The First Source: The Book of Allah

  1. Explicit texts (nass) and apparent (dhahir) texts in the Qur'an

 2. The Generally Applicable ('amm) and Specifically Applicable (khass)

 3. Parallel meaning (lahn al-khitab) its superior meaning (fahwa) and implicit meaning (mafhum)

 4. Bayan al-Qur'an (Explication of the Qur'an)

According to ash-Shatibi al-Maliki in al-Muwafaqat:

"The Qur'an is the whole of the Shari'a, the support of religion, the fount of wisdom, the sign of Prophethood and the light of the eyes and the heart. There is no way to Allah except through it and there is no salvation by any other means than it. You must not hold to anything that contradicts it. None of this needs affirmation or deduction because it is known to the deen of the Community. Since that is the case, whoever wants complete knowledge of the Shari'a and desires to perceive its aims and be joined to its adherents must necessarily take the Qur'an as his constant companion and make it his intimate, night and day, in both investigation and action... If he is able to do that, he will soon have students and find himself among the Frontrunners and in the first rank. He will not be able to do it without being helped in that by the Sunna which clarifies the Book and, failing that, the works of earlier Imams and the Salaf, which will guide him in this noble aim and lofty purpose." (p. 247, vol. 3)

Malik viewed the Qur'an in the same way. So he was only seen reciting the Qur'an or relating hadiths or deriving fatwas from them to answer questions which were directed to him. He did not look at the Qur'an with the eye of a debater. It is not reported that he ever said that the Qur'an consisted of both words and meaning or meaning only; nor did he engage in any discussion of the mutakallimun about the Qur'an being created since he did not consider such subjects to be debatable. He believed that whenever a man argued with another, he cheapened that which Jibril had revealed to Muhammad, peace and blessings be upon him.

Malik knew that the Qur'an contains all the Shari'a and that the Sunna is simply its exposition. The Qur'an cannot be understood correctly and completely unless the clarification which elucidates it, the Sunna of the Prophet, is taken into account. He was thirsty for it, not merely because it was the second Islamic source, but because it also clarifies and expounds the Qur'an and gives detail to what is general and limits what is unrestricted.

The Qur'an is in Arabic and was revealed in the Arabic language. The people of eloquent Arabic saw that its style was inimitable and were overwhelmed by it as all people are. However, it is in Arabic, and Malik did not think that it was proper for anyone to try to explain it unless he had deep knowledge of the Arabic language, its different dialects, and styles of speech. That is why it is reported that he said, "No one who explains the Book of Allah who does not know the dialects of the Arabs is brought to me without my making an example of him."

The Sunna is the straight way to grasp the meanings of the Book. That is why it is not correct to hold only to the Qur'an without seeking help in its explanation, meaning the Sunna. Malik disliked including any Biblical or Jewish (Talmudic) material in its explanation. He did not have confidence in the transmission of anyone who proceeded in this way. He mentioned that there was excellence in a certain person but criticised him for accepting tafsir from Qatada because he reckoned that Qatada included in his tafsir much that was not sound.

Malik considered the Qur'an to consist of both expressions and meanings, which is the position and consensus of the majority of Muslims, but he did not get involved in any wrangling or debate about this. That is why he did not consider that a translation of the Qur'an could be used for recitation in the prayer, or to be that for whose recitation there is prostration, or to be that whose copy may only touched by someone who is pure, or to be that which may not be recited by a woman who is menstruating or bleeding after childbirth or someone in a state of major impurity. A translation can never be more than an explanation of the meaning or rather a partial explanation of what can be understood from the Arabic original.

Scholars of the Maliki school mentioned that he used all the various degrees of textual interpretation referred to above, just as he took note of those matters in the Sunna. We are obliged to clarify the method and opinion of Malik concerning these matters in brief and his position in respect of other opinions without going into excessive detail.

1. Explicit texts (nass) and apparent (dhahir) texts in the Qur'an

In the case of judgements taken from the Book of Allah, the researcher must study the Qur'an's linguistic construction, the nature of its evidence, the meaning it conveys, the meaning which can be understood from it but in a manner which is subsidiary to the meaning which would be normally be clear from the expression, and what its aim is. Then one must identify its immediate and further aims from what its expression indicates and what its indications allude to. Each piece of evidence has its place in elucidation and a certain degree of strength. Derivation of judgements from it requires recognition of all these factors in order to distinguish that which is more likely from that which is not as strong.

That is why the scholars of usul who came after ash-Shafi'i were concerned with studying the construction of the Qur'an as ash-Shafi'i had been, ascertaining the degrees and strength of evidence and giving each its proper weight. From the secondary rulings of the Imams, they learned how they had applied the textual evidence and how they favoured one kind of evidence over another when they were contradictory and what the basis of that preference was.

One thing which these scholars were concerned with, whether Hanafi or Maliki, was to identify the nass and dhahir texts of the Qur'an. They noted that in his secondary judgements Malik made use of the difference between nass and dhahir texts, even if he did not clearly define and explain them. As we have seen, according to al-Bahja, the nass and dhahir of the Qur'an were among his legal proofs. The Malikis state that they do not possess the same level of proof when making a judgement, the nass being stronger than the dhahir, as they deduce from the secondary judgements transmitted from Malik. The scholars of the Maliki principles say that the difference between explicit, unequivocal texts (nass) and apparent texts (dhahir) is that nass texts are not open to interpretation whereas dhahir texts are.

Before we clarify the potential for interpretation or lack of it, we should first indicate the difference between the nass and the dhahir which ash-Shafi'i did not discuss in his Risala, as be considered nass and dhahir to be basically indistinguishable. Al-Ghazali said ash-Shafi'i adopted linguistic usage and there is nothing in the Shari'a to prevent him doing that. Linguistically nass means manifestation (dhuhur), used, for instance, to describe a gazelle when it raises its head so that it can be seen, so he defined it as meaning the the same thing as dhahir. Thus a text can be considered both dhahir and nass. (al-Mustasfa, pt. 1, p. 384)

It can be seen from this that ash-Shafi'i did not differentiate between the dhahir and nass, but scholars after him did because the secondary legal rulings derived by the fuqaha' before and after him require a differentiation to be made between the two types of texts: one whose evidence is so strong that no probability is applicable to it nor can any other judgement possibly be derived from it, and the other whose meaning is obvious but which allows of another possibility, even though when someone hears it the other possibility does not in fact come to mind. So each text does have a rank in deduction and there is nothing to prevent names being given to them to indicate their rank and clarify the position of each of them in respect of the other.

Those fuqaha' who make a distinction say that the nass text is of two kinds:

* A nass text is one which does not give rise to any other possibility at all, like the word 'five' which cannot mean six or four.

* A nass text is one which does not admit of any other possibility arising from deduction.

As al-Ghazali, al-Qarafi and others mentioned, in evidence a dhahir text wavers between two or more possibilities, but one of them is indicated more than the others so that it comes to mind when it is heard. In this respect, it is distinct from what is commonly known as an undefined (mujmal) text. A mujmal text wavers between two or more possibilities, none of them being stronger than the others. It is known as undefined because the basic expression can legitimately support more than one meaning, like the word qar' which can have two meanings in its basic form: purity or menstruation. If it is mentioned out of a context which specifies one or the other of them, it is undefined.

There is also the case when the reason for the lack of definition in a text is due to something other than the linguistic form, as in the case of the words of the Almighty, "Pay its due on the day of its harvest" (6:141). It is obvious that this refers to the obligation of zakat because it clarifies that the poor have a right to some of it. That does not leave scope for doubt. But the amount which must be paid is not made clear and might equally well be either a small or large fraction of the total. Something like this is not known as either nass or dhahir but as mujmal. That is why the amount the must be clarified and the Sunna comes and makes it clear that the amount referred to is a tenth.

This applies to all texts which are mujmal whether they are undefined on account of their linguistic form or for some other reason and clarification of them can only be gained from factual evidence from the Sunna or another source. Once a mujmal text has been clarified, it then becomes like a nass or a dhahir text based on the strength of the clarification.

A dhahir text may be connected to something which will stipulate one of two possibilities and is then elevated from the level of preference to the level of absolute and certain. That is when clarification from the Sunna or the Qur'an is added to it which turns the probable interpretation into a nass.

Maliki fuqaha' state that the evidentiary status of a generally applicable text ('amm) usually falls into the category of dhahir, not that of nass. That is why al-Qarafi used general expressions as examples of the dhahir. He said, "When one meaning of an 'amm text is preferred to other possible meanings, however few or many there may be, then that text is called dhahir, although it is still general since it is inclusive. Thus the expression in it is dhahir but not specific (khass)." If an 'amm text has nothing in it to indicate that its generality is of the nature of dhahir evidence, then Malik considers it to be probabilistic (zanni) as does ash-Shafi'i, which he makes clear in his Risala. We should at this point briefly examine the notion of 'amm (generally applicable) and khass (specifically applicable) texts.

2. The Generally Applicable (amm) and Specifically Applicable (khass)

Al-Qarafi defined an 'amm text as one with a universal meaning which includes everything to which it is applicable. So anything which has the name 'amm applied to it includes within its general definition everything which that term could normally be said to encompass. When you say that the adult human being is legally responsible for the prayer, zakat and hajj, everyone to whom the name 'adult human being' can be applied is included in this judgement. When Allah says that the thief has his hand cut off, then, according to this statement, all with this quality, which is theft, merit this judgement.

When the judgement concerning the 'amm in an expression is not applied to everything encompassed by it but only partially, it becomes specific (khass). This is shown in the words of the Almighty, "free a believing slave" (4:92) and "set free a slave before they may touch one another." (58:3) The expression in both cases is specific because it does not apply to all those who have this description, but only to one of them, even though the first is limited by a certain quality ('believing'), while the second is not.

The Maliki view of 'amm texts is distinct from the Hanafi view in two ways: definition and judgement. The definition of 'amm in the books of the Hanafis is an expression which includes everything encompassed by it, whether it is by the outward form of the words or the meaning, like "Zayds" meaning everyone with that name, or similar nouns which indicate generality, like 'people', 'jinn', 'mankind' etc. which indicate plurals. The khass, on the other hand, is an expression which applies to only one meaning , i.e. it is an expression with one meaning which other things do not share, whether that meaning designates a species, like an animal, or a type, like a man or a person like Zayd. So the named which is one and not multiple is khass.

You see from this that there is a clear difference between the two types of definition. The first designates every universal which has a shared meaning. The second considers it to be a collection of individual things which are included in the phrase or meaning.

The second difference, which is in judgement, lies in the fact that the Malikis consider the evidence of an 'amm text to be general unless it is accompanied by some sort of context which would render it dhahir. The Hanafis consider the 'amm text to be absolutely 'amm and unaffected by any probability.

Scholars disagree about the definitiveness of the khass. Thus its rank in evidence is stronger with those who judge that the 'amm text is evidentially equivalent to the dhahir text since they also believe that the definitive evidence of the khass is of the same category as nass. The evidence of a nass text is stronger than that of a dhahir text, as you know, but the Hanafis consider them to be the same. That is why if they find a contradiction between a khass and 'amm text, given that they are contemporaneous, then the khass makes the 'amm specific so that they are both acted on simultaneously. That is one of the means of harmonisation which is adopted if nothing else is feasible. If there is a gap in time between them, the later of the two abrogates the earlier no matter whether the later is 'amm or khass. The Hanafis think that the 'amm can abrogate the khass, while others disagree with them about that.

Most scholars think that even if the evidence of an 'amm text is considered to extend to all of its units by fuqaha' to the extent that that almost amounts to a consensus, it is still open to specification, i.e. some of its units can be made specific if there is evidence for that. Precise scholars, however, consider that specification does not exclude some of the units of the 'amm from the 'amm judgement after they were included in it. Rather it is the clarification of the will of the Lawgiver that they were specified from the very beginning and that the units which the general expression included in the basic linguistic position were not in fact all included in the evidence from the very beginning. In al-Mustasfa, al-Ghazali clarifies this: "It is permitted to say that 'amm evidence has been made khass ... This khass evidence defines the will of the speaker and that by the expression a particular meaning is specified. According to this, specification is clarification which moves the wording of a text from being 'amm to being khass and the context makes it clear that the expression is figurative rather than literal."

This is, in fact, the basis of the difference between making an 'amm text khass and abrogating it since abrogation actually changes confirmed judgements. When an 'amm judgement or part of it is abrogated, then the judgement which was fixed for certain units changes. Making it khass prevents the inclusion of units which were never in fact part of the original 'amm judgement in the first place. It confines the definition of the 'amm to certain of the units embraced by its wider meaning.

According to the strength of the evidence in the expression of the 'amm in its basic form, that which is specified can be a little or a lot. For those who deem that in its basic form, its evidence in respect of the generality of its units is unequivocal, the things specified are few because only that which has the same weight of definiteness can be elevated to the rank of specification. Therefore they consider the general statements of the Noble Qur'an to be unequivocal in their evidence and unequivocal in their firmness. So they are can only be rendered specific by that which has the same rank as them in both cases. On that basis, they think that the hadiths of individuals do not make the 'amm of the Qur'an khass. Its generality is accepted and the hadiths are rejected because individual hadiths are probable in their firmness, even if they are unequivocal in their evidence, and the Hanafis consider the generalities of the Qur'an as unequivocal in both cases.

As for those who deem that the evidence of the 'amm is probable, they widen the scope of what can render it specific, and individual hadiths are part of what they consider can make the 'amm text of the Qur'an specific in certain cases because while their certainty is probable, the 'amm of the Qur'an is probable in its evidence, and the probable can render the probable specific.

You know that the Malikis state that Malik believed that the evidence of the 'amm on the generality of the units had the force of the dhahir, not that of the nass and that the evidence of the dhahir is probable and not unequivocal because it does not forbid probability. That is why he considered many things to be rendered khass since the possibility of specification is immediate and not remote according in his view.

Al-Qarafi mentioned that Malik thought that there were fifteen modes in which the 'amm was rendered khass. He said: "Its forms of specification are fifteen in the view of Malik". (Tanqih, p. 90)

Perhaps this great number will cause astonishment. He made the area of making the 'amm a wide one. However, although we acknowledge that the specifications of general texts are undoubtedly numerous in the Maliki school, we admit that this number, fifteen, includes things which most people do not consider to be part of specification. They things are not normally considered as specifications, but actual circumstances of how the verbal usage is applied to the general, and thus we move it from fact to metaphor. Similarly they include: the exception, the precondition, the attribute, and the end. These are specifications in speech and speech is only complete with them. They are not distinct. That is why the Hanafis do not consider them to be part of specifications. This is why it is not valid to accuse the Malikis over these matters because others accept them, even if they do not call them that. Thus it is not the qualification of the 'amm in a position of dispute. What is disputed is what is called specification.

After that there are eight matters, four of which are also agreed upon by the fuqaha'. They are: specification of the Book by the Book, and by mutawatir Sunna, and the mutawatir Sunna by the Book and by its like. This is also not held against Malik because in it he is in agreement with other fuqaha'. There is consensus on this except for the specification of the Sunna by the Book with which ash-Shafi'i disagrees. The dispute is about the specification of the Book by consensus, analogy, single reports, and custom. We will speak on the difference between Malik and others in each of these matters.

The difference between him and others in using consensus to make the Book specific is insignificant. Indeed, discussion on it is negligible. There are generalities in the Qur'an which the people of knowledge among the Companions, Followers and those who came after them agree are rendered specific by reliable evidence. They include the words of the Almighty, "Or what your right hands own." It is general and is becomes specific when one excludes from it the milk-sister and other women it is forbidden to marry. Here I consider that it is the Noble Qur'an which specifies it. That is His words, "Forbidden to you are your mothers..." So here the prohibition is general and includes the prohibition by contract and the prohibition by intercourse. This is why people agree on that. It is not specification by consensus. Here the specification is the place of consensus and it is the Qur'an which specifies the Qur'an.

As we stated, this is not that important. That is also the case with the specification of the 'amm by single traditions which are supported by something else, as we will clarify when discussing the Sunna. Malik did not adopt this absolutely nor was he the only to adopt it. Indeed ash-Shafi'i adopted it after him and he states that he derived from the fiqh of Malik that the 'amm can be a probable proof. If its evidence is probable, then the probable single report makes it specific because the probable can specify the probable. As for the Iraqis who state that the 'amm is unequivocal before its specification, and that when it is specified, it becomes probable and can validly be specified by single reports, they do not put single reports in the rank of the unequivocal 'amm. It is that which cannot be made khass, and those are matters in which fiqh of the people Madina differs from the fiqh of the people of Iraq. Malik and the Madinans after him state that it is permitted to make the 'amm specific by single traditions unrestrictedly, and the Iraqis forbid that single traditions specify the 'amm of the Qur'an before there is specification by something else. By the Madinans we mean those who came after Malik and followed the method of the Madinans like ash-Shafi'i.

There remain two other matters. They are making the 'amm of the Qur'an specific through analogy and making the 'amm of the Qur'an specific by custom. These are two matters which should be looked at again. Malik, or to to be more precise, Maliki fiqh, almost alone has them to the exclusion of other fuqaha', revealing the extent of opinion of Malik's fiqh and that he was a faqih in both opinion and tradition.

Regarding analogy, al-Qarafi said, "Ash-Shafi'i, Abu Hanifa, al-Ash'ari and Abu'l-Hasan al-Basri agree with us about analogy being unrestricted (i.e. whether clear or hidden). 'Isa ibn Aban said that if it is specified by an unequivocal proof, then it is permitted. Otherwise it is not. Al-Karkhi said that if it is specified with separate evidence, then it is permitted. Otherwise it is not. Ibn Shurayh and many of the Shafi'is say that it is permitted when it is not hidden and they disagree about what is evident. It is said that it is analogy of meaning, and it is said that it is analogy of like. It is said that the evident is that whose cause is understood like the words of the Prophet, may Allah bless him and grant him peace, "The qadi should not render judgement when he is angry." It is said that whatever impairs judgement is judging by other than it. Al-Ghazali said, 'If they are equal, we agree. Otherwise there is preference.' Qadi Abu Bakr and the al-Juwayni hesitated. This is when the basis of analogy is mutawatir. If it is a single report, then the disagreement is stronger." (Tanqih, p. 90)

This is what al-Qarafi mentioned about the disagreement of the fuqaha' regarding the specification of the 'amm of the Noble Qur'an by analogy. In it he stated that Malik believed that the 'amm of the Qur'an was specified by analogy, whether the basis of the analogy was single or mutawatir reports and whether the analogy was evident or hidden. Then he mentioned the opinion of those who disagreed with that.

We notice that his words about the opinions of those opposed to it are not accurate and precise. He mentioned first that Abu Hanifa believed that analogy specifies the Qur'an unrestrictedly. That was not transmitted from Abu Hanifa since the usul were not transmitted from him, but from those who derived his opinion from the secondary branches in his school – especially 'Isa ibn Aban and Abu'l-Hasan al-Karkhi. No one deduced that the opinion of Abu Hanifa about making the general specific is that analogy makes it specific before something else makes it specific.

Secondly he mentioned that al-Karkhi's opinion was that it is permitted if it is made specific by something separate, then after that it can be made specific by analogy. The truth is that the Hanafis believe that specification is only by something separate as we mentioned. The precondition, attribute and other things connected to the word itself are called qualifications and not specifications. There is no disagreement between al-Karkhi and 'Isa ibn Aban on that.

Thirdly he mentioned that ash-Shafi'i thought that analogy rendered the general specific. We find that in the Risala and in the Kitab Jima' al-'Ilm, ash-Shafi'i advances the nass before analogy. He says: "Knowledge has two aspects: following and deduction. Following is to follow the Book of Allah Almighty. If not, then the Sunna. If not, then the position of the Salaf which is not known to be disputed. If not, then analogy based on the Book of Allah. If not, then analogy based on the Sunna of the Messenger of Allah, may Allah bless him and grant him peace. If not, then analogy based on a position of the Salaf not known to be disputed. The statement is only valid by analogy. When those who have analogy make analogy, they disagree and it is permitted for each to speak according to the extent of his ijtihad. If he cannot do so, then he follows someone else in his ijtihad."

So we see that ash-Shafi'i thinks that the science of analogy is the science of deduction, and that knowledge of the Book and the Sunna, even if the expression is general, is the science of following. He does not think that deduction is used when following is possible.

After this, al-Qarafi mentioned the proof of the school which the Malikis favour: it is that the 'amm can be made specific by analogy, and the examination of the secondary rulings transmitted from Malik led to them saying that it was his position. That proof is based on the fact that analogy is reliable evidence, like unequivocal texts. Even though every analogy on its own is based on text, the principle is connected to the secondary ruling on the basis of the underlying reason for the judgement in it. Analogy is a comprehensive principle which takes the other principles into consideration.

According to this, when the general in its generality is in conflict with the judgement necessitated by analogy, then two principles clash: one is general and its evidence admits of probability, even if it is preferred, and the second is specific and there is no probability in its evidence. One of the established rules is that when two principles clash, and one of them has a probable indication and the evidence of the other contains no probability, then you take the one which has no probability. Utilisation is better than disregarding, and so acting on both together is better than disregarding one of them. It is clear that using analogy and making the general specific is to act by both of them because the general remains acted on in what remains after specification. If we deny the specification, that disregards analogy and denies the continuity of its underlying reason in that place without any reason which necessitates that. There is no impediment to prevent action since the evidence of the general is probabilistic.

That proof can be made clear by an example, which is found in the words of the Almighty: "Allah has made trade lawful and usury unlawful." (2:275) Its literal generality demands that it is lawful to sell rice for rice with disparity and on delay because it is trade, which is lawful by the generality. The Messenger of Allah, may Allah bless him and grant him peace, forbade selling gold for gold, dates for dates, or barley for barley, except like for like, hand to hand, which necessitates an analogy based on it which forbids selling rice for rice because it is like grain for grain in the cause which demands the prohibition of disparity and delay. If the general text of the Qur'an had not been made specific, that analogy would be disregarded. If we make it specific, we use analogy, and then the evidence of the ayat becomes a clear declaration about the other goods which the hadith mentions and those like them.

This is the argument of the Malikis, or most of them, about analogy making the general text specific. We can examine it from several aspects:

One: Its basis is that the evidence of 'amm probably indicates the generality, but its evidence includes probability which does not actually originate with the evidence. We explained that ash-Shatibi did not take that line because that would undermine legal evidence and weaken the generality of unequivocal texts unnecessarily, and because the evidence of expressions must be considered as general unless there is evidence to the contrary, and then only the probable which originates from evidence is considered. That is the view of the Iraqis and it is the strongest.

Two: In the Shari'a one only moves to analogy when the mujtahid lacks an unequivocal text. Here there is analogy while a text exists. That nullifies some of what is understood from the text. That is the opposite of the proper order and it proceeds on other than what is fixed and confirmed in matters of the Shari'a.

Three: The hadith mentioned does not make the text specific through analogy because the selling of usurious materials is outside of the generality of what is lawful. The Almighty says, "He has made usury unlawful." The comprehensiveness of the lawful does not include selling rice for rice. It is not specified by analogy; it is a specification by Qur'anic text. Hadith and analogy clarify things subject to usury. Thus that which specifies is the Qur'an and not analogy. The difference between the two is immense because according to the Maliki interpretation, analogy nullifies the generality of the ayat, and according to what we say that which makes the generality of the ayat specific is the Qur'an, and the text and its cause clarify the Qur'anic text.

Four: It supposes that the evidence of the analogy is unambiguous even though there is a conflict in the qualities, and the cause which is derived from them is probable in its evidence and the basis on which analogy is based is probable, and so it is probablistic in its level of support.

The scarcity of sound hadiths in Iraq motivated the Iraqis to use Qur'anic texts with the widest possible comprehensiveness, and they relied on its generalities and proceeded in their legal methods on that basis. In the fiqh of the Imam of Madina, Malik, we see that the Madinans or the Malikis who inherited the knowledge of the Madinans, restricted the generality of the texts and used analogy to make specific the generality of the Qur'an and hadith.

Do we not see in this that the Madinans, led by their Shaykh Malik, may Allah be pleased with him, made use of a great of fiqh of opinion (fiqh ar-ra'y)? If Malik is considered one of the fuqaha' of opinion, that does not lessen the fact that Abu Hanifa was one of those who used opinion. Although the two methods are different, the end is the same, and there is no disagreement in the end.

This is about rendering the general text of the Qur'an specific by analogy. As for making the general of the Qur'an specific by custom ('adat), this is something on which the Malikis said there is consensus among the fuqaha'. What is meant by custom which makes words specific is verbal custom, i.e. the specific linguistic usage which governed usage in the time when the Qur'an was revealed: what the Muslims understood and what was encompassed by usage of things which qualify it because that usage qualifies the word. Al-Qarafi says about that:

"The rule is that if an expression has a customary meaning and usage, then its expression is applied according to its usage. If the speaker is the Shari'a, then we apply its expression to its customary usage and we make the general expressions in that specific if custom demands that they be specific, or metaphorical if it requires the metaphor and we leave what is factual. In general, the indication of customary usage precedes the indication of the language because the custom abrogates the language and the abrogating precedes the abrogated. As for new customs which arise after articulation, they are not imposed on that articulation. The articulation is unaffected by the contradiction of the new. An example is when a sales contract takes place: the price is applied to the current custom in money and any customs in money which arise after that are not considered in this prior sale. It is like that with vows, confessions and bequests. When the customs arise after them, they are not considered. Customs are considered which are connected to them. It is the same with the unequivocal texts of the Shari'a - they are only affected by customs connected to them." (Tanqih p. 194)

The custom which makes general texts specific is the custom of those addressed by the text. The usage allows the listeners to understand what is meant by the words restricts what is understood from the forms in its general linguistic meaning. This practical view is called verbal custom, elucidation, or the customary usage of the speakers. Ash-Shatibi says about this:

"The generality is interpreted by usage. The aspects of usage are many, but they are governed by the exigencies of circumstances which are the basis of clear declaration. The words of the Almighty, 'Destroying everything at its Lord's command' (46:25) does not mean that the heavens, earth, mountains, waters and similar things will be destroyed. What is meant is that everything will be destroyed which is subject to what effects it in general. That is why the Almighty then says, 'When morning came you could see nothing but their dwellings.'" (al-Muwaqafat, pt. 3, p. 271)

We see from these words that making the general specific by customary usage or custom is something on which there is consensus because it is only explaining the words according to customary usage. That is not unusual.

There is something which makes the general specific which some of the Malikis mention which al-Qarafi did not mention in this chapter. That is the al-masalih al-mursala (public welfare). Some Malikis mention that it makes the general specific. In Ahkam al-Qur'an Ibn al-'Arabi mentioned in the tafsir of the words of the Almighty, "Mothers should nurse their children for two full years - those who wish to complete the full term of nursing," (2:233) that Malik said that when a woman is noble, she is not bound to suckle her child if it will accept the breast of another for the benefit of preserving her beauty according to the custom of the Arabs in that. That makes the general text of the Qur'an specific.

We will leave discussion of that for the section on masalih mursala.

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This is a brief survey of the dhahir and nass and their position in deduction with Malik. We have discussed the general and specific since they state that the evidence of the 'amm falls into the category of dhahir and the evidence of the khass falls into the category of nass. That is why when there is something general and something specific in a subject, the general is applied according to the specific. It specifies it because when there is a conflict, the nass is advanced before the dhahir and so the specific is advanced before the general and is regarded as specifying it.

The Iraqis do not hold that view. They consider the general to have the force of the specific in respect of evidence, and that when the specific and general clash, they consider that the earlier is abrogated by the later, whether the later is specific or general. If they are from the same time, then the specific is considered to specify the general inasmuch as the temporal connection is a factor which makes the general not a nass in its general meaning. Even though it is absolute in its evidence that does not preclude a possibility which originates from evidence indicated by the temporal connection which makes it specific (khass).

Now we will move on to the meanings which are deduced from the Qur'an and the Sunna. These are: parallel meaning (lahn al-khitab), which is the necessary inference (dalalat al-iqtida') or the intended sense of words, and that whose understanding a divergent meaning or one which is consistent with it.

3. Parallel meaning (lahn al-khitab) its superior meaning (fahwa) and implicit meaning (mafhum)

These are three technical terms which clarify the type of evidence provided by some expressions of the Noble Qur'an and the Sunna. All of them are used by Malik when they are not contradicted by the dhahir and nass of Qur'an. That is why it is incumbent on us to define them briefly and make their meaning clear and we will give examples which clarify what the scholars of usul mean by them.

As for parallel meaning (lahn al-khitab), which some scholars designate as the 'necessary inference' (the Hanafis), it refers to what is entailed by the expression. That is like the words of the Almighty, "So We revealed to Musa, 'Strike the sea with your staff.' And it split in two…" (26:63) Speech demands an implied elided word which is "He struck" and the sea split. In the Sunna it is found in the words of the Prophet, may Allah bless him and grant him peace, "Error and forgetfulness have been removed from my community and what they are forced to." There is no removal of a thing until it occurs and so there must be something implied to rectify the words. What is implied is that it is a sin. So the meaning of the statement is, "The sin of error and forgetfulness have been removed from my community…." So the judgement indicated by the hadith here is Necessary Inference because it brings something which is implied and elided and the statement is only complete by its implication.

As for what is implicit, which is called mafhum al-mukhalafa: or an interpretation which diverges from the obvious meaning of a given text, the Malikis call it the 'indication (dalil) of speech'. It confirms the opposite of what is said although it is unspoken, as the Prophet, may Allah bless him and grant him peace, said: "There is zakat on freely grazing sheep." His words indicate the obligation of zakat on freely grazing sheep and it is understood from it that zakat is not obliged on other than freely grazing sheep.

Some scholars divide mafhum al-mukhalafa (divergent meaning) into ten categories in respect of the qualification. The basis of mafhum al-mukhalafa is that the words are qualified, and so the judgement is affirmed in the state which contains the qualification and the opposite is affirmed in that which does not have the qualification. There are ten qualifications and so mafhum al-mukhalafa has ten categories: what is understood from the cause like, "Whatever intoxicates is unlawful"; what is understood from the attribute like the previous hadith about zakat; what is understood from the precondition like "The prayer of whoever is pure is sound"; what is understood from the end is like the words of the Almighty "Complete the fast until night" (2:187); what is understood from the exception like the words of the Almighty, "Never again accept them as witnesses. Such people are the wantonly deviant, except for those who after that repent..." (24:4); what is understood from inclusion, like water is part of water; what is understood from time; what is understood from place; what is understood from number like the words of the Almighty, "Flog them with eighty lashes" (24:4) i.e. more is not permitted; and what is understood from title, i.e. name, like there is zakat on sheep.

These are the categories of divergent meaning. The Hanafis only accept the exception and inclusion among them, and they do not consider that to be part of implicit evidence. They consider it part of what is spoken because inclusion and exception contain negation and affirmation. If someone says, "The speaker on," he negates and affirms by the spoken phrase. It is the same with the exception. The affirmation of the opposite is not part of the category of what is unspoken. It is part of what is spoken. They disagree about other things because they do not acknowledge the basis of the derivation is from the spoken word or that it is necessitated by the implication of what is spoken or that what is affirmed as binding is dependent on what is spoken. That by which the divergent meaning is not one of these things.

The Malikis say that what is implicit is evidence except for what is understood by title. They said in the argument for its exclusion: "The difference between what is implied by title and other forms of what is implied is that other forms, like what is implied by the attribute and so forth, smack of causation. The attribute, the precondition and their like accord the sensation of causation and that which implies no cause demands the lack of effect. So there must be no judgement regarding that which is unspoken, which is what is implied. The title is a marker and it is connected to the generic nouns. So there is a difference between the words of the Prophet, 'There is zakat on freely grazing sheep' and his words, 'There is zakat on sheep.' The first makes one aware of the cause and the second does not. This is the reason for its inclusion." (Sharh at-Tanqih, p. 119)

The precondition for accepting what is implied by the attribute is that it follows the predominant custom, like the words of the Almighty in the ayat of the prohibition of women, "Your stepdaughters who are under your protection, being the daughters of your wives you have had sexual relations with." (4:23) We see here two attributes: one is mentioned by way of prevailing custom. Mentioning it does not indicate the affirmation of the opposite of the judgement when it does not exist - which is lawfulness. It is their being under protection. The other is not of this type. He mentioned it as affirming the opposite of the judgement. It is that of the mothers with whom he has sexual relations.

The superior meaning (fahwa), which is what the Hanafis call the "inferred or implied meaning of a text" (dalala an-nass) or the indication of the most appropriate or harmonious meaning, or clear analogy in the definition of some fuqaha'. It is when the spoken judgement establishes that about which it is silent since that judgement is even more appropriate. It has two categories:

One: Affirmation of what is greater since it is established in what is less because a lot increases the strength of the judgement, like the words of the Almighty, "Do not say 'Uff' to them, and do not chide them." (17:23) That extends to hitting, which is more likely to be forbidden than saying 'uff' and it has greater harm. That is the reason for the prohibition.

Two: The affirmation of the judgement in a little because a little necessitates strength of judgement which is not found in a lot, like the words of the Almighty, "Among the People of the Book there are some who, if you trust them with a pile of gold, will return it to you. But there are others among them who, if you trust them with a single dinar, will not return it to you," (3:75) because whoever is trusted with a lot can be trusted with a little. Whoever is trusted with a pile can be trusted with a dinar. This example includes both categories.

These are the forms of evidence of the Noble Qur'an and their strength and rank in deduction with Malik. First is the unequivocal text (nass), then the dhahir, then that by which a harmonious meaning is implicit (mafhum al-muwafaqa) and then the implicit divergent meaning (mafhum al-mukhalafa). But into which category do we place the explication (bayan) of the Qur'an in general and detail? We must speak briefly on it:

4. Bayan al-Qur'an (Explication of the Qur'an)

The Noble Qur'an is the first source of this Shari'a and it is its totality from which its roots and branches are derived and evidence is taken from it by the strength of deduction based on it. Since the Qur'an is like that, its declaration of the Shari'a must be undefined (mujmal) and require details, and its judgements general which need to be clarified. That is why help must be sought in the Sunna to derive some judgements from it, to clarify the general if it is undefined, or to confirm what in it needs clarification by its confirmation in the hearts of the believers.

The one who examines the Qur'anic ayats which clarify legal judgements will find some judgements which do not require explanation, like the ayat of slander, which is the words of the Almighty: "But those who make accusations against chaste women and then do not produce four witnesses: flog them with eighty lashes and never again accept them as witnesses. Such people are the wantonly deviant..." (24:4)

It is also like that with the ayat which clarifies the li'an divorce and how it is done. That is the words of the Almighty: "Those who make an accusation against their wives and have no witnesses except themselves, the legal proceeding of such a one is to testify four times by Allah that he is telling the truth and a fifth time that Allah's curse will be upon him if he is lying. And the punishment is removed from her if she testifies four times by Allah that he is lying and a fifth time that Allah's anger will be upon her if he is truthful." (24:6-9)

In this ayat the li'an is explained as well as the circumstances in which it is obliged. The Sunna clarified what results from it.

Some of the ayats of the Qur'an connected to judgements require clarification when they are undefined and require details, or something is hidden in them which requires explaination or interpretation, or they are unqualified and then are qualified. Scholars agree that the Sunna is that which clarifies them, and the fuqaha' of Madina and the fuqaha' of Iraq concur on that. If there is a difference between them, it is that the people of Iraq limit the places where clarification is needed and the fuqaha' of Madina widen its scope. According to the Iraqis the specific does not need clarification in the Qur'an and they consider every clarification of it as superfluous. So all that comes in the Sunna connected to its subject is superfluous to it and not accepted unless it is firm. The fuqaha' of Madina and those who follow their path believe that all that is sound of tradition in one of the subjects which the Qur'an mentions clarifies it, makes its general specific, limits what is unrestricted, or clarifies its specific.

In fact the Sunna is the clarification of the laws of Noble Qur'an. So zakat, fasting, the prayer and hajj are all laws which have come in general and are clarified by the Sunna. Usury and its categories have come in the Qur'an in general and the Sunna clarifies them. Many of the rules of marriage come in general and the Sunna clarifies them. It is then clarification of the Qur'an and its interpretation. Allah Almighty says, "We revealed the Reminder to you to make clear to people what was revealed to them." (16:44) That is why it says in the books of ash-Shafi‘i, the student of Malik, that the Book and the Sunna are considered as a single source, the first of sources and its origin.

Next we turn to the Sunna.


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