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

The Khafiy is the Lafzh (wording) which its Dalaalah (implication/indication) upon its meaning is Zhaahir (apparent)

except that there is obscurity and lack of clarity in respect to the application of its meanings to some of its Afraad (individual matters falling within it). These then require some examination and deliberation in order to remove the obscurity and lack of clarity.

The removal of the obscurity or lack of clarity would be undertaken by Ijtihaad in analysing the reality that the text is intended to be applied upon.

This Ijtihaad requires the Tahqeeq Al-Manaat (ascertaining of the reality) i.e. studying the reality that the Nass (text) is intended to be applied upon in a precise manner, in order to know whether it is encompassed within the text or not.

Example:

Allah (swt) said:

In respect to the Lafzh ‘As-Saariq’ (thief), its meaning is clear whilst As-Saraqah (theft) in accordance to the Shar’a is: ‘The taking of a movable property of a (certain) value owned by someone else covertly from a normal place of safekeeping (Hirz)’.

And the Hirz is the place that property is normally put and kept safe in.

However, the Fuqahaa’ differed in respect to the application of this meaning upon different forms of theft which have been given different (specific) names like An-Nashl (pickpocketing) for instance which is the taking of property quickly and in a highly covert manner from the people’s pockets.

So is the Nash’shaal (pickpocket) a Saariq (thief)? Ijtihaad is therefore required to know whether the Saraqah (theft) applies to An-Nashl (pickpocketing). If it does apply, then the Hukm of Saraqah (thievery) would apply and the hand of the pickpocket would be cut if the Arkaan (pillars) of the crime of theft are met. Consequently, some of the Fuqahaa considered the pickpocket to be a Saariq (thief) and deserving of the cutting whilst others did not consider him to be so and as such a Ta’zeer (discretionary) punishment would be applied upon him as determined by the Qaadiy (judge) or the Imaam (ruler) would. They also differed in respect to the Nabbaash (grave robber) who is the one who robs the graves to take the shrouds or what is upon the dead. Is such a person a Saariq (thief) or not? Consequently, the Lafzh (wording) ‘Saariq’ is Zhaahir (apparent) in relation to the obligation of amputating the hand in regards to every Saariq. This is whilst it is, at the same time, Khafiy (unclear) in regards to the pickpocket and the grave robber because they have been specified with a name that is different to the thief within the ‘Urf (custom/tradition) of the people of the language. That is because specifying the pickpocket with another name has been done for the purpose of providing additional meaning to the Saraqah (theft). That is because he is stealing from the one who is alert and not upon the angle of hiddenness (Wajh Al-Khafiyah). In addition, the specifying of the name of the ‘Nabbaash’ (grave robber) is due to a decrease in respect to the meaning of the theft (Saraqah) because he is stealing from the dead who is not intending to safeguard or preserve his property. Consequently, all of this is Khafiy (unclear) in regards to the Lafzh (worded expression) of the ‘Saariq’ (thief). For that reason, Ijtihaad is required in order to apply the Hukm of the Saariq (thief) upon both the pickpocket and the grave robber.

The correct view, as a I see it, in this issue, is that ‘Saraqah’ (theft) has a meaning in the language. The text has come to be applied upon this meaning that has a defined and known reality whilst this meaning is not applied upon the Nash’shaal and the Nabbaash (pickpocket and grave robber) because they are not Saariqs. They are therefore punished with a Ta’zeer (discretionary punishment) that the ruler or judge sees fitting, in the case where the punishment acts as a deterrent.

1 – The Nass (text) does not apply to the Afraad (individual matters) in which there is doubt in respect to them entering within its general indicated meaning (Al-Madlool Al-‘Aamm).

2 – It is applied upon the Afraad which the Ijtihaad has shown the realisation of the meaning of the Lafzh (wording) within them and in that case the Hukm is applied upon them.

3 – The Fuqahaa could agree and they could disagree in respect to the result of their Ijtihaadaat and so some of them apply the text to the Afraad (individual elements) whilst others do not apply it upon the same Afraad, just as what happened in regards to the subject of the pickpocket and the grave robber. That is because some of the Fuqahaa applied the Hukm of Saraqah (theft) to both, others took them both outside of the meaning of the text whilst others still applied it upon the pickpocket but not the grave robber.