Contents

• 1  Introduction: Imām al-Karkhī
• 2  Preliminary
• 3  The First Principle
• 4  The Second Principle
• 5  The Third Principle
• 6  The Fourth Principle
• 7  The Fifth Principle
• 8  The Sixth Principle
• 9  The Seventh Principle
• 10  The Eighth Principle
• 11  The Ninth Principle
• 12  The Tenth Principle
• 13  The Eleventh Principle
• 14  The Twelfth Principle
• 15  The Thirteenth Principle
• 16  The Fourteenth Principle
• 17  The Fifteenth Principle
• 18  The Sixteenth Principle
• 19  The Seventeenth Principle
• 20  The Eighteenth Principle
• 21  The Nineteenth Principle
• 22  The Twentieth Principle
• 23  The Twentyfirst Principle
• 24  The Twentysecond Principle
• 25  The Twentythird Principle
• 26  The Twentyfourth Principle
• 27  The Twentyfifth Principle
• 28  The Twentysixth Principle
• 29  The Twentyseventh Principle
• 30  The Twentyeighth Principle
• 31  The Twentyninth Principle
• 32  The Thirtieth Principle
• 33  The Thirtyfirst Principle
• 34  The Thirtysecond Principle
• 35  The Thirtythird Principle
• 36  The Thirtyfourth Principle
• 37  The Thirtyfith Principle
• 38  The Thirtysixth Principle
• 39  The Thirtyseventh Principle
• 40  The Thirtyeighth Principle
• 41  The Thirtyninth Principle

Uṣūl al-Karkhī With Translation

1  Introduction: Imām al-Karkhī

Abū al-Ḥasan ‘Ubayd Allāh ibn al-Ḥusayn al-Karkhī was born in the year 260 A.H. and died in the year 340 A.H. Karkh is a town located on the western bank of the Tigris in Baghdad. He was a student of Abū Sa‘īd al-Barda‘ī (who was a student of Ismā‘īl ibn Ḥammād who was a student of Ḥammād ibn Abī Ḥanīfah). He had many students among whom Abū Bakr al-Jaṣṣāṣ and al-Shāshī are better known. Karkhī’s influence is visible very clearly in the works of al-Jaṣṣāṣ.

Al-Karkhī is ranked among the mujtahiddīn fī al-masā’il within the grades of the jurists, which means he was qualified to undertake ijtihād on all new issues. He was considered the chief of the Ḥanafī jurists in his own time. Among his works are a Mukhtaṣar and commentaries on al-Jāmi‘ al-Ṣaghīr and al-Jāmi‘ al-Kabīr.

He is said to have been a man of very limited means, but one of great integrity. A judicial office was offered to him, which he refused. He also used to avoid those who had accepted judicial offices. In his later days he was affected by paralysis. Some of his companions wrote to Sayf al-Dawlah ibn Ḥamdān about his illness and for help. When he was informed about such a communication, he cried and prayed that he be restricted to his means. It is said that he died before assistance from Sayf al-Dawlah arrived.

Uṣūl al-Karkhī is a statement of thirty-nine principles that can be written on two pages. It is not a comprehensive or complete book. It appears that these thirty-nine principles are those that were considered important for some purpose by al-Karkhī and were jotted down by him. The principles, however, were so important that the compilation came to be know as al-Karkhī’s book on uṣūl. The principles have influenced all later writings and have been incorporated into them, especially in books that go by the name of al-ashbāh wan-naẓā’ir. A number of these uṣūl are presumptions that deal with evidence and litigation, while others deal with interpretation. The principles, thus, deal with fiqh as well as uṣūl al-fiqh. Keeping this in view, there has been an insinuation on the part of writers that Ḥanafī uṣūl are mixed with fiqh, implying thereby that it was really Imām al-Shāfi‘ī who first wrote on uṣūl, and there was no such thing before him. This is obviously not true and a powerful methodology of ijtihād is to be found even in these thirty-nine principles.¹

The translation of the thirty-nine principles was reviewed by Dr. Ḥasan ‘Abd al-Laṭīf al-Shafie (who is a Ḥanafī), may Allah bless him.

2  Preliminary

These are the principles upon which the books of our companions (Ḥanafites) are based. They have been formulated by Imām Abū al-Ḥasan al-Karkhī (d. 340/951). The examples, precedents and supporting cases have been recorded by Imām Najm al-Dīn Abū Ḥafṣ ‘Umar ibn Aḥmad al-Nasafī (d. 537/1142).²

3  The First Principle

Principle 1: What is established through certainty is not done away with doubt.³

قال الامام النسفي: من مسائله ان من شك فى الحدث بعد ما تيقن بالوضوء فهو على وضوئه ما لم يتيقن بالحدث ومن شك فى وضوئه بعد ما تيقن بحدثه فهو على حدثه ما لم تيقن بوضوئه

Imām al-Nasafī said: Among its issues is that of the person who suspects that he is ritually impure after having been convinced that he maintains his state of ritual ablution. This person retains his ritual purity, unless he reaches a conviction again that he is ritually impure. Likewise, one who is in doubt about his ablution after having been certain that he was ritually impure, is ritually impure till he attains certainty about his ablution.

4  The Second Principle

Principle 2: The prima facie (apparent) position is a defensive presumption against claims by other persons, but it does not provide a right to a claim against other persons.

قال: من مسائله أن من كان فى يده دار فجاء رجل يدعيها فظاهر يده يدفع استحقاق المدعى حتى لا يقضى له الّا بالبينّة، ولو بيعت دار لجنب هذه الدار فاراد أخذ الدار المبيعة بالشفعة بسبب الجوار لهذه الدار فانكر المدعى عليه ان تكون هذه الدار التّى فى يده مملوكة له فانه بظاهر يده لا يستحق الشفعة ما لم يثبت ان هذه الدار ملكه

He said: Among its cases is that of the person who is in possession of a house that is claimed by another person. His prima facie possession is sufficient defence against the plaintiff so that a judgment cannot be rendered in favour of the plaintiff except through evidence (bayyinah). If, however, an adjacent house is being sold and the person in possession⁴ desires to claim it by way of preemption, because of neighbourhood, and the defendant denies that the ownership of the house in his possession belongs to the plaintiff, then, mere possession is not enough for a suit of preemption. The plaintiff has to prove (through evidence) that the house in his possession is owned by him.

5  The Third Principle

Principle 3: The statement of the person whose claim supports the prima facie position is to be accepted and the burden of proof is upon the person who goes against the prima facie position.

قال: من مسائله ان من ادعى دينا على رجل وضمانا فانكره فالقول قوله لان الذمم فى الأصل خلقت بر يأة والبينّة على من يدعى خلاف الظاهر

He said: Among its cases is that of a person from whom a debt and its compensation are claimed, but he denies it. His statement is to be accepted, because the (presumption is that the) dhimmah is primarily free of liability, and the burden of proof is upon one who claims contrary to the prima facie position.

6  The Fourth Principle

Principle 4: In litigation the objectives of the litigants are to be taken into account rather than the prima facie case.

قال: من مسائله ان المودع اذا طولب برد الوديعة فقال رددتها عليك فقال المودع لم تردها فالقول قول قابل الوديعة مع انه يدعى الظاهر بقوله رددت لأن المقصود هو الضمان وهو منكر للضمان فكان القول قوله

He said: Among its cases is that of the custodian who is asked to return a deposit and he claims that he has returned it, with the depositor alleging that he has not. The statement to be accepted is that of the custodian, because by saying that he returned it he is asserting the prima facie position. The objective here is liability and he is denying liability. Thus, the acceptable statement is his.

7  The Fifth Principle

Principle 5: If there are two prima facie positions with one of them being more obvious, then, the one that is more obvious is preferred.

قال: من مسائله ان من اقر بدين لجنين عند محمد يصح إقراره به وإن كان فيه احتمال وعند ابي يوسف لا يصح لانه لو صرح بان هذا الدين لزمه بعقد لم يلزمه لان عقده مع الجنين لا يصح ولو صرح بانه اتلف عليه ماله ولزمه ضمانه صح اقراره واذا اجمل وقع الشك في الوجوب فلا يجب لكن محمد يقول الظاهر من حال المسلم العاقل ان يقصد بكلامه الصحة فيحمل على وجوبه باتلاف ماله ليصح وأبو يوسف – رحمه لله – يقول لا يلزمه بهذا الاقرار شيء لانه قابل هذا الظاهر ما هو اظهر منه لان الظاهر من المسلم العاقل انه لا يتلف مال غيره لانه معصية

He said: Among its cases is that of a person who acknowledges a debt in favour of a foetus (janīn). According to Muḥammad his acknowledgment is valid even though it is probable. According to Abū Yūsuf it is not valid because even if he states expressly that this debt became binding upon him due to a contract, it would not be binding upon him as his contract with a janīn is not valid. If, however, he says expressly that he destroyed its property and was, therefore, liable for it, his acknowledgement would be valid, but if he makes an ambiguous statement the obligation would become doubtful, and it would not be imposed. Muḥammad, on the other hand, says that the outward statement of a sane Muslim is to be accepted and is to be given effect with respect to the destruction of property. Abū Yūsuf says that this acknowledgement makes nothing binding for him, because the presumption here is confronted by another presumption that is more obvious, which is the presumption about a Muslim that he does not destroy the property of another as it is an offence.

8  The Sixth Principle

Principle 6: The affairs of the Muslims are to be construed as upright and proper, unless the contrary is established.

قال: من مسائله أن من باع درهما ودينارا بدرهمين ودينارين جاز البيع وصرف الجنسالى خلاف جنسه تحر يا للجواز حملا لحل المسلم على الصلاح ولو نصعلى ان الدرهم بالدرهمين والدينار بالدينارين فسد البيع لانه قد غير هذا الظاهر صريحا

He said: Among its cases is that of a person selling one dirham and one dīnār for two dirhams and two dīnārs. The sale is valid by way of ṣarf of one specie for a different specie and because of the construction of propriety placed upon the acts of Muslims. If, however, he states clearly that one dirham is for two dirhams and the dīnār is for two dīnārs the sale becomes vitiated because he altered the apparent construction by his express statement.

9  The Seventh Principle

Principle 7: The implication of the state of affairs is like an express statement.

قال: من مسائله أن من أودع رجلا مالا فدفعه الى من هو فى عياله فهلك عنده لم يضمن وان لم يصرح له بالإذن بالدفع الى غيره لأنه لما أودعه مع علمه بانه لا يمكنه أن يحفظ بيده مال نفسه تارة بيده وتارة بيد من فى عياله و كان ذلك كالإذن به صريحا ومسائل الفور مبنية على هذا الاصل

He said: Among its cases is that of the person depositing something with another person, who hands it over to a member of his family in whose possession it is destroyed. The custodian is not liable in this case even though the depositor had not granted express permission to him to exercise custody through another person. The reason is that he made the deposit with the knowledge that it is not possible for him to personally guard the deposit day and night, and this amounts to a permission by implication that he would safeguard it like he safeguards his own wealth, that is, sometimes himself and sometimes through members of his family. This permission is like an express permission. The cases in which immediate action is required are based upon this principle.

10  The Eighth Principle

Principle 8: What cannot be established through a statement is sometimes established through an act, as in the case of a ṣabī.

قال: من مسائله ان من وكل غيره بعقد اذا عزل وكيله حال غيبته قولا لم ينعزل ما لم يعلم به حتى لو فعل الوكيل ما امر به قبل علمه به نفذ تصرفه ولو ان الموكل تصرف فى ذلك المجلسبنفسه فى ذلك مع غير علمه انعزل الوكيل حكما، لنفاذ تصرف الموكل فيه وقوله كالصبي يعني ان الصبي يضمن بفعله وإن كان لا يضمن بقوله اي بعقد او كفالة او اقرار

He said: Among its cases is that of a person who appoints an agent through a contract and then terminates the agency through an express statement in the absence of the agent. The agency is not terminated, unless the agent is informed of the termination. If the agent acts according to the objective of the agency before such information reaches him, his transactions are valid. If, however, the principal acts on his own in the same session viz a viz the same transaction without communicating the termination of agency, the agency is legally terminated because of the execution of the transaction of the principal. His earlier statement (of termination of agency) is like that of the minor (ṣabī), that is, the minor is liable through his acts even though he is not liable through his statements in contract, surety, and acknowledgment.

11  The Ninth Principle

Principle 9: Questions and communications (of law) are applicable to what is general and of usual occurrence and not to what is abnormal and rare.

قال: من مسائله ان من حلف لا يأكل بيضا فهو على بيض الطير دون بيض السمك ونحوه

He said: Among its cases is the oath of a person who says that he will not eat eggs. His statement is to be interpreted to mean eggs of birds and not eggs of fish (caviar) or the like.

12  The Tenth Principle

Principle 10: The reply to a question is to be construed in accordance with what is generally known by each nation in their place of abode.

قال: من مسائله اذا حلفلا يتغذى حنث باللبن وحده اذا كان فى بلاد العرب دون العجم وغذاء كل قوم ما تعارفوه

He said: Among its cases is the oath of the person who says that he will not eat food. He breaks his oath by the mere consumption of milk, if he was in the lands of the Arabs, not the ‘Ajam, because it is the food of each nation that is known to them.

13  The Eleventh Principle

Principle 11: A transaction with a person is to be undertaken in accordance with what he acknowledges about himself but he is not to be relied upon for the extinction of the right of another nor for the creation of a right for another.

قال: من مسائله أن مجهولة النسب إذا أقرتبالرق لإنسان وصدقها ذلك الإنسان تصير امة له، لكن لا يبطل نكاح الزوج ولا يضمن الزوج للمقر له اذا كان قد أوفاها المهر مرة والمودع المأمور بدفع الوديعة اذا قال دفعتها إلى فلان فقال ما دفعته اليّ، فالقول قول المودع في براءة نفسه من الضمان، لا فى إيجاب الضمان على فلان بالقبض

He said: Among its cases is the woman of unknown parentage who acknowledges being a slave of someone, and this person verifies her statement. She becomes the slave (amah) of this person, but this does not annul the marriage of her husband nor does the husband owe anything to the person whom the acknowledgment favoured, as long as he has paid her dower once. Likewise, a custodian who is under instruction to give the deposit to someone else. If he says that he has given the deposit to the person and that person says that it has not been given to him, then, the statement of the custodian is enough to absolve himself from liability, but it is not admissible for creating a liability through possession for the third person.

14  The Twelfth Principle

Principle 12: The acceptable statement is that of the trustee along with his oath and without evidence (bayyinah).

قال: من مسائله دعوى المودع برد الوديعه إلى مالكها أو ضياعها عنده، وكذا سائر الأمناء من المستعير المضارب والوكيل ونحوهم

He said: Among its cases is the claim of the custodian about the return of the deposit to its owner or of its loss in his possession. Likewise, all other trustees like the borrower, the muḍārib, the agent and others.

15  The Thirteenth Principle

Principle 13: If a person is bound to do a thing and its execution has a requisite condition, then, the thing that is the condition for the execution is considered prior in the ḥukm; the other is considered secondary. The performance of the prior act, thus, becomes binding for the validity and permissibility (of the latter).

قال: من مسائله ان من التزم صلوة كان التزاما لتقدم الطهارة عليها لانها شرطها

He said: Among its cases is the undertaking to pray, which becomes an undertaking to acquire purification, because it is a condition for it.

16  The Fourteenth Principle

Principle 14: If the parties to a contract clearly express what is valid, the contract is valid, and if they clearly state what is vitiated (fāsid), the contract is vitiated. If they make equivocal statements, however, the contract is to be construed to convey validity.

قال: من مسائله اذا باع قلب فضة وزنها عشرة وثوبا قيمته عشرة بعشرين درهما على ان عشرة منها مؤجلة الى شهر فان صرحا أن العشرة المؤجلة ثمن الثوب والعشرة المنقودة ثمن القلب صح وان صرحا انها ثمن القلب فسد وان ابهما فالعشرة المنقودة تجعل للقلب والمؤجلة للثوب حملا على الصحة

He said: Among its cases is a person buying a silver bracelet having a weight of ten along with a dress having a value of ten with twenty dirhams on the condition that ten of these dirhams would be delayed for a month. If he states expressly that the ten delayed dirhams are the price of the dress and the ten paid are the price of the bracelet, the contract is valid, but if he states that the (delayed) dirhams are the price of the bracelet, the contract stands vitiated. If, however, he does not specify anything, the ten paid are to be considered payment for the bracelet, while those delayed as payment for the dress, making the contract valid.

17  The Fifteenth Principle

Principle 15: A distinction is to be made between the irregularity that enters the substance of the contract and between one that enters the extraneous matters.

قال: من مسائله إذا باع عبدا بألفدرهم ورطل من خمر فسد البيع، ولو أخرجا منه الخمر لم يعد الجواز، لأن الفساد في أصل العقد ولو باع عبدا بالف درهم مؤجلة إلى الحصاد فسد البيع لجهالة الأجل فلو اخرجا قبل مجىء وقت الحصاد عاد العقد إلى الجواز لأنه علقة من علائقه

He said: Among its cases is the sale by a person of a slave for a thousand dirhams and a rotl of wine. The sale stands vitiated. Even if the wine is excluded the sale does not become valid, because the vitiation pertains to the substance of the contract. If, however, he sold the slave for one thousand dirhams to be paid at the harvest, the sale is vitiated due to the uncertainty of the period. If the statement is changed to one prior to the time of the harvest, the contract becomes valid, because it was an extraneous condition.

18  The Sixteenth Principle

Principle 16: Liability for compensation is not created except by one of two factors: acquisition or a condition. If both are missing the liability is not created.

قال: من مسائله الأخذ وهو الغصب، وقبض الرهن، والتقاط من غير إشهاد ونحوها والشرط قبول العقد، كالشراء والاستئجار والكفالة ونحوها

He said: Among its cases is acquisition which takes place through misappropriation, taking possession of a pledge (rahn), taking over found property without witnesses and so on. Acquisition through a condition is the acceptance of a contract like purchase, rent, giving a surety and so on.

19  The Seventeenth Principle

Principle 17: Precaution in the case of the rights of Allāh is permitted, but in the case of the rights of the individuals it is not.

قال: من مسائله إذا دارت الصلاة بين الجواز والفساد فالاحتياط أن يعيد الأداء؛ لانه لو أدى ما ليسعليه أولى من ترك ما عليه والضمان إذا دار بين الجواز وعدمه لا يوجب بالاحتياط لأنه لا يضمن بالشك

He said: Among its cases is the vacillation of prayer between irregularity and validity. In such a case it is better to repeat the prayer, because performing what he is not obliged to do is better than not performing what he is obliged to do. In the case of compensation (ḍamān), if it vacillates between permissibility and lack of it, it does not become due as a precaution, because a liability is not to be created through doubt.

20  The Eighteenth Principle

Principle 18: In the case of reports, a distinction is to be made between the aṣl and the far‘.

قال: من مسائله أن المرأة اذا اخبرت بالرضاع بين الزوجين لم يفرق بينهما، و يفرق في الفرع بطلاق او خلع

He said: Among its cases is the report of a woman about suckling both spouses by way of fosterage. The spouses are not to be separated, but the far‘ are to be separated through divorce or khul‘.⁵

21  The Nineteenth Principle

Principle 19: A distinction is to be made between the knowledge received through apparent means and that received by way of certainty.

قال: من مسائله أن ما علم يقينا يجب العمل به واعتقاده، وما ثبت ظاهرا وجب العمل به ولم يجب اعتقاده، وسيوضح هذا بالصلوات الخمس وبالوتر، وكون الأذنين من الرأس علم ظاهرا فلم يجز إقامة فرضالمسح بهما الذي ثبت يقينا وكون الحطيم من البيت علم ظاهرا فلم يجز التوجه اليه في الصلواة مع استدبار البيت، وقد ثبت فرضية التوجه الى البيت يقينا واذا قضي القاضي بشيء ثم علم أنه ءخطأ بدليل ظهر ليسبمتيقن لم ينقضقضاءه وئذا ظهر خطائه بدليل متيقن من نصاو اجماع نقض قضاؤه

He said: Among its cases is the obligation of acting upon the knowledge received by way of certainty along with the obligation of belief in it and of acting upon knowledge received through apparent meanings without the obligation of belief in it. This is explained through the five prayers and witr (where the five prayers require belief as well as part of the dīn). On the other hand, the fact that the ears are part of the head is apparent knowledge, therefore, it is not right to establish an obligation of rubbing(masḥ) for them, as if it was established by way of certainty. Further, the fact that the Ḥaṭīm is part of the House (Ka‘bah) is apparent knowledge, therefore, facing it during prayer is not permitted, while the obligation of facing the House is established through certain knowledge. Thus, if the qāḍī adjudicates a matter on the basis of an apparent evidence and it then becomes known that he made an error, his decision is not set aside, but if he decides on the basis of a certain evidence by way of explicit text or consensus, and it becomes known that he made an error his decision is set aside.

22  The Twentieth Principle

Principle 20: A fact is proved as a natural consequence and also legally, though sometimes it may be declared void intentionally.

قال: من مسائله ان عزل الوكيل وهو غائب يثبت تبعا لتصرّف الموكل فيه بنفسه ولو عزل قصدا لم يصح حتى يعلم به، ولو باع عبدا دخل اطرافه في المبيع تبعا، وكذا هوآء الدار في بيع الدار، وكذا الشرب في بيع الارض ولو باع الاطراف قصدا والهوآء والشرب لم يصح، ونظائرها كثيرة

He said: Among its cases is the termination of agency (of the agent). This is established as a natural consequence when the agent is not present, because the principal acts with respect to the object of the agency. The agency would not be terminated, however, if he had intentionally (expressly) terminated it, unless the agent was informed. Likewise, if a person sells a slave his limbs would be naturally included in the sale, so also the air in a house and right to water (shirb) in the land. If, however, he were to sell the limbs expressly or the air or the right to water (without the land) it would not be valid. There are many parallel cases for this.

23  The Twentyfirst Principle

Principle 21: Consequential ratification is like prior agency.

قال: من مسائله أن من عقد على مال غيره او نفس غيره ببيع أو نكاح او غير ذلك بغير امره فبلغه الخبر فأجاز ذلك نفذ، وصار العاقد كانه وكيله بذلك عندنا، خلافا للشافعي – رحمه لله – لانه لا يقول بتوقف العقد

He said: Among its cases is a contract by a person with respect to the property or slave of another by way of sale or marriage or some other transaction without the permission of the owner. If the owner ratifies his act on receiving information the transactions are executed and the person becomes the agent of the owner through such contract, in our view. Imām al-Shāfi‘ī disagrees with this because he does not acknowledge the suspended contract (that waits for later ratification).

24  The Twentysecond Principle

Principle 22: Things that exist during the state of suspension are deemed to exist from the beginning.

قال: من مسائله أن الزوائد الحاصلة بعد العقد اذا اتصلت بالإجازة تصير للمشتري كالموجودة عند العقد

He said: Among its cases is that the mesne profits arising after the contract, if permitted, belong to the buyer as if they were present at the time of the contract.

25  The Twentythird Principle

Principle 23: Ratification operates upon a suspended contract and not upon a jā’iz contract.

قال: من مسائله أن المأمور بشراء عبد بعينه بخمسمائة درهم إذا اشتراه بستمائة صار مشتر يا لنفسه، فلو أخبر الآمر أنه اشتراه له بستمائة فاجازه لم يصر للآمر بهذه الإجازة، لان الشراء ثبت للمشتري حين وقع فلا تعمل فيه الإجازة ولا يصير له

He said: Among its cases is that of the person ordered to buy a particular slave for five hundred dirhams. If he buys him for six hundred dirhams he becomes a buyer in his own right. If he informs the principal that he bought him for six hundred dirhams and he ratifies it the contract is not validated by such ratification, because the purchase became effective for the buyer when it was transacted; the ratification will not operate upon it nor will the slave become his.

The explanation given by al-Nasafī shows that what is meant by the word jā’iz is not “terminable” or ghayr lāzim, but nāfidh or exectuted contract.

26  The Twentyfourth Principle

Principle 24: Ratification valididates and is linked to the time of the contract, thus, it is required that the subject-matter be acceptable for the contract at the time of the ratification so that the contract be given legal effect. It is also linked to the time of the contract when the subject-matter is perishing at such time, thus, the contract will not be performed through ratification. Likewise, if the principal is suffering from death-illness at the time of the ratification and the contract was concluded when he was well, it will be considered the act of a person who is ill and not one who is well.

قال: منها ان الاجازة في القائم دون الهالك اي لو هلك المبيع المتوقف ثم أجيز لم ينفذ

He said: Among its cases is the operation of ratification in the existing property and not one destroyed. Thus, if the subject-matter of the suspended sale is lost the contract will not be acted upon.

27  The Twentyfifth Principle

Principle 25: Each contract that can be permitted (through an agent) at the time of its conclusion may be suspended for ratification otherwise not.

قال: من مسائله اذا باع رجل مال صبي بثمن مثله توقف على إجازة الولي لانه له ولاية البيع ولو طلق امراته او اعتق عبده او تصدق بماله لم يتوقف لان المولى لا يملك ذلك

He said: Among its cases is that of a person selling the property of a minor at its current (market) rate. The contract is suspended for ratification by the guardian, because he possesses guardianship for sale. If, however, the person divorces the wife of the minor or sets free his slave or makes alms from his property, the transaction will not be suspended, because the guardian does not possess this right himself.

28  The Twentysixth Principle

Principle 26: Making ownership of property conditional upon happenings is void, but making its relinquishment conditional upon happenings is valid.

قال: من مسائله قال رجل لرجل اذا دخلت الدار فقد بعتك هذا العبد بألف درهم فقال قبلت، أو قال ذلك في الإجازة والهبة ونحو ذلك، لم يصح، ولم يقع الملك عند وجود الشرط، ولو قال لامرأته اذا دخلت الدار فأنت طالق، أو قال لعبده إذا دخلت فانت حر، صح، وعند وجود الشرط يقع الطلاق والعتاق ويزول ملك النكاح وملك اليمين

He said: Among its cases is that of a person saying to another, “If you enter the house, I have sold you this slave for a thousand dirhams,” and the other replying, “I have accepted,”—or when he says this in case of ratification of gift or the like—it is not valid and the ownership is not transferred with the accompanying condition. If, however, the person says to his wife, “If you enter the house you are divorced,” or he says to his slave, “if you enter you are free,” then, this is valid. The divorce takes effect with the accompanying condition, and so also the emancipation, thus, resulting in the loss of ownership through marriage and the ownership of the right hand.

29  The Twentyseventh Principle

Principle 27: An act is legally acknowledged as long as it does not lead to the destruction or annulment of its object.

قال: من مسائله أن العبد المحجور اذا آجر نفسه مدة معلومة للعمل لم تصح؛ دفعا للضرر عن المولى ولو قضينا بفسادها بعد مضي المدة وتمام العمل كان اضرارا للمولى بتعطيل منافع عبده بغير بدل فكان دفع الضرر هنا في تصحيحها؛ إذ لو قضينا بفسادها لم يكن دفعا للضرر بل يكون تحقيقا للضرر فيعود النظر ضررا

He said: Among its cases is that of the hiring out of his services by an interdicted slave for a determined period. This is not valid as the harm caused to the interests of the owner is to be repelled. If, however, we deem it fāsid (vitiated), after the passing of a period and completion of work, it would injure the interests of the master through the suspension of the benefits of his slave without compensation. Thus, the repelling of harm here is in declaring it valid, because our deeming it vitiated is not a defence of the interests of the master, but the confirmation of the injury. Thus, the analysis of the case will turn on the harm actually caused.

30  The Twentyeighth Principle

Principle 28: Each verse (of the Qur’ān) that appears to conflict with the verdict of our jurists is to be construed as abrogated or as having been subjected to preference (tarjīḥ), however, it is preferable to construe it has having been interpreted by way of reconciliation.

قال: من مسائله أن من تجري عند الاشتباه واستدبر الكعبة جاز عندنا؛ لأن تأو يل قوله تعالى فولو وجوهكم شطره﴾ اذا علمتم به والى حيث وقع تحر يكم عند الاشتباه، أو يحمل على النسخ كقوله تعالى ولرسوله ولذي القربى﴾ في الآية ثبوت سهم ذوي القربى في الغنيمة ونحن نقول انتسخ ذلك بإجماع الصحابة – رضي لله عنهم – أو على الترجيح كقوله تعالى والذين يتوفون منكم ويذرون أزواجا﴾ ظاهره يقتضى أن الحامل المتوفى عنها زوجها لا تنقضى عدتها بوضع الحمل قبل اربعة اشهر وعشرة ايام لان الآية عامة في كل متوفى عنها زوجها حاملا أو غيرها وقوله تعالى واولات الاحمال اجلهن ان يضعن حملهن﴾ يقتضي انقضاء العدة بوضع الحمل قبل مضي الاشهر لأنها عامة في المتوفى عنها زوجها وغيرها لكنا رجحنا هذه الآية بقول ابن عباس – رضي لله عنهما – انها نزلت بعد نزول تلك الآية فنسختها وعلي – رضي لله عنه – جمع بين الأجلين احتياطا لاشتباه التاريخ

He said: Among its cases is that of a person who turns his back towards the Ka‘bah (during prayer) after having made an investigation in a state of ambiguity. This is valid in our view, because the interpretation of the words of the Exalted, “And turn your faces in its direction,” is “When you are aware of it and in the direction that your investigation has led you to.” In another case, a verse may be considered to have been abrogated like, “For the Prophet and for the next of kin.” In this verse there is proof of a share in the spoils for the next of kin, but we may say that this has been abrogated by the consensus of the Companions, may Allāh be pleased with them. In yet another case, it may be considered to have been subjected to preference (tarjīḥ) like the verse, “Those among you who die and leave behind spouses.” The apparent implication of this verse is that a pregnant woman whose husband has died will not complete her waiting period by delivering the child, but will wait for four months and ten days, because the verse has general application for each woman whose husband has died whether or not she is pregnant. The verse, “The waiting period of pregnant women is up to the delivery of their burden,” requires that the waiting period be up to the delivery of the child prior to passing of months, because it is general for a woman whose husband has died and for others beside her. We preferred this verse due to the opinion of Ibn ‘Abbās, may Allah be pleased with both, that it (this verse) was revealed after the revelation of the former verse and has abrogated it. ‘Alī, may Allah be pleased with him, combined the two periods (of waiting) as a precaution against ambiguity about the date (of revelation).

31  The Twentyninth Principle

Principle 29: Each report (ḥadīth) that conflicts with an opinion of our jurists is to be construed as abrogated or that it has conflicted with a similar report. Thereafter, another evidence (dalīl) or a preference on the basis of which our jurists argue for preference shall be adopted or a reconciliatory construction shall be placed upon it. This shall be done in accordance with the nature of the evidence, thus, if a basis for abrogation is established it shall be construed accordingly, but if there is another basis we shall adopt that.

قال: من ذلك أن الشافعي يقول بجواز اداء سنة الفجر بعد اداء فرض الفجر قبل طلوع الشمس لما روى عن عيسى رآني رسول لله صلى لله عليه وسلم اصلي ركعتين بعد الفجر فقال ما هما فقلت ركعتا الفجر كنت لم اركعهما فسكت قلت هذا منسوخ بما روى عن النبي صلى لله عليه وسلم انه قال لا صلاة بعد الفجر حتى تطلع الشمس ولا بعد العصر حتى تغرب الشمس واما المعارضة فكحديث انس رضي لله عنه كان يقنت في الفجر حتى فارق الدنيا فهو معارض برواية عن انس رضى لله عنه ان النبي صلى لله تعالى عليه وسلم قنت شهرا ثم تركه فاذا تعارضا روايتاه تساقطا فبقي لنا حديث ابن مسعود وغيره رضي لله عنه ان النبي صلى لله تعالى عليه وسلم قنت شهرين يدعو على احيأ من العرب ثم تركه واما التأو يل فهو ما روى عن النبي صلى لله تعالى عليه وسلم انه كان اذا رفع رأسه من الركوع قال سمع لله لمن حمده ربنا لك الحمد وهذا دلالة الجمع بين الذكرين من الامام وغيره ثم روى عن النبي صلى لله عليه وسلم انه قال اذا قال الامام سمع لله لمن حمده قولوا ربنا لك الحمد قسم والقسمة تقطع الشركة فيوفق بينهما فنقول الجمع للمنفرد والافراد للامام والمقتدي وعن ابي حنيفة انه يقول الجمع للمتنفل والافراد للمفترض

He said: Among its cases is the opinion of al-Shāfi‘ī about the permissibility of offering the sunnah prayer of fajr after the farḍ prayer of fajr before the sun has risen, on the basis of what is reported from ‘Īsā: The Messenger of Allah (God’s peace and blessings be upon him) saw me offering two rak‘ahs after the fajr obligation and said, “What are these?” I said, “Two rak‘ahs of fajr that I had not prayed.” (On hearing this) he kept quiet. I (al-Nasafī) would say that this is abrogated by the report that the Prophet (God’s peace and blessings be upon him) said, “There is no prayer after fajr (obligation) until the sun has risen (completely) nor after the ‘aṣr (obligation) till it has set.” As for the conflict, it is (explained through) the tradition about Anas, may Allāh be pleased with him, that he used to recite the qunūt (special supplication) in the fajr prayer up until the time he left this world. This conflicts with the report from Anas (himself), may Allāh be pleased with him, that the Prophet (God’s peace and blessings be upon him) recited the qunūt for a month and then gave up doing so. Thus, when his two reports clash they are given up and we are left with the ḥadīth of Ibn Mas‘ūd, may Allah be pleased with him, and others that the Prophet (God’s peace and blessings be upon him) recited qunūt for two months after praying against some tribes of Arabs, but then he gave it up. As for the interpretation (ta’wīl), the evidence is the report about the Prophet that he used to say sami‘ Allāhu liman ḥamidah rabbana laka ’l-ḥamd, while raising his head from rukū‘ (the bowing posture). This indicates a combining of the two dhikrs (formulas)—from the imām and from others. Thereafter, it is reported from the Prophet (God’s peace and blessings be upon him) that he said, “When the imām says sami‘ Allāhu liman ḥamidah, you should say rabbana laka ’l-ḥamd.” He divided it and division splits up what is merged. We, thus, reconcile the two and say that the combined form is for the individual and the separated from is for the imām and his follower. It is reported from Abū Ḥanīfah that he used to say: The combined form is for one offering supererogatory prayers and the separated form for one offering an obligation.

32  The Thirtieth Principle

Principle 30: If a tradition is reported from a Companion and it conflicts with an opinion of our jurists, then, if it is not essentially sound we would not be burdened with a reply, but if it is sound in its subject-matter the explanation of its types have already preceded. However, the best method and one remote from doubt is that if the tradition of the Companion pertains to other than the subject-matter of consensus (ijmā‘), it is to be construed as an interpretation (by the Companion) or as conflicting with the opinion of another Companion like him.

قال نجم الدين عمر النسفي معنى قوله لا يصح في الأصل ان لا يكون رواية عدل فهذا غريب ثابت فليس لاحد ان يتمسك به فلا يفتقر الى التفصي عنه فاما اذا اسنده عدل فقد ثبت واحتيج الى التفصي فتعارضبقول صحابي اخر فهو كاختلاف الصحابي في الجد والاخوة وفي هدم الزوج الثاني الطلقة والطلقتين وفي مسئلة تكبيرات أيام تشريق

Najm al-Dīn ‘Umar al-Nasafī said: The meaning of his words, “is not sound in essence,” is that it is not narrated by one who is ‘adl, which would be established as gharīb, and no one would adopt it nor would there be a need to counter it. If, however, he is supported by the report of an ‘adl narrator then it is established and is in need of a counter evidence. If it clashes with the opinion of another Companion then it is similar to the disagreement of the Companions over the issue of grandfather viz a viz brothers, the issue of the second husband annulling one renunciation or two renunciations, and the issue of takbīrs during the days of tashrīq.

33  The Thirtyfirst Principle

Principle 31: If one ijtihād is implemented, it cannot be revoked by another ijtihād, but it is revoked by an explicit text.

قال: و يقع ذلك في التحري والقضاء في الدعاوي

He said: This occurs in the investigation of rules and in judgments in litigation.

34  The Thirtysecond Principle

Principle 32: An explicit text is in need of ratiocination (ta‘līl) not for its own ḥukm, but for the ḥukm of another case.

قال: وذلك ان الحرمة في الاشياء الستة التي في قول النبي صلى لله عليه وسلم الحنطة بالحنطة الى اخره ثابتة بعين النص لا بالمعنى وفي سائر المكيلات والموزونات بالمعنى وهو القدر مع الجنس وكذا نظائره

He said: This is like the prohibition (of ribā) in the six commodities in the saying of the Prophet (God’s peace and blessings be upon him), “Wheat for wheat …,” which is established by the literal meaning of the text and not by implication and in all things measured and weighed by a meaning (implied through analogy), which is estimate (qadr) along with similarity of species. Likewise its parallels.

35  The Thirtythird Principle

Principle 33: A distinction has to be made between the ‘illah (underlying cause) of a ḥukm and the ḥikmah (purpose) of the ḥukm, because the ‘illah obligates the ḥukm and the ḥikmah does not.

قال: من مسائله ان السفر علة القصر وحكمته المشقّة ثم السفر يثبت القصر وان لم يلحقه مشقّة وعدم الحكمة لا يوجب عدم الحكم ووجود العلة اوجب وجود الحكم وعلة وجوب الاستبراء استحداث ملك الوطيء بملك اليمين وحكمته صيانة النسب والتحرز عن اختلاط مياه ثم اذا اشترى بكرا او جار ية من امرأة او صبي وجب الاستبراء مع التيقن بفراغ الرحم فعدم الحكمة لم يوجب عدم الوجوب لما وجد الملك الحادث

He said: Among its cases is that safar (journey) is the ‘illah for curtailing prayer and its ḥikmah is hardship. Journey establishes (the ḥukm) of curtailment even when there is no accompanying hardship, thus, the absence of the ḥikmah does not necessitate the absence of the ḥukm, but the existence of the ‘illah makes the ḥukm applicable. As the ‘illah of the obligation of vacation of the womb (istibrā’) is the renewal of ownership of the right hand (for purposes of sex), while its ḥikmah is the preservation of paternity and the avoidance of the mixing of the sperm, if a person buys a virgin or a slave-girl from a woman or child (who could not have had sex with her) it is still necessary to establish the vacation of the womb despite the conviction that the womb is vacant. Thus, the absence of the ḥikmah does not necessitate the absence of the obligation whenever ownership is renewed.

36  The Thirtyfourth Principle

Principle 34: When a person asks a question it is necessary for the responding jurist not to answer in absolute and general terms. He should examine the question to see whether it is a single category or may be divided into two or more. He should then examine each category word for word and give a suitable answer to the question. This principle is of immense benefit. The reason is that a reply in absolute terms can readily be ripped apart, because words are seldom employed in general terms.

قال: قد يقع هذا في كل نوع من العبادات والتمليكات والجنايات وغيرها مثلا اذا قيل سلم رجل على رأس ركعتين من الظهر هل تفسد صلاته او قيل اكل في حالة الصوم قل أفعل ذلك سهوا او عمدا واذا قيل عبد باع عينا فيقال ماهو أ مأذون او محجور واذا قيل قتل رجل رجلا ماذا عليه فيقال عمدا او خطأ او شبه عمد وباي آلة واذا قيل رجل زنى ماذا عليه فيقال هو محصن او غير ذلك ونظائره كثيرة

He said: This occurs in all types of rituals, contractual relations and crimes and other relations. For example, if it is said what about the case where a man offers the salutation after two rak‘as of ẓuhr, does it invalidate his prayer, or (for that matter) when a person eats during a fast? the response should be: did he do this out of forgetfulness or intentionally? If it is said that a slave sells something, say: what is his status, is he authorised or under interdiction? If it is said that a man has killed another man now what is his liability? the response should be: did he do it intentionally, by mistake or by way of shibh al-‘amd? and what is the instrument that has caused the death? If it is said that a man has committed zinā, so what is his liability? the response is: is he a muḥṣan (married or once married) or otherwise? A large number of examples can be given for this principle.

37  The Thirtyfith Principle

Principle 35: When an incident occurs, but the investigator does not find an answer or a precedent in the books of our companions, it becomes incumbent upon him to derive the answer from other sources. He should do it either from the Book or from the Sunnah or another (valid) source, constantly seeking the strongest evidence. In this way he will inevitably follow the directives of these principles.

قال: فالمسائل المقررة مستخرجة من هذه الاصول والنوازل الحادثة مستخرجة منها ايضا

He said: All the established cases have been derived through these principles, and the new cases can be derived through them too.

38  The Thirtysixth Principle

Principle 36: When a word has two meanings with one of these meanings being more manifest (within the context) and the other being concealed, the manifest meaning is to be preferred over the obscure.

قال: ومن ذلك قوله تعالى (ولكن يآخذكم مما عقدتم الأيمان فكفّارته إطعام عشرة مساكين) حمله اصحابنا على العقد الذي هو الجلى وذلك في المستقبل وحمله الشافعي على العقد الذي هو عزم القلب وذلك يقع على الماضي ايضا والاوّل اجلى فكان اولى

He said: An example of this is found in words of the Exalted, “Allah will not call you to account for what is void in your oaths, but He will call you to account for your deliberate oaths: for expiation feed ten indigent persons” [Qur’ān 5 : 89] Our companions have interpreted it for the obvious meaning of the word ‘aqd (outward intention) expressed in the future tense. Al-Shāfi‘ī has interpreted it to mean “inner resolve”, which is possible for the past tense as well. The first meaning is obvious and, therefore, preferred.

39  The Thirtyseventh Principle

Principle 37: It is possible that the initial part of a verse conveys a general meaning, while its later part conveys a specific meaning.

قال: من ذلك قوله تعالى (ومن قتل مؤمنا خطأ فتحرير رقبة مؤمنة ودية مسلمة الى اهله) ثم قال في الذي اسلم في دار الحرب ولم يهاجر الينا (فان كان من قوم عدو لكم وهو من مؤمن فتحرير رقبة مؤمنة) ولم يقل ودية مسلمة الى اهله ويجوز ايضا ان يكون اول الآية على الحصوصوآخرها على العموم وهو قوله تعالى (فلا جناح عليهما ان يصلحا بينهما والصلح خير) قوله بينهما صلحا في حق الازواج والصلح خير اعم من الاول

He said: An example of this is in the words of the Exalted, “And whoever kills a believer by mistake it is ordained that he should free a believing slave, and pay blood money to the deceased’s family.” [Qur’ān 4 : 92] Allah, the Exalted, then adds in the case of the deceased who had embraced Islam in enemy lands, but had not yet migrated over to us, “If the deceased belonged to a people at war with you, and he was a believer, the freeing of a believing slave (is enough).” [Qur’ān 4 : 92] Here He did not say, “and pay blood money to the deceased’s family”. (The first part of the verse was general for all, whereas the second is specific to a deceased in enemy lands). It is also possible that a verse be specific in its initial part and general in a later part. An example is the words of the Exalted, “There is no blame on them if they arrange an amicable settlement between themselves, and settlement is best.” [Qur’ān 4 : 128] The words “between themselves” are specific for the spouses, while the words “and settlement is best” are general as compared to the first.

40  The Thirtyeighth Principle

Principle 38: When two texts (traditions) being reconciled converge on a single issue and conflict, but in one of them the words can be taken in their usual (applied) meanings, this text will be preferred.

قال: من ذلك قوله صلى لله عليه وسلم المستحاضة تتوضأ لوقت كل صلاة وقوله عليه الصلاة والسلام المستحاضة تتوضأ لكل صلاة عمل اصحابنا بهما وقالو تمتد طهارتها في الوقت لان في الاول ذكر الوقت والثاني يحتمله فان الصلاة تذكر ويراد بهما وقتها قال عليه الصلاة والسلام اين ادركتني الصلاة تيممت اي وقت الصلاة وما قال الشافعي انه موقت بالصلاة فيه عمل بصريح الثاني والقى كلمة الوقت من الحديث

He said: The example of this is found in the words of the Prophet (p.b.u.h.) that “the woman with irregular menstruation has to perform ablution at the time of each prayer” and his words “the woman with irregular menstruation has to perform ablution for each prayer.” Our companions have acted upon both texts. They said that her ablution stretches over the duration of each prayer, because in the first text the word “time” is mentioned, while the second text probably includes this meaning. Prayer is sometimes mentioned when the intended meaning is the time of the prayer. This is reflected in the words of the Prophet, “Wherever prayer catches up with me I perform tayammum,” that is, the time of the prayer. Al-Shāfi‘ī said that this is restricted to the (actual performance) of the prayer as this amounts to acting according to the explicit meaning in the second. He has, however, eliminated the word “time” from the meaning.

41  The Thirtyninth Principle

Principle 39: The elaboration of meanings is linked to the first expression. If the first expression is valid (at the time of elaboration), the meaning is implemented, otherwise not.

قال: من مسائله ان الرجل اذا قال لامرأتين له وقد دخل بهما انتما طالقان ثم قال لهما وهما في العدة احداكما طالق ثلاثا فله البيان ما دامتا في العدة في ايتهما صح كما لو ابتدأ ذلك فان انقضت عدتهما فبين الثلاث في احداهما بعينها لم يصح وبقي ذلك التوفيق فانه لو ابتدأ ذلك لم يصح ولو انقضت عدة احداهما اولا بقيت الاخرى للثلاث

He said: Among its cases is that of a man saying to his two wives, when he has consummated marriages with both, “You are divorced.” He then says to them, while they are in their waiting period, “One of you is divorced thrice”. He is now under an obligation to elaborate, as long as the waiting period lasts, as to which one it is applicable; (his elaboration will be judged) as if he had made the (entire) statement for the first time. If, however, the waiting period is over and he indicates specifically the woman to whom the three repudiations applied, his statement is not valid, as the linking (of the statements) has not taken place. On the other hand, if the waiting period of one of them had ended first, the second one would remain and the three repudiations would apply to her.

1

This point will be elaborated in a separate publication.

2

This is the introductory message of the scribe.

3

The principle means that what is established definitively cannot be set aside through probable evidence.

4

He is now the plaintiff.

5

In fosterage (raḍā‘) the testimony of a single woman is not acceptable according to the Ḥanafīs; two males or a male and two females are needed. According to al-Sarakhsī, the report of a single woman is to be taken into account for moral separation between the spouses, although legally this is not required as two witnesses are not available.