Thursday, July 13, 2006

Khallaf on inferring legal rules from Texts -- Parts 3, 4: Logical inference, necessary implication, and ranking the four methods of inference

This is the translation of continuation of detailed discussion of The First Rule.

3. Logical import of the text (دلالة النص): The meaning inferred logically from the Text is that which is understood from its spirit and logical import. Thus, if the Text implies a ruling in a particular instance based on a particular instigating factor (علة), then if there is another instance wherein the same instigating factor applies equally or more strongly, and that is understood immediately from the language without need for inference or analogy, then it is understood that the Text applies to both instances, based on this correspondence of instigating factors.

For example, Allah (swt) says with regards to parents: "do not say to them `uff' " [17:23], the instigating factor for that prohibition is prevention of inulsting and hurting one's parents. Clearly, there are worse means of hurting and insulting one's parents, such as physical abuse and verbal insults, which are thus forbidden by this Text forbidding ta'affuf. This follows since it is linguistically clear that the prohibition of such display of intolerance applies more appropriately to more severe forms of abuse and insult, and thus the unspoken is more worthy of the legal ruling of prohibition than what was mentioned.

Another example is the verse: "those who devour property of orphans unjustly devour none in their bellies but fire" [4:10]. It is understood directly from the Text that it is forbidden to devour or eat the orphans' property unjustly, and it is understood logically that it is forbidden to burn, waste or otherwise destroy the property of orphans, since all such transgressions would be equivalent to wrongfully devouring the property of one who is incapable of protecting his property. In this instance, all means of destruction of the orphan's property are equal in instigating factor to eating it, and thus the prohibition applies equally to all such forms.

... [example from Egyptian civil code]

4. Necessarily implied meaning of the Text (إقتضاء النص): What is understood as a necessary implication of the Text is any meaning that is not mentioned explicitly, but that is required for the Text to be meaningful.

An example is the Prophetic Tradition [literal translation]: "acts of my religious community ('umma) based on error, forgetfulness, or coercion have been lifted". The apparent meaning of this Hadith's language suggests that the very act based on error, forgetfulness, or coercion is itself lifted (rufi`a). This is not a correct meaning, since the act cannot be lifted once it is executed. Thus, to make the Text meaningful, we infer a missing term, indicating that the sin of such acts has been lifted [thus, the proper translation would be that "my religious community has been absolved of sins based on ..."]. Thus, "sin" is an ommitted term, but its impilcation is necessary for the Text to be meaningful.

Other examples include the verse "your mothers and daughters are forbidden for you", meaning in marriage. Similarly, the verse: "forbidden for you are dead animals, blood, and pork meat", means the prohibition of eating such objects or using them to other beneficial ends. In such instances, prohibition is not attached to the mentioned individuals and objects themselves, thus the forbidden aspect or action must be inferred for each Text according to its appropriate context.

...[more examples of necessarily implied meanings]

[Summary of first rule:]

Based on this detailed analysis of the four categories of Textual meaning, we conclude that any meaning inferred thus can be a legal proof. In this regard, (1) the most apparent meaning is the one intended by its context and understood by its phrasing, (2) the meaning based on Textual hints is necessarily attached to the phrasing, (3) the meaning inferred logically is based on the spirit and logical import of the text, and (4) the meaning derived from necessary implication is the one without which the Text cannot be meaningful.

In this regard, the immediate Textual method of inference is stronger than the Textual hints method, since the former is immediately understood and intended by the context while the latter is necessarily attached and not intended by the context. Both of those two methods are superior to logical implication, since they are both based on the Text itself and its phrasing, while the logical implication is based on the spirit of the Text and logical analysis thereof. Thus, if the meanings are in conflict, we give precedence to the immediate textual meaning over the hinted textual meaning, and both are given precedence over the logically inferred meaning.

As an example of conflict between the immediate Textual meaning and the hinted one is the Prophetic Tradition: "the shortest period of mensturation is three days, and the longest is ten". The immediate Textual meaning of this Hadith is that mensturation period cannot exceed ten days. In a different Hadith, the Prophet (p) said: "a woman spends half her life neither fasting nor praying", which hints at the possibility of mensturation extending to 15 days. However, since the first meaning is immediately inferred from the Text, and the second is only inferred from a Textual hint, the first is given precedence, thus limiting the legal period of mensturation to a maximum of ten days.

...[example from civil code]

As an example of conflict between hinted and logically inferred meanings, we consider the verse: "whoever kills a believer wrongfully should free a believing slave". This verse would imply logically that one who kills a believer intentionally should also free a believing slave, since that is a more severe crime. On the other hand, the verse: "whoever kills a believer intentionally, his punishment wll be hellfire, within which he will reside indefinitely" hints that there is no worldly punishment for this crime, since the only mentioned punishment is residing in hellfire forever. Since the two meanings are in conflict, the one inferred from Textual hint is given precedence over the one inferred logically, and hence the premeditated murderer is not required to free a slave.

Next posting will begin coverage of the second rule, iA.


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