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Volume :20 Issue : 61 2005      Add To Cart                                                                    Download

Particularization (takhsis) of the General (‘aamm) by the Way of Exception (‘Istithna’) As Understood by Scholars of Usul.

Auther : Dr. Mahmoud Salih Jaber

The issue of particularization (takhsis) of the general (‘aamm) by the way of exception, is one of the important topics of research in the discipline of Usul because it enables the Mujtahid to understand well the Islamic legislative texts in regard to the extent of their meaning coverage of all cases or being restricted to some. The importance of this issue is seen also in its help in understanding the exact meaning of the Muslims’ documents on their wills, Recognition of rights, endowments, oaths and vows.

The paper addressed the following points:

  1. The meaning of exception to Fiqh scholars is more general than its meaning to Usul scholars. To Fiqh scholars, exception covers any phrase or expression which is different from the previous statement, either by excluding totally some of members or restricting them by some qualities, objectives or others. As a term, such exception includes using articles and structures of exclusion such as: ‘illa (إلا ) and its similar sisters, conditional structures, adjectives or objectives.
  2. Most Usul scholars in the Shafi’i, Hanbali and Maliki schools are on agreement that the word of exception must not absorb all members of the total group; otherwise the exception will be invalid. The Hanafi School states that absorbing the total group by the same word, or by another word similar in concept, renders the exception invalid, but not if it is done by a different word or a similar one but narrower in concept.

  3. Exception is one of the proofs of particularizing according to the majority of the Maliki, Shafi’i, Hanbali, and Dhahiri Schools in addition to some Hanafi scholars such as Ibn Al-Humam and Ibn Abd-Al-Shakour.
  4. The rule of exception from negation is affirmation and visa versa is applicable and valid to the majority of Usul scholars.
  5. The majority of scholars accept exception as one of the proofs of particularization, but the majority of the Hanafi School and others such as Imam Al-Haramain and Al-Ghazali see that exception and particularization are two different concepts, a view which led to differences and effects in their madhhab.
  6. The successive exceptions not connected with a conjunctive and the last one of them did not absorb the first, being less than it, the opinion of the majority is that each exception affects those before it.
  7. The exception occurring immediately after conjunctional sentences refers to all of them. This is the view of the majority, which is mainly correct and more strongly supported, because no one sentence is worthier than the other. On other hand, the conjunction particle necessitates sharing as the plural forms do.

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