its injunctions. Since the Qur’an addresses the conscience of the individual
with a view to persuading and convincing him of the truth and divine origin of its message, it is often
combined with an allusion to the benefit that may accrue by the observance of its commands or the
harm that is prevented by its prohibitions. This is a feature of the Qur'anic legislation which is closely
Principles of Islamic Jurisprudence ~
Kamali 27
associated with ratiocination (ta'lil) and provides the mujtahid with a basis on which to conduct further
enquiry into ta'lil. However, of all the characteristic features of Qur’anic legislation, its division into
qat’i and zanni is perhaps the most significant and far-reaching, as it relates to almost any aspect of
enquiry into the Qur'anic legislation. I shall therefore take up this subject first.
I. The Definitive (qat’i) and the Speculative (zanni)
A ruling of the Qur’an may be conveyed in a text which is either unequivocal and clear, or in language
that is open to different interpretations. A definitive text is one which is clear and specific; it has only
one meaning and admits of no other interpretations. An example of this is the text on the entitlement of
the husband in the estate of his deceased wife, as follows: 'In what your wives leave, your share is a
half, if they leave no child" (al-Nisa', 4:12). Other examples are 'The adulterer, whether a man or a
woman, flog them each a hundred stripes' (al-Baqarah, 2:196), and those who accuse chaste women of
adultery and fail to bring four witnesses [to prove it], flog them eighty stripes' (al-Nur, 24:4). The
quantitative aspects of these rulings, namely one half, one hundred, and eighty are self-evident and
therefore not open to interpretation. The rulings of the Qur’an on the essentials of the faith such as
salah and fasting, the specified shares in inheritance and the prescribed penalties, are all qat’i their
validity may not be disputed by anyone, everyone is bound to follow them, and they are not open to
ijtihad.
The speculative ayat of the Qur’an are, on the other hand, open to interpretation and ijtihad. The best
interpretation is that which can be obtained from the Qur’an itself, that is, by looking at the Qur’an as a
whole and finding the necessary elaboration elsewhere in a similar or even a different context. The
Sunnah is another source which supplements the Qur’an and interprets its rulings. When the necessary
interpretation can be found in an authentic Hadith, it becomes an integral part of the Qur’an and both
together carry a binding force. Next in this order comes the Companions who are particularly wellqualified
to interpret the Qur'an in light of their close familiarity with its text, the surrounding
circumstances,
and the teachings of the Prophet.
[Khallaf, ‘Ilm, P. 35; Abu Zahrah, Usul, P. 71]
An example of the zanni in the Qur’an is the text which reads, 'Prohibited to you are your mothers and
your daughters' (al-Nisa 4:23). The text is definitive in regard to the prohibition of marriage with one’s
mother and daughter and there is no disagreement on this point. However, the word banatukum ('your
daughters') could be taken for its literal meaning, which would be a female child born to a person either
through marriage or through zina, or for its juridical meaning. In the latter sense 'banatukum' can only
mean a legitimate daughter.
Principles of Islamic Jurisprudence ~
Kamali 28
The jurists are in disagreement as to which of these meanings should be read into the text. The Hanafis
have upheld the first of the two meanings and have ruled on the prohibition of marriage to one's
illegitimate daughter, whereas the Shafi'is have upheld the second. According to this interpretation,
marriage with one's illegitimate daughter is not forbidden as the text only refers to a daughter through
marriage. It would follow from this that the illegitimate daughter has no right to inheritance, and the
rules of guardianship and custody would not apply to her.
[Sha’ban,'Manhaj', P. 31]
In a similar vein, the ulema have differed on the definition of futile, as opposed to deliberate, oaths,
which occur in sura al-Ma’idah (5:92): 'God will not call you to account for what is futile (al-laghw) in
your oaths, but He will call you to account for your deliberate oaths . . .' The text then continues to spell
out the expiation, or kaffarah, for deliberate oaths, which consists of either feeding ten hungry persons
who are in need, or setting a slave free, or fasting for three days. According to the Hanafis, a futile oath
is one which is taken on the truth of something that is suspected to be true but the opposite emerges to
be the case. The majority have, on the other hand, held it to mean taking an oath which is not intended,
that is, when taken in jest without any intention. Similar differences have arisen concerning the precise
definition of what may be considered as a deliberate oath (yamin al-mu'aqqadah).
when a person takes an oath on the truth of something which he knows to be untrue; this is called yamin al-ghamus, which is a variety of yamin al-mu'aqqadah.
[A typical form of a sinful oath is
However the Hanafis maintain that the latter only refers to the situation where a person pledges to do something in the future but then refuses to fulfill it. He is then
liable to pay the kaffarah.]
There is also disagreement as to whether the three days of fasting should be
consecutive or could be three separate days. Hence the text of this ayah, although definitive on the basic
requirement of kaffarah for futile oaths, is speculative as to the precise terms of the kaffarah and the
manner of its implementation.
To give another example of zanni in the Qur’an, we may refer to the phrase yunfaw min al-ard ('to be
banished from the earth') which occurs in sura al-Ma’idah (5:33). The phrase spells out the penalty for
highway robbery (hirabah), or according to an alternative but similar interpretation, for waging war on
the community and its legitimate leadership. Banishment (nafy) in this ayah can mean exile from the
place the offence is committed in the first place. This is, in fact, the obvious meaning of the phrase, and
the one which has been adopted by the majority of the ulema. But the Hanafi jurists maintain that the
phrase means imprisonment, not exile. According to the Hanafis, a literal approach to the interpretation
of this phrase does not prove to be satisfactory: if one is to be literal, then how can one be banished
from the face of the earth by any method but death? Nafy, or exile, on the other hand, is a penalty other
than killing. Furthermore, if the offender is to be banished from one place to another within the Muslim
territories, the harm is not likely to be prevented as he may commit further offences. The Hanafis have
further argued that banishing a Muslim outside the territory of Islam is not legally permissible. The only
proper meaning of the phrase which would achieve the Shari’ah purpose behind the penalty, is,
therefore, imprisonment.
Principles of Islamic Jurisprudence ~
Kamali 29
And lastly, the whole ayah of muharabah in which the phrase yunfaw min al-ard occurs is open to
divergent interpretations. The ayah in question reads:
The punishment of those who wage war against God and His
Messenger and strive to make mischief in the land is that they should
be killed or crucified or their hands and their feet should be cut off on
opposite sides, or they should be banished from the earth.
In this passage, confusion arises from the combination of phrases which contain differential penalties
for hirabah. This is mainly due to the use of the article aw, meaning 'and' between the three phrases
which provide three different penalties for the offence in question. It is thus not known for certain as to
which of the three penalties are to be applied to the offender, that is, the muharib. The majority view is
that the muharib is liable to execution when he actually robs and kills his victim, but if he only robs
him, the offender is liable to the mutilation of hands. And finally, if there be no killing involved and no
robbery, then the penalty is banishment. In the more intensified cases where the offender kills and robs
his victim, the former is to be killed and crucified. According to an alternative juristic opinion, it is for
the ruler to determine one or the other, or a combination of these penalties, in individual cases.
A Qur’anic injunction may simultaneously possess a definitive and a speculative meaning, in which
case each of the two meanings will convey a ruling independently of the other. An example of this is
the injunction concerning the requirement of ablution for prayers which reads in part ' . . . and wipe
your heads' (al-Ma’idah, 5:6). This text is definitive on the requirement of wiping (mash) of the head in
wudu', but since it does not specify the precise area of the head to be wiped, it is speculative in regard to
this point. Hence we find that the jurists are unanimous in regard to the first, but have differed in regard
to the second aspect of this injunction.
[Badran, Usul, p. 66.]
There are sometime instances where the scope of disagreement over the interpretation of the Qur’an is
fairly extensive. Mahmud Shaltut, for example, underlines this point by noting that at times seven or
eight different juristic conclusions have been arrived at on one and the same issue. And he goes on to
say that not all of these views can be said to be part of the religion, nor could they be legally binding.
These are ijtihadi opinions; ijtihad is not only permissible but is encouraged. For the Shari’ah does not
restrict the liberty of the individual to investigate and express an opinion. They may be right or they
may be wrong, and in either case, the diversity of opinion offers the political authority a range of choice
from which to select the view it deems to be most beneficial to the community. When the ruler
authorises a particular interpretation of the Qur’an and enacts it into law, it becomes obligatory for
everyone to follow only the authorised version .
[Shaltut, Al-Islam, P. 498.]
Principles of Islamic Jurisprudence ~
Kamali 30
The ulema are in agreement that the specific (Khass) of the Qur’an (and of Sunnah) is definitive, but
they are in disagreement as to whether the general ('Amm) is definitive or speculative. The Hanafis
maintain that the ‘Amm is definitive and binding: but the Malikis, Shafi’is and Hanbalis hold that the
‘Amm by itself is speculative and open to qualification and specification. We need not, at this point, go
into the details of the ‘Amm and the Khass as we shall have occasion to return to this subject later.
Suffice it here to explain how the ‘Amm and khass may be related to qat’i' and zanni.
First we may highlight the zanni content of the 'Amm by referring to the Qur’anic ruling which
provides: 'Forbidden to you (in marriage) are your mothers, your daughters, your sisters, your father's
sisters and your mother's sisters' (al-Nisa', 4:23). This is a general ruling in that mothers, daughters,
sisters, etc. are all 'Amm as they include, in the case of ‘mother’ not only the real mother but also the
step-mother and even the grandmother. Similarly, ‘daughters’ can include real daughters, stepdaughters,
granddaughters and even illegitimate daughters. The application of these terms to all of their various
meanings is qat’i according to the Hanafis, but is zanni according to the majority of ulema. Whenever
the zanni of the Qur’an is explained and clarified by the Qur’an itself or by the Sunnah, it may become
qat’i', in which case the clarification becomes an integral part of the original ruling. On the subject of
prohibited degrees in marriage, there is ample evidence both in the Qur’an and the Sunnah to specify
and elaborate the 'Amm of the Qur’an on this subject. Similarly, when the Qur’an or the Sunnah
specifies a general ruling of the Qur’an, the part which is so specified becomes qat’i'.
To give another example of the ‘Amm which can be clearly seen in its capacity as zanni we refer to the
Qur’anic proclamation that 'God has permitted sale but prohibited usury' (al-Baqarah, 2:275). This is a
general ruling in the sense that sale, that is any sale, is made lawful. But there are certain varieties of
sale which are specifically forbidden by the Sunnah. Consequently, the ‘Amm of this ayah is specified
by the Sunnah to the extent that some varieties of sale, such as sale of unripened fruit on a tree, were
forbidden and therefore excluded from the scope of this ayah. The ulema are all in agreement to the
effect that once the ‘Amm has been specified even in a narrow and limited sense, the part which still
remains unspecified is reduced to zanni and will be treated as such.
Broadly speaking, the Khass is definitive. When, for example, the Qur’an (al-Nur, 24:4) prescribes the
punishment of eighty lashes for slanderous accusation (qadhf), the quantitative aspect of this
punishment is specific (Khass) and not susceptible to any speculation. But then we find that the same
passage (al-Nur, 24:4) prescribes a supplementary penalty for the slanderous accuser (qadhif) where it
reads: 'Never accept their testimony, for they are evildoers (fasiqun), except for those who repent
afterwards and make amends.' This text is clear and definitive on the point that the qadhif is to be
disqualified as a witness, but then an element of doubt is introduced by the latter portion of the text
which tends to render ambiguous the precise scope of its application. Having enacted both the principal
and the supplementary penalties for slanderous accusers and fasiqun it becomes questionable whether
the qadhif should qualify as a witness after repentance. Does the text under discussion mean that the
Principles of Islamic Jurisprudence ~
Kamali 31
concession is only to be extended to the fasiqun and not necessarily to slanderous accusers? If the
answer is in the affirmative, then once the qadhif is convicted of the offence, no amount of repentance
will qualify him as an upright witness again. The whole confusion is due to uncertainty in the meaning
of a pronoun, namely al-ladhina (i.e. 'those') which is not known to refer to all or only part of the
preceding elements in the text. The Hanafis disqualify the qadhif permanently from being a witness,
whereas the Shafi’is would admit him as a witness after repentance. This example also serves to show
that it is not always self-evident whether a text is qat’i’ or zanni as this too may be open to
interpretation. But the main point of citing this example is to show that although the Khass is qat’i’, an
aspect thereof may be zanni in a way that might affect the definitive character of the Khass as a whole.
Although in principle the Khass is qat’i’ and, as such, is not open to speculative interpretation, there
may be exceptions to this general rule. For example, the penance (kaffarah) of a false oath according to
a textual ruling of the Qur’an (al-Ma’idah, 5:92) is of three types, one of which is to feed ten poor
persons. This is a specific ruling in the sense that 'ten poor persons' has only one meaning. But even so,
the Hanafis have given this text an alternative interpretation, which is that instead of feeding ten poor
persons, one such person may be fed ten times. The majority of ulema, however, do not agree with the
Hanafis on this point. Be that as it may, this example will serve to show that the scope of ijtihad is not
always confined to the 'Amm but that even the Khass and definitive rulings may require elaboration
which might be based on speculative reasoning.
Furthermore, the Khass of the Qur’an normally occurs in the form of a command or a prohibition
which, as discussed below in a separate chapter, can either be qat’i’ or zanni. The zanni component of a
command or a prohibition is readily identified by the fact that a command in the Qur’an may amount
either to wajib or to mandub or even to a mere mubah. Similarly, it is not always certain whether a
prohibition in the Qur’an amounts to a total ban (tahrim) or to a mere abomination (karahah).
The absolute (Mutlaq) and the qualified (Muqayyad) are also classified as the sub-varieties of Khass.
But these too can be related to the qat’i’ zanni division in at least two ways. Firstly, that somewhat like
the ‘Amm, the absolute is speculative in regard to the precise scope of its application. Secondly, the
qualification of the absolute, the grounds on which it is qualified and the nature of the relationship
between the qualified and the qualifier are not always a matter of certain knowledge. The absolute in
the Qur’an is sometimes qualified on speculative grounds, which is why the jurists are not in agreement
over the various aspects of qualifying the Mutlaq. Further detail on the subject of Mutlaq and
Muqayyad and juristic disagreements over its various aspects can be found in a separate chapter below.
Suffice it here to give an illustration: there are two separate rulings on the subject of witnesses in the
Qur’an, one of which is absolute and the other qualified in regard to the attributes of the witness. First it
is provided with regard to the transaction of sale to 'bring witnesses when you conclude a sale - washhidu
idha tabaya tum'
(al-Baqarah, 2:282). In this ayah,
the witness is not qualified in any way
whatsoever.
But elsewhere we find in a reference to the subject of revocation in divorce (rijah),
the
Principles of Islamic Jurisprudence ~
Kamali 32
command to 'bring two just witnesses' (al-Talaq, 65:2). The ulema have on the whole related these two
ayat to one another and the conclusion is drawn that the qualified terms of the second ayah must also be
applied to the first, which would mean that witnesses must be upright and just whether it be a case of a
commercial transaction or of revocation in divorce. This is the settled law, but to relate this to our
discussion over the qat’i’ and the zanni, it will be noted that determining the precise scope of the first
ayah is open to speculation. Does the requirement of witnesses apply only to sale or to all commercial
transactions? To enter a detailed discussion on this point might seem out of place in the face of the fact
that notwithstanding the clear terms of the Qur’anic injunction, the rules of fiqh as developed by the
majority of ulema, with the exception of the Zahiris, do not require any witnesses either in sale or in the
revocation of divorce. The ulema have, of course, found reasons in support of their rulings both from
within and outside the Qur’an. But even the bare facts we have discussed so far are enough to show that
the Mutlaq and Muqayyad are susceptible to speculative reasoning. But to discuss the foregoing
example a little further, it will be noted that the juxtaposition of the two ayat and the conclusion that the
one is qualified by the other is to a large extent based on speculative reasoning. And then the qualified
terms of the second of the two ayat may be taken a step further, and the question is bound to be asked,
as indeed it has been, as to the precise meaning of a just witness. The ulema of the various schools have
differed on the attribute of 'adalah in a witness and their conclusions are based largely on speculative
ijtihad,
We need not perhaps discuss in detail the point that the binary division of words into the literal (Haqiqi)
and metaphorical (Majazi) which we shall elsewhere elaborate can also be related to the qat’i’ and
zanni. Although relying on the literal meaning of a word is the norm and a requirement of certainty in
the enforcement of a legal text, it may be necessary at times to depart from the literal in favour of
adopting the metaphorical meaning of a word'. To give an example, talaq literally means release or
setting free, but as a technical term, it has acquired a specific meaning, and it is the metaphorical
meaning of talaq which is normally applied. The ulema have identified a large variety of grounds on
which the haqiqi and the Majazi can be related to one another. The Majazi is to a large extent
speculative and unreal. Some ulema have even equated the Majazi with falsehood, and, as such, it has
no place in the Qur'an. It is thus suggested that the Majazi is not to be relied upon in interpreting the
practical injunctions of the Qur'an. Be this as it may, the point is clear that speculative reasoning has a
wide scope in determining the meaning and application of Haqiqi and Majazi in the Qur’an, and indeed
in any other source of Shari’ah.
Furthermore, the ulema have deduced the rules of Shari'ah not only from the explicit word of the
Qur’an,, which is referred to as the mantuq, but also from the implicit meanings of the text through
inference and logical construction, which is referred to as the implied meaning, or mafhum. Once again,
this subject has been discussed in a separate chapter under al-dalalat, that is, textual implications. The
only purpose of referring to this subject here is to point out that the deduction of the rules of Shari'ah by
way of inference from the implied meaning of a text partakes in speculative reasoning and ijtihad.
Principles of Islamic Jurisprudence ~
Kamali 33
text can often command the same degree of authority as the explicit ruling of the same text. Having said
this, however, to extend, for example, the requirement of expiation (kaffarah) for erroneous killing
which is releasing a slave, or feeding sixty poor persons, or fasting for two months - to the case of
intentional killing on the analysts that the purpose of kaffarah is compensation for a sin and that this is
true of all types of homicide - is basically no more than speculative ijtihad. This is the implied meaning
the text in sura al-Nisa', 4:92, which is explicit on the kaffarah of erroneous killing. But the implied
meaning of this text does not command the same degree of certainty as the clear words thereof, which is
why the ulema are not in agreement on it.
In the discussion of the qat’i and zanni, the Qur’an and Sunnah are seen as complementary and integral
to one another. The reason is that the speculative of the Qur’an can be made definitive by the Sunnah
and vice versa. The zanni of the Qur'an may be elevated into qat’i’ by means of corroborative evidence
in the Qur’an itself or in the Sunnah. Similarly, the zanni of the Sunnah may be elevated into qat’i’ by
means of corroborative evidence in the Sunnah itself or in the Qur’an. And then the zanni of both the
Qur’an and Sunnah may be elevated into qat’i by means of a conclusive ijma’, especially the ijma of
Companions.
As stated above, a speculative indication in the text of the Qur’an or Hadith may be supported by a
definitive evidence in either, in which case it is as valid as one which was definitive in the first place.
To illustrate this, all the solitary (ahad) ahadith which elaborate the definitive Qur’anic prohibition of
usury (riba) in sura 2:275 are speculative by virtue of being Ahad. But since their substance is
supported by the definitive text of the Qur’an, they become definitive despite any doubt that may exist
in respect of their authenticity. Thus as a general rule, all solitary ahadith whose authenticity is open to
speculation are elevated to the rank of qat’i’ if they can be substantiated by clear evidence in the
Qur’an.
[Shatibi, Muwafaqat, III, 9; Qattan, Tashri’, p. 82.]
However, if the zanni cannot be so substantiated by the qat’i’,
it is not binding unless it can be validated by some evidence which may lead to one of the following
two possibilities. Firstly, the zanni is found to be in conflict with a qat’i of the Qur’an, in which case it
must be rejected. To illustrate this, it is reported that the widow of the Prophet, A'ishah, rejected the
alleged Hadith that the (soul of the) deceased is tortured by the weeping of his relatives over his death,
[Shatibi, Muwafaqat, III, 9.]
the reason being that this was contrary to the definitive text of the Qur’an (al-An'am,
6:164) which provides that 'no soul may be burdened with the burden of another soul'. And secondly,
the speculative indication may be such that it cannot be related to a definitive evidence in any way. The
ulema have differed on this; some would advise suspension while others would apply the presumption
of permissibility (ibahah), but the best view is that the matter is open to ijtihad.
[Shatibi, Muwafaqat, III, 12.]
The qat’i of the Qur’an is an integral part of the dogma, and anyone who rejects or denies its validity
automatically renounces Islam. But denying a particular interpretation of the zanni does not amount to
transgression. The mujtahid is entitled to give it an interpretation, and so is the ruler who may select one
Principles of Islamic Jurisprudence ~
Kamali 34
of the various interpretations for purposes of enforcement.
P. 35; Badran, Usul, p. 67.]
II. Brevity and Detail (al-ijmal wa'l-tafsil)
[Shaltut, Al-Islam, PP. 498-99, Abu Zahrah, Usul, P. 71; Khallaf, ‘Ilm,
By far the larger part of the Qur’anic legislation consists of an enunciation of general principles,
although in certain areas, the Qur'an also provides specific details. Being the principal source of the
Shari’ah, the Qur'an lays down general guidelines on almost every major topic of Islamic law. While
commenting on this point, Abu Zahrah concurs with Ibn Hazm's assessment that 'every single chapter
of fiqh finds its Origin in the Qur'an, which is then explained and elaborated by the Sunnah'.
Usul, p. 80, where he quotes Ibn Hazm in support of his own view.]
On a similar note, al-Shatibi makes the following
observation: Experience shows that every 'alim who has resorted to the Qur’an in search of the solution
to a problem has found in the Qur’an a principle that has provided him with some guidance on the
subject.
[Shatibi, Muwafaqat, III, 219.]
The often-quoted declaration that 'We have neglected nothing in the Book' (al-An'am, 6:38) is held to
mean that the ru'us al-ahkam, that is, the general of law and religion, are exhaustively treated in the
Qur’an.
[Abu Zahrah, Usul, P. 70.]
That the Qur’an is mainly concerned with general principles is borne out by
the fact that its contents require a great deal of elaboration, which is often provided, although not
exhaustively, by the Sunnah. To give an example, the following Qur’anic ayah provides the textual
authority for all the material sources of the Shari’ah, namely the Qur’an, the Sunnah, consensus and
analogy. The ayah reads: 'O you who believe, obey God and obey the Messenger, and those of you who
are in authority; and if you have a dispute concerning any matter refer it to God and to the Messenger . .
.' (al-Nisa', 4:58). 'Obey God' in this ayah refers to the Qur’an as the first source, 'and obey the
Messenger' refers to the Sunnah of the Prophet, 'and those of you who are in authority' authorises the
consensus of the ulema. The last portion of the ayah ('and if you have a dispute. . .') validates qiyas. For
a dispute can only be referred to God and to the Messenger by extending the rulings of the Qur’an and
Sunnah through analogy to similar cases. In this sense one might say that the whole body of usul al-fiqh
is a commentary on this single Qur’anic ayah.
of this work on the hujjiyyah of Sunnah, ijma’ and qiyas respectively.]
[Sabuni, Muwafaqat, P. 31. For a further discussion of this ayah see below in the sections
Al-Shatibi further observes that wherever the Qur’an
provides specific details it is related to the exposition and better understanding of its general principles.
[Shatibi, Muwafaqat, III, 217]
Most of the legal contents of the Qur’an consist of general rules, although it
contains specific injunctions on a number of topics. Broadly speaking, the Qur’an is specific on matters
which are deemed to be unchangeable, but in matters which are liable to change, it merely lays down
general guidelines.
Principles of Islamic Jurisprudence ~ Kamali 35
[Abu Zahrah,The Qur’anic legislation on civil, economic, constitutional and international affairs is, on the whole,
confined to an exposition of the general principles and objectives of the law. With regard to civil
transactions, for example, the nusus of the Qur’an on the fulfillment of contracts, the legality of sale,
the prohibition of usury, respect for the property of others, the documentation of loans and other forms
of deferred payments are all concerned with general principles. Thus in the area of contracts, the
Qur’anic legislation is confined to the bare minimum of detail,
[Of the two ayat on the subject of contracts, one is in the form
of a command and the other in the form of a question, as follows: 'O you believers, fulfill your contracts' (al-Ma’idah, 5: 1) . and 'O you believers, why do you say
things which you do not carry through?' (al-Saff, 61:2). These are, in turn, confirmed by another ayah (al-Nisa', 4:58) where an emphasis is laid on the fulfillment
of trusts and the principle of fair treatment: ‘God commands you to turn over trusts to those to whom they belong, and when you judge among people, judge
righteously.' Contracts must therefore not amount to a violation of justice, a breach of trust, or a departure from the moral ideals of the law.]
and in the
area of civil transactions and property, the believers are enjoined to 'devour not the properties of one
another unlawfully, but let there be lawful trade by mutual consent' (al-Nisa, 4:29). Elsewhere we read
in surah al-Baqarah (2:275) that 'God has permitted sale and prohibited usury'. The detailed varieties of
lawful trade, the forms of unlawful interference with the property of others, and the varieties of usurious
transactions, are matters which the Qur’an has not elaborated. Some of these have been explained and
elaborated by the Sunnah. As for the rest, it is for the scholars and the mujtahidun of every age to
specify them in the light of the general principles of the Shari’ah and the needs and interests of the
people.
[Cf. Badran, Bayan, pp. 2-3]
In the sphere of crimes and penalties, the Qur’anic legislation is specific with regard to only five
offences, namely murder, theft, highway robbery, zina and slanderous accusation. As for the rest, the
Qur’an authorises the community and those who are in charge of their affairs (i.e. the ulu al-amr) to
determine them in the light of the general principles of Shari’ah and the prevailing conditions of
society. Once again the Qur’an lays down the broad principles of penal law when it provides that 'the
punishment of an evil is an evil like it' (al-Shura, 42:40), and 'when you decide to punish then punish in
proportion to the offence committed against you' (al-Nahl, 16:126).
In the area of international relations, the Qur’an lays down rules which regulate war with the
unbelievers and expound the circumstances in which their property may be possessed in the form of
booty. But the general principle on which relations between Muslims and non-Muslims are to be
regulated is stated in the following passage:
God does not forbid you to act considerately towards those who have
never fought you over religion nor evicted you from your homes, nor
[does he forbid you] to act fairly towards them. God loves the
fairminded. He only forbids you to be friendly with the ones who have
fought you over [your] religion and evicted you from your homes and
have abetted others in your eviction. Those who befriend them are
wrongdoers (al-Mumtahinah, 60:8-9).
Principles of Islamic Jurisprudence ~
Kamali 36
No comments:
Post a Comment