Al-Waadih Fee Usool ul-Fiqh by Muhammad Hussein Abdullah

At-Ta’aadul and At-Tarjeeh arises from the perception of a conflict taking place amongst the evidences. In the case where the Adillah were to be in opposition with each other whilst some did not have a distinguishing feature or priority over the other, then this conflict if it arises is called “At-Ta’aadul” and this is contrary to the legislative reality. If some of the evidences do have a distinguishing feature over other evidences, then the conflict in this case is called “At-Tarjeeh” and that is because the distinguishing factor (Al-Meezah) in one of the two evidences gives it strength over the other Daleel, in order to work with it. This Tarjeeh has taken place amongst the Zhanniy (indefinite) Shar’iyah texts.

The meaning of At-Ta’aadul:

At -Ta’aadul is when two evidences are in conflict with each other in respect to a Hukm of a Mas’alah whilst there does not exist a distinguishing factor of one of them over the other (i.e. to be able to differentiate and outweigh one over the other).

At-Ta’aadul does not happen within the Tashree’ (legislation) in the case where two evidences are equal in all circumstances, conditions and situations. That has not happened except in the case of An-Naskh (abrogation) and An-Naskh is not the same as At-Ta’aadul because it refers to the abrogation and nullification of the Hukm taken from a previous text with a new text, in the case where the Shar’iy requirement is to work with and take the latter text.

Consequently, the Ta’aadul (equivalence) of two Qat’iy evidences or two Zhanniy evidences is not a reality that takes place amongst the evidences. The Daleel for that is:

1 – If there was Ta’aadul in two definite (Qat’iy) evidences, then that would indicate the existence of certain knowledge (‘Ilm Yaqeeniy) in respect to a certain matter and the existence of another (different) certain knowledge within the same matter (at the same time). It is impossible to join and bring together a matter and its opposite at the same time and in the same situation, condition and place as each other. So for example, it could not be imagined that there would be a Daleel that comes establishing the existence of the Malaa’ikah (angels) and another evidence that denies their existence. This is something that the intellect and mind cannot accept (i.e. it is completely irrational) and is not established by the Shar’a. 2 – If At-Ta’aadul (equivalence) took place between two Zhanniy (indefinite) evidences from all angles or aspects. If the Mujtahid was to work with both of them, it would necessitate bringing together two evidences that negate one another, and if he was not to work with one of the two evidences then that would mean that the evidence came in the Shar’a without purpose or any point which is an impossible matter in respect to Allah Ta’Aalaa. In addition, if he was to work with one at the expense of the other without the existence of a Murajjih (something to outweigh one over the other) then his action would be representative of making the Deen based on desires which is not allowed in accordance to the Shar’a. Consequently, Ta’aadul does not exist between the evidences at all under any circumstances (Mutlaqan). As for that which appears to be in conflict and appears to be Ta’aadul between the evidences initially, where the Mujtahid discovers a way to bring the two evidences together or outweigh one over the other, then this represents a reality within the Islamic legislation. It is not denied because its conclusion is the non-existence of At-Ta’aadul. The following are examples of this reality:

Allah (swt) said:

And He Ta’Aalaa said:

- The two evidences are Qat’iy Ath-Thuboot and Qat’iy Ad-Dalaalah (definite in transmission and meaning).

- The first Aayah indicates that every woman whose husband passes away has a waiting period (‘Iddah) of four months and ten days, whether she was pregnant or not pregnant.

- The second Aayah indicates that the waiting period of every pregnant woman lasts until she gives birth, whether her husband died or she was divorced.

The apparent conflict between the two evidences is:

- For the one whose husband has died whilst she is pregnant the first text dictates that her waiting period (‘Iddah) is four months and ten days. That is because the Alfaazh (wordings) of the text are ‘Aammah (general), encompassing the pregnant and non-pregnant.

- For the one whose husband has died whilst she is pregnant the second text dictates that her waiting period (‘Iddah) is until she gives birth and that period of time could be as little as a single week or even less which means that her ‘Iddah (waiting period or mourning) could well be less than the four months and ten days (mentioned in the first Aayah).

Consequently, the Hukm of Al-‘Iddah in the first text conflicts with its Hukm in the second text in relation to the pregnant woman whose husband has died. Is her waiting period four months and ten days or until she has given birth?

- The conflict in these two Qat’iy (definite) texts is an apparent conflict (i.e. seems to be conflicting) and that is because as we have explained, there is no real conflict between two Qat’iy or two Zhanniy evidences of the same strength. It is therefore possible to remove this apparent conflict between the two texts by way of Al-Jam’u (bringing them together), At-Tawfeeq (reconciling) between them and by the Mukallaf working with or acting by them both.

- From amongst the paths of bringing together (Al-Jam’u) and reconciling (At-Tawfeeq) between the two texts discussed above is that the ‘Iddah (waiting period) of the pregnant woman whose husband has died be in accordance to the furthest of the two times. So if she was to give birth before the passing of the four months and ten days following the death of her husband, she would continue to wait until the four months and ten days had been completed. If, on the other hand, the four months and ten days passes before she gives birth, she would wait until she gives birth for her ‘Iddah to be completed. In this way what is included within both texts has been worked and acted in accordance with, whilst the conflict which was imagined to exist between them has been removed.

- It has been related that the Messenger of Allah (saw) did not accept the gift of one of the disbelievers after asking him if he had embraced Islaam. He said: No. So he (saw) said:

(Ahmad, Abu Dawud and At-Tirmidhi who classified it as Saheeh)

- The Messenger of Allah (saw) accepted the gift of the Najaashiy (ruler of Abyssinia), Akeedar Douma and Al-Muqawqis (ruler of Egypt) and this was supported by the statement of ‘Aa’ishah (ra): “The Messenger (saw) used to accept the gift and place reward upon it” (Ahmad, Al-Bukhaari, Abu Dawud and At-Tirmidhi.

- The two Hadeeth are Zhanniy and have come in respect to one Mas’alah, which is the acceptance of the gift of the disbeliever.

- The first Hadeeth indicates to the forbiddance of accepting the gift of the disbelievers.

- The second Hadeeth indicates the acceptance of the gift of the disbelievers like that of the ruler of Egypt Al-Muqawqis. In order to bring these two Hadeeth together (Al-Jam’u) we say:

The acceptance of the gift from the disbeliever is Mubaah apart from the one in whom you seek or desire to embrace Islaam, in which case it is Makrooh. That is because the Nahi (forbiddance) to accept the gift of the Mushrikeen is a non-decisive Nahi as it is not connected to a Qareenah indicating Al-Jazm (decisiveness). Its Hukm is therefore Makrooh and not Haraam. Consequently, it is permitted to accept the gift of the Kaafir (disbeliever) and its acceptance is in working with the two evidences, because both the Makrooh and the Mubaah are permitted to do and punishment is not built upon them (as a consequence).

The Zhanniy (indefinite) conflicting with the Qat’iy (definite) can possibly happen. This means that it is possible for a Qat’iy text to be mentioned negating a command and a Zhanniy text to have been mentioned that affirms the command. In such a circumstance the Qat’iy text is taken because it has a distinguishing element that makes it stronger than the Zhanniy text. At that time the Zhanniy text is rejected in its Diraayah where the Diraayah refers to the understanding and the knowledge (Al-Fahm and Al-‘Ilm). That means that it is rejected because the ‘Ilm (knowledge) present within the Qat’iy text is Yaqeeniy (certain) whilst the ‘Ilm (knowledge) within the Zhanniy text is not Yaqeeniy (certain) but rather it is “Zhanniy” and the Yaqeen outweighs the Zhann.

Example:

Allah (swt) said:

And the Messenger of Allah (saw) said:

(Al-Hakeem, At-Tirmidhi, At-Tabaraani and Abu Na’em from Mu’aadh Ibn Jabal)

The Qat’iy Daleel (the Aayah) indicates that Allah will not punish on the Day of Judgement the one whom a message from Allah via the Messengers did not reach.

The Zhanniy Daleel (the Khabar Al-Aahaad Hadeeth) indicates that Allah punishes the one who perished from amongst the people of Al-Fatrah. The people of Al-Fatrah are those people who are found in the period (or age) occurring between the loss of a message and the coming of another message, and who were not reached by a Risaalah (message). There are in addition other Saheeh Ahaadeeth indicating that they will be punished on the Day of Judgment upon the basis of their Kufr (disbelief) and that their non-Mukallaf sons are alongside them in the fire.

This therefore presents a conflict between the Aayah which is a Daleel Qat’iy and the Prophetic Ahaadeeth which are representative of a Zhanniy Daleel. The scholars of Usool have placed down and set a principle for a conflict such as this: ‘If the Qat’iy and Zhanniy are in conflict with each other in respect to the Hukm of a Mas’alah (issue), the Daleel Al-Qat’iy is taken and the Daleel Azh-Zhanniy is rejected in its Diraayah’.

Therefore, the verdict in relation to those whom a message from Allah did not reach, is that they are not punished on the Day of Judgement and that is because Allah (swt) said:

The Zhanniy Daleel (the Hadeeth) is rejected in its Diraayah which means that it is rejected from the angle of its Dalaalah (meaning/import) in respect to the Hukm and not from the angle of its Riwaayah (report and transmission) because it is a Saheeh Hadeeth in respect to its Riwaayah.