Hatem al-Haj – QWD019 Coherence of Sharia – Subsidiary Maxims Under Maxim 1
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The speakers discuss various topics related to the concept of explicit and implicit divorce, including words used to describe emotions and behavior, issues related to disputes and accusations of fraud, and the use of words like "has been" and "has been." They stress the importance of proper context and caution for marriage, while also discussing the use of language in communication and the importance of establishing formal language and contracts. They stress the need for establishing formal language and agreements in order to use it in spoken forms and discuss the use of hadoots as a means of honor. They also discuss the importance of intent and the need for guidelines and regulations to identify intent.
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Bismillahir Rahmanir Rahim.
To proceed.
So, in sha Allah, we will try to
cover the rest of what we started last
time.
We're at Dalalat al-Akhwal, the interpretation of
statements changes based on the context in which
they are made.
the interpretation of statements changes based on the
context in which they are made.
What does dalalah mean?
Indication.
What is al-ahwal?
Conditions.
Circumstances.
Conditions.
Taftalif differs.
Biha with it.
Dalalah indication.
Aqwal statements.
So when you want to translate this, you
will say that the interpretation of statements changes
based on the context in which they are
made.
So, I started by mentioning وَإِن كَانَ قَمِيسُهُ
قُدَّ مِن دُّبُرِ وَكَذَبَتْهُ هُمْنَ الصَّدِقِينَ So, which
translates to and if his shirt is torn
from the back, then she lied and he
is among the truthful.
Why are we starting by this?
Because this is one of the best evidences
the scholars that talk about Quran and the
utility of Quran in the Islamic judiciary.
What is Quran?
Quran is basically an evidence short of the
bayyinah.
So if you have different types of evidences
in Islam, we have bayyinah and we have
Quran.
Bayyinah is the evidence that is clearly legally
admissible evidence in Islamic court.
It meets the evidentiary standard in Islamic court.
What is a type of bayyinah in the
Islamic court that we're all familiar with?
The testimony of two trustworthy men.
One woman, two women.
One man, two women in certain cases.
So, this is called the bayyinah.
Qarinah is basically like an evidence that is
not in the same strength as bayyinah.
Circumstantial.
It is you know, the best translation would
be what for Qarinah?
You have to explain it.
You have to explain it.
It's an indication, something that indicates, you know,
the truth or otherwise of a particular assertion
but it is not a bayyinah in the
sense that it is not completely legally admissible.
Now, do we ignore al-Qarin completely or
we use them to come to a point
of ghalabat al-dhan or the predominant assumption,
predominant assumption ghalabat al-dhan, predominant assumption or
a point of probability that we would comfortable
acting on.
So, we are not going to always act
on certainty but there will be a point
of probability that would be comfortable acting on.
This is called ghalabat al-dhan, the predominant
assumption.
Will we use qara'in?
In this case, this is a long discussion.
It comes to admissible evidence in Islamic courts
and the different evidentiary standards but the position
that I believe in is that qara'in
should be used otherwise we will do away
with all forensic investigation most forensic investigations completely
and will have no utility in the Islamic
courts and that will be detrimental to the
cause of justice.
But this is not a popular position by
the way.
The admissibility of qara'in is not a
popular position.
The position of Imam Ibn Taymiyyah, Imam Ibn
al-Qayyim, Imam Ibn al-Gharsi from al
-Hanafiyyah, Imam Ibn al-Farhoun from al-Malikiyyah
but it is not a very popular position.
Although in all the mazahib they do use
in practice the qara'in to some extent
but at least theoretically speaking there is a
lot of disputation in this regard and you
may say that the majority with this regard
of qara'in they would only use al
-bayyinat that are traceable to the prophet and
the companions so tawqifi sort of approach to
the issue of bayyinat what would be an
admissible evidence in the Islamic court.
Anyway, we're branching off.
Come back.
We're saying that sometimes you have qara'in,
you have indications you have indication, qareena is
like dalalah, but qareena shows that it is
not that strong of an indication.
It is probable, possible probable indication.
But if you have 1, 2, 3, 4,
5, 6, 7 qara'in together, they can
actually be stronger than sometimes al-bayyinat.
Okay, so we're saying that the indication of
circumstances and conditions would have an impact on
the indication of statements and we have two
statements.
We have a statement from Yusuf alayhi salam
and we have a statement from the wife
of al-Aziz.
She said he basically pursued me.
He said she pursued me.
Then two statements.
We found a qareena.
The Quran tells us that this matter was
adjudicated or settled by this qareena.
His shirt was torn from the back.
So apparently she was pursuing him and she
pulled him from the back.
If his shirt was torn from the front,
then he was assaulting her and she tore
his shirt from the front.
So, you know, this particular ayah clearly shows
the use of qara'in because that particular,
you know, that particular indication or dalalah, is
it a bayyinah that is basically unestablished?
No, it's not.
It's not like the two witnesses.
It's just the qareena that gives you an
indication which the indication doesn't always have to
be true.
But also the bayyinah does not always have
to be true even if you have two
trustworthy witnesses.
The two trustworthy witnesses could be themselves confused
or they may be lying.
They're trustworthy.
How do we say that someone is trustworthy?
We've not basically experienced lies from him before
and, you know, trustworthy seems to be fine.
But are these things guaranteed?
Of course not.
You know, could be extremely trustworthy externally and
in reality not trustworthy at all.
Okay, so the 151st Maqsim of Ibn Rajabiyyah
Maqsim or Qawa'id Ibn Rajab In the
151st Maqsim Ibn Rajab says The
meaning of speech can be altered by the
surrounding circumstances which affect whether a claim is
accepted or rejected and rulings may be based
solely solely on contextual indications.
Contextual indications is basically my translation for that
statement.
So the contextual indications here will be important
not only in the court but we're talking
primarily here about the court but not only
in the court, in the fatawa, in many
other domains contextual indications will be important.
So what are ahwal, you know, what ahwal
are we talking about?
Seriousness, jest, joy, sadness, anger, contentment, etc.
These are ahwal.
These are conditions.
What was your condition when you said that?
You know, and that's the, basically gives you,
puts things in context because you have content
and context.
When you zero in on the content and
you ignore the context, you will be most
of the time wrong.
You can't zero in on the content and
ignore the context.
Context will always be important.
In all matters, context is important.
Context defines the content in all matters.
Even when you talk about, you know, ah,
companies, you know, you talk about a company,
the work that you do in a company,
the context, the responsibility of leadership, the leadership
of the company, is to provide the context
in which all the content takes place.
All the projects.
There has to be an overall context.
They're, you know, the leaders are custodians of
the vision.
And they are responsible for providing the context
in which everything happens.
Context is always important.
So, um, I say here that the reason
for including this particular maxim, and another maxim,
which is ...
...
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Which major qaeda are we talking about now?
A day, now weeks, now months?
...
These are judged by their intentions.
So why are we using this and dalalat
al-ahwal?
Because, because, conditions and motives or causes are
some of your best indications on the intent.
So the condition and the motive or the
cause, the cause of this statement, what triggered
the statement, what prompted the statement is important.
And the condition of the person making the
statement is important.
These are two important factors in discovering the
intent.
Why?
Because the intent is very hard to discover.
We're talking about intent.
Do we have like a sort of an
intent to scope?
We don't.
And that is why we have to use
whatever that's available for us to discover people's
intents.
Okay.
So Nirajab here mentions several applications of this
maxim.
One of the applications is divorce through implicit
expressions.
Divorce through implicit expressions.
So we know that...
is explicit divorce.
Is implicit divorce.
Right?
So there are certain wordings for explicit divorce.
You know, the Madhhab would disagree which words
are explicit.
But anyway, so within the framework of particular
Madhhab, they have certain list of words.
This is explicit divorce.
These words would not be explicit divorce.
Go back to your father's home.
It's not an explicit divorce.
That's, of course, it's not explicit.
Now, go back to your father's home combined
with an intention to divorce is what?
Divorce.
You are divorced.
Is it contingent on intention?
No, it's not.
It's not, you know, clearly.
So what if you say, what if you
say one of the kinayat of the divorce,
one of the implicit expressions of divorce, in
a state of disputation and anger, we will
call this divorce.
We'll call this divorce.
If you say a word that is, you
know, implicit in a state of anger, we
will call this divorce.
Indirect expressions of slander.
Indirect expressions of slander.
Is that like, you know, you know, slander
that I'm talking about.
I'm talking about cuts.
I'm talking about accusation of adultery and fornication.
So indirect statements, people are clever.
They can make a statement that would not
be explicit.
Just, you know, to not be charged.
So people will be clever and making those
accusations.
So but if you make them in a
state of anger, argumentation, we count them as
explicit.
We count them as explicit.
Or we counted, you know, some said we
counted as explicit.
Some said it is slander.
You know, it's implicit, but we will basically
punish you for cuts or accusations of fornication
or adultery.
Disbelief under duress.
So someone was caught by the enemies and
said words of disbelief.
So is the fact that they are asra,
they're captives, is that condition, their captivity, an
indication that would basically clear them of disbelief?
Yes, of course.
The same applies to a prisoner given confessions,
confessions.
And we mentioned this, you know, and this
is amazing.
This is amazing.
The sharia is amazing because we've talked about
these details for, you know, hundreds of years.
So a prisoner giving confessions or admissions in
prison, particularly if torture is involved, will be
thrown away and not considered at all by
the court because they can text here, you
know, shows that this is likely untrue.
Mocking or quoting the testimony of faith also.
So when someone says la ilaha illallah, to
quote it or to mock it, and then
he says, I did not embrace Islam, I
mean, I'm not Muslim.
Should we believe this?
It depends on, we will not believe it
if the condition does not allow us to
believe it.
Like if someone is sitting in the masjid
with the imam after salatul isha and, you
know, and then says la ilaha illallah and
everybody says takbir and then he comes and
says, I was just quoting the statement.
No, please, this is not, you know, the,
anyway, they had this discussion before for different
reasons.
Also, disputes between spouses over household items.
So spouses are separating and everybody is claiming
certain household items.
How do we judge here?
What is customarily for, you know, the man's
would go to the man and what's their
customarily, you know, things that women use will
go to her and things that are, you
know, for men will go to the man.
Disputes between artisans over tools.
Every artisan gets the tools that belong to
their profession.
And then implausible claims.
Implausible claims, and this is, you know, adam
sama'a da'wa.
This is a legal term called adam sama
'a da'wa.
And this term has its roots in our
fiqh, particularly in the Hanafi and Hanbali madhhabs.
As far as I am aware, you know,
I haven't really, I'm not really sure about
the Maliki and Shafi'i madhhabs here, but
in the Hanafi and Hanbali madhhabs, there is
this concept of adam sama'a da'wa.
You don't even listen to the charges, because
they are so ridiculous.
Like you're not going to be basically entertain
the allegations because they are ridiculous.
So someone says that the khalifa came and
got a bundle of vegetables from me and
didn't pay.
Well, probably the khalifa will not, you know,
venture out of their palace to buy vegetables
from you, and likely they don't have a
reason to deny payment and stuff like that.
So if someone makes a claim of that
nature, we will basically not give them the
time.
Otherwise, if the court, the court can be
overwhelmed by the amount of ridiculous allegations people
make.
So condition here, you know, so this is
the khalifa.
You know, what you're saying, you're making an
allegation here, we're not going to really spend
time entertaining this, because it doesn't make sense
within the larger context of things.
So based on this maxim, the Imam Abu
'l-Abbas argued, so Abu'l-Abbas is
another way to say taqiyyid din, another way
to say ibn Taymiyyah, the grandson, because that's
his kunya.
So Imam Abu'l-Abbas argued that marriage
can be valid even without specific wording.
So listen to this, what Imam Taqiyyid din
said.
He said, it's well known that the contextual
indications of marriage are recognized, such as people
gathering for that purpose and discussing it openly.
If after such a gathering, someone says, like
we're having a big gathering, you know, family
members from both sides are here to celebrate,
we have the cake, we have all the
stuff, you know, we have dinner for everybody,
etc.
And then after all of this, if someone
says, I have given her to you for
1000 dirhams, they used to say that, you
know, you know, I have given her to
you, they do not necessarily in marriage for
1000 dirhams.
Probably people will not be saying this, this
way nowadays.
But that is an expression they used.
The father would say, the 1000 dirhams is
the mahr, which is the wedding gift.
So they would have to designate, they would
designate the mahr in the statement, you know,
they don't have to say it, but they
will just say, I've given her to you
for 1000 dirhams, without saying in marriage, is
that enough?
So at the moment, okay, Dean said, given
all, yes, it is enough.
You know, you have people here celebrating, it
cannot be understood otherwise, within that context, within
that context.
This is not the dominant position in the
madhhab.
So please try to be sort of careful
when you do this, so that your marriage
is basically valid according to the agreement.
There is no reason for us, he was
not saying this for you to go out
and do this.
He was saying this for post-mortem.
Someone had done this, they're married, should we
basically question this marriage?
So, but if you're going to get married,
just do it right.
And do the proper ijab and qabool in
the madhhab.
The ijab has to come before the qabool.
So I have given my daughter, so and
so, to you in marriage.
You don't have to say for how much
or the mahr, you could have agreed on
the mahr already, but I have given to
you.
Or in, you know, in the Hanafi madhhab,
she can say, you know, I have given
myself to you in marriage.
And that would be valid in the Hanafi
madhhab.
There is a riwayah in the Hanbali madhhab,
by the way, that if she does this
with the permission of the wale, it is
valid.
But that is not the dominant one.
Can a woman marry herself off?
So in the Hanbali madhhab, no.
In the Hanafi madhhab, yes.
But in the Hanbali madhhab, they entertain the
possibility of the wale being okay with it,
the wale giving permission.
And then she goes and marries herself off
with the permission of the wale.
Is that valid?
In one report in the Hanbali madhhab, it
is valid.
In the dominant report, no, it is not
valid.
She still needs the wale to give her
a marriage or to marry her off to
the suitor or to the future husband.
So but in the Hanafi madhhab, it is
okay.
So in order for you to do it
right, why don't you do it?
Why don't you make it valid according to
the agreement by having your wale say to
the suitor, I have given her to you
in marriage.
And then the suitor will say, I accept.
And that is the ijab al-qabool.
If this happens in front of two trustworthy
male witnesses, who have not been asked to
keep it secret, who have not been asked
to keep it secret, this is a valid
marriage according to all.
So try to do it right, so that
it's valid according to the ijab al-qabool.
So hopefully this maxim is now clear.
Conditions, circumstances, your state of anger, contentment, you
know, disputation, argumentation, grief, sorrow, joy, your condition
will affect our interpretation of your statements.
If you say to your wife, qinayat al
-talaq, or an implicit word of talaq in
a state of anger, this is going to
be different from saying it while you are
having breakfast together, you know, happily.
So we will have to figure out how
to interpret the statement within that context versus
that context.
Okay.
Now, the next qa'ida is al-kitab
kal-khitab wal-isharat al-ma'hudah lil
-akhras kal-bayan bil-lisan.
These are two qawa'id.
Al-kitab kal-khitab is one qa'ida.
Written communication is treated like verbal communication, and
the established gestures of a mute person are
considered equivalent to verbal expression.
Al-kitab kal-khitab wal-isharat
al-ma'hudah min al-akhras kal-bayan
bil-lisan, right?
Kal-bayan bil-lisan.
Al-kitab is, you know, how do you
translate al-kitab?
Written communication.
So, like, al-kitab is a book, but
here it means written communication.
Kal-khitab, like al-khitab, verbal expression, verbal
communication.
So, written communication is like verbal communication, or
like speech.
Okay.
These expressions are the expressions of majallat al
-ahkam al-'adliyyah.
Remember last time we were talking about this
is the Shafi'i expression, but it is
in agreement with our madhhab.
This is the Hanafi expression.
Majallat al-ahkam al-'adliyyah is based on the
Hanafi madhhab, but this is in agreement with
other madhhab, so that's fine.
To borrow expressions from one another is completely
fine, if the expression is in agreement.
Okay.
So, these two rulings, so al-kitab kal
-khitab and this al-isharah, al-isharah al
-ma'hudah min al-akhras, translated this as
established gestures.
Established.
Established versus non-established.
So, it has to be ma'hudah.
It has to be established, customary.
You know, people recognize this as an indication
of that.
People customarily who understand the isharat or the
gestures of the person will understand.
People who understand American Sign Language.
Someone speaking American Sign Language.
Ma'hudah or not ma'hudah.
Established or non-established.
Established.
And in this case, it would be, it
would count like verbal expression, like verbal expressions.
Okay.
Some of the scholars will put these as,
some of the scholars will put these under
which qa'ida?
Al-'adha muhakkama.
Custom is authoritative.
Custom is authoritative.
Al-'adha muhakkama.
Do they belong to that qa'ida?
Can they be subsidiary maxims of al-'adha muhakkama?
Yes, of course.
However, many maxims, many subsidiary maxims can fall
under different qa'id, different sort of qa
'id kulliyah, you know.
So, in this case, do they belong there
more or do they belong here more?
I have to choose.
Put them here under this one in the
book or to put them under the other
one.
I felt that they belong here more because
they are referring to what?
The importance of intent.
It's all about intent.
Whether you express your intent in writing or
you express your intent in speech, it's, what
matters is your intent.
Whether you express your intent in gestures, writing,
speech, all the same.
As long as we're able to clearly judge
or discover the intent.
As long as we're able to clearly do
it.
So, we will have guidelines, you know, and
in certain scenarios, we'll have istithna'at.
Istithna'at, exceptions, because these qa'id are
aghlabiyyah or kulliyah.
Aghlabiyyah, which kulliyah means universal, aghlabiyyah means predominant.
No, they are kulliyah, they are universal.
I'm sorry, I phrased it like I framed
it in a way that would make you
say what you said.
They are kulliyah, they are universal, but they
will always have exceptions.
Why?
Because of the overlap of qa'id, because
you, you know, here is the problem, you
know, most of the disagreements that happen between
us is because of the complexity of judgment.
When you judge anything, there are multiple concerns,
multiple considerations.
Some people ignore some of the concerns and
considerations.
Some people are unable to see some of
the concerns and considerations.
Some people ignore them.
Some people prioritize some over the other, and
that prioritization could be sometimes misguided when they
prioritize a certain value over another value.
That's generally why we disagree, not because some
of us are ethical and some of us
are unethical.
Sometimes that can be true, but most of
the time, because we are disagreeing over, basically,
sometimes it's knowledge and your scope varies.
Basically, your visual field is dependent on your
knowledge and your consideration of different concerns in
judging a particular issue, in judging a particular
issue.
It will vary depending on your ability
to see all the concerns and your prioritization
within that framework or within the particular context.
Which value are you valuing more?
Do you value justice over, you know, caution?
Or do you value caution over justice?
Whatever it is that you will value in
different contexts.
So, okay.
We ranched off.
Where were we?
Okay.
Let's go back.
Some of the scholars, you know, I talked
about this.
Okay.
So, these will also fall under al-aqood
tasah bi kulli madal ala maqsoodiha min qawlin
aw fa'al.
This qa'ida actually brings in all of
the above.
So, al-kitab ka al-khitab.
Written communication is like verbal communication.
Al-ijara al-ma'muda min al-akhras ka
al-bayan bil-lisan.
You know, clear gestures, established gestures of a
mute person are like verbal expression.
What are they saying?
They're saying that we have three different ways.
Verbal expression.
We have written expression and have gestures.
Can people use any other way to express
themselves or express their intent?
No.
No other way.
Other than these.
There is none.
That's it.
People cannot express their intent by anything other
than this.
What?
AI?
What is?
What's iPhone for?
Huh?
The cell phone?
How are you using it to express yourself?
You're using AI to do it.
All right.
But gestures don't have to be sign language.
Keep in mind when you place a signpost
in the land to indicate the borders of
your territory or property, is that communicating something?
Yes, communicating.
What does it fall under?
Gestures.
So, it will have to fall under one
of these three.
So, when an Imam Taqayyid says, contracts are
valid by whatever indicates their purpose, whether by
word or action.
Does that bring under it verbal, written gesture?
Anything that indicates the intent, the contract will
be valid by anything that indicates the intent.
However, in order for us to use this,
whatever indicates the intent has to be established.
It has to be clear and established.
Right?
Okay.
So, this is a usual expression in Arabic.
Which means what?
The pen is one of the two tongues.
That's the literal translation.
The pen is one of the two tongues.
Huh?
No, no.
It's just, yeah, it's just a statement.
The pen is one of the two tongues.
So, the Messenger of Allah was commanded to
deliver that which has been revealed to him
from his Lord.
How did he deliver it?
By speech and writing.
Did he not write to the kings and,
you know, he wrote.
He also wrote to his agents and officials
and governors and, you know, zakat collectors and
all of that stuff.
So, he communicated.
Keep in mind that he also communicated in
gesture.
When he said, the month is like this
or like this, indicating, you know, 29 or
30 days, by the hand gestures, that is
communication.
Is this considered balaag from him?
Valid balaag from him?
Of course.
Valid balaag from him.
So, valid balaag from him happened by verbal
expression, by written expression, and by gestures as
well.
Okay.
And Ibn Najjar here says, the basis of
written communications in the Qur'an is the
Qur'an.
So, he mentions from the Qur'an.
So, I have been delivered a noble letter.
And he says, the Prophet also corresponded with
kings and governors and so on.
And the ummah has agreed on accepting letters
from one judge to another, because necessity dictates
it.
Necessity dictates it.
Did this happen during the time of the
Prophet ﷺ?
No.
But necessity dictates it.
This is important.
So, we will always be negotiating with circumstances,
the conditions.
We will not be, you know, in isolation
from the context.
When the Islamic, you know, when the Muslim
state becomes much larger, you know, and then
we will have to take things in consideration.
When Umar who said that the people responsible
for the blood money will not be the
asaba anymore, they will be the people registered,
you know, people in the same registry.
He had a reason to say this.
And the reason was the prompt establishment of
justice and compensation for the victims of the
family.
If people are moving around, I'm not going
to go back to Yemen to bring the
compensation, you know, to bring the day from
the family of this person, like Shauba ibn
al-Hajjaj.
We'll come to talk about Shauba later when
we talk about hadith.
So, he's living in Basra.
I'm not going to go back to Yemen
to collect his day.
The people in Basra will have to figure
it out among themselves.
People in the same registry will have to
figure it out.
So, necessity dictates it.
By the way, the Shafis and Hanbalis did
not take that position from Umar like Hanafis
and Malikis did.
Just to tell you that this is still
controversial.
We still can have disagreement over things without
accusing each other of different accusations.
So, then he says, Umar has agreed because
necessity dictates it.
And then he justifies it with a reason.
He says that if something can happen in
a certain place and you will need to
basically press charges in another place, these two
judges, if one judge has the witnesses, the
witnesses are here, the charges need to be
pressed here, the witnesses cannot travel, you can't
ask the witnesses to travel, it would be
impractical or not feasible to ask the witnesses
to travel.
So, this judge will take the testimony of
the witnesses and write to that judge and
so on and so forth.
So, they have to communicate through writing.
So, that is the concept of Kitab al
-Qadi or the letters of judges.
Some people have written, you know, master's degrees
and maybe PhDs on the communication between the
judges.
Al-Buhuti says, Uh, if a man writes
an explicit statement of divorce in a clear
manner, it takes effect even if he doesn't
intend it.
Even if he doesn't intend it.
Because writing is explicit in divorce.
And then he eventually will say, his writing
serves as a substitute for the verbal declaration.
Writing serves as a substitute for the verbal
declaration.
So, writing is explicit in divorce.
Is that really, you know, the Hanbali position?
That when you write you're divorced, this is
explicit, not kinaya?
It's a matter of disagreement.
It seems that al-Mutakhirin had chosen that
position.
But it was a very strong disagreement before
them.
And many of the mutawassitin chose that writing
is not explicit.
Writing is one of the kinayat of meaning
what?
Implicit expressions of divorce.
What is the difference?
If you write without intending divorce, if you
write without intending divorce, it doesn't count if
it is implicit.
If we consider it implicit, we will wait
for your intention to determine if this is
valid or not valid divorce.
If we consider writing explicit, we will not
wait for your intention.
It will be a valid divorce regardless of
your intention.
However, even al-Mutakhirin will come back and
say alternative explanations or interpretations will be accepted.
Alternative explanations will be accepted.
So if you write and you say I
did not intend by this except to improve
my handwriting or to cause distress to my
wife.
Then they will believe you that this is
what you intended.
You did not intend divorce.
Okay.
So eventually in the Hanbali Madhhab, you know,
the bottom line in the Hanbali Madhhab, if
someone writes divorce and then claims that this
was not intended, but what is intended such
and such, we will accept that.
If a male person, now, next is, I'm
quoting al-Iqnaar here.
What is al-Iqnaar?
Al-Iqnaar is acknowledgement.
When you acknowledge a right that is upon
you, when you are crowned an obligation or
liability, you acknowledge it, whether in speech, writing,
or the gesture of the mute person, then
this will be all valid.
If a mute person's gestures were not recognized,
they could not transact, you know, and that's
a hypothetical here.
If we did not recognize their gestures, if
we don't recognize their gestures as valid, that
would be a death sentence to the mute
person because, you know, it's a death sentence
because you're telling him you are unable to
communicate with the world.
So that would be cruel.
That is why it's a necessity to recognize
the gestures of a mute person.
And once they are interpreted, they're valid, but
they have to be ma'huda.
They have to be established.
They have to be customary, because also we
do not want to, we're pursuing the here,
and so his gestures or her gestures have
to be customary, have to be established.
Now, if they're, if we're, if they are
not clear and we're having doubt about them,
we require two translators.
Trustworthy translators will be required, will be required.
If they are ma'huda and someone can
understand them, that's fine.
If they are not clear, then we would
require two trustworthy translators who can translate his
gestures or her gestures or sign language.
Al-Buhuti then states, divorce is enacted through
a clear gesture by a mute person only,
as it stands, stands in for their speech,
or it is substitute for their speech.
If this gesture is only understood by some
people, it's considered a kinaya.
So what is, what is kinayat al-talaq
and sarih al-talaq for a mute person?
For the kinayat al-talaq would be a
gesture that is not clear-cut.
Sarih al-talaq would be a gesture that
is clear-cut.
So kinayat al-talaq will have room to
be reinterpreted, sarih al-talaqna.
And then in al-iqna' it says, if
the mute's gestures or writing are understood, they're
li'an.
Okay, so li'an and qadf.
Li'an is mutual cursing, public what?
Imprecation, mutual cursing.
It's when the husband claims that the wife
has committed, you know, adultery, and then they
come and then they do this mutual cursing.
In the Jewish tradition, it's, you know, just
compare between the Jewish tradition and the Muslim
tradition.
In the Muslim tradition, eventually, who will, who
will be the final, you know, speaker here?
She will be the final speaker.
We are coming from a position of presumption
of innocence, and we will maintain the position
of presumption of innocence, but because of the
different relationship between the wife and husband, we
will not treat him like any foreign man.
It would be unfair to treat him like
any foreign man.
So we will give him basically the benefit
of the doubt also, and simply ask him
to do the li'an, and if she,
if she is, if she participates in the
li'an, we will finally defer to her,
finally defer to her, but we will not
basically charge him with qadf.
We will not convict him of qadf.
That is the difference between a foreign man
and the husband.
So if a mute person makes li'an,
can a mute person make li'an?
Yes, if it is understood.
Can a mute person make qadf?
Yes, if it is understood.
If he wants, take it back, take it
back.
You know, he regains speech, and he says,
you know, whatever it is that I indicated,
whatever it is that you understood from my
previous gestures, I didn't intend it, you know,
I take it back.
So will we go by this?
Will we accept this?
We will accept it in li'an, not
in qadf, not in qadf.
Qadf, when you are accusation of innocent people
of fornication or adultery, we will not accept
this, but li'an, we will accept it
if it is, if the change of position
is against him.
So he says, I didn't mean it, because,
you know, maqasad ash-shari'ah, maqasad ash
-shari'ah is what?
We want her to be innocent, like is
the shari'ah want her to be innocent
or guilty?
The shari'ah wants her to be innocent.
So he goes back and he says, you
know, if he takes it back after he
regains speech, we will apply the hadd and
we will establish the nasab, apply the hadd
on him and establish the nasab for his
paternity.
Okay, then scholars differed on accepting the gesture
of someone who, someone whose tongue is restrained.
So if his tongue is restrained, we will
wait, we will wait three days.
The bottom line, we'll give him about three
days of wait.
But there is, there are a lot of,
you know, disagreements over the one whose tongue
is restrained.
The prevailing view is that it's, it's not
accepted for his acknowledgement and transactions if there
is hope in regaining speech.
However, even if there is hope in regaining
speech, it will apply in acts of worship.
Like you could say, bismillah, you know, if
he's making wudu, he can basically say bismillah,
you know, because he's unable, his tongue is
restrained.
He can gesture, gesture the bismillah.
But we will not allow it if there
is hope of regaining speech because he's not
a mute person.
And usually people, you know, who are, you
know, there are many medical conditions where you
can't speak, you know.
So if you're just unable to speak and
people are waiting to see if you're going
to be, you know, if this is going
to go away or not, then there is
no hurry here to basically sell your apartment
building, you know, just keep him while let's
wait and figure this out.
So you can't sell your apartment building through
gestures.
In other words, if there is hope that
you can regain your speech.
In li'an, for instance, if the hope
is lost of regaining speech, it will be
accepted.
The gesture will be accepted.
And we will give him three days, basically.
We will give him three days.
And if the return of regaining the faculty
of speech is anticipated, we will wait three
days.
And if he lost, if we lost hope
completely, then we will go ahead and accept
his gestures.
Exceptions from these qawa'id.
The first one is non-acceptance of a
judge's letter in hudud.
Non-acceptance of a judge's letter in hudud.
When does the judge's letter not work?
When does the judge's letter not work?
There's a lot of disagreement over this, even
within the madhhab.
What about equal retribution, qisas?
Qisas.
Is a judge's letter in qisas accepted?
Yes.
Because all of the rights of al-'ibad, the
judge's letter is accepted with regard to, you
know, disputes over rights of al-'ibad, the rights
among people, you know, among themselves.
But punishment can be, we punish people because
they violated the rights of the creator and
they violated the rights of the creation, right?
If they violated the rights of the creation,
we will accept the judge's letter all the
time, even in some hudud, which had, which,
in which had do we prioritize the right?
The DAs, when they press charges against a
defendant, do they say, do they talk about
the community, whatever, you know, New Jersey, whatever,
the people of New Jersey, it is, who's
pressing the charges?
The people of New Jersey, right?
This is al-haq al-'am, you know, this
is the right of the public.
This is different from the al-haq al
-khas, which is the right of an individual
entity.
Okay, so al-haq al-'am for us is
the haq of Allah, you know, and al
-haq al-khas is the haq of al-'ibad.
The, you know, there is one had in
which we prioritize haq al-'ibad, which is qasf.
Qasf is the one had in which we
prioritize haq al-'abd.
In this case, the judge's letter will be
accepted in all things, including qisas, according to
the prevalent position in the madhhab, and including
had al-qasf, but will not be accepted
with regard to the other hadood.
Why?
Because haq al-'am is based on, you know,
leniency.
You know, Allah likes to pardon.
Allah likes to forgive.
Therefore, I don't have to establish the had
against you.
You know, I don't have, basically, to take
the extra step and have one judge write
to another judge, and there is a possibility
that the book was tampered with, that the
letter was tampered with.
There are possibilities here.
It's not...
You know, hadood must be repelled as much
as possible by doubt, uncertainty, uncertainty.
So when a judge writes to another judge
in a faraway city, there is an element
of doubt that is creeping into this.
So why?
Why?
Al-hadood, tadra, and haq al-'am ibn al
-musamaha, the rights of Allah subhanahu wa ta
'ala are based on leniency.
Strictness applies to the rights of al-'ibad.
The second exception is the writing of divorce.
Although explicit by some, others consider it kinaya.
If it is, even if it is explicit,
alternative interpretations will be accepted.
Alternative interpretations will be accepted.
So why is it an exception from the
qa'ida?
Because the qa'ida wants to equate kitab
bil-khitab, written and verbal expressions, we're saying,
no, they are not always equal.
So it's an exception.
We will, you know, so some will say
that kitab al-talaq is kinaya, and even
those who say it's not kinaya al-sareeh,
they still leave room for accepting alternative interpretations.
Testimony of a mute person not accepted, even
if the gesture is understood, unless it is
given in writing.
Testimony of a mute person.
When a mute person comes to testify before
the court, we are establishing guilt against someone
else by the gestures of the mute person.
How comfortable are we, how comfortable are we
taking the gestures of a mute person as,
you know, solid evidence against that person to
establish guilt?
We will be less comfortable.
We will be less comfortable than taking a
verbal expression.
Therefore, there is disagreement within the madhhab.
Should the mute person be able to testify
before the court, there is disagreement.
The predominant position is no, unless he gives
it in writing.
There is another strong position which says yes,
if it is clear.
If it is clear, if people really can,
you know, if the mute person can clearly
express, particularly when it comes to something they
have seen, that they have observed.
And the same applies to a deaf person.
Can a deaf person testify?
Yes.
Testify about what?
What they have observed by their eyesight.
They can testify about what they have observed
by their eyesight.
And are these discussions warranted?
Yes.
Because a deaf person seeing a crime scene
is not hearing what is being said.
So does this impair their ability to understand
the context?
It does impair their ability.
But if they will have to testify and
they have, they are just simply reporting what
they have seen, we will accept it.
Finally, a mute person's gesture, understood or not,
is an action, is like an action.
This is an exception.
We're saying, so
the mute person's gestures are like speech, are
like verbal expression.
Okay.
So a mute person is praying and then
he does this.
And then the person in front of him
understood what he's saying.
Did he speak in the prayer?
If he speaks in the prayer, it's valid
or invalid?
Invalid.
Okay.
If he does, if he basically moves in
the prayer, if there is much movement, it
will invalidate the prayer.
If it is not much, if it's not
considered much to disrupt the prayer, it's an
action that does not invalidate the prayer.
Now, when a mute person does this, I
don't know, like, I'm supposing this would mean
something eventually.
Did he speak?
Is his prayer invalid?
So just, you know, just keep this in
mind.
In the madhhab, no, he did not speak.
In the madhhab, he did not speak.
What if he does this during Khutbah al
-Jum'ah?
Would that count as speaking?
Yes.
During Khutbah al-Jum'ah, this will count
as speaking.
During the prayer, it will count as an
action.
During Khutbah al-Jum'ah, it will count
as speaking.
Because eventually, he will be liable for speaking
during Khutbah al-Jum'ah, but it will
not ruin his Jum'ah.
You know, he can still pray Jum'ah,
but if we consider it to be speech
during the prayer, it will invalidate his prayer.
So that's a distinction they make.
So eventually, what you want to understand is
the importance of intent.
And everything is based on intent.
And how you express this intent in Islam
is secondary.
It can be expressed through verbal expression, which
is the clearest, most precise, but it can
also be expressed in writing or gestures, different
gestures.
But what matters is the intent.
Now, what matters is the intent, but we
have to have some regulations and guidelines to
be able to discover that intent.
Discover that intent.
Because it's not always straightforward.
You know, written expression is not always straightforward.
Gestures are not always straightforward.
All of this discussion is to ascertain the
intent.
And it shows you our respect for the
truth also.
Our respect for the truth.
There is, you know, objective truth out there
that we should be all pursuing.
And that will bring us to the end
of this session.
And inshallah, next time we will be talking
about different applications of al-umur bi maqasdiha.
These are judged by their intentions in the
areas of ibadat and mu'amalat.