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Unformatted text preview: ing marriage is not the principal theme of this text, but only a subsidiary point. The main theme is the Nass and the incidental point is the Zahir. [11. Abu Zahrah, Usul, p. 93; Badran, Usul, p. 402.] Principles of Islamic Jurisprudence ~ Kamali 89 The effect of the Zahir and the Nass is that their obvious meanings must be followed and action upon them is obligatory unless there is evidence to warrant recourse to ta'wil, that is, to a different interpretation which might be in greater harmony with the intention of the Lawgiver. For the basic rules of interpretation require that the obvious meaning of words should be accepted and followed unless there is a compelling reason for abandoning the obvious meaning. When we say that the Zahir is open to ta'wil, it means that when the Zahir is general, it may be specified, and when it is absolute, it may be restricted and qualified. Similarly the literal meaning of the Zahir may be abandoned in favour of a metaphorical meaning. And finally, the Zahir is susceptible to abrogation which, in the case of the Qur'an and Sunnah, could only occur during the lifetime of the Prophet. An example of the Zahir which is initially conveyed in absolute terms but has subsequently been qualified is the Qur'anic text (al-Nisa', 4:24) which spells out the prohibited degrees of relationship in marriage. The text then continues, 'and lawful to you are women other than these, provided you seek them by means of your wealth and marry them properly. . .' The passage preceding this ayah refers to a number of female relatives with whom marriage is forbidden, but there is no reference anywhere in this passage either to polygamy or to marriage with the paternal and maternal aunt of one's wife. The apparent or Zahir meaning of this passage, especially in the part where it reads 'and lawful to you are women other than these' would seem to validate polygamy beyond the limit of four, and also marriage to the paternal and maternal aunt of one's wife. However, the absolute terms of this ayah have been qualified by another ruling of the Qur'an (al-Nisa', 4:3) quoted earlier which limits polygamy to four. The other qualification to the text under discussion is provided by the Mashhur Hadith which forbids simultaneous marriage with the maternal and paternal aunt of one's wife. [12. Abu Dawud, Sunan (Hasan's trans.), II, 551, Hadith no. 2060; Khallaf, 'Ilm, p. 163; Abu Zahrah, Usul, p. 94.] This illustration also serves to show an instance of conflict between the Zahir and the Nass. Since the second of the two ayat under discussion is a Nass, it is one degree stronger than the Zahir and would therefore prevail. This question of conflicts between the Zahir and Nass will be further discussed later. It will be noted that Nass, in addition to the technical meaning which we shall presently elaborate, has a more general meaning which is commonly used by the fuqaha'. In the terminology of fiqh, Nass means a definitive text or ruling of the Qur'an or the...
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