NOTES ON THE TERM QARlNA IN ISLAMIC LEGAL DISCOURSE

The term qarTna in Islamic legal discourse represents a central technical concept whose multifarious meanings have not been adequately explicated in the authoritative technical dictionaries.

I

An infrequently observed yet characteristic feature of Is­lamic religious-scientific writings in general and legal litera­ture in particular is the disparity between the variegated and changing technical contents of some terms in actual scholarly expositions and their reduced and simplified meaning in technical dictionaries. This gulf may be substantiated by comparing standard definitions of key terms of legal theory in any unabridged technical dictionary with their diversified uses in treatises on the subject. One such term which may be considered of central importance in juridico-linguistic inter­pretation and epistemology and which finds little explication in technical lexicons is qarTna (pl. qard^in).

In the Kashshaf Istilahat al-Funun, one of the most authori­tative technical dictionaries, the term qarina is confined to its rudimentary linguistic and logical meaning.¹ Linguistically, the qarina represents a verbal or non-verbal element clarifying a part of speech extraneous to itself. The independence of the qarina from that which it renders unambiguous and, at the same time, the unalterable association which it forms with its subject consign the two to an “associative” relationship. In fact, the notion embodied in such a relationship corresponds to the most basic meaning of the verb qarana:, namely, to connect, associate, hitch together.

II

In legal theory the concept of qarina plays an important role in at least two main respects: the linguistic interpretation of the texts, and the knowledge that these texts, especially Prophetic traditions, impart. The differences in the character of qarina in these two separate areas underscore the distinc­tion between two types of qarcFin, one verbal, the very basic notion of which we have already intimated, the other cir­cumstantial. Pertaining to the semantic aspects of words, the first type is known in the Arabic sources as qarcPin maqaliyya or qard^in lafziyya, and the second, being relative to the circumstances of transmitting Prophetic traditions, is accord­ingly termed qaraJin haliyya (with the more common varia­tion qara^Jin al-ahwdl) or qara^Jin ma^cnawiyya.⁴

Although they represent two distinct categories, the seman­tic and circumstantial qaraJin may converge in the same context to determine the precise meaning of a word or a

3 sentence. A primary instance of this occurs in the interpreta­tion of the texts where the scope and content of the divine command constantly call for delimitation. The question, for instance, of whether or not women are also addressed along with men by a divine command commencing with the pro­noun “whoever” presents one case in point. As an example of such problematic usage the jurists debated the subsum­ability of women in a neuter pronominal sentence as that uttered by a master, who, addressing his servant, says: “Whoever enters my house should be respected.” Since the servant would be liable to rebuke should he show lack of respect toward any women entering the house, it was argued that the above command, as well as any other command of identical nature, includes both sexes.

Against this argument it was maintained that even if the command runs counter to the aforementioned qarma, the universality still persists, as in the command “Whoever enters my house should be insulted.” The servant would be rebuked if he were not to insult the guests, although social decorum goes against such behavior. Here, certain jurists insist, there

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exists no relevant, effective qarinat al-hal, which can change or delimit the meaning of speech. This is precisely equivalent to the command “He who says to you X, say to him Y”; it simply means what it says.⁵

When there exists no qarina the speech must be under­stood in its literal (haqiqa) meaning: a mule is a mule, and a lion is a lion. But in conjunction with a qarina, the word might acquire a new meaning, and a “lion” might cease to refer to a real lion. Conventionally perceived as courageous, the lion is taken to represent that quality in people. Thus, one may metaphorically describe a soldier as “a lion in battle.” The qarina surrounding the use of “lion” makes it obvious that the reference is to a person and not to an animal, the clarifying qarina being the battle.

While the absence of a qarina normally precludes the figurative usage of a word and restricts it to a single meaning, a homonym (lafz mushtarak) stripped of a qarina can never be intelligible, and will thus remain ambiguous (mujmal)* When you say the word “spring” outside any context, your audience will not be able to determine whether you are referring to a season of the year, an artesian well or to a spiral in your mattress. Only the context, namely, a qarina, can clarify the speaker’s intention. An elementary example of such context is furnished in the statement ‘‘He drank from this spring,” the act of drinking being the qarina mukhassisa which limits “spring” to the meaning of artesian well rather than the particular season in the year or the metal element in the mattress. In homonyms, therefore, qarirtn reduce ambi­guity and pinpoint the object intended, whereas in words of haqiqa they create additional meanings for the same words. Moreover, weak qariPin (adna al-qard^Jin or qarcPin da^cifa) only hint at or clarify the referent in homonyms, but it requires a strong qarina (qarina qawiyya) to make the figura-

5

tive meaning of a word preponderate over its original, haqiqa • 9

meaning.

Since the imperative mood in legal language standS at the heart of textual interpretation, a chief task of the jurist is the determination of the precise meaning and scope of the im­perative (al-amr). Without a qarina, an imperative remains indeterminate on at least two major points. The first is the intended time in which a command must be implemented. In the absence of a qarina, as for example in the decontextua­lized command “Pray,” it is impossible to know whether we should pray now or at a later date.

The second problem that the interpretation of an impera­tive devoid of a qarina poses is whether the command dictates the fulfillment of the obligation once only or repeatedly ad infinitum. Apparently, a sizeable majority of jurists held that in the absence of a qarina, the command to perform an act should be implemented only once.¹¹ The performance of a commanded act becomes an obligation to be continuously repeated only when this is indicated by certain qara^in. If a master, for instance, orders his servant to buy bread from the marketplace, the latter would be going beyond the instructions of his employer were he to buy bread every day, even though the order of the master may be interpreted to be effective every day. But the absence of a qarina mani^ca, that is, an indication precluding the command from being intended as permanent, necessarily means that once the order is implemented, the task would be considered fully and adequately performed.¹²

With the aid of qara^in therefore, God’s command in the textual sources can be defined precisely. A qarina attached to a command determines whether the performance of that command is obligatory, recommended or left entirely to the discretion of the individual Muslim. Likewise, a command essentially prohibiting the performance of an act (nahy) may be interpreted variably, depending on the quality of the qarina, as a strict or “mild” prohibition.¹³ Qardin may add, reduce, explain, specify, define: al-qara^Jin al-juzdyya render a statement valid in part, not wholly; qara^Jin al-takrdr in a command indicate the necessity for infinite repetition of the act commanded; qaradn abthtimdl make probable the mean­ing of a statement or the occurrence of an event; al-qara^n al-mukhassisa or al-mubayyina particularize and delimit a general notion.¹⁴

Ascertaining the import of an ambiguous legal text may prove impossible without a number of qara^in which must combine in order to make intelligible what seems to the jurist the intended meaning of the text.

Of particular interest in this interpretation is the fourth qarina, which is, in effect, an argument from the negative; it is simply founded on an absent piece of evidence. The absence of a qarina is itself used as a qarina. Apparently, such arguments were not at all infrequent. As one can detect from the legal texts, there lay a claim for the validity and defensibility of the principle that the absence of a certain thing may be taken as a meaningful qarina in support of a given interpretation.¹⁶

Be that as it may, qara^in were seen by jurists to constitute an integral part of speech, a part designed by the Creator to yield a certain hermeneutical benefit. God, it was argued, would not have posited qara^in had there not been a need for them.¹⁷ They are intended not only to facilitate textual interpretation, but also to provide evidence on the basis of which legal rulings are derived. Indeed, the word qarina is often used interchangeably, or in conjunction with the word da III, the latter defined as that which leads to the knowledge of the unobserved on the basis of the observed.¹⁸ It is not uncommon to unravel and determine the dalil through qara^in. QarcPin can then also be instrumental in the actual process of law-making.¹⁹

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III

The other category of qara^Jin, commonly known as qara^in al~ahwal, was less relevant to the linguistic formulations of legal theory than to the transmission of the second material source of law, the Sunna. Here, qara^in played a central role in the evaluation of the authenticity of Prophetic traditions. But qarcPin were not deemed merely as epistemic units exclusively relevant to the transmission of the Prophetic past; they occupied a relatively important position in the taxonomy of the construction of knowledge. QariTin, that is to say, constituted a source of knowledge about things past and present. Consider, for instance, the facial expressions accompanying anger, the tears shed when crying, the coyness of a shy person, etc. They all are signs instrumental in gaining knowledge about the state of mind or affairs of persons we are curious about. In the same vein, we would believe a person who tells us that Zayd is ill when we see that the latter's face is pale and that he has lost considerable weight.²⁰ These signifiers or indices of circumstantial evidence ranked high on the jurists’ list of the means by which knowledge is obtained (maratib al-^culum). Ghazall, for ex­ample, accords qard^Jin a fifth place after the knowledge of such things as the law of the excluded middle and the knowledge obtained through sensory perception (mahsusat) and recurrent traditions (tawatur).²¹ JuwaynT, on the other hand, places them as sixth in his classification.²²

Inasmuch as the considerable loss of weight signifies suffer­ing from illness, the conditions of the transmitters of a Prophetic tradition, their personal integrity, status in society and faithfulness to Islam, the extent of their knowledge of the law and principles of religion, their rank as mujtahids, their personal reputation as meticulous and precise, etc., are qard^Jin that attest to the authenticity of a Prophetic tradi­tion.²³ If a tradition were transmitted by a chain of trans­mitters who are surrounded by a set of strong qara^Jin, the probability that this tradition is authentic is raised signi-

9 ficantly. The weight that qara^Din lend to Prophetic traditions derives not only from the fact that the qara^in simply sur­round the tradition with supportive and authenticating evi­dence but also from their being a source of knowledge in themselves. In fact, a group of jurists went as far as to argue that qarcPin can, in their aggregation, yield certain knowledge even when they accompany weak traditions.²⁴ It suffices here to give one example. When we observe a mother nursing her child, we do not really see the milk reaching the stomach of the child. Our knowledge of this is only supposed. But we become certain of the fact that the child is taking the milk merely by noticing that the throat of the child is showing a movement peculiar to suckling; that he makes a certain sound also peculiar to that activity; that he stopped crying; that he has not eaten for a number of hours; that the woman feeding him, his mother, is in the period of nursing; that sucking the breast of the mother is an infantile instinct; that after having done with his mother the child has become thoroughly satisfied.²⁵

The certainty of knowledge generated by qarirtn may well have been the underlying cause for an established controversy concerning whether or not a solitary tradition (khabar ahad) can yield certain knowledge of the information it conveys. A number of jurists insisted that an ahad tradition may lead to certainty only if accompanied by strong qard^Jin. If a single person tells us, for instance, that the son of a king died we will be certain of his death once we take into account the qara^Jin relevant to the tradition we heard. The first qarina is our knowledge that the son had for sometime been afflicted with a fatal disease. But contemporaneous qara^in, such as wailing and crying of relatives, the marching of a funeral procession, the improper appearance in public of the female relatives as well as the king himself, the marching in the funeral of the king and his entourage, including viziers and high-ranking officers, can only lead to certain knowledge of the son’s death.²⁶ The majority of jurists, however, rejected the view that an ahad tradition can lead to certainty in conjunction with qara^Jin.²¹ The chief argument adduced in support of this view was that even four witnesses, whose personal integrity (^cadala) is proven in a court of law to be beyond impeachment, fall short of confirming beyond any doubt a claim of committing adultery. Only a number of transmissions larger than four and enhanced by strong qara^in al-ahwal can lead to certainty. But this type of tradition, commonly known as the mutawdtir, does not necessarily engender certain knowledge in all minds exposed to it. One intellect may reach certitude upon hearing a tradition trans­mitted a certain number of times, while another intellect may not reach such knowledge even though it was exposed to the same number of transmissions. The reason for this is that the first intellect would be familiar with certain relevant qara^in which are unknown to the second.²⁸

The certitude imparted by the mutawdtir may sometimes be the result not of meeting the strictly formal conditions of the tawatur, but rather the outcome of an interplay between highly probable traditions—i.e., traditions stronger than the common ahad but weaker than the consummate mutawdtir— and an adequate set of qara^in. Qard^in may thus be sub­stitutes for instances of transmission, strengthening a tradition to a degree of certainty.²⁹ QarafT, for one, admitted the conclusiveness of such a tradition, but refused to give it the designation “mutawdtir.” He simply did not know what it was technically called.³⁰

Qara^in, on the other hand, may derive from indirect textual statements bearing upon the issue under discussion. A prominent case in point is the authoritativeness of con­sensus which was partly established by means of a variety of Quranic verses and prophetic traditions bearing indirectly upon the theme of the infallibility of the community, but lending support to the more direct traditions which explicitly state this infallibility.³¹ Qard^in then are not restricted to any one type; they may be circumstantial, rational or even textual.³²

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IV

In positive and substantive law, qarddn play an equally varied and crucial role. Consider for example the case in which a dispute arises as to whether a certain commodity was bartered for another commodity or sold for a price. If the seller says that he received a price for the commodity, then his word is admitted in a court of law, since the accepted mode of sale is by payment, not barter. The custom­ary practice here is in itself evidence bearing upon the truthfulness of the seller (fal-qawlu qawlu al-ha^Ji^ci li-quwwati qarlnati sidqihi).^ Any context, be it a given or presumed set of facts underlying a particular situation, or any circum­stantial evidence affecting a matter under consideration, is considered a qanna\ when it bears upon truthfulness it is qarinat al-sidq, and when it has to do with a price it would be qarinat al-tas^clr, if the matter entails preference, say a male over a female as a witness in a court of law, it would be qarinat al-tafdll, etc.³⁴

Qard^Jin may also appear as non-linguistic, “rational” fac­tors, determining the scope of the application of the law. The existence of al-qarddn al-^caqliyya as a permanent guiding principle in the mind of the jurist dictates, for instance, that such persons as the mentally handicapped and minors are not subject to the generally applicable provisions of the law.³⁵

V

The pervasive effect of qara^Jin in legal theory confirms the multi-faceted approaches to the evaluation or solution of problems of jurisprudence, be they relative to the textual interpretation of a divine command or to the epistemic assessment of a Prophetic tradition. A text may stand subject to varying interpretations by different jurists by virtue of the fact that each interpreter comes to the text with a different idea of what the relevant qardin are, and surely, the meaning of the text is presumed to be established according to the qaradn preconceived by each interpreter. Similarly, the epistemic value of legal precepts are determined by the mode and circumstances of the transmission of Prophetic traditions which are in turn largely affected by the strength and number of qara^Jin surrounding them. The absence from legal theory of a control for defining what the qaradn can and should be in each case leaves the door open—at least theoretically—to a significant latitude in the textual interpretation of the divine decree and in the epistemic assessment of the most substantive source of law, the Sunna. Although the inter­pretative latitude brings with it the implication that the law may have as many interpretations as its interpreters, reality allowed for a rich diversity albeit within relatively narrow boundaries; differences among schools in methodological constructions and positive legal formulations remained mini­mal at best. On the other hand, the qarddn played one of the most important, if not a crucial role in creating remarkably diverse epistemic structures underlying legal theories. The line between the probable and the certain within the spectrum of the legal schools remained as elusive as ever.

³ TahänawT, op. cit., II, pp. 1228, 1229, s.v. iqtirän. For the syllogistic moods see Ibn Abi al-Salt al-Däni, TaqwTm al· Dhihn, ed. & trans. C. G. Palencia (Madrid: n.p., 1915), pp. 22 ff.

⁴ Fakhr al-DTn al-RäzT, al-Mahsülfi ^cIlm Usül al-Fiqh, ed. T. J. F. al-^cUlwänT, 2 vols., 6 parts. (Riyäd: The Islamic University of Muhammad b. Su^cud Press, 1979-81), I, i, 461; Sayf al-DTn al-ÄmidT, al-Ihkäm fT Usül al-Ahkäm, 3 vols. (Cairo: ^CA1T Subayh, 1968), I, p. 34 (1. 5 from bottom).

⁵ ÄmidT, op. cit., Il, pp. 66, 107-108.

⁶ Muhammad b. ^CA1T al-SakkäkT, Miftäh al-^cUlüm (Cairo: al-Matba^ca al-Adabiyya, 1317 H.), pp. 192 ff., 204; GhazälT, al-Mustasfa min ^cIlm al-Usül, 2 vols. (Cairo: Büläq, 1324 H.), 1, 360.

⁷ Abu al-Husayn al-BasrT, al-MiFtamad fT Usül al-Fiqh, ed. Μ. Hamidullah et al., 2 vols. (Damas: Institut Fran^ais de Damas, 1964-1965), II, p. 910; ÄmidT, op. cit., I, pp. 24 (11. 9-10), 26 (1. 5), 34; RäzT, op. cit., 1, pp. i, 403, 481, 498; Abo Ya^clä b. al-Husayn al-Farrä³ al-BaghdädT, al-^cUdda fT Usül al-Fiqh, ed. Ahmad al-MubärakT, 3 vols. (Beirut: Mu^assasat al-Risäla, 1980), I, p. 242.

⁸ Muhibbulläh Ibn ^cAbd al-Shakür, Musallam al-Thubüt, a commentary on Muhammad b. Nizäm al-DTn al-Ansäri’s Fawätih al-Rahamüt, 2 vols. (Cairo: Büläq, 1322 H.), I, p. 203; ÄmidT, op. cit., 1, p. 17.

⁹ RäzT, op. cit., I, i, 386-87, 493, 495. RäzT reports that Shäfi^cT and Abu Bakr al-Bäqilläm held the view that when a homonym is divested of its al-qarcFin al-mukhassisa it must be taken to encompass all of its homonymous meanings. Ibid., p. 380.

¹⁰ ÄmidT, op. cit., II, pp. 14, 31 (II. 21-23), 34.

¹¹ Ibid., Il, p. 22; Hasan b. Zayn al-ShahTd al-ThänT, Ma^calim al-Usül, ed. Mehdi Mohaghegh (Tehran: Sherkat-e Enteshärät-e ElmT va FarhangT, 1364 H.), p. 60.

¹² ÄmidT, op. cit., II, pp. 22 (11. 12-22), 27 (11. 12-15); SakkäkT, op. cit., pp. 192, 198 (1.19). The opposite of qarTna mani^ca is qarTna särifa.

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^M Maward!, Adab al-Qàdi, ed. Μ. H. Sarhän, 2 vols. (Baghdäd: Matba^cat al-Irshäd, 1971), I, p. 278; GhazälT, Mustasfä, I, pp. 419-20, 429-30; Muwaffaq al-DTn Ibn Qudäma, Raw da t al-Nazir wa-Jannat al-Munazir (Beirut: Dar al-Kitäb al-^cArabT, 1981), p. 170.

¹⁴ Ibn ^cAbd al-Shakür, op. cit., I, pp. 380 (11. 15-19, 25), 283 (1. 26); Ghazal!, op. cit., I, pp. 350, 355; Ibn Qudäma, op. cit., p. 164.

¹⁵ GhazalT, op. cit., I, pp. 390-92; Ibn Qudäma, op. cit., p. 158.

¹⁶ Farrä⁰, op. cit., I, pp. 221-22.

¹⁷ GhazälT, op. cit., I, p. 406. See also idem., al-Mankhül min Ta^cliqat al-Usül, ed. Μ. H. Haytü (Damascus: n. p., 1970), p. 51.

¹⁸ Sulaymän Ibn Khalaf al-Bäji, al-Hudüd fi al-Usül, ed. NazTh Hammäd (Beirut and Homs: Mu^assasat al-Zu^cbi, 1973), p. 38.

¹⁹ Farrä³, op. cit., p. 245 (1. 16); Abü al-WalTd al-BäjT, al- Minhäj fi Tartib al-Hijäj, ed. Abdel Magid Turki (Paris: G.-P. Maisonneuve et Larose, 1978), p. 17 (1. 5); Ibn Qudäma, op. cit., p. 157(11. 19-20).

²⁰ Shihäb al-DTn Ibn Idris al-QaräfT, Sharh Tanqih al- Fusül, ed. T. ^cAbd al-Ra³üf Sa^cd (Cairo: Där al-Fikr, 1973), pp. 354-55.

²¹ GhazälT, Mankhül, pp. 46-47, 51.

²² Imäm al-Haramayn al-JuwaynT, al-Burhän fi Usui al- Fiqh, ed. ^cAbd al-^cAzTm DTb, 2 vols. (Cairo: Där al-Ansär, 1979), I, p. 131, par. 50.

²³ ÄmidT, op. cit., I, p. 232 (1. 9); Abü al-Barakät Häfiz al-DTn al-NasafT, Kashf al-Asrär, 2 vols. (Cairo: Büläq, 1316 H.), II, pp. 12-13; al-Muhaqqiq al-HillT, Ma^cärij al- Usül, ed. Μ. H. RadwT(Qum: Matba ^cat Sayyid al-Shuhadä⁰, 1403 H.), p. 148.

²⁴ GhazälT, Mustasfä, I, p. 135 (1. 8); Ibn Qudäma, op. cit., p. 87 (11. 5-6). In his al-Mankhül, 237, 238, GhazälT was prepared to say that it is the qarädn surrounding the tradition

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which constitute the proof of truthfulness and authenticity, not the language or the content of the traditions themselves.

²⁵ Ibn Qudäma, op. cit., pp. 87-88.

²⁶ Mustafä al-I^ctimädT al-TabrizT, Sharh Ma^calim al-Din fT al- Usül (Qum: Kitäb-T FurüshT MustafäwT, 1377 H.), pp. 295f.

²⁷ On the parties to this dispute see Abu Bakr al-SarakhsT, Usül, ed. Abu al-Wafä³ al-AfghänT, 2 vols. (Cairo: Dar al- Kitäb al-^cArabT, 1372 H.), 1, p. 330; QaräfT, op. cit., pp. 354f.; ÄmidT, op. cit., I, pp. 234, 237, 238; Ibn Qudarna, op. cit., p. 92; Kamäl al-DTn Ibn al-Humäm, al-TahrTr fT Usui al~ Fiqh (Cairo: Mustafä BäbT al-HalabT, 1351 H.), p. 331; HillT, op. cit., p. 141; Kamäl al-DTn al-Anbäri, Luma^c al-Adilla fT Usül al-Nahw, ed. Attia Amer (Stockholm: Almqvist & Wiksell, 1963), p. 34.

²⁸ Ibn Qudäma, op. cit., p. 87 (11. 3-6); GhazälT, Mustasfä, I, p. 135 (11. 4-6); ÄmidT, op. cit., I, pp. 229, 230 (11. 1-3); QaräfT, op. cit., p. 352 (11. 12-15). For a detailed analysis of tawätur knowledge and the element of subjectivity in it see W. B. Hallaq, “On Inductive Corroboration, Probability and Certainty in Sunni Legal Thought” (forthcoming).

²⁹ ÄmidT, op. cit., I, p. 238.

³⁰ QaräfT, op. cit., pp. 349 (11. 12-14), 357.

³¹ See W. B. Hallaq, “On the Authoritativeness of Sunni Consensus,” International Journal of Middle East Studies, 18,4 (1986), pp. 44Iff.

³² Basri, op. cit., II, pp. 912-20, especially 913 (11. 10-11).

³³ Burhän al-DTn Muhammad Ibn Farhün, Tabsirat al- Hukkäm fT Usül al-Aqdiya wa-Manähij al-Ahkäm, 2 vols. (Cairo: Där al-Kutub al-^cIlmiyya, 1301 H.), II, p. 250.

³⁴ GhazälT, MFyär al-^cIlm fTFann al-Mantiq, ed. Sulaymän Dunyä (Cairo: Där al-Ma^cärif, 1961), p. 75. On the general uses of qartFin in positive law see Ahmad b. Yahyä al- WansharisT, al-Mi^cyar al-Mu^crib, ed. Μ. HajjT (Beirut: Där al-Gharb al-IslämT, 1981), III, pp. 213-14, passim.

³⁵ ÄmidT, op. cit., II, p. 77.