TURUQ ISTINBAT

DEDUCING THE LAW FROM ITS SOURCES

Rules of Interpretation I
(Interpretation of words)

Why Rules of Interpretation?

To interpret the

Quran or the Sunnah, or to

deduce legal rules from the indication from
the nusus.

However, it is necessary that the language of

the Quran and the Sunnah is clearly
understood.
Must obtain a firm grasp of the words and the
precise implications.

Function of the rules

To

discover the intention of the Law Giver

or of any person from his speech and
conduct.
Primarily concerned with the discovery of
that which is not self evident.

If the text is clear, then there is no need for

rules of interpretation

Objective of the rules

To

ascertain the intention of the Lawgiver

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

 After

deriving hukm from the legal texts,

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

Classification of words
From

the viewpoints of:

(i) their clarity

Clear and unclear words

(ii) their scope

am and khas

(iii) their capacity to convey certain

meaning.

 From

the view point of scope, words are

classified into:

General
(Amm)

Specific
(Khass)

The general (Amm)

Amm

may be defined as a word which

applies to many things, not limited in
number and includes everything to which it
is applicable.

In other word am is a word that has single

meaning but it applies to an unlimited number
without restriction.

 All

words are basically general unless they

are specified or qualified in some way. The
words of the Quran and Sunnah are the
examples.

 Examples:

the word insan (human being) al -Asr:2)

the word man (whoever)
every soul shall have a taste of death - aliImran:185
the woman and the man guilty of adultery or
fornication al-Nur (24:2)

 In

determining the scope of the amm,

reference is made not only to the rules of
the language but also to the usage of the
people.
In conflict between rules of language and
usage, usage prevails.

Types of Amm
The amm which is absolutely general
and may be indicated in the form of a
pronoun (eg: he, she, it, they, all, every,
entire etc.
2. The amm which is meant to imply khass
1.

 3.

The amm which is not accompanied by

either of the foregoing two varieties of
indications as to its scope (has been
specified elsewhere)

TYPES OF AMM

absolutely general

meant to imply
khass

not accompanied by
either of the foregoing
two varieties

Eg: There is no living creature on earth that

God does not provide for it. Hud (11:6)
We made everything alive from water
(al-Anbiya:30)
and God have knowledge of all things.
- al-Nisa (4:176)
There is evidence that it comprises some but not
absolute to all.
Eg: Pilgrimage to the House is a duty owed to
God by all people who are able to undertake it
(Ali Imran:97)
Divorced women must observe three courses upon
themselves al-Baqarah (2: 228)
-qualified by the following verse
O believers, when you enter the contract of marriage
with women and then divorce them before
consummating the marriage, they do not have to
observe iddah (al-Ahzab:49)

How to identify Amm?

When a singular or plural form of a noun is

preceded by the definite article al.

al-zaniah (the adulterer, whether a
woman or a man, flog them with one hundred
lashes (an-Nur:2)
al-mutallaqat (the divorced women)
a thief (male and female)

 The

word jami (), kaffah ( )and kull

(- all and entire) are generic in their
effect.
When a word is prefixed by a conjunctive
such as and it becomes
generic in its effect.

If any of your women are guilty of

lewdness, take the evidence of four (reliable)
witnesses from amongst you against them
If two men among you are guilty of
lewdness, punish them both

Those ( ) who accuse chaste women of

adultery and fail to bring four witnesses flog
them eighty lashes. - al-Nur (24) : 21
This ruling is general as it applies to all those
who can possibly be included in its scope,
and it remains so unless there is evidence to
warrant specification.

However, the general ruling of chapter 24:21

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

 An

indeterminate word (al-nakirah) when

used to convey the negative.

Eg: La dhararar wa la dhirar fil Islam

No harm shall be inflicted nor tolerated in
Islam

 say not to them a word

of contempt, nor repel them al-Isra
)(17:23

 The

word ( he who) used in a

conditional speech

whoever ( )kills a believer by error, he

must release a believing slave 4:92
whoever ( )among you sees the new moon
must observe the fast 2:185

Implication of amm : definitive

( )or speculative (?)

Hanafi Jurists:

Application of amm is definitive!

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

 Majority

(Shafie, Maliki and Hanbali

jurists):

Application of amm is speculative as it is

open to limitation and interpretation.

 The

consequence of differences in opinion

lead to the discussion on takhsis
()or specification.

TAKHSIS
(SPECIFICATION)

Literally

- specification, particularisation,
individualisation
Technically different meanings

Hanafi - is a limitation of the general provision

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

 Shafie jurists:

Basri excluding some meanings included by the text

due to the conflict between the two.
Shirazi- the explanation of what was not intended by
the general word.
Ibn al-Hajib- the limitation of the general to its subject.
Baydawi- excluding some meaning from the scope of
the word.

Varieties of takhsis
Takhsis

by a dependant clause which

occurs in the same text and
Takhsis by independent speech

 According

to
Hanafi
jurists,
an
independent speech can specify another
speech only if it is established that the two
speeches are chronologically parallel to
one another.
If not the later in time abrogates the former
and the case is not takhsis but nasakh
(abrogation).

 The

difference between abrogation and

takhsis:

Abrogation consists of a total or partial

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

 According

to the majority, a dependent

clause may qualify general proposition by
way of introducing an exception, a
condition, a quality or indicate the extent
of the original proposition.
Each of the clauses will have the effect of
limiting and specifying the operation of the
general proposition.

Form of takhsis by a dependant

clause

Istithna-i

( )the specification is by
the word except or unless or but

Al-Baqarah : 282
Be not averse to writing down the contract be it
small or great.unless it be a transaction handled
on the spot that you pass around among
yourselves ( ) in which case it
will not be held against you if you do not reduce it
into writing.

An-Nur: 4-5
And those who accuse chaste women, and
produce not four witnesses, flog them eighty
stripes, and reject their testimony forever; they
indeed are evil doers. (verse 4)
Except those who repent thereafter and do
righteous deed. Verily, God is Oft-Forgiving and
Most Merciful. (verse 5)

 In

both verses, the second portion of the

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

Al-Maidah (5:33)
The punishment of those who wage war against
God and His Apostle, and strive with might and
main for mischief through the land is execution or
crucifixion, or the cutting off of hands and feet from
opposite sides, or exile from the land

Specified by the ayah (34) following it:

Except for those who repent before they fall into
your power; in that case know that God is Oftforgiving, Most Merciful.

 Al-syart

( )- By giving a condition to a
general proposition

Example contains in verses of inheritance so

far as the portion of the husband or wife is
concerned
Al-Nisa (4) : 12
In what your wives leave, you are entitled to one
half if they have no children.

 The application of the general rule in the

portion of the verse has been qualified by
condition provided in the second portion of
verse that is in the absence of any child.

first
the
the

 Al-Baqarah (2:180)

It is prescribed when death approaches any of you, if he

leaves any goods, that he makes a bequest to parents
and next of kin
The generality of the ayah of making a wasiyyah is
specified by the same ayah that only if he leaves any
goods.

 Attribute ( )In a form of description or

qualification

(al-Nisa:23)
And forbidden to you are step daughters under
your guardianship from your wives with whom you
have consummated the marriage.

 Extent

(): In a form of specifying the

extent of application of a general
proposition. (signified by ila ( )or hatta
()

(al-Maidah:6)
O you who believe, when you rise up for prayer, wash your
faces, and your hands up to the elbow, rub your heads with
water and wash your legs up to your ankle.

 Al-Baqarah (2:222)

They
question
you
(Muhammad)
concerning
menstruation. Say it is an ailment. So let women alone at
such times and go not unto them until they are
cleansed.

Al-Baqarah (2:196)

and do not shave your heads until the offering (animal

to be slaughtered) reaches the place of sacrifices

Takhsis by independent speech

By another Quranic verse:

Al-Baqarah (2:228) amm

Divorced women must observe three courses
upon themselves

The generality of 2:228 is specified by alTalaq verse 4:

Such of your women as have passed the age of
monthly courses, for them the prescribed period, if
you have any doubts, is three months and for
those who have no courses, (it is the same); for
those who carry (life within their wombs) their
period is until they deliver

Also by al-ahzab (33:49) which removes the

requirement of iddah in cases where divorce
takes place prior to the consummation of
marriage.

 By hadith

It is agreed by all jurists that hadith may also

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

 In al-Maidah : 3

It is prohibited to you dead carcase (carrion),

blood, pork.
Dead carcase covers every dead animals.
Then came a Hadith that specify the verse:
- Its (sea) water is pure (for ablution) and its dead is
permissible (as food)

 Another example al-Baqarah (2:275):

Allah allows sale and prohibits riba

The verse is qualified by the hadith prohibiting
voidable sale.
Ibnu Umar said:

The prophet prohibits the sale of the unborn child of a
camel while still in the womb.

 Jurist,

however, differ as to whether a

solitary hadith can specify Quranic
verses?

 Majority

solitary hadith may specify a

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

 Example:

al-anam (6) : 121

eat not (of meat) on which Gods name has not
been pronounced

There is a solitary hadith:

the believer slaughters are lawful whether he
pronounces the name of God or not

 By Ijma

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

deceased person can inherit
However, the generality of the verse (children)
is qualified by ijma of the ulama that children
exclude child slave (child of a man with his
slave).

Takhsis or specification may also be

performed by the independent proofs
such as:

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

Effect of amm
Remains

in force and action upon it is

required unless there is a specifying
clause which would limit its application