The Evolution Of Fiqh by Bilal Philips

There are a few words which occur in both the Qur’aan and the Sunnah with more than one literal meanings; for example, the word Qur (plural Quroo’ or Aqraa’), which means menses as well as the time of purity between menses.

Thus, scholars of Fiqh were divided into two camps concerning the interpretation of the Qur’anic verse, “Divorced women should wait three Quroo’.”153

The particular interpretation chosen makes an important difference when considering the case of a divorced woman who has started her third menses. According to those who considered Qur’ to be the period of purity, the divorce becomes finalized as soon as her menses have started , while according to those who viewed Qur’ as the actual menses, it is not finalized until her third menses have ended.

(i) Maalik, Ash-Shaafi’ee and Ahmad ruled that Qur’ meant the period of purity.

(ii) Abu Haneefa, ruled that Qur’ meant the actual menses.154

Note:

‘Aa’eshah said, “Umm Habeebah had irregualr menses and she asked the Prophet (s.w.) about it. He told her to stop praying during the days of her Qur’s.”155 ‘Aa’eshah was also reported to have said, “I told Bareerah to observe a waiting period (‘Iddah) of three menses.”156

These narrations clearly indicate that the intended meaning of Qur’ is the menses itself.

There are also some words in the Qur’aan and the Sunnah which have both literal and figurative meanings. For example to word Lams (touch) is literally used to indicate touching by the hand or the coming in contact of two objects, and figuratively to indicate sexual intercourse. Thus, the jurists were of three different opinions concernign the meaning of the Qur’anic verse:

This verse occurs in the context of the factors which break the state of Wudoo.159

(i) Ash-Shaafi’ee and most of his students ruled that Lams meant the touch of the hand or body contact. Therefore, if a man intentionally of accidentally touche a woman or vice versa, skin, then both of them would lose their state of Wudoo.

(ii) Imaam Maalik and most of his students also ruled that Lams meant touching by the hand. However, he stupulated that Wudoo would only be broken if the touch were pleasurable, whether the touch were intended or unintended, skin on skin or otherwise. This was also the most well known position of Imaam Ahmad. They took the position that the dciding factor was the occurrence of pleasure due to the existance of accurate Hadeeths stating that the Prophet (s.w.) used to touch his wife ‘Aa’eshah’s foot in order to move it out of the way when he was making Sujood (prostration during prayer).160

(iii) Imaam Abu Haneefah ruled that Lams in the verse under consideration meant sexual intercourse and therefore, touching a woman did not break Wudoo, whether it was accompanied by a pleasurable feeling of not.161 This position was based on the previously mentioned Hadeeth of ‘Aa’eshah as well as another from her reported by the Sahaabee, ‘Urwah, that the prophet (s.w.) kissed some of his wives then left for Salaah without performing Wudoo.162

There were also certain grammatical constructions in Arabic, which were ambiguous. For example, the word elaa (to)

could simply mean “up to but not including”, as in the case of the Qur’anic verse, “And complete the fast up to (elaa) the night.”163

The fast is continued up to Maghrib (sunset), the beginning of the night, but does not include the night itself. There is no dispute about this interpretation. However, elaa also means “up to and including” as in the Qur’anic verse, “And We will drive the guilty up to (elaa) Hell like a weary herd.”164

Thus, Fiqh scholars held two opinions concerning the meaning of the following Qur’anic verse describing an aspect of the performance of Wudoo:

(i) Abu Hane4efah’s student Zufar, Ibn Daawood adhDhaahiree166 and some of Maalik’s students interpreted this verse to mean “up to but not including the elbows.”167

(ii) The four Imaams all ruled that the verse meant “up to and including the elbows.”168 This position is supported by the description found in authentic Hadeeths of the Prophet’s (s.w.) method of performing Wudoo.169