The Definitive (qat’i) and the Speculative (zanni)

I. The Definitive (qat’i) and the Speculative (zanni)

A ruling of the Qur’an may be conveyed in a text which is either unequivocal and clear, or in language that is open to different interpretations. A definitive text is one which is clear and specific; it has only one meaning and admits of no other interpretations. An example of this is the text on the entitlement of the husband in the estate of his deceased wife, as follows: 'In what your wives leave, your share is a half, if they leave no child" (al-Nisa', 4:12). Other examples are 'The adulterer, whether a man or a woman, flog them each a hundred stripes' (al-Baqarah, 2:196), and those who accuse chaste women of adultery and fail to bring four witnesses [to prove it], flog them eighty stripes' (al-Nur, 24:4). The quantitative aspects of these rulings, namely one half, one hundred, and eighty are self-evident and therefore not open to interpretation. The rulings of the Qur’an on the essentials of the faith such as salah and fasting, the specified shares in inheritance and the prescribed penalties, are all qat’i their validity may not be disputed by anyone, everyone is bound to follow them, and they are not open to ijtihad.

The speculative ayat of the Qur’an are, on the other hand, open to interpretation and ijtihad. The best interpretation is that which can be obtained from the Qur’an itself, that is, by looking at the Qur’an as a whole and finding the necessary elaboration elsewhere in a similar or even a different context. The Sunnah is another source which supplements the Qur’an and interprets its rulings. When the necessary interpretation can be found in an authentic Hadith, it becomes an integral part of the Qur’an and both together carry a binding force. Next in this order comes the Companions who are particularly well- qualified to interpret the Qur'an in light of their close familiarity with its text, the surrounding

circumstances, and the teachings of the Prophet. [Khallaf, ‘Ilm, P. 35; Abu Zahrah, Usul, P. 71]

An example of the zanni in the Qur’an is the text which reads, 'Prohibited to you are your mothers and your daughters' (al-Nisa 4:23). The text is definitive in regard to the prohibition of marriage with one’s mother and daughter and there is no disagreement on this point. However, the word banatukum ('your daughters') could be taken for its literal meaning, which would be a female child born to a person either through marriage or through zina, or for its juridical meaning. In the latter sense 'banatukum' can only mean a legitimate daughter.

The jurists are in disagreement as to which of these meanings should be read into the text. The Hanafis have upheld the first of the two meanings and have ruled on the prohibition of marriage to one's illegitimate daughter, whereas the Shafi'is have upheld the second. According to this interpretation, marriage with one's illegitimate daughter is not forbidden as the text only refers to a daughter through marriage. It would follow from this that the illegitimate daughter has no right to inheritance, and the

rules of guardianship and custody would not apply to her. [Sha’ban,'Manhaj', P. 31]

In a similar vein, the ulema have differed on the definition of futile, as opposed to deliberate, oaths, which occur in sura al-Ma’idah (5:92): 'God will not call you to account for what is futile (al-laghw) in your oaths, but He will call you to account for your deliberate oaths . . .' The text then continues to spell out the expiation, or kaffarah, for deliberate oaths, which consists of either feeding ten hungry persons who are in need, or setting a slave free, or fasting for three days. According to the Hanafis, a futile oath is one which is taken on the truth of something that is suspected to be true but the opposite emerges to

be the case. The majority have, on the other hand, held it to mean taking an oath which is not intended, that is, when taken in jest without any intention. Similar differences have arisen concerning the precise

definition of what may be considered as a deliberate oath (yamin al-mu'aqqadah). [A typical form of a sinful oath is

when a person takes an oath on the truth of something which he knows to be untrue; this is called yamin al-ghamus, which is a variety of yamin al-mu'aqqadah.

However the Hanafis maintain that the latter only refers to the situation where a person pledges to do something in the future but then refuses to fulfill it. He is then

liable to pay the kaffarah.] There is also disagreement as to whether the three days of fasting should be consecutive or could be three separate days. Hence the text of this ayah, although definitive on the basic

requirement of kaffarah for futile oaths, is speculative as to the precise terms of the kaffarah and the manner of its implementation.

To give another example of zanni in the Qur’an, we may refer to the phrase yunfaw min al-ard ('to be banished from the earth') which occurs in sura al-Ma’idah (5:33). The phrase spells out the penalty for highway robbery (hirabah), or according to an alternative but similar interpretation, for waging war on the community and its legitimate leadership. Banishment (nafy) in this ayah can mean exile from the place the offence is committed in the first place. This is, in fact, the obvious meaning of the phrase, and the one which has been adopted by the majority of the ulema. But the Hanafi jurists maintain that the phrase means imprisonment, not exile. According to the Hanafis, a literal approach to the interpretation of this phrase does not prove to be satisfactory: if one is to be literal, then how can one be banished from the face of the earth by any method but death? Nafy, or exile, on the other hand, is a penalty other than killing. Furthermore, if the offender is to be banished from one place to another within the Muslim territories, the harm is not likely to be prevented as he may commit further offences. The Hanafis have further argued that banishing a Muslim outside the territory of Islam is not legally permissible. The only proper meaning of the phrase which would achieve the Shari’ah purpose behind the penalty, is, therefore, imprisonment.

And lastly, the whole ayah of muharabah in which the phrase yunfaw min al-ard occurs is open to divergent interpretations. The ayah in question reads:

The punishment of those who wage war against God and His Messenger and strive to make mischief in the land is that they should

be killed or crucified or their hands and their feet should be cut off on opposite sides, or they should be banished from the earth.

In this passage, confusion arises from the combination of phrases which contain differential penalties for hirabah. This is mainly due to the use of the article aw, meaning 'and' between the three phrases which provide three different penalties for the offence in question. It is thus not known for certain as to which of the three penalties are to be applied to the offender, that is, the muharib. The majority view is that the muharib is liable to execution when he actually robs and kills his victim, but if he only robs him, the offender is liable to the mutilation of hands. And finally, if there be no killing involved and no robbery, then the penalty is banishment. In the more intensified cases where the offender kills and robs his victim, the former is to be killed and crucified. According to an alternative juristic opinion, it is for the ruler to determine one or the other, or a combination of these penalties, in individual cases.

A Qur’anic injunction may simultaneously possess a definitive and a speculative meaning, in which case each of the two meanings will convey a ruling independently of the other. An example of this is the injunction concerning the requirement of ablution for prayers which reads in part ' . . . and wipe your heads' (al-Ma’idah, 5:6). This text is definitive on the requirement of wiping (mash) of the head in wudu', but since it does not specify the precise area of the head to be wiped, it is speculative in regard to this point. Hence we find that the jurists are unanimous in regard to the first, but have differed in regard

to the second aspect of this injunction. [Badran, Usul, p. 66.]

There are sometime instances where the scope of disagreement over the interpretation of the Qur’an is fairly extensive. Mahmud Shaltut, for example, underlines this point by noting that at times seven or eight different juristic conclusions have been arrived at on one and the same issue. And he goes on to say that not all of these views can be said to be part of the religion, nor could they be legally binding. These are ijtihadi opinions; ijtihad is not only permissible but is encouraged. For the Shari’ah does not restrict the liberty of the individual to investigate and express an opinion. They may be right or they may be wrong, and in either case, the diversity of opinion offers the political authority a range of choice from which to select the view it deems to be most beneficial to the community. When the ruler authorises a particular interpretation of the Qur’an and enacts it into law, it becomes obligatory for

everyone to follow only the authorised version . [Shaltut, Al-Islam, P. 498.]

The ulema are in agreement that the specific (Khass) of the Qur’an (and of Sunnah) is definitive, but they are in disagreement as to whether the general ('Amm) is definitive or speculative. The Hanafis maintain that the ‘Amm is definitive and binding: but the Malikis, Shafi’is and Hanbalis hold that the ‘Amm by itself is speculative and open to qualification and specification. We need not, at this point, go into the details of the ‘Amm and the Khass as we shall have occasion to return to this subject later. Suffice it here to explain how the ‘Amm and khass may be related to qat’i' and zanni.

First we may highlight the zanni content of the 'Amm by referring to the Qur’anic ruling which provides: 'Forbidden to you (in marriage) are your mothers, your daughters, your sisters, your father's sisters and your mother's sisters' (al-Nisa', 4:23). This is a general ruling in that mothers, daughters, sisters, etc. are all 'Amm as they include, in the case of ‘mother’ not only the real mother but also the step-mother and even the grandmother. Similarly, ‘daughters’ can include real daughters, stepdaughters, granddaughters and even illegitimate daughters. The application of these terms to all of their various meanings is qat’i according to the Hanafis, but is zanni according to the majority of ulema. Whenever the zanni of the Qur’an is explained and clarified by the Qur’an itself or by the Sunnah, it may become qat’i', in which case the clarification becomes an integral part of the original ruling. On the subject of prohibited degrees in marriage, there is ample evidence both in the Qur’an and the Sunnah to specify and elaborate the 'Amm of the Qur’an on this subject. Similarly, when the Qur’an or the Sunnah specifies a general ruling of the Qur’an, the part which is so specified becomes qat’i'.

To give another example of the ‘Amm which can be clearly seen in its capacity as zanni we refer to the Qur’anic proclamation that 'God has permitted sale but prohibited usury' (al-Baqarah, 2:275). This is a general ruling in the sense that sale, that is any sale, is made lawful. But there are certain varieties of sale which are specifically forbidden by the Sunnah. Consequently, the ‘Amm of this ayah is specified by the Sunnah to the extent that some varieties of sale, such as sale of unripened fruit on a tree, were forbidden and therefore excluded from the scope of this ayah. The ulema are all in agreement to the effect that once the ‘Amm has been specified even in a narrow and limited sense, the part which still remains unspecified is reduced to zanni and will be treated as such.

Broadly speaking, the Khass is definitive. When, for example, the Qur’an (al-Nur, 24:4) prescribes the punishment of eighty lashes for slanderous accusation (qadhf), the quantitative aspect of this punishment is specific (Khass) and not susceptible to any speculation. But then we find that the same passage (al-Nur, 24:4) prescribes a supplementary penalty for the slanderous accuser (qadhif) where it reads: 'Never accept their testimony, for they are evildoers (fasiqun), except for those who repent afterwards and make amends.' This text is clear and definitive on the point that the qadhif is to be disqualified as a witness, but then an element of doubt is introduced by the latter portion of the text which tends to render ambiguous the precise scope of its application. Having enacted both the principal and the supplementary penalties for slanderous accusers and fasiqun it becomes questionable whether the qadhif should qualify as a witness after repentance. Does the text under discussion mean that the

Although in principle the Khass is qat’i’ and, as such, is not open to speculative interpretation, there may be exceptions to this general rule. For example, the penance (kaffarah) of a false oath according to

a textual ruling of the Qur’an (al-Ma’idah, 5:92) is of three types, one of which is to feed ten poor persons. This is a specific ruling in the sense that 'ten poor persons' has only one meaning. But even so, the Hanafis have given this text an alternative interpretation, which is that instead of feeding ten poor persons, one such person may be fed ten times. The majority of ulema, however, do not agree with the Hanafis on this point. Be that as it may, this example will serve to show that the scope of ijtihad is not always confined to the 'Amm but that even the Khass and definitive rulings may require elaboration which might be based on speculative reasoning.

Furthermore, the Khass of the Qur’an normally occurs in the form of a command or a prohibition which, as discussed below in a separate chapter, can either be qat’i’ or zanni. The zanni component of a command or a prohibition is readily identified by the fact that a command in the Qur’an may amount either to wajib or to mandub or even to a mere mubah. Similarly, it is not always certain whether a prohibition in the Qur’an amounts to a total ban (tahrim) or to a mere abomination (karahah).

The absolute (Mutlaq) and the qualified (Muqayyad) are also classified as the sub-varieties of Khass. But these too can be related to the qat’i’ zanni division in at least two ways. Firstly, that somewhat like the ‘Amm, the absolute is speculative in regard to the precise scope of its application. Secondly, the qualification of the absolute, the grounds on which it is qualified and the nature of the relationship between the qualified and the qualifier are not always a matter of certain knowledge. The absolute in the Qur’an is sometimes qualified on speculative grounds, which is why the jurists are not in agreement over the various aspects of qualifying the Mutlaq. Further detail on the subject of Mutlaq and Muqayyad and juristic disagreements over its various aspects can be found in a separate chapter below. Suffice it here to give an illustration: there are two separate rulings on the subject of witnesses in the Qur’an, one of which is absolute and the other qualified in regard to the attributes of the witness. First it is provided with regard to the transaction of sale to 'bring witnesses when you conclude a sale - wa- shhidu idha tabaya tum' (al-Baqarah, 2:282). In this ayah, the witness is not qualified in any way whatsoever. But elsewhere we find in a reference to the subject of revocation in divorce (rijah), the

32

command to 'bring two just witnesses' (al-Talaq, 65:2). The ulema have on the whole related these two ayat to one another and the conclusion is drawn that the qualified terms of the second ayah must also be applied to the first, which would mean that witnesses must be upright and just whether it be a case of a commercial transaction or of revocation in divorce. This is the settled law, but to relate this to our discussion over the qat’i’ and the zanni, it will be noted that determining the precise scope of the first ayah is open to speculation. Does the requirement of witnesses apply only to sale or to all commercial transactions? To enter a detailed discussion on this point might seem out of place in the face of the fact that notwithstanding the clear terms of the Qur’anic injunction, the rules of fiqh as developed by the majority of ulema, with the exception of the Zahiris, do not require any witnesses either in sale or in the revocation of divorce. The ulema have, of course, found reasons in support of their rulings both from within and outside the Qur’an. But even the bare facts we have discussed so far are enough to show that the Mutlaq and Muqayyad are susceptible to speculative reasoning. But to discuss the foregoing example a little further, it will be noted that the juxtaposition of the two ayat and the conclusion that the one is qualified by the other is to a large extent based on speculative reasoning. And then the qualified terms of the second of the two ayat may be taken a step further, and the question is bound to be asked, as indeed it has been, as to the precise meaning of a just witness. The ulema of the various schools have differed on the attribute of 'adalah in a witness and their conclusions are based largely on speculative ijtihad,

We need not perhaps discuss in detail the point that the binary division of words into the literal (Haqiqi) and metaphorical (Majazi) which we shall elsewhere elaborate can also be related to the qat’i’ and zanni. Although relying on the literal meaning of a word is the norm and a requirement of certainty in the enforcement of a legal text, it may be necessary at times to depart from the literal in favour of adopting the metaphorical meaning of a word'. To give an example, talaq literally means release or setting free, but as a technical term, it has acquired a specific meaning, and it is the metaphorical meaning of talaq which is normally applied. The ulema have identified a large variety of grounds on which the haqiqi and the Majazi can be related to one another. The Majazi is to a large extent speculative and unreal. Some ulema have even equated the Majazi with falsehood, and, as such, it has no place in the Qur'an. It is thus suggested that the Majazi is not to be relied upon in interpreting the practical injunctions of the Qur'an. Be this as it may, the point is clear that speculative reasoning has a wide scope in determining the meaning and application of Haqiqi and Majazi in the Qur’an, and indeed in any other source of Shari’ah.

Furthermore, the ulema have deduced the rules of Shari'ah not only from the explicit word of the Qur’an,, which is referred to as the mantuq, but also from the implicit meanings of the text through inference and logical construction, which is referred to as the implied meaning, or mafhum. Once again, this subject has been discussed in a separate chapter under al-dalalat, that is, textual implications. The only purpose of referring to this subject here is to point out that the deduction of the rules of Shari'ah by way of inference from the implied meaning of a text partakes in speculative reasoning and ijtihad.

Naturally, not all the ahkam deduced in this way can be classified as zanni. The implied meaning of a text can often command the same degree of authority as the explicit ruling of the same text. Having said this, however, to extend, for example, the requirement of expiation (kaffarah) for erroneous killing which is releasing a slave, or feeding sixty poor persons, or fasting for two months - to the case of intentional killing on the analysts that the purpose of kaffarah is compensation for a sin and that this is true of all types of homicide - is basically no more than speculative ijtihad. This is the implied meaning the text in sura al-Nisa', 4:92, which is explicit on the kaffarah of erroneous killing. But the implied meaning of this text does not command the same degree of certainty as the clear words thereof, which is why the ulema are not in agreement on it.

In the discussion of the qat’i and zanni, the Qur’an and Sunnah are seen as complementary and integral to one another. The reason is that the speculative of the Qur’an can be made definitive by the Sunnah and vice versa. The zanni of the Qur'an may be elevated into qat’i’ by means of corroborative evidence in the Qur’an itself or in the Sunnah. Similarly, the zanni of the Sunnah may be elevated into qat’i’ by means of corroborative evidence in the Sunnah itself or in the Qur’an. And then the zanni of both the Qur’an and Sunnah may be elevated into qat’i by means of a conclusive ijma’, especially the ijma of Companions.

As stated above, a speculative indication in the text of the Qur’an or Hadith may be supported by a definitive evidence in either, in which case it is as valid as one which was definitive in the first place. To illustrate this, all the solitary (ahad) ahadith which elaborate the definitive Qur’anic prohibition of usury (riba) in sura 2:275 are speculative by virtue of being Ahad. But since their substance is supported by the definitive text of the Qur’an, they become definitive despite any doubt that may exist in respect of their authenticity. Thus as a general rule, all solitary ahadith whose authenticity is open to speculation are elevated to the rank of qat’i’ if they can be substantiated by clear evidence in the

Qur’an. [Shatibi, Muwafaqat, III, 9; Qattan, Tashri’, p. 82.] However, if the zanni cannot be so substantiated by the qat’i’, it is not binding unless it can be validated by some evidence which may lead to one of the following

two possibilities. Firstly, the zanni is found to be in conflict with a qat’i of the Qur’an, in which case it must be rejected. To illustrate this, it is reported that the widow of the Prophet, A'ishah, rejected the alleged Hadith that the (soul of the) deceased is tortured by the weeping of his relatives over his death,

[Shatibi, Muwafaqat, III, 9.] the reason being that this was contrary to the definitive text of the Qur’an (al-An'am, 6:164) which provides that 'no soul may be burdened with the burden of another soul'. And secondly,

the speculative indication may be such that it cannot be related to a definitive evidence in any way. The ulema have differed on this; some would advise suspension while others would apply the presumption

of permissibility (ibahah), but the best view is that the matter is open to ijtihad. [Shatibi, Muwafaqat, III, 12.]

The qat’i of the Qur’an is an integral part of the dogma, and anyone who rejects or denies its validity automatically renounces Islam. But denying a particular interpretation of the zanni does not amount to transgression. The mujtahid is entitled to give it an interpretation, and so is the ruler who may select one

P. 35; Badran, Usul, p. 67.]