Hatem al-Haj – QWD022 Coherence of Sharia – Second Maxim
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The speakers discuss the concept of certainty and doubt in various contexts, including political statements and scientific research. They stress the importance of certainty and the need for practicality in sh cases, as well as the importance of avoiding competing with each other and avoiding confusion in rulings. They also discuss guidelines and assumptions used in decision making, including the need for people to be assertive and caution. The speakers stress the importance of certainty and the need for consistency in marriage.
AI: Summary ©
Bismillah alhamdulillah salallahu alayhi wa sallam wa rasulallah
wa ala alihi wa sahbihi wa man wala
asma ma ba'a to proceed today inshallah
we will the second legal maxim the second
major legal maxim which is la yazool il
yaqeen bishak la yutrak yaqeenun lishak these are
just different formulations but they're about the same
thing.
So liyaqeen is certainty.
La does not.
Yazul does not get overruled, does not get
removed.
You know, Zala is basically disappeared or was
removed.
So la yazul will not be removed in
this context, will not be overridden, will not
be overruled, will not be overridden.
Bishak by doubt.
So certainty is not negated by doubt.
Certainty is not removed by doubt.
Certainty is not overruled, overridden by doubt, whichever
way you want to say it.
And this formulation is just like this formulation.
The difference here is in the arrangement of
words, starting with the verb here versus the
noun here.
And this la yutrak does not get abandoned
or left, does not get abandoned or left.
So certainty is not abandoned or left for
doubt.
Certainty is not abandoned or left for doubt.
And these are the different formulations of the
same qaeda.
They have been basically, it has been stated
in these formulations in different Hanbali books and
others.
So la yakil la yazul bishak is the
one that we will use frequently because that's
what the majority of scholars use.
La yakil la yazul bishak, the first one.
La yakil la yazul bishak.
Certainty is not overruled by doubt.
And then, so what is the meaning of
this qaeda?
The meaning of this qaeda is when you
are certain of anything, basically absence or presence,
existence or nonexistence of anything, and doubt arises
regarding the earlier status of that thing, whether
it's existence or nonexistence, absence or presence, fulfillment
of conditions or not.
Doubt arises after certainty was established.
That doubt will be disregarded.
That doubt will be disregarded.
And the presumption of certainty will remain.
So when we talk about certainty and doubt
in this regard, we talk about certainty and
doubt in this regard, what do we mean
by certainty and doubt?
Okay, so I will start by this, even
though it does not, you know, it's not
one of the first things I mentioned in
the book, but I'll start by this, just
for clarity.
So you have liyaqeen and liyaqeen.
This is called 0%.
And this is called 100%.
So this is the positive yaqeen, yaqeen in
the existence of something, yaqeen in the nonexistence
of something, you know.
So 100%, 0%.
In the middle between the two, you'll have
doubt proper, it's called shaq in Arabic, which
is doubt proper, al shaq.
Although we will come to, you know, discuss
how the scholars have used the doubt in
different contexts differently.
So this is certainty.
This is certainty.
And this is doubt.
Okay, so what is doubt?
Doubt when we have two possibilities, la ma
ziyata li ahadihima alal aathar.
You have two ihtimal or two possibilities, without
one having any, without favoring anyone, without one
outweighing the other in any way.
So you have two possibilities that are 50
50.
So 50%.
Okay, so what about the, this space here
between one to 49%?
And what about this space here between 51
to 99%?
What do you call this?
Yeah, so this, we call the dhan.
The dhan is, okay, so now you have
two possibilities.
One of them is 51%.
And the other one is 49%.
The 49 will belong here.
It's called wahm.
And dhan will be translated as assumption or
predominant assumption, dhan or ghalabat dhan.
Ghalabat means to beat, to overcome.
So ghalabat, to dominate.
So it's the predominant assumption, the assumption that
dominated.
Ghalabat dhan.
They sometimes mention dhan, sometimes mention ghalabat dhan,
they mean the same thing.
They mean that option that is favored, even
though it could still be like 55%, like
60%, but still favored.
And then this wahm will be called conjecture.
Conjecture.
Sometimes in the Quran, dhan refers to ghalabat
dhan, and sometimes it refers to yaqeen.
And sometimes it refers to conjecture, so it
will depend on the context.
But this is how they basically will try
to sort these things out by giving different
names to, you know, to different reference.
So yaqeen is on both ends of the
spectrum, 0%, 100%, then you have yaqeen.
So this thing happened, 100% that happened,
certainty, 0% that happened, certainty.
50%, that's called shaq.
And shaq in Arabic comes from what?
Intermingling of things.
When things are intermingled, that is shaq.
So that's why they talk about shaq.
Shaq is the intermingling of things.
And why are we calling it shaq here?
Because you have two possibilities that are intermingled
in your brain, and you can't basically favor
one over the other.
So they have continued to be, you know,
in this sort of conflict inside your brain,
and you're not going to be able to
favor one over the other.
So that is why it's called shaq.
Now, many times, shaq is used in the
expression of the scholars to refer to non
-yaqeen, to refer to dhd-yaqeen or the
opposite of yaqeen.
So it's not always used in the, you
know, in the same way.
But sometimes they use it to refer to
other than yaqeen.
But the five-pronged division is what we
will be using, so that things are clear
for us.
Five-pronged division.
Yaqeen, yaqeen, shaq, three.
And between shaq and positive yaqeen, you have
dhan or assumption.
And between shaq, doubt, and negative yaqeen, you
have wahm or conjecture.
Okay.
Having said that, I want you to understand
that even when they talk about yaqeen, even
when the scholars talk about yaqeen, because sometimes,
you know, what is yaqeen?
And many people think of yaqeen as the
sort of the philosophical yaqeen, like, you know,
like the Cartesian uncertainty, you will want it
to be like certain of the...
No, it's not the philosophical yaqeen.
It's the practical yaqeen.
It is basically al-istaqrar.
Yaqan al-maa, when you say yaqan al
-maa, what does that mean?
Yaqan al-maa, it means the water is
settled, settled.
So if your heart is settled, that is
establishment of knowledge and the heart is settling.
That is yaqeen.
Because if you obsess about the 100%, then
you become a skeptic.
And you become basically, you could end up
being a solipsist, who basically doubts the presence
of the existence of anything in the world.
Because whoever said that you exist, why can't
you be like a mirage?
Or why can't you be like a delusion
of mind?
Or, you know, illusion or science fiction, all
of these possibilities.
And whoever told you that the, you know,
the world around you is not like a
video game, or all of these possibilities.
So, no, the scholars are not talking about
yaqeen in that sense.
The scholars are talking about yaqeen, about knowledge
that is established.
And that gives tumaneena, or tranquility to the
heart, like quietness to the heart.
So you're confident that this is what it
is.
So that is yaqeen, that is usually talked
about in general, in the tradition.
It is not the 100% thing.
Okay, so al-ilm al-ladhi la taradduda
ma'ahu ayil istiqrar, knowledge that is free
of doubt, implying stability and assurance.
So Sheikh Mustafa al-Zarqa, rahimahullah, he's talking
about yaqeen.
So when we talk about yaqeen in the
scholars of rational sciences, the scholars of aqeedah,
they may be talking about yaqeen as al
-i'tiqad al-jazm al-mutabaq lilwaqa, which is
basically unwavering conviction that is completely aligned with
reality, unwavering conviction that is completely aligned with
reality.
That is not what the fuqaha are concerned
with.
You know, that is what, you know, the
scholars of rational sciences, the scholars of aqeedah,
they may be concerned with this.
But the fuqaha are not really concerned with
this definition.
The fuqaha, when they talk about yaqeen, they
talk about knowledge that is established that, you
know, brings confidence.
And now, your heart and mind are quiet
about this issue.
Like there is, you know, you're not basically
concerned about it, you're confident, you're quiet, and
you're not basically thinking about it anymore.
So he goes on to say, juristic rulings
are based on outward appearances.
Another issue that is important is that when
we talk about yaqeen in fiqh, we're not
talking about the impossibility of the contrary.
We're not talking about the impossibility of the
contrary.
We're talking about, you know, that established knowledge.
In other words, in other words, the parentage
of, you know, the parentage of someone, or
that filiality or relationship, paternity, paternal relationship is
established by being born to the person to,
you know, established for the husband by just
being born on the marital bed.
That's what it is called being born on
the marital bed.
In other words, being born in, in, you
know, into a legitimate relationship, and then paternity
is established for the husband.
Is this yaqeen in this in the site
of the shariah?
Yes, this is yaqeen in the society of
shariah.
Does it mean, you know, the contrary is
impossible?
No, it doesn't.
But it is established by bayyinah shariah.
It is established by a shariah proof that's
indubitable, shariah proof that, that ends all discussions,
that ends all discussions.
Of course, you know, there is li'an,
mutual cursing, and there are, you know, there
are processes where, you know, someone believes, does
not believe that a child is his.
But, but aside from that, the child becomes
theirs, and no one would be able to
raise doubts about this because it is established
by yaqeen, yaqeen in the eyes of shariah.
You bring two witnesses to testify on your
behalf, on your account.
You claim a property or you bring two
witnesses to testify.
The two witnesses are credible witnesses, two credible
witnesses testified for you.
Do you, are you entitled?
Yes.
You're entitled by certainty?
Yes.
So does this property become yours or claim,
you know, are you entitled to your claim?
Yes, you're entitled to the claim.
The shariah basically regards this as a matter
of certainty.
Why?
Because we have established the bayyinah.
Bayyinah is basically a shariah proof, a definitive
shariah proof.
Two credible witnesses would be a definitive shariah
proof.
Is there a possibility, is there a possibility
that this is untrue?
Of course, there is a possibility it is
untrue.
So when we have, you know, the punishment
for zina or fornication, to establish the hadda
of zina or fornication, we make it a
little bit harder to establish it.
Not two witnesses, four witnesses.
What are we saying here?
We're saying that two witnesses is not enough.
You consider that enough in a different context.
We consider that enough in a different context.
Yes, in that context we consider this enough.
Here we're not considering it enough.
Which tells you what?
The testimony of two credible witnesses does not
establish the 100% certainty, but it is
good enough for practical purposes.
Because, you know, the fuqaha are more concerned
about practicality, about effectiveness of the rulings efficiently
than basically theoretical discussions.
So, and the shariah is concerned, you know,
the shariah because it's the shariah that decided
the two you need to witness only in
financial matters.
You need four witnesses to establish the hadda
of fornication and so on.
But four witnesses for the hadda of fornication,
does that give you the philosophical yaqeen, the
100%?
Of course not.
You know, of course not.
You know, four witnesses could still lie.
We demanded that there are four credible witnesses,
but four credible witnesses could imagine things.
They could lie.
We know the story of, you know, the
three sahaba that were flogged for basically qasf,
which is accusation of fornication.
They were flogged by Umar r.a. for
accusation of fornication because the fourth person hesitated,
you know, and recanted his testimony at the
end.
And the person who was accused got acquitted
and three got flogged.
So they were coming, there are four people
coming to testify.
The fourth withheld his testimony.
So now we only have three.
They all got flogged because they didn't have
the quorum for this or the evidentiary standard
for this testimony.
And now they're considered like, it's considered like
qasf or accusation, slanderous accusation of fornication.
So these were sahaba and the person who
was accused was a sahabi.
What was what do you make out of
this?
So the scholars come up with a lot
of answers just to protect the honor of
the sahaba.
We could say they presumed that it's possible
that the woman was actually his wife and
she looked like someone else.
So they thought she was someone else.
Anyway, so things can happen.
Certainty in that sense, the certainty that we
demand for practical application of rulings is not
the philosophical certainty, but rather, it's mostly the
established knowledge that brings, you know, that ends
hesitation about a particular matter.
And from a shari'i perspective, a shari
'i bayyina or a shari'i evidence produces
certainty, as far as we are concerned, practically.
Now, to address potential objections, to address
potential objections to this, how do we, how
would we ever have yaqeen and shaq competing
with each other?
So that we say that yaqeen is not
overruled by shaq.
Aren't we saying that yaqeen is 100%, 0%,
shaq is 50%.
So how could you have 100% and
50% competing with each other?
Doesn't make any sense.
Does it?
With regard to one single matter, how could
you have yaqeen and shaq competing when shaq
is 50% and yaqeen is 100%.
So if you have yaqeen, you don't have
shaq.
And if you have shaq, you don't have
yaqeen.
Okay, so the simplest, you know, and I
will rephrase or I will add my own
thing because I gave you the explanation of
al-Khalawati, rahimahullah, in his hashiya.
When he addresses this, he says, al-yaqeen
ba'tibarmak, you know, certainty, given consideration to what
was there before, you know, so you have
two different instances, you have two different times,
you have the first time and you have
the second time, you had certainty here.
And doubt arose here, you had certainty that
you have wudu here at this point, doubt
arose at a subsequent point.
So they don't happen simultaneously.
It's one after the other, one after the
other.
So the way you think about this is
that yaqeen was present at a point of
time, and then doubt arose afterwards.
So that is how you you sort this
out.
Yaqeen and shaq should never be competing simultaneously,
because 100% and 50% is 150%.
There is no 150%.
And if you have, if you have two
possibilities, and one possibility is yaqeen 100%, the
other possibility cannot be 50%.
It just can't.
So it is two different times.
And in this case, when we say the
yaqeen la yazul bishak, we will say that
the presumption of certainty will not be interrupted,
will not be eliminated, overruled, overridden by the
subsequent doubt, by the subsequent doubt.
So it's a case of presumption of continuity,
istashab, istashab al yaqeen.
So we're presuming the continuity of yaqeen, and
we're disregarding the subsequent shaq, or doubt.
The universality of this maxim, this maxim is
one of the five major maxims.
Imam Suyuti says that about three quarters of
fiqh are derived from this maxim, three quarters
of fiqh.
It does not mean that derived from this
maxim only.
But this maxim participates in the derivation of
about three quarters of the law.
Three quarters of the law would be based
on this maxim.
So it's a very universal maxim, a very
solid maxim in Islamic jurisprudence, one of the
five major ones, which are al-umur bi
maqasadiha, which is matters are judged by their
intentions, the yaqeen la yazul bishak, certainty is
not overruled without, la darar wa la darar,
there should be no harm or reciprocation of
harm, al-mashakta tajribat tayseer, which is hardship
begets facility or ease, or calls for ease,
warrants, you know, anyway.
And then the last one would be al
-adha muhakkama, which is customs are authoritative, custom
is authoritative.
So it's a very universal qaeda, and it
is a very consistent qaeda.
And as we said before, consistent does not
mean that it will always be favored in
our application.
Consistent means that given no competition from another
qaeda, it will always work, it will always
apply, if there is no competing qaeda.
Because that is what makes people say about
these qaeda that they are aghlabiya not kulliya,
they are predominantly not universal.
No, they are universal.
They're not just predominant, they are not aghlabiya,
they are universal, in the sense that if
you don't have any competing text of revelation,
competing qaeda, it will always apply.
But it will not apply when you have
competition.
Sometimes it may not apply when you have
competition.
So then I will read this statement by,
this is a statement by al-imamayn al
-mawardi and ibn al-nadjar, and I will
read it about, you know, verbatim here.
They said this principle is not exclusive to
jurisprudence, rather, the default in every new matter
is its non-existence.
This is a principle that you live by
in your life.
This is not just about fiqh, it's a
principle that's consistent throughout life.
Rather, the default in every new matter is
non-existence until proven otherwise.
For instance, we say that the default regarding
obligations upon individuals is their non-existence.
So as we will come to the branches
of this qaeda, one of the branches of
this qaeda is al-asl al-baraa, al
-asl al-baraa.
Al-asl means what?
The default or the original presumption.
Default, default presumption, original presumption, default.
Al-baraa, baraa is innocence.
But here it means, baraa means non-liability,
non-liability.
You could say innocence, because it also means
innocence, but more than just innocence, non-liability.
So you are born, it's one of the
hallmarks of Islam, you are born free of
liability.
You don't owe anything to anyone, you know,
except with evidence.
And you have no, you're not liable for
any crimes, for any obligations, you're just free
of all liabilities.
There's no original sin, you're free of all
liabilities when you're born.
And that the presumption of non-liability continues
with you throughout your life until proven otherwise,
until proven otherwise.
Okay, so this is part of this qaeda.
So he says, default regarding obligations upon individuals
is their non-existence until evidence indicates otherwise.
Similarly, the default in words is their literal
meaning.
In commands, it would be obligation, prohibitions would
be prohibition.
In general statements, general statements, they stay general
until they are specified.
Unqualified, they stay mutlaq until they are qualified.
So and then he says, that continue, okay,
and also for rulings, you know, textual rulings
or text of revelation, they will be effective
until abrogation is proven.
So the presumption, the original presumption is that
they are not abrogated, nothing is abrogated, they're
effective.
And he says, due to this principle, istishqab
is a valid evidence, istishqab is the presumption
of continuity.
One of the implications of this principle is
that the one who denies a claim is
not required to provide evidence.
And it's likewise in matters of litigation, the
defendant is not required to prove their innocence,
because innocence is the default.
So this is a very universal qaeda, and
it does not only apply to fiqh, but
it applies to all matters of life.
Now, let's take some of the applications of
the qaeda for a better understanding.
And then when we go over the branches,
we will take a lot more applications.
But what is the most common application of
this qaeda, most well known application of qaeda?
The wudu thing, because everybody is concerned about
wudu.
So the wudu thing is the most common
application of this qaeda.
And so what does this qaeda say about
wudu?
So if you have wudu, if you if
you're sure, at 6am, you left your left
home with wudu.
And at 11am, you are at work, let's
say 12pm, you are at work.
And it's time for zohr and you wonder,
if you have wudu, do you have wudu?
Yes, because we will presume the continuity of
the first certainty, you were certain at 6am
that you have wudu, we will presume the
continuity of that certainty until it is overruled
by certainty.
And in this sense, we're talking about certainty
in what sense, not in the sense of,
you know, not in the sense of, you
know, unwavering conviction, aligned with reality, not in
the sense of the philosophical certainty per se,
it is in the sense of established knowledge,
that makes the heart comfortable, you know, not,
you know, hesitating, to eliminate hesitation, so established
knowledge.
Okay.
So now, when we say this, is this
by consensus?
So when we say that these are agreed
upon, they are matters of consensus.
Are they matters of consensus?
Do all the scholars say, yes, all the
scholars say certainty is not overruled by doubt.
But when they try to apply this in
this particular example, that is why, you know,
well, that's the beauty of this.
The beauty of this is people may disagree,
even though they come from the, they come
from the same muntalak, muntalak is basis, I
guess.
So, so they can, they can still disagree.
So the scholars did actually disagree over this
particular ruling.
And while the majority, which would be Hanafis,
Shafiis, and Hanbalis, they agree that you have
wudu, the Maliki said, you don't have wudu.
Why?
Because the Maliki said that, that we will
say that the fulfillment of the conditions of
the prayer is obligatory by certainty, and that
certainty will not overruled by doubt.
They will look at the second, you know,
your state of being at the time of
salah is doubtful, you're doubting whether you have
wudu or not.
And you are required by certainty to fulfill
the conditions of the prayer.
So wujub is salah alayk and the requirement
of fulfilling the conditions of the prayer is
established by certainty or not.
Yes, you're liable for the to perform the
prayer by certainty, and you have to fulfill
the conditions of that performance, including wudu.
So now, since you're doubtful about your wudu,
the certainty that we would respect here is
your liability to perform the salah with its
conditions fulfilled.
Anyway, so this would be their twist, their
look at this or our twist, or, you
know, so what do you think about this?
Yeah, but here they're talking about two different
things.
We're talking about the same thing.
They're talking about two different things.
They're talking about certainty, the certainty in your
liability and the obligation of prayer.
And we're talking about wudu only.
We're talking about certainty that we had wudu
and then doubt whether we had wudu or
not.
So the certainty and doubt for us are
competing for the same thing, which is the
existence of wudu.
We're saying that the original certainty will not
be overruled by the subsequent doubt.
Original certainty will not be overruled by subsequent
doubt.
So I believe that the majority, the jumhur,
they have a stronger point here.
Because, because certainly, you know, ignoring that concept
will lead to obsessiveness.
Because who, you know, has the mind to
be certain of all things all the time,
like, you know, to have, yeah, yeah.
So it's, unless we, unless we presume the
continuity of the original certainty, it could lead
to obsessiveness.
So this qaeda in the, in the way
the jumhur understood it, in this particular application,
is very important for the avoidance of obsessiveness.
The advent of Fajr during Ramadan, like if
you, if you're doubtful whether Fajr came in
or not, can you continue to eat?
Yes, you can, until you're confident that Fajr
came in.
The number of rakahs performed in prayer, the
number of rakahs, if you, if you're dhuhr,
and then you doubt whether you prayed two
or three rakahs, how many did you pray?
Two.
Because you're doubting whether you pray two or
three, then at least you pray two.
So that is certain, it's certain that you
pray two, it's doubtful, the third is the
one that is doubtful, but the two are
certain, the third is doubtful.
Therefore, you base your, you base your assumption
on that certainty, because you have to, after
you have to be cautious with your worship.
And but, but are there exceptions for this?
Is there like a discussion beyond this?
Yeah, there is a discussion beyond this.
So what if, you know, so there are
different types of discussions.
One discussion is, what if you have an
external factor to point to one of the
two possibilities, to point you towards one of
the two possibilities?
External factor, according to Hanbalis, would be an
imam who's leading a congregation, and he's not
being corrected.
The imam leading congregation sits down for the
fourth rakah, no one is correcting them.
So likely it is the fourth rakah.
You know, if nobody is correcting me, and
I'm sitting down for the shahadah for the
fourth rakah, nobody is correcting me, likely it
is the fourth rakah.
So for the imam, they would, the earlier
Hanbalis and the middle Hanbalis would allow him
to proceed on the basis of al-dhann
al-ghalib, predominant assumption.
The predominant assumption here is that I'm not
being corrected, I'm fine.
So even though I still have doubt about
it, later Hanbalis said, no, it doesn't matter.
You know, you go by certainty.
It doesn't matter whether you're imam or not.
You just, you know, if you're doubtful about
the third rakah, you pray, you make it
up.
Now, so and there are different factors that,
so what about, what about the, you know,
so 50-50, of course, 50-50, they
will tell you, base it on the lower
number.
And that applies to all, you know, ibadat
that have specific numbers, you know, that are
counted, like tawaf, for instance, like the number
of times you wash something to be clean.
In the Hanbali method, there is like a
story about this.
It's about seven times, it's seven times that
you need to wash something to remove the
filth.
But, but that's a different discussion.
There's so much disagreement about this.
But anyway, so the number of times you
wash something, the number of tawafs, everything that
has a count, you go by certainty.
So if you're doubtful whether you made five
tawafs or four, how many have you made?
Four.
Okay, but then what if it is not
50-50?
What if it is 70-30?
Like you're really 73 rakahs, 32 rakahs.
Where do you go from here?
So this is a matter of disagreement between
the scholars.
And many scholars said that because of the
different hadith, where some of the hadith the
Prophet ï·º said, let him investigate, verify, or
it will eventually mean, go by the predominant
assumption.
So yataharra, let him, you know, yataharra would
be investigate, verify, but here in this particular
context, let him think about it, like try
and figure it out, try to sort it
out, let him try to sort it out,
and base it on the predominant assumption.
And in some hadith, let him base, proceed
on the basis of certainty.
So to bring these hadith together, some of
the scholars said that yataharra applies to this
scenario, and proceed on the basis of certainty
applies to this scenario.
50-50, proceed on the basis of certainty.
So disregard of the 50.
50 is not enough to, you know, 70
-30, go by the 70%.
Because, but that's not the Hanbali thing, you
know, so the Hanbali thing is even 70
-30, you go by, it's two rakahs still,
because you will proceed on the basis of
certainty.
So what some other scholars said, like Imam
Zabu Hanifa and Ilaith, they said that someone
who is a habitual, you know, doubter, would,
like an, like an obsessive person, will, will
we tell him to proceed on the basis
of certainty all the time?
They said no.
For those habitual doubters, the obsessive people, they,
we will, we will not require them to
proceed on the basis of certainty.
And that is what I basically, that is
what I go by, that is what I
tell people, particularly people who are obsessive.
Because for those people, if you always tell
them proceed on the basis of certainty, I
have seen so many of them who, you
know, would pray 16 rakahs.
Because it's, it's just like, it's endless obsessions.
You know, every, every salah is 16 or
17 rakahs.
And then, in addition to their obsessions about
wudu and so on and so forth, it's
a full time job to pray the five
times.
Yes.
Yes.
Yes.
At middle Hanbalis will say if you're the
imam and you're not corrected, you can proceed
on the basis of predominant assumption.
Later Hanbalis said no.
Even if you're the imam and you're not
being corrected, you proceed on the basis of
certainty.
You can't basically base it on predominant assumption.
So you are the imam and 80%
you pray three rakahs.
80% you pray three rakahs.
And you are the imam.
You still proceed on the basis of certainty.
Which means what?
Count two only.
That is the position according to the later
Hanbali scholars.
This is a matter of disagreement, but this
is a position according to the later Hanbali
scholars.
The middle Hanbali scholars, like, like who, like
Ibn Qadamah, for instance, they would say, if
you're the imam, if you are the imam,
then you proceed on the basis of predominant
assumption.
You are the imam and you feel that
you've prayed three.
You feel this is the fourth rakah.
You are in the shahood.
No one is correcting you.
Carry on.
You prayed four.
Okay.
If someone corrects you, then you'll just, yeah,
then based on your confidence in the correction,
this principle also applies.
Okay.
Now, so if someone doubts whether they pronounce
divorce or not, they
need to basically figure out how to help
themselves because it's not, it's not proper.
I mean, the deen, Allah did not want
to overburden us.
And we will talk about, you know, one
of the proofs for this qaida is when
the Prophet sallallahu alayhi wa sallam said, So
when someone, when one of you feel something
in their stomach and they are in doubt
whether something exited from them, that's wind, exited
from them or not.
They should not leave the masjid until they
smell an odor or hear a sound.
Um, why, why is the Prophet sallallahu alayhi
wa sallam keen on teaching this?
Because otherwise people will become obsessive and obsessiveness
is extremely burdensome, extremely burdensome.
So we need people who are obsessive.
They need just to quit their obsessiveness and
people need to be assertive in helping them
quitting their obsessiveness and they should not validate
their obsessiveness in any way.
So if someone pronounced divorce and they're not
sure whether they pronounce divorce, so then they
have, they pronounce divorce.
No, no, they haven't pronounced divorce because the
certainty of the marital bond is not going
to be overruled by doubt.
And if they're also uncertain about the conditions
of divorce and things of that nature, we
will always favor the certainty of the marital
bond, presumption of continuity.
Now, what are the basis for this qaida?
The basis for this qaida from the sunnah
is the hadith that we just mentioned.
You know, you don't leave the masjid until
you hear a sound or you smell an
odor.
So disregard, dismiss the doubt.
Allah subhanahu wa ta'ala said that dhan,
which is assumption, presumption, could it be called
doubt here, I guess I would call it
assumption, that's the accurate translation, does not avail
anything against the truth.
Dhan does not avail anything against the truth.
So if you have the 100%, then dhan,
you know, that anything that competes with the
100% short of 100% is not,
basically does not overrule it.
And finally, it is the rational thing.
You know, finally, sensible people will not disregard
or discard certainty for doubt.
Rational people wouldn't do that.
Now, some of the guidelines or the most
important thing that we will be discussing, and
unfortunately, we are a little bit late.
And I hope that we discuss more of
this today.
But because, you know, we're talking about certainty,
and we're talking about, you know, the definition
of certainty and definition of doubt and dhan
and so on.
How do the scholars, how perceive ghalabha to
dhan?
Are they treating ghalabha to dhan, predominant assumption?
Ghalabha is from *.
Dhan is assumption.
So the dhan that dominates, the dhan that
dominates, predominant assumption.
So are the scholars treating predominant assumption, ghalabha
to dhan, like certainty, or not?
That's a very long discussion.
We'll start it here.
But likely, we will need maybe the next
session to finish it off.
So al-Shaq refers to, we talked about,
you know, the 0%, 1 to 49%, 50%,
or 51 to 99%.
And the 100%.
Now, there is a part of it that
is important, which says, which means what?
Conjecture is disregarded.
Conjecture is not considered.
Conjecture is not considered.
Conjection is disregarded.
So what is tawahum?
The 1 to 49%.
That is tawahum.
That is conjecture.
Conjecture is disregarded.
So we will not base our ahkam and
fiqh on conjecture.
Conjecture.
Will there be some exceptions?
Yes, there will be some exceptions.
You know, for things that you need to
be more cautious about, there will be some
exceptions.
But that is the rule.
Unless you have a competing, that is the
principle.
Unless you have a competing principle, this principle
will always rule and will always apply.
Now, so this is, so we said the
shaq is disregarded.
liyaqeen la'zul bish-shaq, bil-awla, a
priori, tawahum, which is conjecture, if 50%, we
disregard the 50%, bil-awla, a priori, we
disregard the 49%, all the way down to
the 1%.
Now, so what about ghalabat al-dhan, which
is the 51% to 99%?
What do we do with this?
And what did the fuqaha do with this?
ghalabat al-dhan mu'tabara fil-ghalib.
This is how you phrase this maxim.
ghalabat al-dhan mu'tabara fil-ghalib.
You need to add fil-ghalib.
Predominant assumption is generally taken into consideration.
We added generally here to indicate the presence
of exceptions.
So al-Imam ibn al-Laham, rahimahullah ta
'ala, says numerous rulings are derived based on
acting upon assumption, dhan, which he means by
dhan here what?
ghalabat al-dhan.
This is something that, you know, a little
bit subtle, but pay attention to it.
When they say dhan, they are meaning ghalabat
al-dhan.
So they either use dhan or ghalabat al
-dhan.
Most of the time when they say dhan,
simply, they are not meaning shak, they are
not meaning wahm.
They are meaning the 51 to 99%
ghalabat al-dhan, the predominant assumption.
So he says here that numerous rulings are
derived based on dhan, acting upon assumption.
However, our jurists, that is our jurists, when
he says our jurists, he means hambadis.
Our jurists have not consistently applied a universal
principle regarding this.
And in no madhhab, you know, complete consistency
is not human.
Humans are not completely consistent.
That's just the nature of things.
In some instances, they ruled to act upon
assumption, while in others, they required certainty, yaqeen.
He says, Abu al-Abbas, Abu al-Abbas
is the quniyah of Imam Taqayyiddin ibn Taymiyyah,
Abu al-Abbas.
He didn't have children, but that's his quniyah,
Abu al-Abbas.
So Imam Abu al-Abbas, he says, was
consistent, tarada qa'idatahu, which means adhered to
his principle.
Tarada qa'idatahu means he was consistent applying
his principle or adhered to his principle, and
stating that assumption should be acted upon in
the vast majority, but even Imam ibn Taymiyyah
did not say always.
He said in the vast majority of matters
of the sharia.
So how do you understand that statement from
Ibn al-Laham, rahimahullah, this is what it
is, you know, scholars are human beings.
They can't be consistent, you know, any book,
walau kana min AAindi ghayri Allahi la wajadu
feehi ikhtilafan kathira, had it been from other
than Allah, they would have found therein much
contradiction.
Any book other than the Book of Allah,
you will find contradictions inside it.
You will find contradictions because it is a
human effort, a human effort.
But having said that, did where the scholars
haphazardly like applying the qa'ida, or applying
the qa'ida sometimes and not applying it
other times arbitrarily, haphazardly?
No, of course not.
We don't think this way about our scholars.
Could they make mistakes?
Yes.
You know, could sometimes they favor another qa
'ida over this qa'ida, unwarrantedly?
Yes.
But they are not doing this haphazardly, and
they're not doing this arbitrarily.
So when they have competing qa'ids, sometimes
they may favor one over the other that
didn't deserve to be favored.
So they would disagree because of this.
But most of the time, when our scholars
did not apply a particular qa'ida, there
was a reason.
And that is, that's the, that is basically
the pleasure in studying fiqh, is to be
able to figure out what, so what's the
difference between this and that?
Why did they do this here and not
here?
Or why did they apply the ruling or
the maxim here, but not there?
And that is the pleasure of fiqh.
So upon examining the rulings, you know, I
said here, upon examining the rulings, it becomes
evident that ghalabat al-dhan, in most cases,
would be treated against a certainty.
In fact, in fact, in durar al-
hukkam, the definition of certainty included ghalabat al
-dhan.
So in durar al-hukkam, durar al-hukkam
is Hanafi.
It is the, you know, sharh majallat al
-ahkam.
So the majallat al-ahkam that was put
together, it's like different maxims that were put
together, and others during the Ottoman Empire, the
Ottoman era, durar al-hukkam would be a
commentary on it.
So it was, it was in accordance with
the Hanafi madhhab.
So it says in durar al-hukkam, technically,
certainty is husul al-jazm, or dhan al
-ghalib.
Certainty is husul al-jazm, or dhan al
-ghalib, which would mean the attainment of unwavering
conviction or predominant assumption regarding the occurrence or
non-occurrence of something.
So they even included predominant assumption in their
definition of certainty.
Now, you don't have to do this.
You don't have to say that certainty is
certainty and predominant assumption.
But you could say that the rulings that
when we're talking about certainty, we're including predominant
assumption, but predominant assumption is not certainty.
I mean, let's be clear, you know, 55
% is not 100%.
There is a difference between 100% and
55%.
So predominant assumption should not be part of
the definition of certainty.
But we're saying that we will consider predominant
assumption, generally speaking, most of the time, not
always, but most of the time, we will
consider predominant assumption, like certainty.
And so there are a
lot of Allah says, if he divorces her,
then there is no blame on them, if
they return to one another or resume the
marriage, if they presume assume that they will
establish the bounds of Allah, or that they
will respect the bounds of Allah observe the
bounds of Allah in their marriage, that they
will have a civil marriage, like a decent
marriage, observing the bounds of Allah subhana wa
ta'ala rights and obligations and so on.
So then, Allah himself is telling us that
we can base our actions on assumption.
If they think if they assume that they
will observe the bounds of Allah, they can
return to one another.
If they assume that they will not observe
the bounds of Allah, they should not return
to one another.
Okay.
So the clarification of this particular qaeda will
be in the 159th maxim of al-imam
ibn rajab, rahimahullah qaeda or the qaeda of
al-imam ibn rajab rahimahullah, where he stated
when the default or original presumption and apparent
evidence are in conflict, he says, if the
apparent evidence is a proof in sharia, okay,
let me just do it here by drawing,
it will be easier.
So we have the default presumption, it's called
al-asl.
Al-asl is the default presumption, right?
Default presumption is al-asl.
So we have something called al-zahir.
Al-zahir is the apparent indication, that which
is apparent, apparent, so apparent indication or apparent
evidence, evidence indication, apparent indication.
They conflict.
You have al-asl, you have, you know,
predominant assumption, default original assumption or presumption, and
then you have al-zahir that conflicts with
this al-asl.
What do you do in this case?
So if you have two scenarios, this al
-asl is bayyina shari'a, this al-asl
is bayyina shari'a, meaning a legally admissible
evidence in sharia, legally admissible evidence in sharia.
Give me examples, you know, shahadat rajulayn fi
umar al-maliyya, or a man and two
women, you know, the testimony of two men,
testimony of one man and two women, and
matters of, you know, financial matters and stuff
like this, the testimony of four in cases
of adultery, shahadat wahd wal yameen, an oath
and the testimony of one person, not in
our madhhab, but in our madhhab.
So these are called the bayyina shari'a.
We will go by this, and so if
the, and then we will, we will always
disregard the default presumption for the apparent indication,
apparent indication is a shari'a, a legally
admissible proof in shari'a.
It is not certain, testimony of two people
is not certain, but we will always favor
the bayyina shari'a, if it is a
legally admissible against the, so, so where, so
if someone, if two people witness someone violating,
you know, something, you know, and they testify
against them, the presumption of innocence is the
asr, the default, should be, everybody is a
non-liable, innocent until proven otherwise, so why
are we interrupting that presumption of innocence for
something that is less than certain, because it
is bayyina shari'a, it is a legally
admissible proof, the shari'a said you do
this, the shari'a said you basically, you
base your rulings on the testimony of two
credible male witnesses, or, you know, a male
and two females, and so on and so
forth, so we will have to, now, if
the apparent indication is not a legally admissible
evidence according to the shari'a, bayyina shari
'a, then we will have three different scenarios,
we will have three different scenarios, so, so
what we mean by the apparent evidence, apparent
evidence should not be in a bayyina shari
'a, this could be circumstantial evidence, this could
be, they say here what, apparent evidence is
based on custom, prevalent practice, circumstantial indications, predominant
assumption, similar factors, anything that is not a
bayyina shari'a, that is not a legally
admissible proof in shari'a, so bayyina, what,
not bayyina, so circumstantial, let's say, here
conditional and circumstantial, it could be situational, it
could be verbal, it could be anything, so,
but the bayyina shari'a, we will always
go by bayyina shari'a and give it
precedence, now, other than bayyina shari'a, then
we will have three different possibilities, sometimes, and
this will be our discussion next session, inshallah,
sometimes we will favor us over al-zahir,
we will favor the default presumption over apparent
indication, over apparent indication, sometimes we will favor
the apparent indication over the default presumption, so
certain things, we can't, we have to, like
the entry of time for the prayer, we
will have to go by predominant indication, or
the apparent indication, you know, the qiblah, we
will have to go by this, you know,
and so sometimes we will favor this over
this, sometimes we'll favor this over this, and
what's the third scenario?
We will disagree inside the madhhab, we will
disagree inside the madhhab, so for, you know,
so it, actually it's two different scenarios only,
but from our perspective in reporting the madhhab,
there are three different scenarios, one, they will
favor us over al-zahir, two, they will
favor al-zahir over us, three, they will
disagree among themselves, so some of the scholars
will favor us over al-zahir, and some
will favor al-zahir over us, and that
is going to be the subject matter of
the next session, when do they favor us
over al-zahir, or al-zahir over al
-azt, and when they disagree, this is going
to be the, you know, maybe the most
important part in discussing this qaeda, and if
you get this right, hopefully you'll get the
rest of the qaeda right, inshallah.