The following is a Q&A related to Usul al-Fiqh. It is basically about what is considered to be shubhat ad-daleel (semblence of evidence) which serves as a basis to consider something a legitimate Islamic opinion in Fiqh. It is a draft translation from Arabic.
Question: What is the shubhat ad-daleel (semblance of evidence)? The one who says that cutting off the hand of the thief means to prevent stealing or it means to wound and scar and not to sever it from the body. Does the one who says those have a shubhat ad daleel? And does the one who says that the Islamic state was not established until after the treaty of Hudaybiyah have a shubhat daleel?
Answer: The shubhat ad-daleel is ascertained in the following:
A.. Evidences for which definite general evidence has been provided to consider then as Shariah evidences and they are the Kitab, Sunnah, ijmaah as-sahabah and Qiyas in the event that their meaning is speculative (zanniyah) and outweighed (murjuha) i.e. not definite (qatiyyah) or preponderant (rajiha).
B Evidences for which speculative general evidences has been provided for their recognition/consideration. They are; Istihsan (juristic preference), al-masalih al mursala (unqualified interests), mazhab as-sahabhi etc all the same whether their meanings are definite (qatiyyah) or speculative (zanniyah).
C That the angle of deductive reasoning (istidlal) regarding these evidences must have been on studies of the Arabic language and studies of sections of the Quran and Sunnah.
If these issues are not met then there will be no shubhat ad daleel, and definitely no daleel.
Example A: those who permit the muzara’ah (leasing land for the purpose of cultivating crops) relied on the Sunnah. From the Sunnah it is what ibn Umar narrated. He said: “The Messenger of Allah (saw) made a deal with the people of Khaybar that they would get half of what it (the land Khaybar) produces of crops and fruit’ they understood this to mean that the land was cultivated for payment of half the produce. So this understanding depends on a Shari’ a evidence, the Sunnah but the meaning here is speculative. It can mean leasing land for the faming of arable crops (muzara’ah) or irrigating (existing) tree plantations (musaaqaah) because the hadith says (half of what it produces of crops and fruit). The word crops’ indicates that a part of the produce was obtained through muzara’ah i.e. the land was cultivated from arable crops. And the word ‘fruit’ indicates that another part was obtained through musaaqaah i.e. the land was planted with (fruit bearing) trees.
However, by bringing together all the evidences concerning the land of Khaybar, it becomes clear that the land was planted with trees (mushajjarah), and that there were areas between the trees that used to be planted with crops i.e. within the gaps between the trees. Accordingly, the land of Khaybar was planted with trees (musaaqaah) and only a small area between the trees was farmed for crops, therefore the ruling will be for what was predominant i.e. for musaaqaah. This is clear in the hadiths which explained the shares of the wives of the Messenger (saw) from the produce of the land. The hadith mentions that he (saw) used to give his wives one hundred wasq each (one wasq = 130.56kg), eighty wasq of dates and twenty wasq of barley. It is clear that the trees were predominant. Therefore, the preponderant speculative meaning of the hadith will be that the land was planted with trees. So the outweighed speculative meaning will be that there was a separate part of the land which was cultivated for crops and that should take the rule of muzara’ah. Consequently, the one who permits muzara’ah based on this understanding can be said to have a shubhat ad-daleel (There are other evidences which prohibit muzara’ah but the intension here is to explain the shubhat ad-daleel).
Example B: Those who said that the private employees (ajeer khas) does not guarantee/insure the damage to a shirt he has been hired to tailor, if the damage was not considered to be from him. As for the freelance worker (ajeer aam), he must guarantee. And that is based on Istihsan as they claim, so that the freelance worker does not accept jobs that are beyond his capacity. This view of theirs does not rely on an evidence, rather the evidence is contrary to that. The messenger (saw) said: “There is no (obligation of) guarantee on the one who has been entrusted’. It includes anyone entrusted with something whether he is a freelance worker or a private worker. However with regards to those who advocate Istihsan, it is a shubhat ad-daleel for them.
Example C: The verse: “Cut the hand of the thief, male or female” [al-Maidah:38]
If it is said that the meaning of cutting is to prevent him from stealing through any means, it is not necessary to really cut off his hand, prevention can happen by imprisonment, exhortation or by this and that. Or if it claimed that the word “qata” (to cut) is an ambivalent term (lafz al mujmal) regarding cutting by separating the limb (amputation) or cutting by only wounding or scarring. And that both cases are allowed: amputation or scarring.
If this is claimed, then it cannot be said that those who hold the view of only metaphorical prevention and wounding that they have a shubhat ad-daleel. That cannot be claimed, because the angle of deductive reasoning in this manner regarding the noble ayah does not accord with the Arabic language or sections of the Kitab and Sunnah. As regards the language, one does not proceed to the metaphorical meaning (majazi) except when the real meaning is impossible. Here there is no question of impossibility. So the real cutting is what is made recourse to, it is not allowed to extend beyond it to another meaning.
As regards sections of the Kitab and Sunnah, if we consider the word qata (to cut) is an ambivalent term , lafz mujmal, regarding cutting by separating the limb amputation or cutting by only wounding or scarring. If this is what is considered , then the messenger (saw) has explained this ambivalence (mujmal). When a mujmal has been explained it comes to have a fixed meaning and one does not refer to a meaning contradicting it. Abu Hurairah (ra) narrated that ‘a thief who had stolen a turban was brought to the Messenger of Allah. They (the people who brought him) said; Oh Rasoolallah, this man has committed theft. So Rasoolallah (saw) said; I don’t think he did. The thief replied saying that he did, so Rasoolallah (saw) said; go and cut off his hand, then stop his bleeding (ihsimu)’. The word ‘haam’ means to prepare boiling oil. When the hand is cut it is immersed in the oil to block of openings of the blood veins so that he does not lose too much blood and die. Similarly, the hadith narrated by Aisha (ra); “The Prophet (saw) cut of the hand of a women.”
That is why Abu Bakr and Umar followed without any objection from any of the sahabah.
That is why the one who says cutting the hand of the thief means to prevent him using any means or to wound him only without actually cutting his hand off. It cannot be said about then that they have a Shubhat daleel. Rather what is said is that punishing the thief with anything other than the actual cutting of the hand is a Kufr rule. It has no evidence, or semblance of evidence.
Similarly, one cannot claim about an understanding of historical or political events that does not rely on the Shariah evidences (Kitab, Sunnah, ijmaah as sahabah and Qiyas) and other evidences (Istihsan, al masalih ar mursala). It cannot be said that this understanding has an evidence or a semblance of an evidence because of the term has a terminological meaning as set down by the mentioned except in the manner we have explained, i.e. political and historical incidents as such can’t stand to be evidence by themselves.
Accordingly as for the one who says that the first Islamic state was established after the Treaty of Hudaybiyah. It cannot be said that he has a shubhat ad-daleel. Rather we should say: his statement is a mistake, the correct view is that the Islamic state existed after the Hijra (migration) of the Messenger (saw) to Madinah. The rules were indeed applied and Islam was conveyed through Dawa and Jihad. The authority of Islam did exist and the state was an actual and real entity.