ُ‫ﺍاﻟﻮَﺭرَﻗﹷــــــــﺎﺖ‬

‫ﻓﻲ ﺍأﺻُﻮﻝلﹺِ ﺍاﻟﻔِﻘﹾْﻪ‬

‫ﻹﻣﺎﻡم ﺍاﻟﺤﺮﻣﻴﻦ ﺍاﻟﺠﻮﻳﻨﻲ ﺭرﺣﻤﻪ ﺍاﻟﻠﻪ ﺗﻌﺎﻟﻰ‬

Al-Waraqat
in Usul al-fiqh
by Imam al-Haramayn al-Juwayni

Arabic text - English translation with study notes

Prepared by AbdulWahid Stephenson

About the Book 3

About the Author 3

Introduction 4

Types of Speech (Kalaam) 11

Command and Prohibition (Amr wa Nahy) 14

General and Specific (‘Aam wa Khaas) 18

Summarised and Elaborated Speech (Mujmal wa Mubeen) 23

The Prophet’s actions (Af’aal) 25

Abrogation (Naskh) 27

Methods of Interpretation 30

Consensus (Ijmaa’) 32

Reports (Akhbar) 34

Analogy (Qiyaas) 37

Prohibition, Permissibility and Presumption of Continuity 40

The Prioritising of Evidences 41

Legal Reasoning (Ijtihad) 42

About the Book
Al-waraqat is a renowned islamic classical text on the subject of Uṣūl al-fiqh. It

paves the way for a foundational education on the sources of Islamic law and the

procedures by which the law is derived from the sources. It is called waraqat

because it is concise, with the Arabic text (matn) fitting on roughly five pages. It is

part of a series of islamic classical texts, known as summarised works

(mukhtasarat), that are considered essential study for every serious seeker of

Islamic knowledge who wants to follow the methodology laid out by the scholars of

Islam to facilitate the acquisition of beneficial knowledge.

About the Author

Abul Ma'ali Abdul Malik ibn Abdullah ibn Yusuf Ibn Muhammad al-Juwayni an-

Naisaburi, born in 419 AH /999 CE is a scholar and author. He is commonly known

as al-Juwayni and Imam of the Two-Sacred Mosques ( Imam al-Haramayn) because

at the age of twenty he taught for four years in the two Sacred Mosques of Makkah

and Madinah. He has authored and compiled numerous books on various Islamic

sciences. His expertise was in Usul al-fiqh, two of his main works being al-Burhan

(Fiqh Principles) and al-Waraqat, this concise text (Matn).

Page 3
 ‫بسم اهلل الرحمن الرحيم‬
‫ هذه ورقات تشتمل على معرفة فصول من أصول الفقه‬.
‫ والفرع ما يبنى على غيره‬،‫ فاألصل ما يبنى عليه غيره‬:‫ وذلك مؤلف من جزأين مفردين‬.

‫ معرفة األحكام الشرعية التي طريقها االجتهاد‬:‫ والفقه‬.

Introduction

In the name of Allah, the Merciful, the Compassionate.

These pages comprise knowledge of aspects of the principles of Islamic Law (usul
al-fiqh).1 It consists of two distinct parts: the root [al-asl] is that on which something
else is built. The branch [ al-far’ ] is that which is built on something else.
Islamic Law [fiqh] 2 is the knowledge of the divinely legislated rulings [al-ahkaam al-
shari’ah] that are arrived at by independent reasoning [al-ijtihad]. 3


1‘Uṣūlal-Fiqh’ has been translated in multiple ways. The principles of law and theory of law are
perhaps the two most common translations.
2 Linguistically Fiqh means understanding. Islamically it is ‘knowledge of the practical legal rulings of
the Shari’ah with the detailed proofs acquired from the sources’.
3 Ijtihad literally means exertion of effort. It is a jurist’s [Faqih] exertion of his utmost effort inquiring
into the sources of law to arrive at a legal ruling on a situation for which no agreed-upon ruling yet
exists.

Page 4
 . ‫ والفاسد‬،‫ والصحيح‬،‫ واملكروه‬،‫ واحملظور‬،‫ واملباح‬،‫ واملندوب‬،‫ الواجب‬:‫واألحكام سبعة‬

. ‫ ما يثاب على فعله ويعاقب على تركه‬:‫فالواجب‬

. ‫ ما يثاب على فعله وال يعاقب على تركه‬:‫واملندوب‬

. ‫ ما ال يثاب على فعله وال يعاقب على تركه‬:‫واملباح‬

. ‫ ما يثاب على تركه ويعاقب على فعله‬:‫واحملظور‬

. ‫ ما يثاب على تركه وال يعاقب على فعله‬:‫واملكروه‬

There are seven legal rulings (ahkaam):4 obligatory (wajib), recommended

(mandub), permitted (mubah), prohibited (mahthur), reprehensible (makruh), valid
(sahih), and invalid (batil).5 Obligatory is what one is rewarded for doing and
punished for omitting.6 Recommended is what one is rewarded for doing but not
punished for omitting.7 Permitted is what one is neither rewarded for doing nor
punished for omitting.8 Prohibited is what one is rewarded for omitting and punished
for doing.9 Reprehensible is what one is rewarded for omitting but not punished for
doing. 10

4Ahkam is plural of Hukm. A Hukm Shar`i is a communication from the Lawgiver concerning the
conduct of the mukallaf (person in full possession of his faculties) which consists of a demand, an
option or an enactment.
5Some of the ahkaam are also known by other names, for example ‘wajib’ is also known as ‘fard’,
mahthur is commonly known as haraam, mandub is also known as mustahab and sunnah, batil is
also known as fasid.
6Wajib is a binding demand addressed to the mukallaf in respect of doing something, e.g. the five
daily prayers
7Mandub is a demand addressed to the mukallaf in respect of doing something which is not binding,
e.g., giving charity
8Mubah is communication concerning the conduct of the mukallaf which gives him the option to do or
not to do something, e.g., travelling to different parts. Actions which are mubah become mandub
when the intent is connected to an action which is considered worship [ibadah].
9 Mahthur is a binding demand addressed to the mukallaf in respect of abandoning something, e.g.
theft.
10Makruh is a demand which requires the mukallaf to avoid something, but not in prohibitory terms,
e.g. wasting time.

Page 5
 . ‫ ما يتعلق به النفوذ ويعتد به‬:‫والصحيح‬

. ‫ ما ال يتعلق به النفوذ وال يعتد به‬:‫والباطل‬

Valid is what is effective and relied upon.11

Invalid is what is neither effective nor relied upon.12


11 Ahkaam are described as sahih when they fulfill all the requirements pertaining to the essential
pillars (arkan), causes (asbaab), conditions (shuroot) and hindrances (mawani’). Prayer performed on
its time, with all the conditions and pillars fulfilled without any of the hindrances present is described
as being sahih, meaning that it counts and does not have to be repeated.
12 Ahkaam are described as batil when any of the above mentioned requirements is lacking or
deficient. Prayer performed without ablution, which is an essential pillar, is described as batil, meaning
it does not count and needs to be repeated before the obligation is lifted.

Page 6
 . ‫والفقه أخص من العلم‬
. ‫والعلم معرفة املعلوم على ما هو به في الواقع‬

. ‫ تصور الشيء على خالف ما هو به في الواقع‬:‫واجلهل‬

. ‫ كالعلم الواقع بإحدى احلواس اخلمس‬،‫والعلم الضروري ما ال يقع عن نظر واستدالل‬

. ‫وأما العلم املكتسب فهو املوقوف على النظر واالستدالل‬
. ‫والنظر هو الفكر في حال املنظور فيه‬

. ‫واالستدالل طلب الدليل‬

. ‫والدليل هو املرشد إلى املطلوب‬

. ‫والظن جتويز أمرين أحدهما أظهر من اآلخر‬

. ‫والشك جتويز أمرين ال مزية ألحدهما على اآلخر‬

Fiqh has a narrower meaning than knowledge (al-‘Ilm). Knowledge (‘ilm) is to know
the thing known as it actually is.13 Ignorance [jahal] is to imagine something as other
than what it actually is. 14 Immediate knowledge (ilm durooree) is that which does not
result from rational or evidentiary inquiry,15 like knowledge that is known by one of
the five senses. Whereas acquired knowledge [ilm muktasib] rests on rational and
evidentiary inquiry.16 Rational inquiry (nathr) is reflection on the object of inquiry.

13Mecca is the birth place of the Prophet Muhammad is a statement that is consistent with fact and is
therefore considered knowledge in the definitional sense.
14Medinah is the birth place of the Prophet Muhammad is a statement that is inconsistent with fact,
and therefore considered ignorance in the definition sense.
15It is called immediate knowledge because it is accepted immediately without need for rational
enquiry. Knowledge that the five daily prayers is wajib is acquired without ijtihad because the
evidence for it is explicit.
16 The knowledge that penetration without ejaculation makes ghusl an obligation is an example of
acquired knowledge. It relies on ijtihad as the evidence for it is not explicit. There are conflicting
reports, one which indicates obligation of ghusl and the other indicates it is not an obligation. After
diligent inquiry into the evidences, the conclusion is that ghusl is an obligation and that the evidence
indicating it is not an obligation is abrogated.

Page 7
Evidentiary inquiry (istidlaal) is the search for evidence. Evidence (daleel) leads to
what is sought (the hukum).17 Opinion (thann) is acknowledging two possibilities, one
of which is more probable than the other.18 Doubt (shak) is acknowledging two
possibilities, neither of which is superior to the other.

17 Daleel is an indication from which a hukm of Shari’ah is deduced. The question ‘does sexual
intercourse without ejaculation make ghusl an obligation?’ Reflection and pondering on it to know the
hukum is called nathr, searching for the evidence relating to it is called istidlaal and the hadith that
leads us to the hukum is called dalil.
18 The more probable is called ath-than. In surah al-Baqarah, verse 230 Allah says: And if the latter
husband divorces her [or dies], there is no blame upon the woman and her former husband for
returning to each other if they think that they can keep [within] the limits of Allah (2:230). Here the
meaning is that between the possibility of keeping the limits of Allah or not keeping the limits of Allah,
they think that it is more probable they will keep the limits of Allah. Another example is when you see
a friend driving a car, you assume that it runs on petrol. However, it is possible it runs on diesel or
even electricity. The first possibility is likely, the second is considered unlikely.

Page 8
 . ‫ طرقه على سبيل اإلجمال وكيفية االستدالل بها‬:‫وأصول الفقه‬

Usul al-fiqh is its means (of fiqh) in general, and the manner of using them in
evidentiary inquiry.19

19 The definition includes two parts. The first part is the proofs of fiqh، the Quran, the Sunnah, Ijma
etc. Proofs of Fiqh in general distinguishes it from the proofs for individual cases or issues. General
proof is greater than proof for specific issues, and encompasses all the smaller issues for which
particular verses or hadith are used to deduce rulings. The second part is the method of deducing
rulings from the proofs, also known as principles of deduction. A third part included at the end of the
book is the description of the mujtahid, the scholar who deduces rulings from the evidences, and
taqleed, following the mujtahid. The command in the Quran to ‘Establish the prayer’ (2, 43) is
evidence for the obligation of prayer. The scholars of Usul use the principle: ‘An imperative indicates
obligation’. This is a comprehensive principle used to deduce a ruling from the evidence. The
evidence points to a demand to establish the prayer, but it does not clarify whether the type of
demand is obligation, recommendation or otherwise. This general principle indicates that any
imperative from the Quran and the Sunnah indicates obligation unless there is a contextual indication
on the contrary. As there is no indication to the contrary, then prayer is considered an obligation.

Page 9
 ،‫ والظاهر‬،‫ واملبني‬،‫ واجململ‬،‫ واخلاص‬،‫ والعام‬،‫ والنهي‬،‫ واألمر‬،‫أقسام الكالم‬:‫وأبواب أصول الفقه‬

‫ وصفة‬،‫ وترتيب األدلة‬،‫ واحلظر واإلباحة‬،‫ والقياس‬،‫ واألخبار‬،‫ واإلجماع‬،‫ واملنسوخ‬،‫ والناسخ‬،‫واألفعال‬

. ‫ وأحكام اجملتهدين‬،‫املفتي واملستفتي‬

Usul al-fiqh falls under the following chapters: the types of speech, command and
prohibition, the general and the specific, the summarised and the elaborated, the
apparent, actions of the Prophet - peace and blessings be upon him, the abrogating
and the abrogated, consensus, reports of the Prophet -peace and blessings be upon
him, analogy, prohibition and permission, the prioritising of evidences, the
characteristics of the issuer of legal opinion (mufti), and the seeker of legal opinion
(mustafti) and the qualities of practitioners of legal reasoning (ijtihad).20

20 The first five headings relate to the comprehensive principles used to deduce rulings from the
evidences. The headings on abrogation, evidences, prioritising of evidences and characteristics of
mufti are connected to the application of the principles to the evidences. The comprehensive
principles are applied to the abrogating not the abrogated, to the evidence which is considered strong
not weak, by the mufti, who is qualified to apply the comprehensive principles to the evidences.

Page 10
 ‫أقسام الكالم‬

. ‫ أو اسم وحرف‬،‫ أو فعل وحرف‬،‫ أو اسم وفعل‬،‫ اسمان‬:‫ فأقل ما يترتب منه الكالم‬،‫فأما أقسام الكالم‬

. ‫ وينقسم أيضاً إلى متن وعرض وقسم‬،‫والكالم ينقسم إلى أمر ونهي وخبر واستخبار‬

Types of Speech (Kalaam)

At the very least speech (Kalaam)21 must consist of two nouns, or a noun and a
verb, or a verb and a particle, or a noun and a particle.

Speech divided into command, prohibition, report, inquiry, as well as wish, offer, and
oath.22


21In order to correctly interpret the Qur'an or the Sunnah and to deduce legal rulings, it is necessary
that the language of the Qur'an and the Sunnah, which is Arabic, be clearly understood. Therefore,
the classification of words and their usages is included in the science of Usul al-fiqh.
22 ‘Zaid Qaa’im’ (Zaid [is] standing) is a sentence composed of two nouns. ‘Qaama Zaid’ (Zaid stood
up) is a sentence composed of the past tense verb ‘qaama’ and the noun ‘Zaid’. Lam yaqum’ (He did
not stand up) is a sentence in the negative composed of a particle ‘Lam’ and the verb ‘yaqum’. The
statement ‘Yaa Zaid’ (O Zaid) is a sentence composed of a particle ‘yaa’ and a noun ‘Zaid’.
ithhab’’ (go) is demanding an action. ‘laa tath-ab’ (do not go) is demanding abandoning an action.
Thahaba Zaid ilaa al-masjid’ (Zaid went to the masjid) is an example of information. ‘Ayna thahaba
Zaid? (Where did Zaid go?) is asking for information. Layta ashabaab ya’ood’ (if only I was young
again) is asking for something impossible or really difficult. A Laa ta’teenaa fa nukrimuka? (Will you
not visit us so we can show you hospitality?) is asking for something politely. ‘Wallahi’ (I swear by
Allah) is an oath.

Page 11
 :‫ وقيل‬،‫ فاحلقيقة ما بقي في االستعمال على موضوعه‬،‫ومن وجه آخر ينقسم إلى حقيقة ومجاز‬
. ‫فيما اصطلح عليه من اخملاطبة‬
. ‫واجملاز ما جتوز به عن موضوعه‬
. ‫واحلقيقة إما لغوية وإما شرعية وإما عرفية‬
،‫واجملاز إما أن يكون بزيادة أو نقصان أو نقل أو استعارة‬
،( ‫ ) ليس كمثله شيء‬:‫فاجملاز بالزيادة مثل قوله تعالى‬

،(‫) واسأل القرية‬:‫واجملاز بالنقصان مثل قوله تعالى‬

،‫واجملاز بالنقل كالغائط فيما يخرج من اإلنسان‬
. (‫) جداراً يريد أن ينقض‬:‫واجملاز باالستعارة كقوله تعالى‬

In another respect, it is divided into literal and metaphorical.23 Literal means it is

used in the sense for which it was first coined,24 or it is said that it is used according
to convention.25 Metaphorical means that it is taken beyond the sense for which it
was first coined.26

23 When a word is used literally, it keeps its original meaning, but when it is used in a metaphorical
sense, it is transferred from its original to a secondary meaning on grounds of a relationship between
the two meanings. Scholars have differed over the presence of metaphorical speech in the Quran. For
further elaboration see the works of Sheikh ul-islam ibn taymiyyah, Sheikh ibn Uthaymeen, and
Sheikh Muhammad Amin al-Shanqiti.
24The word ‘lion’ used in its literal dictionary meaning in the sentence ‘I saw a lion in the cage’ is also
used metaphorically to mean a brave man, as in the statement ‘I saw a lion fighting on the battlefield’.
25This definition makes the word ‘asad’ (lion) a literal meaning for both an animal from the cat family
and also a brave man. This second definition looks at how we use the word, while the first looks at the
dictionary definition of the word itself as it was coined.
26The principle governing kalaam (speech) is that it is to be taken upon its literal sense. It is not to be
changed to a metaphorical meaning except when it is impossible to employ its literal meaning.

Page 12
Literal use can be linguistic (lughawi),27 juridical (shar'i),28 or customary (urfi).29

Metaphorical use can be by addition,30 subtraction,31 transference,32 or borrowing of

meaning. 33 Metaphorical use by addition is like Allah’s saying [English meaning]
“There is nothing like his likeness”. Figurative use by subtraction is like Allah’s
saying “Ask the town.” Metaphorical use by transference is like ‘hollow’ being used
for what comes out of a person. Metaphorical use by borrowing is like Allah’s saying
“a wall that wants to collapse.”

27The linguistic is a word is used in its dictionary meaning, such as 'lion' for the animal of the cat
family, and 'man' for the male gender of the human being.
28The juridical is a word which is used for an islamic meaning that Allah has given it in the first place,
such as salah, which literally means 'supplication' but in its juridical sense means ‘particular actions
and speech that starts with saying takbir and ends with saying the taslim.
29The customary is a word used for a meaning that is absolutely common among people. The Arabic
word 'dabbah' in its dictionary meaning applies to all living beings that walk on the face of the earth
but according to custom it is used to mean an animal that walks on four legs.
30When there is an additional word to a statement that can be removed without changing the
meaning of that statement. “There is nothing like his likeness” (42:11), the ‘kaaf’ in the Arabic
language is considered additional in this verse according to the example that the author uses.
31When there is a word implicitly understood from the statement that if it was not the statement would
not be valid. The author uses the example “Ask the town” (12:82) where the word ‘the people of’ is
implicit. The deficient word is ‘the people’ as if it was not implicit the sentence would not make sense
as you cannot ask the town. It is metaphorical, because the apparent or literal meaning is ask the
town itself, but the word is being used for a meaning other than its original meaning.
32 It means to transfer a word from its original meaning to another. The word ‘gha’it’ is originally used
to mean a hollow place in the ground. It became used to mean what comes out of a person.
33 It means to borrow a word from its original meaning and use for another meaning that there is some
resemblance like Allah’s saying “a wall that wants to collapse” (18:77), where the meaning of ‘want to’
is borrowed to mean ‘about to’. The word ‘yureed’ (to want) is used to personify/describe humans, not
objects. The word is borrowed and used for another meaning, to describe a wall that is leaning in the
direction of collapsing.

Page 13
 ‫واألمر استدعاء الفعل بالقول ممن هو دونه على سبيل الوجوب‬
‫ إال ما دل الدليل على أن املراد منه‬،‫ وعند اإلطالق والتجرد عن القرينة حتمل عليه‬،‫ افعل‬:‫وصيغته‬
. ‫الندب أو اإلباحة‬
. ‫ إال ما دل الدليل على قصد التكرار‬،‫وال يقتضي التكرار على الصحيح‬
. ‫وال يقتضي الفور‬
‫ وإذا فعل‬،‫ كاألمر بالصالة أمر بالطهارة املؤدية‬،‫واألمر بإيجاد الفعل أمر به ومبا ال يتم الفعل إال به‬
. ‫يخرج املأمور به عن العهدة‬
Command and Prohibition (Amr wa Nahy)
A command is a verbal demand obliging an inferior to do an action. 34

The verbal form that indicates command is if‘al [the imperative].35 When unqualified
and in the absence of indications to the contrary it is interpreted as obligation, except
when some evidence indicates that recommendation or permission is meant.36

The correct view is that command does not require the repetition of the act, unless
some evidence indicates that repetition was intended; 37 nor does it require
immediate action.38

34A command / imperative (amr) is defined as a verbal demand to do something issued from a
position of superiority over one who is inferior. The command ‘Establish the prayer’, is from Allah and
the one requested is the servant of Allah. So this is considered a command.
35There are other forms that show obligation, such as ‘Fasting has been prescribed for you’ (2,183)
where the form indicating command is past simple.
36 As general rule, a command (amr) conveys obligation (wujub). In the verse ‘Establish the prayer’,
the word establish is an imperative. The basic principle is that the imperative conveys obligation.
There is no contextual indications or evidence indicating recommendation or otherwise, so the result
is that this imperative indicates obligation. An example of an imperative with evidence indicating
recommendation is the hadith of the Prophet ‘Pray before Magrib’ and he repeated it three times
before mentioning ‘whoever wishes to’ . The imperative here has contextual context that indicates
that the original ruling of obligation is not intended.
37In the absence of proof specifying repeated performance as a requirement, a single instance of
performance is the minimum requirement of a command.
38The command itself merely consists of a demand, and the manner of its performance must be
determined in the light of indications and surrounding circumstances.

Page 14
The command to perform an action is a command to perform both the act and
whatever is required for the completion of the act,39 so the command to perform the
prayers is a command enjoining ablution that paves the way for the prayer. When
the act is performed, then the person to whom the command was addressed is
released from the charge laid upon him.40

39 The means which lead to the observance of commands and prohibitions are covered by the same
ruling which applies to the command/prohibition in the first place.
40If it is not performed in the commanded manner, then he is required to do it again. The verse
‘establish the prayer’, if performed fulfilling all its conditions and pillars, then the person is not
commanded to perform it again.

Page 15
 ‫الذي يدخل في األمر والنهي وما ال يدخل‬
. ‫ املؤمنون‬:‫يدخل في خطاب اهلل تعالى‬
. ‫والساهي والصبي واجملنون غير داخلني‬
،‫ ومبا ال تصح إال به‬،‫والكفار مخاطبون بفروع الشريعة‬
:‫ لقوله تعالى‬،‫وهو اإلسالم‬
. ( ‫) قالوا لم نك من املصلني‬

Who is included in command and prohibition, and who is not:

The believers are included in Allah’s speech (commands and prohibitions),

but the inattentive (unaware), young people, and the insane are not.41

Unbelievers are addressed concerning the branches of the revealed laws, and
concerning Islâm, without which the performance of the branches is not valid,
because Allah has said “What has landed you in hell? They said, we did not pray
(74:43).”

41The one who is asleep, pre-pubescent and insane are not sinful for leaving off obligations or
performing prohibitions.

Page 16
 . ‫ والنهي عن الشيء أمر بضده‬،‫واألمر بالشيء نهي عن ضده‬
. ‫ ويدل على فساد املنهي عنه‬،‫والنهي استدعاء الترك بالقول ممن هو دونه على سبيل الوجوب‬
. ‫وترد صيغة األمر واملراد به اإلباحة والتهديد أو التسوية أو التكوين‬

The command to do something is the prohibition of its opposite,42 and the prohibition
of something is the command to do its opposite.43

A prohibition is a verbal demand obliging an inferior to omit an act.44

The verbal form of command occurs with the meaning of permitting45, threatening,46
giving alternatives,47 or bring into creation.48

42 The command to establish prayer is prohibition of not establishing it.

43 The prohibition of betraying trusts (8,37) is the command to keep and protect trusts
44Prohibition (nahy), being the opposite of a command, is defined as a word or words which demand
the avoidance of doing something addressed from a position of superiority to one who is inferior. Also
as the opposite of command then a prohibition requires immediate and permanent omission.
45In the verse ‘But when you come out of ihram, then [you may] hunt’ (5,2) the form of the verb is a
command but the meaning of the verse is permissibility to hunt.
46In the verse ‘Do whatever you will’ (41,40) the form of the verb is a command but the meaning of
the verse is warning/ threat to contemplate the result of your actions
47In the verse ‘then be patient or impatient’ (52,16), the form is a command verb the meaning is that
your patience is the same as your lack of patience
48 In the verse "Be apes, despised." (2,65) the form of ‘be’ is a command but the meaning is to bring
into creation.

Page 17
 [ ‫] العام واخلاص وأقسامهما‬

‫ وعممت جميع‬،‫ عممت زيداً عمراً بالعطاء‬:‫ من قوله‬،ً‫وأما العام فهو ما عم شيئني فصاعدا‬
. ‫الناس‬
‫ كمن‬،‫ واألسماء املبهمة‬،‫ واسم اجلمع املعرف بالالم‬،‫ االسم الواحد املعرف بالالم‬:‫وألفاظه أربعة‬
‫ وما في االستفهام‬،‫ ومتى في الزمان‬،‫ وأين في املكان‬،‫ وأي في اجلمع‬،‫ وما فيما ال يعقل‬،‫فيما يعقل‬
. ‫ وال في النكرات‬،‫واجلزاء وغيره‬
. ‫والعموم من صفات النطق‬
. ‫وال جتوز دعوى العموم في غيره من الفعل وما يجري مجراه‬

General and Specific (‘Aam wa Khaas)

‘Aam (general) encompasses two or more things without restriction.49 It can be
expressed in four forms: a singular noun made definite by an alif and a lâm (the
definite article); 50 a plural noun made definite by a lâm;51 nouns of indeterminacy
such as ‘who’ for rational beings,52 ‘what’ for non-rational things, ‘any’ for both of
these, ‘where’ for place, ‘when’ for time, ‘what’ for inquiry and reward and other

49'Aam is a word that has a single meaning, but which applies to an unlimited number without any
restrictions. The command, 'Whoever enters this house, give him a dirham', 'whoever' is general and
includes every human being without restriction to gender or age etc.
50The verse, 'the adulterer, whether a woman or a man, flog them one hundred lashes' (24:2). the
article al preceding 'adulterer' (al-zaniyah wa'l-zani) indicates that all adulterers must suffer the
prescribed punishment.
51 When the plural form of a noun is preceded by al, it is identified as 'Amm. For example in the
waiting period of the divorced women (al-mutallaqat), the ayah begins by the word 'al-mutallaqat', that
is, 'the divorced women' who are required to observe a waiting period of three courses before they
can marry again. 'The divorced women' is 'Amm which comprises all to whom this statement can
apply.
52The word 'man' ('he who'), when used in a conditional speech, has the effect of a general word. In
'Whoever [fa-man] among you sees the new moon must observe the fast' ( 2:185) applies to
everybody who sights it.

Page 18
things;53 and ‘no’ applied to indefinite nouns.54 Generality is an attribute of speech. It
is not permissible to claim generality for other things such as action or the like.55

53In the question ‘maa indaka?’ meaning ‘maa huwa kulli maa indaka? In ‘maa indaka fa’tee bihi’
meaning kullu maa indaka fa’tee bihi’ is reward. By other the author means relative pronoun ‘a’ti
bimaa indak’ meaning ‘i’ti bi kulli maa indaka’ .
54 In the statement ‘maa indika shay’a’ meaning laa shay’ indak. The Hadith la darar wa la dirar fi'l-
Islam ('no harm shall be inflicted or reciprocated in Islam') is ‘Amm, as 'la darar' and 'la dirar' are both
indefinite words which convey their concepts in the negative, thereby negating all to which they apply.
55 It is a characteristic of speech, not actions. The prophet went inside the Kaba and prayed. It is not
allowed to now say that the word ‘prayed’ in the hadith is general reference prayer to include
compulsory and voluntary, as it is an action and generality is a characteristic of speech. Therefore this
action is interpreted to mean permissible to pray voluntary prayer in the Ka’ba as it is the least that
can be inferred from the word prayer.

Page 19
 ‫ واخلاص يقابل العام‬.
‫ فاملتصل االستثناء والشرط‬،‫ متصل ومنفصل‬:‫ وهو ينقسم إلى‬،‫والتخصيص متييز بعض اجلملة‬
‫والتقييد بالصفة‬،

Specific are those that are not general.56 To make something specific is to distinguish
part of a whole.57 It is either attached58 and separated.59 Attached comprises
exception, condition, and qualification by an attribute.60 


56 The proper nouns Muhammad or Makkah are specific utterances.

57‘The whole family went except Zaid’, here ‘the family went’ indicates everybody, including Zaid.
However, ‘except Zaid’ removes Zaid from the generality of the statement and indicates that he did
not go.
58 The general and specific statement are in the same utterance
59The specific utterance is independent of the general statement. If you said ‘the family went’ and in
another utterance sometime later you said ‘Zaid did not go’, this is separate because the general and
specific statement are not in the same utterance.
60An attached clause may qualify a general proposition by introducing an exception (istithna), a
condition (shart), a quality (sifah), or indicating the extent (ghayah) of the original proposition.

Page 20
 . ‫ وإمنا يصح بشرط أن يبقى من املستثنى منه شيء‬،‫واالستثناء إخراج ما لواله لدخل في الكالم‬
‫ ويجوز‬. ‫ ويجوز تقدمي االستثناء على املستثنى منه‬. ‫ومن شرطه أن يكون متصالً بالكالم‬
. ‫ والشرط يجوز أن يتقدم على املشروط‬. ‫االستثناء من اجلنس ومن غيره‬
،‫واملقيد بالصفة يحمل عليه املطلق كالرقبة قيدت باإلميان في بعض املواضع وأطلقت في بعض‬
‫ وتخصيص‬،‫ وتخصيص الكتاب بالسنة‬،‫ ويجوز تخصيص الكتاب بالكتاب‬. ‫فيحمل املطلق على املقيد‬
‫ ونعني بالنطق قول اهلل تعالى وقول‬،‫ وتخصيص النطق بالقياس‬،‫ وتخصيص السنة بالسنة‬،‫السنة بالكتاب‬
. ‫الرسول صلى اهلل عليه وآله وسلم‬

Exception is the exclusion of that which an expression would otherwise include. It is

only valid on condition that there remains something of that from which the exception
was made. Another condition is that the exception be connected to the speech from
which exception is being made.61 That which is excepted can be mentioned before
that from which it is excepted.62 Exception can be from the same class, and from
other things.63 A condition can precede that which is made conditional upon it.

The unqualified is interpreted in accordance with what is qualified by an attribute. For

example, ‘slave’ is qualified by emaan in some passages, so unqualified references
to slaves are interpreted in accordance with the qualified ones.64

61
As in the statement ‘The family went except for Zaid’. ‘The family’ is that from which the exception is
made and ‘Zaid’ is the exception. This is valid because both conditions are met. After removing Zaid
Members of ‘the family’ remain after ‘zaid’ is removed and ‘Zaid’ is connected to the utterance.
62‘Maaqaama illa Zaid ahad’ - Did not stand up except Zaid anybody - where the exception, Zaid, is
mentioned before that which is excepted from, Ahad. The sentence before any change has been
made is ‘maa qaama ahad illa zaid’.
63‘Jaa’a al-qawm illa Zaid’ is an example of exception from a class as Zaid is from the class of ‘the
family’. ‘Jaa’a al-qawm illa himaar’ is an example of exception from other things is as the donkey is
not from the class of the family.
64 The verse ‘to free a believing slave’ (4:92) relates to expiation for killing wrongfully. Another verse
says ‘free a slave before you have relations with them’ (58:3) relating to expiation for dhihaar. Where
freeing a slave is mentioned unqualified in one instance and mentioned qualified in another instance,
then the unqualified is interpreted according to the qualified. So the meaning of the verse in the
second instance is ‘to free a believing slave before you have relations’.

Page 21
The Quran can be made specific by the Quran,65 the Quran by the Sunnah,66 the
Sunna by the Quran,67 the Sunna by the Sunna,68 and utterance by analogy,69 where
by utterance we mean the speech of Allah and the speech of the Prophet - peace
and blessings be upon him.

65It is permissible for the general statement to be from the Quran and the specific statement to also
be from the Quran. The verse, ‘Divorced women remain in waiting for three periods,’ (2:228), which is
general for all divorced women is specified by the verse ‘O You who have believed, when you marry
believing women and then divorce them before you have touched them, then there is not for you any
waiting period to count concerning them’ (33:49). Therefore the sum meaning of both verses is that
the divorced women remain in waiting period except in the case of the woman who did not have
sexual relations with her husband, in which case there is no waiting period for her.
66 It is permissible for the general statement to be from the Sunnah and the specific statement to be
from the Quran. The verse ‘O you who have believed, when you rise to [perform] prayer, wash your
faces and your forearms to the elbows and wipe over your heads and wash your feet to the
ankles’ (5:6) is specified by the hadith ‘Allah does not accept the prayer of anyone of you if he in in
impurity until he makes wudu’ (Bukhari and Muslim). So the sum meaning of the verse and the hadith
together is that ‘it is an obligation on everybody who wants to perform the prayer to perform wudu
unless he is already in a state of purity.
67 It is permissible for the general statement to be from the Sunnah and the specific statement from
the Quran. The peace treaty of Hudaybiyah between the Prophet and the disbelieving Quraysh, in
which it mentions ‘That nobody can join the Prophet in Medinah, even if they are believers, without
being returned back to Quraysh in Makkah’ which is general to mean men and women, is specified by
the ‘O you who have believed, when the believing women come to you as emigrants, examine them.
Allah is most knowing as to their faith.’ (60:10). So the sum meaning of the verse and the hadith
together is ‘whoever from the disbelievers come to the Prophet in Medinah without permission, will be
returned back to Makkah except in the case of women whose emaan is proven, they will not be
returned.
68 It is permissible for the general statement to be from the Sunnah and the specific statement from
the Sunnah. The saying of the Prophet, ‘what is irrigated by rain, there is a zakat duty of one
tenth’ (Bukhari and Muslim), is general for any amount large or small of agriculture is specified by the
hadith ‘there is no zakat on less than five awsaq’ , so that the sum meaning of both hadith together is
the amount which zakat is a duty on agriculture of any amount over five awsaq, the equivalent of
three hundred Saa’.
69It is permissible for the general statement to be from the Quran or Sunnah and the specific
statement from qiyas (analogy). For example, the verse ‘The [unmarried] woman or [unmarried] man
found guilty of sexual intercourse - lash each one of them with a hundred lashes’ (24:2), which is
general for every unmarried fornicator, and the verse ‘then for them is half the punishment for free
[unmarried] women’ (4:25) is specific and omits the slave-girl about whom the punishment is fifty
lashes. The punishment for the male slave is through qiyas (analogy) with the female slave. So the
meaning of the verses together with qiyas is that the unmarried male and female fornicator receives
100 lashes, except the male and female slave who fornicates, then they receive fifty lashes each, the
female slave based on the verse and the male slave based on analogy.

Page 22
 .‫اجململ ما يفتقر إلى البيان‬

. ‫والبيان إخراج الشيء من حيز اإلشكال إلى حيز التجلي‬

. ‫واملبني هو النص‬
Summarised and Elaborated Speech (Mujmal wa Mubeen)
Summarised speech (Mujmal) stands in need of elaboration.70 Elaboration (Bayaan)
is to remove something from the domain of the problematic into the domain of the
evident.71

70
Mujmal denotes a word or text which is inherently unclear and gives no indication as to its precise
meaning. ‘Establish the Prayer’ is unclear in regards to the manner of performing the prayer.
71 Bayaan is two types, that which is evident in itself and that which makes something else evident or
clear. The author’s definition indicates the second type, makes something else evident. The command
‘establish the prayer’, is evident in itself as a command to establish the prayer. However from the
angle of how the prayer is to be performed, it is Mujmal, as it is not made clear how to establish the
prayer. The Sunnah clarifies the manner in which the prayer is performed, hence the sunnah
‘yubayyin al-Quran’.

Page 23
 ‫ وهو مشتق من منصة العروس وهو‬،‫ ما تأويله تنزيله‬:‫ وقيل‬،ً‫والنص ما ال يحتمل إال معنى واحدا‬
. ‫الكرسي‬
‫ ويسمى ظاهراً بالدليل‬،‫ ويؤول الظاهر بالدليل‬،‫والظاهر ما احتمل أمرين أحدهما أظهر من اآلخر‬

Definite speech (nass), admits of only one meaning. Some say it is speech whose
interpretation is its revelation. The word nass is derived from the minassa, or throne,
of the bride.72

Apparent speech (thaahir) is that which allows one of two meanings, one of which is
more apparent than the other.73 Apparent speech is interpreted by means of
evidence, and is then called ‘apparent by virtue of evidence.’74


72 The verse ‘Those are ten complete days’ (2:196) cannot mean nine days or ten and a half days. It
only admits one meaning, so is considered Nass. The throne of the bride is raised and is therefore
visible to all, likewise nass is clear meaning as if you can see it from afar and its meaning is
understand immediately as you come across it.
73 Thahir is a word with a clear meaning but is open to ta’weel (interpretation). The hadith of the
Prophet Muhammad ‘Verily the Imam is there to be followed, so when says Allah Akbar, then say Allah
Akbar’. The fa in the hadith has two possible means, to join two things in sequence one after the
other or consecutive. The second meaning - consecutive, is less apparent than the first meaning,
sequence. Therefore, whenever there is a faa, it is understood according to the first meaning unless
there is evidence suggesting that the most probable and likely meaning is not intended.The faa the
verse ‘So when you recite the Qur'an, seek refuge in Allah from Satan, the expelled [from His mercy].
(16:98)’ apparently means read Quran and then seek refuge from Shaytaan. However, in the Sunnah
there is the hadith: He used to seek refuge before recitation of Quran. Therefore, the apparent
meaning is relegated and the interpretation is based on a weaker possibility based on evidence, in
this case not meaning sequence, This is then called ‘ta’weel’.
74 ‘I saw a lion brandishing a sword’. The statement ‘I saw a lion’ has two possible meanings, the
literal meaning and a metaphorical meaning. Its use as an animal is literal and as a brave man is
metaphorical. The general principle is to use the literal meaning. However, there is evidence to
suggest that the second meaning is stronger, which is the phrase ‘brandishing a sword’, which is a
description of a man, not a lion. Therefore this statement is known as ‘apparent by virtue of evidence’.

Page 24
 ‫األفعال‬
. ‫ إما أن يكون على وجه القربة والطاعة أو ال يكون‬:‫فعل صاحب الشريعة ال يخلو‬
. ‫فإن كان على وجه القربة والطاعة فإن دل دليل على االختصاص به فيحمل على االختصاص‬
،(‫) لقد كان لكم في رسول اهلل أسوة حسنة‬:‫ ألن اهلل تعالى قال‬،‫وإن لم يدل دليل ال يختص به‬
:‫ ومنهم من قال‬،‫ يحمل على الندب‬:‫ ومن أصحابنا من قال‬،‫فيحمل على الوجوب عند بعض أصحابنا‬
. ‫ فإن كان على وجه غير وجه القربة والطاعة فيحمل على اإلباحة‬،‫يتوقف فيه‬
. ‫ وإقراره على الفعل كفعله‬،‫وإقرار صاحب الشريعة على القول هو قول صاحب الشريعة‬
. ‫وما فعل في وقته في غير مجلسه وعلم به ولم ينكره فحكمه حكم ما فعل في مجلسه‬
The Prophet’s actions (Af’aal)
An action of the bearer of legislation [the Prophet] either relates to piety and
obedience or it does not.75 If it does, then if some evidence indicates that it is
specific to him, it is understood as specific to him; 76 But if no evidence so indicates,
then the action is not specific to him, because Allah has said “In the Prophet of Allah
you have had a good example.”77 Such an act is understood as obligatory by some
of our colleagues,78 while some of them say one should suspend judgment about it.
If, however, the action relates to something other than piety and obedience, it is

75 The actions of the the Prophet is divided into two categories. The first is that which is an action
intending closeness to Allah and His obedience (worship). The second is an action that is not
intending closeness to Allah and His obedience. Another way is to say that the actions of the Prophet
are either customary acts, such as dress and matters of the home, or necessary acts such as eating
when hungry or sleeping when tired, or acts of worship, with the intention to draw closer to Allah.
76 There are certain matters which are specific to the Prophet so that his example concerning them
does not constitute general law. There is a hadith where the Prophet forbade continuous fast which is
to fast two days or more without eating or drinking at night, while he himself performed that fast.
77 This verse proves that the general principle is that the actions of the Prophet are for every Muslim
to follow unless evidence indicates otherwise.
78 The scholars who say wajib take the safe approach based on verse 21 in surah al-Ahzab. The
scholars that say mandub is based on the general principle is that a person is not punished for leaving
an action. The scholars that say suspend judgement is based on there being a lack of evidence
indicating that wajib or mandub is intended. In reality the least an action of worship can be is mandub.
The opinion of suspending judgement takes an approach of caution (wara’). We know that the
Prophet used to use miswak whenever he entered his home (Sahih Muslim). This is an action he did
but that he did not order muslims to do. According to the first opinion, this would be considered Wajib,
according to the second opinion it would be considered mandub.

Page 25
understood as permissible.79 The consent of the bearer of the revealed law in a
saying constitutes a saying of the bearer of the revealed law, and his consent in an
act is as his own act.80 Whatever was done during his lifetime outside his presence,
that he came to know of and did not disown, its ruling is as though it had been done
in his presence.81

79 Actions such as the manner which he ate, slept, dressed is mubah

80The tacitly approved Sunnah consists of the acts and sayings of the Companions which came to
the knowledge of the Prophet and of which he approved. The report of one of the prominent
companions, 'Amr b. al-'As, that in the campaign of Dhat al-Salasil he had a wet dream at night but
upon waking owing to extreme cold he did not take a bath but instead performed the morning Salah
with tayammum. He then related this to the Prophet, who laughed but said nothing against it which
implies that the act in question is permissible and that in similar circumstances when extreme cold
proves to be hazardous to health the same action would be permissible. These actions are
considered mubah.
81 The sayings of Companions such as, 'we used to do such and such during the lifetime of the
Prophet' constitute a part of Sunnah taqririya. Abu Sa'id al-Khudri said that 'for the charity of 'id al-Fitr,
we used to give a sa' of dates or of barley’, which is a matter that could not have remained hidden, so
it constitutes a sunnah taqriria.

Page 26
 [ ‫] النسخ‬

‫ معناه النقل من‬:‫ وقيل‬،‫ نسخت الشمس الظل إذا أزالته‬:‫ يقال‬،‫وأما النسخ فمعناه اإلزالة‬
. ‫ نسخت ما في هذا الكتاب إذا نقلته‬:‫قولهم‬
‫ اخلطاب الدال على رفع احلكم الثابت باخلطاب املتقدم على وجه لواله لكان ثابتاً مع‬:‫وحده‬
. ‫تراخيه عنه‬
،‫ والنسخ إلى بدل وإلى غير بدل‬،‫ ونسخ احلكم وبقاء الرسم‬،‫ويجوز نسخ الرسم وبقاء احلكم‬
. ‫وإلى ما هو أغلظ وإلى ما هو أخف‬
. ‫ وال يجوز نسخ الكتاب بالسنة‬،‫ ونسخ السنة بالكتاب‬،‫ويجوز نسخ الكتاب بالكتاب‬
. ‫ وال يجوز نسخ املتواتر باآلحاد‬،‫ ونسخ اآلحاد باآلحاد وباملتواتر‬،‫ويجوز نسخ املتواتر باملتواتر‬
Abrogation (Naskh)
The meaning of abrogation (naskh) is removal. A person says “the sun has
abrogated the shade” when it makes it disappear. Some say its meaning is to copy,
because people say “you have abrogated what is in the book” when you copy it in
the form in which it was written.82 Naskh is defined as speech that indicates the
removal of a Hukm established by a previous speech, in such a way that without the
second speech the Hukm would remain. There must be a delay between the first
speech and the second.83

82Removal (al-raf wa al-izalah) is the primary meaning of naskh. The author using the word ‘some
say’ shows that copy, the secondary meaning of Naskh, is weaker.
83 Naskh may be defined as the suspension or replacement of one Shari'ah ruling by another,
provided that the latter is of a subsequent origin, and that the two rulings are enacted separately from
one another. The verse ‘If there are among you twenty [who are] steadfast, they will overcome two
hundred. And if there are among you one hundred [who are] steadfast, they will overcome a thousand
of those who have disbelieved’ (8:65) means that if there are twenty Muslim combatants against a
larger number of enemies they are obliged to fight so long as the enemies are not more than 10x
there number. However, the verse ‘Now, Allah has lightened [the hardship] for you, and He knows
that among you is weakness. So if there are from you one hundred [who are] steadfast, they will
overcome two hundred. And if there are among you a thousand, they will overcome two thousand by
permission of Allah. And Allah is with the steadfast.’ (8:66) is later than the first one and removes its
hukum and replaces it with the obligation to fight the enemy so long as their number is not more than
twice the number of muslims.

Page 27
A text can be abrogated while the Hukm it indicates remains;84 a Hukm can be
abrogated while the text remains,85 or both can be abrogated together.86

Some abrogation substitutes a new requirement for the old one,87 and some does
not.88 Some abrogation results in a stricter requirement,89 and some in a lighter
requirement.90

The Quran can be abrogated by the Quran,91 and the Sunna can be abrogated by
the Quran. The Quran cannot be abrogated by the Sunna.92 What is collectively

84It is allowed to abrogate the text while the ruling remains. The wording for stoning the one who
commits adultery used to be in the Quran as mentioned in the hadith of Aisha (RA) recorded in al-
Bukhari and Muslim, but was abrogated, removed, while the ruling remains according to ijmaa’ of the
muslim scholars.
85The two verses previously mentioned mentioning the ruling of fighting a larger number known as
the verses of patience. This is the most typical type of Naskh.
86Abrogation of both the words and the ruling as in the example of the verse of Ridaa’ah (suckling) as
reported by Aishah and recorded in Muslim.
87 In the verses of patience the hukum has been substituted for another hukum.
88The verse ‘O you who have believed, when you [wish to] privately consult the Messenger, present
before your consultation a charity. That is better for you and purer. But if you find not [the means] -
then indeed, Allah is Forgiving and Merciful.’ (58:12), indicates it is an obligation to give charity before
consulting the Prophet. It is abrogated by the verse ‘Have you feared to present before your
consultation charities? Then when you do not and Allah has forgiven you, then [at least] establish
prayer and give zakah and obey Allah and His Messenger. And Allah is Acquainted with what you
do.’ (58:13), shows that the obligation is abrogated, without it being substituted for another Hukum.
89Where one hukum is substituted for another hukum, and the new hukum is tougher. The verse
‘And upon those who are able [to fast, but with hardship] - a ransom [as substitute] of feeding a poor
person [each day]. And whoever volunteers excess - it is better for him. But to fast is best for you, if
you only knew.’ (2:184), indicates that a person who has ability to fast in Ramadan has the option of
not fasting and feeding poor instead. However, the verse ‘So whoever sights [the new moon of] the
month, let him fast it;’ (2:185), abrogates the option of choosing between fasting and feeding and
makes it an obligation to fast. Fasting is tougher than choosing between fasting and feeding.
90 The verse of patience that has proceeded.
91 The verse of patience and the verse of fasting that has preceded.
92 It is allowed for the abrogator to be from the Quran and the abrogated from Hadtih. Prayer in the
direction of baytal-maqdis is established in the Sunnah and its abrogation is established by the verse ‘
turn your face toward al- Masjid al-Haram,’ (2:149). The author did not mention the book can be
abrogated by the sunnah, indicating that he does not see it as permissible. However according to the
majority (jumhur) view, the Qur'an and the Sunnah may be abrogated by themselves or by one
another.

Page 28
transmitted can be abrogated by what is collectively transmitted,93 and what is
individually transmitted can be abrogated by what is individually or collectively
transmitted, but what is collectively transmitted cannot be abrogated by what is
individually transmitted.94

93 This is the second categorisation of abrogation, and it relates to the method of narration or the
isnad of the abrogating text. Abrogation in the sunnah is two types, the first is where both the hadith
that is abrogating and the abrogated hadith are both collectively transmitted and the second is where
the abrogated hadith is individually transmitted and the abrogating hadith is either collectively or
individually transmitted.
94The ahad hadith (single tranmission) can abrogate the mutawatir ahadith. Imam al-Shafi'i refers to
the incident when the congregation of worshippers at the mosque of Quba' were informed by a single
person of the change of the direction of the Qiblah from Jerusalem to the Ka'bah; they acted upon it
and turned their faces toward the Ka'bah. The fact that Jerusalem was the Qiblah had been
established by continuous, or mutawatir, Sunnah. The congregation of Companions accepted the
solitary report as the abrogator of mutawatir.

Page 29
 [ ‫[فصل التعارض والترجيح‬
‫ إما أن يكونا عامني أو خاصني أو أحدهما عاماً واآلخر خاصاً أو كل‬:‫إذا تعارض نطقان فال يخلو‬
. ‫واحد منهما عاماً من وجه وخاصاً من وجه‬
‫ وإن لم ميكن اجلمع بينهما يتوقف فيهما إن لم‬،‫فإن كانا عامني فإن أمكن اجلمع بينهما جمع‬
. ‫ وكذلك إذا كانا خاصني‬،‫ فإن علم التاريخ فينسخ املتقدم باملتأخر‬،‫يعلم التاريخ‬
‫ وإن كان كل واحد منهما عاماً من‬،‫وإن كان أحدهما عاماً واآلخر خاصاً فيخص العام باخلاص‬
. ‫وجه وخاصاً من وجه فيخص عموم كل واحد منهما بخصوص اآلخر‬

Methods of Interpretation
If two statements contradict one another,95 then they must be either both general, or
both particular, or one general and the other particular, or each general in one
respect and particular in another respect. If they are both general, then if they can be
reconciled one reconciles them,96 but if they cannot, one suspends judgment

95 There may be instances of conflict between two texts which, after scrutiny, may turn out to be
apparent rather than real, and it may be possible to reconcile them and to eliminate the conflict. One
of the two texts may be general (`amm) and the other specific (khass), in which case the rules of
interpretation and takhsis (specification) must be applied so as to eliminate the conflict as far as
possible. One may be reported at an earlier time, and the other at a later time, in which the rules of
naskh must be applied.
96 Reconciliation is by one of two methods. The first is to combine both texts so that there is no longer
any conflict as mentioned above. The second method is to make tarjih of one of the texts over the
other. The hadith in Sahih Muslim where the Prophet said ‘I will inform you about the best witness, it is
the one who testifies before being asked’ and in a hadith in both Bukhari and Muslim the Prophet said
‘there will be a people after you who deceive and not be trustworthy and they will give witness without
being asked’. The first hadith contains a general praise for whoever testifies without being asked while
the second hadith contains a general criticism of the same action. The scholars combine the two
hadith by stating that the first is in relation to the witness of the one is testifying on behalf of
somebody who does not know that he is a witness for him and the latter is regarding a person who
gives testimony falsely.

Page 30
concerning them if their dates are unknown,97 but if they are known the earlier is
abrogated by the later. Similarly if they are both particular. 98

If one is general and the other particular, the general is particularised by the
particular.99 If each is general in one respect and particular in another respect, then
the generality of each is particularised by the particularity of the other. 100

97No action is established on either of the two texts. This is in relation to that particular mujtahid who
cannot reconcile between the two statements. However it does not apply to other mujtahids who may
be able to reconcile between the two apparently conflicting statements.
98 The method of reconciliation is the same as above. When do you know that two proofs (dalil) is
considered conflicting? There are four conditions before you can say that two proofs are conflicting:
both have to be authentic, they have to come to opposite rulings as if they both point to the same
ruling there is no conflict, they indicate the same time period, and there is no proof indicating that one
is abrogated by the other. The hadith of Ibn Umar, that the Prophet used to raise his hands when
making Ruku’, when coming coming back up from it, and when standing from the first
Tashahud’ (agreed upon) and the hadith of ibn Mas’ud that the Prophet would raise his hands when
making the first takbir and he would not raise them afterwards (reported by Abu Dawud) is an
example of conflict. First look at the authenticity of the reports, the report of ibn Masud is inauthentic,
therefore there is no conflict. The hadith ‘whoever touches his private parts, then let him make
Wudu’ (Abu Dawud, tirmithi and nisaa’i) and the hadith ‘it is only a part of you’ (Abu Dawud), both are
authentic reports, so we try to reconcile. If it is possible for one to refer to a particular situation and the
other to another, then we do that, without looking at if one preceded the other. The scholars say that
the hadith it is a part of you relates to touching the private parts between a cover, as the questioner
mentioned ‘my hand touches my private parts while i am in prayer’ and it is unlikely that a person
would touch is private part directly without a covering during the prayer. There is therefore no need to
turn to making tarjeeh of one over the other, or looking at the date to see if one abrogates the other.
99 As in the case of the waiting period for the divorced woman that has preceded.
100 The hadith ‘Water which is pure is not made impure unless it changes colour, taste or smell’ is
general from one aspect, ‘water does not become impure’ and specific from the aspect that ‘it
becomes impure if something impure changes one of its properties. The hadith ‘When water reaches
qulatayn it does not become impure’ is general from the aspect of when water reaches qulatayn it
does not become impure, regardless of if it changes its properties or not, and specific in that if it is
less than qulatayn it becomes impure just by impurity coming into contact with it. The generality of the
first hadith is particularised by the particularity of the second hadith and vice versa. The sum meaning
of both hadith together is if water is less than qulatayn it becomes impure just by water coming into
contact with it and if it is more than qulatayn, then it does not become impure unless it changes one of
its properties.

Page 31
 [ ‫]اإلجماع‬

‫ ونعني‬،‫ ونعني بالعلماء الفقهاء‬،‫وأما اإلجماع فهو اتفاق علماء أهل العصر على حكم احلادثة‬
. ‫باحلادثة احلادثة الشرعية‬
‫ )) ال جتتمع أمتي على‬:‫ لقوله صلى اهلل عليه وآله وسلم‬،‫وإجماع هذه األمة حجة دون غيرها‬
. ‫ والشرع ورد بعصمة هذه األمة‬،(( ‫ضاللة‬
،‫ وال يشترط انقراض العصر على الصحيح‬،‫ وفي أي عصر كان‬،‫واإلجماع حجة على العصر الثاني‬
‫ انقراض العصر شرط يعتبر قول من ولد في حياتهم وتفقه وصار من أهل االجتهاد ولهم أن‬:‫فإن قلنا‬
. ‫يرجعوا عن ذلك احلكم‬
‫واإلجماع يصح بقولهم وبفعلهم وبقول البعض وبفعل البعض وانتشار ذلك وسكوت الباقني‬
. ‫عنه‬
. ‫وقول الواحد من الصحابة ليس بحجة على غيره على القول اجلديد‬
Consensus (Ijmaa’)
Consensus is the agreement of a generation of scholars concerning an event. By
scholars we mean jurists (fuqaha), and by event we mean a shar'i event.

The consensus of this community, and no other, is an authoritative proof, because

the Prophet has said “my community does not agree upon an error.” Revelation has
stated the infallibility of this community.101

Consensus is a binding proof for the following generation, and for every
generation.102 The relevant authority of consensus is not conditional upon the
passing of the generation in which it is reached. If we made it conditional on the
passing of the generation, then one would take into consideration the statement of

101 Ijma` derives its validity from the scripture on the infallibility (`ismah) of the ummah, like verse 115
in Surah al-Nisaa. The hadith that the author mentions has been graded weak by the scholars of
hadith so it cannot be used as a proof for the authority of ijma.
102 Ijma' on a shar`i ruling has a quality of permanence. The companions have consensus that
ejaculation makes ghusl an obligation. This ‘ijma’ is a proof so it is not allowed for anybody after them
to differ and say otherwise.

Page 32
someone who was born during their lifetime and studied fiqh and became one of the
people of ijtihaad, and the hukm could then be revoked.103

Valid consensus can be established by the scholars’ words, or by their actions,104 or

by the words or actions of only some of them, if those words or actions are
disseminated and the others remain silent about them.105 The saying of a single
Companion is not an authoritative proof over others, according to the new opinion.106

103 In view of the overlapping of generations (tadakhul al-a'sar), it is impossible to distinguish the end
of one generation from the beginning of the next.
104 Ijma’ can be divided into four categories: one, when all the scholars make a statement on a ruling,
like saying that it is permissible to get on an aeroplane, two, when they all do an action, such as they
all get on an aeroplane, three, like some saying it is allowed to get on a plane and others getting on a
plane, and four, when some make a statement and the others remain silent, which is called ‘ijma’
sukooti or tacit ‘ijma’.
105From the viewpoint of the manner of its occurrence, ijma` is divided into two categories:
explicit ijma` (al-ijma' al-sarih) in which every mujtahid expresses his opinion either verbally or by an
action; and tacit ijma`(al-ijma `al-sukuti) whereby some of the mujtahids of a particular period give an
opinion concerning an incident while the rest remain silent. This is valid with two conditions, the first is
that the statement or action becomes widespread and the second is that the rest of the scholars
remain silent not opposing that statement or action.
106 There is general agreement among the ulema of usul on the point that the ruling of one companion
is not a binding proof over another. The companions were themselves allowed to disagree with one
another in matters of ijtihad so if the ruling of one Companion was a proof over another, then
disagreement among them would not have been tolerated. The saying of a companion can be
divided into three categories, the first is if a companion has a saying and another companion differs
with him, in which case there is consensus that the companions statement is not a authoritative
evidence. The second is if a companion has a saying, which becomes widespread without there being
any other companion who disagrees with him, then it is considered tacit consensus, as has been
previously mentioned. The third is when a companion has a saying which is not widespread, and for
which there is no disagreement by another companion, in which case scholars have two opinions. the
first opinion, which is attributed to Imam Shafi’e, is that it is not considered an authoritative evidence.
The second opinion, which is the majority, is that it is an authoritative evidence.

Page 33
 ‫األخبار‬

. ‫ وقد يقطع بصدقه أو كذبه‬،‫ فاخلبر ما يدخله الصدق والكذب‬،‫وأما األخبار‬

. ‫ إلى آحاد ومتواتر‬:‫واخلبر ينقسم قسمني‬
‫ وهو أن يروي جماعة ال يقع التواطؤ على الكذب عن مثلهم إلى أن‬،‫فاملتواتر ما يوجب العلم‬
. ‫ينتهي إلى اخملبر عنه فيكون في األصل عن مشاهدة أو سماع‬
‫ فاملسند‬،‫ إلى مرسل ومسند‬:‫ وينقسم قسمني‬،‫واآلحاد هو الذي يوجب العمل وال يوجب العلم‬
‫ إال مراسيل‬،‫ فإن كان من مراسيل غير الصحابة فليس بحجة‬،‫ واملرسل ما لم يتصل إسناده‬،‫ما اتصل إسناده‬
. ‫ فإنها فتشت فوجدت مسانيد‬،‫سعيد بن املسيب‬
‫ وإن قرأ‬،‫ حدثني وأخبرني‬:‫ وإذا قرأ الشيخ يجوز للرواي أن يقول‬،‫والعنعنة تدخل على اإلسناد‬
. ‫ حدثني‬:‫ وال يقول‬،‫ أخبرني‬:‫هو على الشيخ فيقول‬
. ‫ أجازني أو أخبرني إجازة‬:‫وإن أجازه الشيخ من غير رواية فيقول‬
Reports (Akhbar)
A report is that which can be described by truthfulness or lying. It is possible to be
certain about its being truth or a lie. Reports are categorised107 into two types:
individually or collectively transmitted.108 A collectively transmitted report makes
knowledge obligatory.109 It is related collectively at every stage of its transmission all

107 The categorisation of reports here is in relation to the chain of transmission (isnaad).
108The solitary report (also known as khabar al-wahid) is a report which is reported by a single person
or by few odd individuals from the Prophet.
109Collective testimony (tawatur) brings about certainty (yaqin) and the knowledge that it creates is
equivalent to knowledge that is acquired through sense-perception. If it is reported that a particular
person became an aalim, then as it was transmitted collectively then it is certain knowledge that is
representative of truth and reality.

Page 34
the way back to the one from whom it is reported, by a group the likes of which could
not conspire to lie.110 It must originate in eye-witnessing or hearing.111

An individually transmitted report makes action obligatory, but does not make
knowledge obligatory, since it could contain an error.112 There are two categories of
individually transmitted reports: those that are attributed (mursal) to the Prophet, and
those that are traced (musnad) to the Prophet. Traced reports have a continuous
chain of transmission, and attributed reports have a discontinuous chain of
transmission.113 If a report is attributed by anyone but a Companion, it does not
constitute authoritative proof (hujjah), except for the reports attributed by Sa‘îd ibn al-
Musayyab, which have been scrutinised and found to be traced.

110 Mutawatir means 'continuously recurrent'. In the present context, it means a report by an indefinite
number of people related in such a way as to preclude the possibility of their agreement to perpetuate
a lie. Such a possibility is inconceivable owing to their large number, diversity of residence, and
reliability. There are three conditions for mutawatir, the large number of reporters that make it
impossible to conspire to lie, such a number being present throughout the transmission, and the
report being something attributed to the sense, witnessed or heard, not to opinion or ijtihad.
111When a companion says I heard the Prophet say, such and such, or do such and such, and a large
number of companions were also present who also transmitted this report from the Prophet, then a
similarly large number transmitted the report from the companions, and likewise until it was written
down in the books of hadith like Sahih of Bukhari, Muslim etc.
112When a companion says I heard the Prophet say such and such or do such and such and this is
reported by him alone, then it is transmitted from him by one other person and likewise up until the
report is written down. All the four Imams of jurisprudence have considered ahad to be authoritative
and none reject it unless there is evidence to suggest a weakness in its attribution to the Prophet, or
which may contradict some other evidence that is more authoritative in their view. Therefore single
transmission makes action and knowledge obligatory if it is an authentic isnad, there is no
contradicting evidence and it is connected to the Prophet.
113 From the viewpoint of the continuity and completeness of their chains of transmitters, the single
transmission report is classified into two categories: connected (muttasil) and disconnected (ghayr
muttasil). A connected report is one which has a complete chain of transmission from the last narrator
all the way back to the prophet. A disconnected report, also known as mursal, is a report whose chain
of transmitters is broken and incomplete. (the scholars of hadith are more specific definition for
mursal, which is a hadith where a companion is missing from the chain. When the chain is
disconnected from the middle it has different names for when there is somebody missing from the
beginning of the chain, or the middle of the chain.

Page 35
Relating a report “from so and so” (‘an’ana) qualifies as a form of tracing. If the
Shaykh reads a report, the one who relates it from him may say “he told me” or “he
informed me.” If the one who relates the report reads it to the shaykh, he says “he
informed me,” but does not say “he told me.” If the Shaykh authorises him without
any reading, the one who relates from him says “he authorised me,” or “he informed
me by authorisation.”114

114 Transmission of hadith from a shaykh has three ways, hearing it directly from the Shaykh, reading
it to the shaykh and receiving authorisation from the shaykh. Each method has its own specific
wording.

Page 36
 [ ‫] القياس‬

. ‫وأما القياس فهو رد الفرع إلى األصل بعلة جتمعهما في احلكم‬

. ‫ وقياس شبه‬،‫ وقياس داللة‬،‫ إلى قياس علة‬:‫وهو ينقسم إلى ثالثة أقسام‬
. ‫فقياس العلة ما كانت العلة فيه موجبة احلكم‬

‫ وهو أن تكون العلة دالة على احلكم وال‬،‫وقياس الداللة هو االستدالل بأحد النظرين على اآلخر‬
. ‫تكون موجبة للحكم‬
. ً‫ فيلحق بأكثرهما شبها‬،‫وقياس الشبه هو الفرع املتردد بني أصلني‬
‫ ومن شرط األصل أن يكون ثابتاً بدليل متفق عليه بني‬،‫ومن شرط الفرع أن يكون مناسباً لألصل‬
. ‫اخلصمني‬
. ‫ فال تنتقض لفظاً وال معنى‬،‫ومن شرط العلة أن تطرد في معلوالتها‬
. ‫ومن شرط احلكم أن يكون مثل العلة في النفي واإلثبات‬
. ‫ واحلكم هو اجمللوب للعلة‬،‫والعلة هي اجلالبة‬
Analogy (Qiyaas)
Analogy115 is relating the branch (al-far’) to the root (al-asl) by a common

characteristic (‘illa) that gives them the same hukm.116

115 Qiyas suggests an equality or close similarity between two things, one of which is taken as the
criterion for evaluating the other. In Usul al-fiqh it is the extension of a Shari'ah ruling from an original
case, (asl) to a new case because the latter has the same effective cause (‘illa) as the former. The
original case is regulated by a given text and qiyas seeks to extend the same textual ruling to the new
case. The majority of ulema have defined qiyas as the application to a new case (far') on which the
law is silent, of the ruling (hukm) of an original case (asl) because of the effective cause ('illah) which
is common to both.
116 In the verse ‘‘O you who have believed, when [the adhan] is called for the prayer on the day of
Jumu'ah [Friday], then proceed to the remembrance of Allah and leave trade’ (62:9) trade after the
second call to prayer (athan) on Friday (Jum’ah) is considered the original case where there is a given
text and the hukum that this text indicates is the prohibition of trade. The ‘illa (reason) for this hukum
is that trade inevitably leads to delaying going to the prayer and possibly missing it completely. If
somebody asked what is the ‘ruling of performing a marriage contract after the athan for Jum’ah,
there is no text for this case so it is called the branch (new case). The Shariah hukum of this case is
prohibition of performing marriage contract and the reason for this hukum is that the same ‘illa
(reason) for the prohibition in the original case is present in this new case, so it is attached to it and
given the same hukum. This is called qiyas.

Page 37
There are three kinds of analogy: analogy by common characteristic (qiyas al-‘illa),117

by indication (qiyas al-dalalah),118 and by resemblance (qiyas al-shabah).

Analogy by common characteristic is analogy in which the common characteristic

entails the ruling by necessity.119

Analogy by indication is using one case as evidence for a parallel case; the common
characteristic indicates the hukum but does not entail it necessarily.120

Analogy by resemblance is relating a branch that could be related to either of two

roots, to the one that most resembles it.121

117Analogy by common characteristic, which is the description which is suitable and precise that
necessitates the legal ruling, for example analogy of heroin with alcohol, the common characteristic
between the original case and the new case is the intoxication, a reason or effective cause that is
suitable and precise for the legal ruling.
118Analogy by indication is combination between the original case and the new case by a description
that is attached to the effective cause though it may not be the cause itself.
119 The ‘illa is obvious and apparent either because it is explicitly mentioned or clearly deduced. The
hadith in Sahih Muslim from Sa’d ibn Sahal that a man looked through the Prophet’s door while he
was itching his head with a comb. When the Prophet saw him he said if I knew you were watching
me I would have poked you with it in your eye, verily permission is sought so that you do not see what
you should not. The hadith where the Prophet said ‘A judge does not issue a ruling between two
disputants while he is angry’ is an example of when the ‘illa is deduced because the hadith does not
explicit mention the reason for the prohibition. However the scholars have deduced that the reason,
about which there is scholarly consensus, that his thinking is not aversely effected so that leads him
to issue a ruling incorrectly. In the first hadith the Prophet mentioned the ‘illa explicitly, and in the
second it is obvious. So if you make qiyas on this asl (original case) it is called qiyas ‘illa.
120 The ‘illa is not explicit, rather it is deduced and the deduction is not obvious and apparent. For
example Allah’s speech ‘O you who have believed, when [the adhan] is called for the prayer on the
day of Jumu'ah [Friday], then proceed to the remembrance of Allah and leave trade’ (62:9), does not
explicitly state the reason for the prohibition of trade. Some scholars deduce that the ‘illa is that trade
will results in delaying going to the prayer and could lead to missing it altogether. However others
differ due to the fact that the ‘illa is not obvious from the text. If you make qiyas on this asl, it is called
qiyas dalaala.
121It is similar to two cases where the hukum in each case is different. The solution is to attach it to
the case which is resembles the most. If one person says that horse meat is permissible making
analogy with camel meat but the other person argues that that it is impermissible based on analogy
with donkey meat. The mujtahid looks at which animal horse most resembles. The first group argue
that horse is used to ride on, in battle like camel and it is permissible to sell like camel etc. The
second group argue that is resembles donkey in this and that, mentioning resembles.

Page 38
The branch must be like the root in regard to that whereby they are both given the
same hukm.122 The root123 must be established by evidence that is accepted by both
parties.124 The common characteristic125 must be consistent in the rulings (ahkaam )
it necessitates, without exception either in wording or in meaning.126 The hukm127
must be coextensive with the common characteristic.128 The common characteristic
brings about the hukm, and the hukm is brought about by the common
characteristic.  


122If somebody said that sea water is impermissible to drink like khamar is impermissible to drink
based on being intoxicating, it would be rejected because the new case is not like the original case,
because it does not have the effective cause or reason.
123The ruling of the original case has to be based on evidence that is agreed upon, whether it is either
the Quran, the sunnah or ijma.
124 The first scholar, to bind the other scholar, has to first establish an agreement on the evidence that
firstly the asl is authentic, Quran, Sunnah and ijmaa and secondly that the ‘illa is obvious and clear.
125 The ‘illa has been variously defined by the ulema of Usul. According to the majority, it is an
attribute of the asl which is constant and evident and bears a proper (munasib) relationship to the law
of the text (hukm).
126 If the same ‘illa is present in two different cases with two different rulings, then qiyas cannot be
performed. Every time intoxication is mentioned, prohibition is mentioned, there is no instance where
intoxication is mentioned without prohibition.
127
A hukm is a ruling, such as a command or a prohibition, which is dispensed by the Qur'an, the
Sunnah or ijma', and analogy seeks its extension to a new case.
128 If the ‘illa is removed the hukum is removed and if the ‘illa is present the hukum is present.

Page 39
 [ ‫] احلظر واإلباحة واالستصحاب‬
‫ فإن لم‬،‫ إن األشياء على احلظر إال ما أباحته الشريعة‬:‫وأما احلظر واإلباحة فمن الناس من يقول‬
. ‫يوجد في الشريعة ما يدل على اإلباحة يتمسك باألصل وهو احلظر‬
. ‫ وهو أن األصل في األشياء على اإلباحة إال ما حظره الشرع‬،‫ومن الناس من يقول بضده‬
. ‫ أن يستصحب األصل عند عدم الدليل الشرعي‬:‫ومعنى استصحاب احلال‬
. ‫فإن وجد في النطق ما يغير األصل وإال فيستصحب احلال‬

Prohibition, Permissibility and Presumption of Continuity

Some people say that all things are forbidden, except what the divine law has
permitted.129

Some people say the opposite, namely that the original state of things is
permissibility, except for what revelation has prohibited.

‘Carrying forward the state’ means carrying forward the original state in the absence
of evidence / divine legislation.130

129 The scholars differ regarding the ruling of things of benefit before the divine revelation. As for after
the divine revelation, then there is scholarly agreement for the permissibility of things unless evidence
indicates otherwise. Some say that it is impermissible for a person to do or say what he wills unless
he has legislated evidence permitting that. The other view is that a person can say and do what he
wills until there is evidence prohibiting that. The difference in both views becomes apparent when
asked why does a person hold a thing permissible without evidence, he will reply that he searched for
evidence and did not find any so the original state is permissibility. However, the person who holds the
view of prohibition will respond to the question why does he hold a thing impermissible without
evidence, by stating that he searched for evidence of its legal ruling and he did not find any so he
adhered to the original state which is prohibition.
130 Permissibility is the original state of things (al-asl fi al-ashya' al-ibahah). All matters which the
Shari'ah has not regulated to the contrary remain permissible. They will remain presumed so unless
the contrary is proved to be the case. Therefore, actions can be classified into four categories; that
which the evidence shows permissibility only, then the ruling is permissible. that which evidence
shows prohibition only, then the ruling if prohibition, that which evidence shows both permissibility and
prohibition, then the ruling leans towards prohibition that which there is no evidence either for
prohibition or permissibility, therefore the ruling is presumption of continuity or carrying forward the
original state. So if it is like water, then the ruling is permissible, and if it is something like shedding
blood, it is prohibition.

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 ‫ والنطق على‬،‫ واملوجب للعلم على املوجب للظن‬،‫وأما األدلة فيقدم اجللي منها على اخلفي‬
. ‫ والقياس اجللي على اخلفي‬،‫القياس‬
. ‫فإن وجد في النطق ما يغير األصل وإال فيستصحب احلال‬

The Prioritising of Evidences

Clear evidences are given priority131 over obscure ones,132 and those that produce
knowledge over those that produce opinion.133 Utterance is given priority over
analogy,134 and clear analogy over obscure analogy.135 If one finds an utterance that
changes the original state, then the original state is changed, but if not then one
carries forward the state.136 

131
Giving preference to one evidence over another is to act on one evidence and reject the other,
when there is a conflict and it cannot be reconciled or rules of abrogation applied.
132 In the event of a conflict occurring between an evidence found in the Book or the Sunnah with
another evidence found in the Book or the Sunnah (it is not possible to combine them or to apply the
rules of abrogation) and one of the evidences is stronger and clearer than the other, such that one is
nass and the other is thahir, then priority is given to the nass.
133 In the event of a conflict occurring between the Book and mutawaatir hadith with ahaad hadith,
then preference is given to the former. The hadith of ibn Umar that the Prophet used to raise his hand
when making rukoo’ and when rising form it is multiple chain of transmission. The hadith of ibn
Mas’ood that the Prophet would raise his hand when making the first Takbir and then he would not
raise it after that is a single chain of transmission. So the hadith of Ibn Umar is given priority.
134In the event of a conflict occurring between between an evidence found in the Book and Sunnah
with qiyas, then qiyas is absolutely redundant. qiyas is only applicable when no explicit ruling could be
found in the sources.
135 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).
136In the event of a conflict occurring between evidence of the Book and Sunnah with the original
state, preference is given to the Book and the Sunnah, regardless of whether the evidence is text or
qiyas. Giving preference to one evidence over the other is for the mujtahid scholar.

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 [ ‫] االجتهاد واإلفتاء والتقليد‬
. ً‫ خالفاً ومذهبا‬،ً‫ومن شرط املفتي أن يكون عاملاً بالفقه أصالً وفرعا‬
‫ عارفاً مبا يحتاج إليه في استنباط األحكام من النحو واللغة‬،‫وأن يكون كامل اآللة في االجتهاد‬
. ‫ومعرفة الرجال وتفسير اآليات الواردة في األحكام واألخبار الواردة فيها‬
. ‫ فيقلد املفتي في الفتيا‬،‫ أن يكون من أهل التقليد‬:‫ومن شرط املستفتي‬
. ‫وليس للعالم أن يقلد‬
Legal Reasoning (Ijtihad)
The issuer of legal opinions (mufti) must be knowledgeable of the roots and
branches, differences and schools of law.137 He must be fully competent in legal
reasoning (ijtihad). He must know all that he needs to know for deducing rulings, in
several fields: grammar, language,138 the science of the men who related traditions
(hadith),139 the explanation of legally relevant Quranic verses, and legally relevant
hadith.140 The seeker of legal opinion (mustafti) must be one who follows existing
opinions, so that he follows the opinion of the mufti.141 A scholar (‘Aalim) may not
follow existing opinion.


137He must have knowledge of the ahkaam, the evidences and the cases/ issues. It is summarised as
having the adequate grasp of the objectives of the Shari'ah, the knowledge of the sources and the
methods of deduction.
138The Book and the Sunnah is in the Arabic language, so deducing rulings from the Book and
Sunnah, which is the work of the mujtahid, is conditional on having knowledge of Arabic grammar and
language.
139The hadith which rulings are deduced from must be authentic not rejected, and knowing the
authentic from the rejected is conditional on knowing the condition of the men in the isnad.
140The source of the ahkam are the Quranic verses and ahadith, so deducing rulings from them is
conditional on having knowledge of their explanation.
141 Authors throughout the Muslim world criticise blind taqlid and advocate the continued validity of
ijtihad as a divinely prescribed legal principle.

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 ‫ فعلى هذا قبول قول النبي صلى اهلل عليه وآله وسلم يسمى‬،‫والتقليد قبول قول القائل بال حجة‬
. ً‫تقليدا‬
‫ إن النبي صلى اهلل‬:‫ فإن قلنا‬،‫ التقليد قبول قول القائل وأنت ال تدري من أين قاله‬:‫ومنهم من قال‬
. ً‫ فيجوز أن يسمى قبول قوله تقليدا‬،‫عليه وآله وسلم كان يقول بالقياس‬

Taqlid is to accept what someone has said without proof. According to this definition,
to accept what the Prophet said is called Taqlid.142 Some say that Taqlid is to accept
what someone has said without knowing where he got it. On this definition, if we hold
that the Prophet used to speak on the basis of analogy, then accepting what he said
can be called taqlid. 143

142 The speech of the Prophet it evidence in itself, so following his saying is not considered taqlid.
143The difference between the two definitions is that in the first one the dalil (proof) is not mentioned,
where in the second dalil is mentioned but the person does not know how this opinion was deduced
from the dalil (proof) .

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 ‫ فإن‬،‫ فاجملتهد إن كان كامل اآللة في االجتهاد‬،‫وأما االجتهاد فهو بذل الوسع في بلوغ الغرض‬
. ‫ وإن اجتهد فيها وأخطأ فله أجر‬،‫اجتهد في الفروع فأصاب فله أجران‬
. ‫ كل مجتهد في الفروع مصيب‬:‫ومنهم من قال‬
‫ ألن ذلك يؤدي إلى تصويب أهل‬،‫ كل مجتهد في األصول الكالمية مصيب‬:‫وال يجوز أن يقال‬
. ‫الضاللة من النصارى واجملوس والكفار وامللحدين‬
‫ )) من‬:‫ قوله صلى اهلل عليه وآله وسلم‬،ً‫ ليس كل مجتهد في الفروع مصيبا‬:‫ودليل من قال‬
. (( ‫ ومن اجتهد وأخطأ فله أجر واحد‬،‫اجتهد وأصاب فله أجران‬
. ‫وجه الدليل أن النبي صلى اهلل عليه وآله وسلم خطأ اجملتهد وصوبه أخرى‬
‫انتهت الورقات‬

Legal reasoning (ijtihad) is to go to the limits of one’s ability to achieve one’s

objective.144 If a fully competent practitioner of ijtihad inquires diligently into the
branches of law and judges correctly, he has a double reward. If he inquires into
them diligently and makes a mistake, he has a single reward. Some say that all who
inquire diligently into the branches of law judge correctly, but it cannot be said that all
who inquire diligently into theological roots judge correctly,145 because that would
require us to agree with those who are in error, Christians and Magians and infidels
and atheists. The proof of those who say that not all who exercise legal reasoning
concerning the branches of law judge correctly, is that the Prophet said “whoever
inquires diligently and judges correctly, his is a double reward, and whoever inquires
diligently and errs, his is a single reward.” This is a proof because the Prophet

144Ijtihad is the total expenditure of effort made by a jurist in order to infer the legal rulings of Shari'ah
from their detailed evidence in the sources, or in implementing such rules and applying them to
particular issues.
145 According to the four leading imams and many other ulema, only one of the several opposing
views on a particular issue may be said to be correct, as it is impossible to say that one and the same
thing at the same time regarding the same person could be both lawful and unlawful.

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declared the practitioner of legal reasoning to be in error in one instance, and
affirmed him in another.146

Allah, the glorified and exalted, is higher and more knowing.

146 'When a judge renders ijtihad and gives a right judgement, he will have two rewards, but if he errs,
he will still have earned one reward.' The hadith clearly shows that the mujtahid is either right (musib),
or in error (mukhti'), that some attain the truth while others do not; but that sin attaches to neither as
they are both rewarded for their efforts. Hence anyone who maintains that there are as many truths as
there are mujtahids is clearly incorrect and going against the hadith. If every mujtahid were supposed
to be right, then the division of mujtahids into two types in this hadith would have no meaning.

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