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

And due to the Qawl of the Messenger (saw):

1 – Conflict between two texts with one of them being later (in the time of revelation) than the other:

If two texts are in conflict from every angle and it is not possible to bring them together (Al-Jam’u) (or reconcile them), in the case where they cannot both be acted upon together, whilst the later of the two texts (in terms of time of revelation) is known, then the later text would be Naasikh (abrogating) for the prior one (which would be Mansookh/abrogated).

Example:

Allah (swt) says:

And Allah Ta’Aalaa says:

The two texts therefore appear to be in conflict in respect to the Zaaniyah (fornicator). The first explains that the Hukm of the Zaaniyah is for her to be confined within the house whilst the second explains that her Hukm (legal ruling) is for her to be lashed with one hundred lashes.

In the case where the Aayah in An-Noor was revealed after the Aayah of An-Nisaa’ it means that the later Aayah of Soorah An-Noor abrogates the Hukm of the Aayah of Soorah An-Nisaa’ which is prior to it (in revelation).

2 – Conflict between two texts in the absence of knowledge in respect to which one is later than the other:

If two texts are in conflict with each other and we did not know which of them is later than the other and we are unable to bring them together (Al-Jam’u), then we have to resort to the principles of At-Tarjeeh (outweighing) between the evidences so that we outweigh the strongest Daleel. The Quwwah Ad-Daleel (strength of the evidence) means its strength in respect to taking into consideration the following matters:

A – The consideration of the (ranking) order of the Adillah Al-Ijmaaliyah as follows:

- The Qur’aan Al-Kareem is stronger than the Sunnah An-Nabawiyah and even if it was Mutwaatirah.

- The Ahaadeeth Al-Mutawaatirah are stronger than the Ijmaa’ and stronger than the Khabar Al-Aahaad.

- Al-Ijmaa’ is stronger that the transmitted by Khabar Al-Aahaad because the Naskh (abrogation) in respect to Al-Ijmaa’ is ‘Ma’moon’ (Assured) in contrast to the Nass (text).

- Khabar Al-Aahaad is stronger than the Qiyaas where the ‘Illah that it is based upon is Istinbaatiyah (deduced) or Qiyaasiyah (made upon analogy). If the ‘Illah of the Qiyaas is Saraahah (explicit) or Dalaalah (implicit), then it is dealt with in accordance to the text that the ‘Illah was mentioned within (Note: i.e. if it was from the text of the Qur’aan then it carries the weight of the Qur’aan and so on).

B – Through the consideration of the Istidlaal (deduction) of the Zhanniy Daleel which is the Khabar Al-Aahaad like the Ahaadeeth As-Saheehah. The Tarjeeh (outweighing) in respect to them is from the angle of the Sanad (chain) or from the angle of the Matn (text).

1 – Outweighing from the angle of the Sanad i.e. from the angle of the narrators (Ruwaat) of the Hadeeth. This includes, for instance, that one of the narrators at the time of hearing the Hadeeth was closer to the Nabi (saw) than the other narrator.

Example:

- Abdullah Ibn ‘Umar (ra) narrated that the Messenger of Allah (saw) performed Hajj and did not make ‘Umrah in the Hijjat ul-Wadaa’ (farewell pilgrimage), as recorded by Muslim and Ahmad.

- Suraaqah Bin Maalik said: The Messenger of Allah (saw) combined (Qarina) in the Hijjat ul-Wadaa’ (Ahmad). Which means that he (saw) performed Hajj and ‘Umrah.

The narration (Riwaayah) of Ibn ‘Umar outweighs the other narration because he mentioned that he was under the camel of the Messenger of Allah (saw). For that reason, the narration of the performance of Hajj by itself outweighs his combination of the Hajj and the ‘Umrah in the farewell pilgrimage. * That one of the narrators is from amongst the wives of the Messenger of Allah (saw) within that which is related to marital life:

Example:

The narration of ‘Aa’ishah (ra) outweighs (i.e. viewed as stronger than) the narration of Abu Hurairah (ra) in respect to the Hukm of awakening in the state of Janaabah (major ritual impurity) whilst fasting as we explained previously in the section ‘The meaning of At-Tarjeeh’.

2 – At-Tarjeeh (outweighing) between two evidences from the angle of the Matn in the case where the Matn refers to the Nass (text) of the Daleel (evidence).

Therefore, a Daleel can outweigh another Daleel in terms of the strength of the Nass (text) of the Daleel and its Dalaalah (meaning and import) in relation to the Hukm. Principles in respect to this include:

* The Daleel affirming the Hukm outweighs the Daleel negating the Hukm.

Example:

- Al-Bukhaari and Muslim related from Bilaal (ra) that the Nabi (saw) entered the Ka’bah and performed Salaah whilst Abu Dawud and Ahmad related from Usaamah Bin Zaid (ra) that he (saw) entered the Ka’bah but did not pray.

Here, the Khabar (report) of Bilaal (ra) outweighs the Khabar of Usaamah (ra) because the Khabar of Bilaal affirms the Hukm whilst the Khabar of Usaamah negates its. That is because the Daleel Al-Muthbit (affirming evidence) for the Hukm outweighs the Daleel An-Naafi (negating evidence) of the Hukm.

* That there is an addition in one of the two evidences upon the Daleel (evidence) of the other in which case the Daleel with the addition is taken.

Example:

- It was related that the Nabi (saw) made seven Takbeers in the ‘Eid Salaah (Ahmad). - It was related that the Messenger of Allah (saw) made Takbeer in the ‘Eid prayer four times (Abdur Razzaaq) – It is Mawqoof upon Ibn Mas’ood (i.e. the chain stops at him).

The first Daleel outweighs the second because the first Daleel includes an addition or increase (Ziyaadah) upon the second Daleel.

The Mujtahid resorts to this outweighing when two evidences are equal in terms of strength from the angle of the Sanad (chain) i.e. from the direction or angle of the Ruwaat (narrators). Another example:

- Ibn Mas’ood (ra) related that the Nabi (saw) said: “If one of you is forgetful in his Salaah, then he should investigate, and he should prostrate two Sajdahs” (Muslim).

- And he (saw) said: “Whoever has doubt in his Salaah then he should prostrate two Sajdahs after them and make Tasleem (i.e. say Salaam)” Abu Dawud.

The second Hadeeth outweighs the first due to the addition in the second which is the ‘Salaam’ after the two Sajdahs (prostrations).

* Where one of the evidences establishes the Tahreem (prohibition) and the other establishes the Ibaahah (permissibility) or An-Nadb (recommendation) or Al-Wujoob (obligation). In this situation the Daleel establishing the Tahreem outweighs (is stronger) and that is due to the Qawl (speech) of the Messenger of Allah (saw):

(Related by Abdur Razzaaq Maqoofan and Al-Bayhaqi classified it as Da’eef. Az-Zay’aliy the explainer of Al-Kanz mentioned that it is Marfoo’an i.e. the chain reaches the Nab (saw)).

And due to the statement of the Messenger (saw):

* That one of the two evidences establish Al-Wujoob (obligation) and the other establishes Al-Ibaahah (recommendation). The Daleel establishing the obligation outweighs the Daleel establishing Al-Ibaahah because leaving the Waajib is an ‘Ithm’ (sin) whilst leaving the Mubaah is not sinful. * That one of the two evidences negate Al-Hadd (prescribed set punishment) whilst the other Daleel affirms the Hadd. In this case the Daleel negating the Hadd outweighs the one affirming and that is due to the Qawl (speech) of the Messenger (saw):

Example:

It was narrated in Al-Muwatta’ that ‘Umar Ibn Al-Khattaab (ra) did not cut the hand of the thief in the year of the famine (or drought) even though Allah (swt) said:

* This has been discussed in full in the subject of the ‘Ijtihaadaat of the Sahaabah’ in the first part of this book.