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 BRIEF COMMUNICATIONS

Notes on the Term qarina in Islamic Legal Discourse

The term qarlna in Islamic legal discourse represents a central technical concept whose
multifarious meanings have not been adequately explicated in the authoritative technical dic-
tionaries. While the qarina plays an important role in the linguistic interpretation of the texts-
thus partaking in the very process of defining the language of the law-it is of no less significance
in the epistemic evaluation of Prophetic traditions. The various technical connotations of the
term qarTnain these spheres of legal theory, as well as in positive and substantive law are the
main concerns of these notes.

I These notions also appear in the technical connotation of the

An infrequently observed yet characteristic feature of Is-
lamic religious-scientific writings in general and legal litera-
ture 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 inter-
pretation and epistemology and which finds little explication
in technical lexicons is qarina (pl. qard'in).
In the Kashshdf Istildhdtal-Funfin, one of the most authori-
tative technical dictionaries, the term qarTnais confined to its
rudimentary linguistic and logical meaning.' Linguistically,
the qarna represents a verbal or non-verbal element clarifying
a part of speech extraneous to itself. The independence of the
qarrna 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. The eighth form of the
verb likewise means to join or link, and with the preposition
bi it would mean to be married to, or to be coupled with.2
Muhammad b. 'All al-Tahanawi, Kashshdf Istildhdt al-
Funin, 2 vols. (Calcutta: W. N. Leeds' Press, 1862), II,
p. 1228, s.v. "qarTna."An extremely laconic definition may
also be found in the equally authoritative dictionary of CAbd
al-Nabi al-Ahmadnagari, Jdmi' al-'Ulum fJ Istildhat al-
Funan al-Mulaqqab bi-Dustir al-cUlamad, 4 vols. (Beirut:
Mu'assasat al-A'lami lil-Matbuict, 1975), III, p. 64.
2 Jamal al-Din Muhammad Ibn
Manziir, Lisan al-5Arab,
15 vols. (Beirut: Dar Sadir, 1972), XII, pp. 331-42, especially
336b.
475
logical definition of the term; that is, the necessary connection
between the major and the minor premises and the arrange-
ment within these premises of the terms which fashion the
moods of the categorical figures in syllogistics.3
II
In legal theory the concept of qarrna 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 distinc-
tion between two types of qara'in, one verbal, the very basic
notion of which we have already intimated, the other cir-
cumstantial. Pertaining to the semantic aspects of words, the
first type is known in the Arabic sources as qara'in maqaliyya
or qardain lafziyya, and the second, being relative to the
circumstances of transmitting Prophetic traditions, is accord-
ingly termed qara'in hdliyya (with the more common varia-
tion qard'in al-ahwal) or qard'in ma'nawiyya.4
Although they represent two distinct categories, the seman-
tic and circumstantial qard'in may converge in the same
context to determine the precise meaning of a word or a
sentence. A primary instance of this occurs in the interpreta-
tion 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
3
Tahanawi, op. cit., II, pp. 1228, 1229, s.v. iqtirdn. For the
syllogistic moods see Ibn Abi al-Salt al-Dani, TaqwTmal-
Dhihn, ed. & trans. C. G. Palencia (Madrid: n.p., 1915),
pp. 22 ff.
4
Fakhr al-Din al-Razi, al-Mahsiilff 'Ilm Usul al-Fiqh, ed.
T. J. F. al-'Ulwani, 2 vols., 6 parts. (Riyad: The Islamic
University of Muhammad b. Su'id Press, 1979-81), I, i,
461; Sayf al-Din al-Amidi, al-Ihkam ft Usul al-Ahkam, 3
vols. (Cairo: 'Ali Subayh, 1968), I, p. 34 (1. 5 from bottom).

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476 Journalof the AmericanOrientalSociety 108.3 (1988)
with men by a divine command commencing with the pro-
noun "whoever" presents one case in point. As an example
of such problematic usage the jurists debated the subsum-
ability 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. The problematic issue,
however, was whether the universality ('umum) of the com-
mand derives from the command's language per se or from
particular extra-linguistic circumstances surrounding the ver-
bal usage that add to the command a meaning which the
language itself does not convey. It was argued that the
existence of a qarlnatal-hal together with the command,
namely, the customary Arab practice that guests, whoever
they may be, are not to be shown lack of respect without a
reason, confirms that the language itself is not independent
of reality and that the command acquires an extended mean-
ing through convention. The effect of social norms on the
determination of the meaning of the command may be most
apparent in the case of a thief entering the master's house for
the purpose of robbing it. If the command were universal
and bore no relation to the reality of social behavior, the thief
should be allowed to enter and practice his profession, for
the command was given with no conditions or qualifications.
Against this argument it was maintained that even if the
command runs counter to the aforementioned qarlna,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
exists no relevant, effective qarlnatal-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 qarlnathe speech must be under-
stood in its literal (haqlqa)meaning: a mule is a mule, and a
lion is a lion. But in conjunction with a qarlna,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 qarlnasurrounding the use of "lion" makes it
obvious that the reference is to a person and not to an
animal, the clarifying qarmabeing the battle. The unlikeli-
hood, if not the impossibility, of a real lion participating in a
battle between armies forces here the figurative understanding
5 Amidl, op. cit., II, pp. 66, 107-108.
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of the word.6 Thus a word must be accompanied by a qarlna
for it to be understood metaphorically.7
While the absence of a qarlna normally precludes the
figurative usage of a word and restricts it to a single meaning,
a homonym (lafz mushtarak)stripped of a qarlnacan never
be intelligible, and will thus remain ambiguous (mujmal).8
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 qarlna,
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 qarlnamukhassisa
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, qard'inreduce ambi-
guity and pinpoint the object intended, whereas in words of
haqlqathey create additional meanings for the same words.
Moreover, weak qard'in(adndal-qard'inor qard'in.da'lfa)
only hint at or clarify the referent in homonyms, but it
requires a strong qarlna(qarlnaqawiyya)to make the figura-
tive meaning of a word preponderate over its original, haqlqa
meaning.9
Since the imperative mood in legal language standt at the
heart of textual interpretation, a chief task of the jurist is the
determination of the precise meaning and scope of the im-
perative (al-amr).Without a qarlna,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 qarlna,as for example in the decontextua-
lized command "Pray," it is impossible to know whether we
6 Muhammad b. 'All al-Sakkakl, Miftahal-'Ulum(Cairo:
al-Matba'a al-Adabiyya, 1317 H.), pp. 192 ff., 204; Ghazall,
al-Mustasfamin 'Ilmal-Usul,2 vols. (Cairo: Bulaq, 1324 H.),
I, 360.
7 Abu al-Husayn al-Basrl, al-Mu'tamadJY Usul al-Fiqh,
ed. M. Hamidullah et al., 2 vols. (Damas: Institut Fransais
de Damas, 1964-1965), II, p. 910; Amidl, op. cit., I, pp. 24
(11.9-10), 26 (1. 5), 34; Razl, op. cit., I, pp. i, 403, 481, 498;
Abu Ya'la b. al-Husayn al-Farra' al-Baghdadl, al-'UddafT
Usul al-Fiqh, ed. Ahmad al-Mubarakl, 3 vols. (Beirut:
Mu'assasat al-Risala, 1980), I, p. 242.
8 Muhibbullah Ibn 'Abd al-Shakur, Musallamal-Thubut,
a commentary on Muhammad b. Nizam al-Dln al-Ansarl's
FawatEhal-Rahamut,2 vols. (Cairo: Bulaq, 1322 H.), I,
p. 203; Amidl, op. cit., I, p. 17.
9 Razl, op. cit., I, i, 386-87, 493, 495. Razl reports that
Shafi' 1 and Abu Bakr al-Baqillanl held the view that when a
homonym is divested of its al-qar4'inal-mukha.s$isa it must
be taken to encompass all of its homonymous meanings.
Ibid., p. 380.
 HALLAQ:Notes on the Term qarina in Islamic Legal Discourse
should pray now or at a later date. But in the case of a
master telling his servant "I am thirsty, bring me some water
to drink," or in the Quranic verse (XV: 29) "When I have
created him and have breathed into him of My spirit, you
shall fall down (faqaii), prostrating yourselves unto him,"
the qard'in al-lafziyya of thirst and the use of the sequential
fd' in faqa'C indicate that the implementation of the com-
mand was intended to be immediate.'0
The second problem that the interpretation of an impera-
tive devoid of a qarTna 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 qarTna,the command to
perform an act should be implemented only once." The
performance of a commanded act becomes an obligation to
be continuously repeated only when this is indicated by
certain qard'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
qarTnamdnica, 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.'2
With the aid of qara'in therefore, God's command in the
textual sources can be defined precisely. A qarTnaattached 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
qarTna,as a strict or "mild" prohibition.'3 Qardainmay add,
reduce, explain, specify, define: al-qard'in al-juz'iyya render
a statement valid in part, not wholly; qard'in al-takrdr in a
command indicate the necessity for infinite repetition of the
act commanded; qard'in al-ihtimdl make probable the mean-
ing of a statement or the occurrence of an event; al-qara'in
]0
Amid!, op. cit., II, pp. 14, 31 (11.21-23), 34.
1 absence of a qarina is itself used as a qarTna.Apparently,
Ibid., II, p. 22; Hasan b. Zayn al-ShahTd al-Thanm,
Ma'clim al- Usiil, ed. Mehdi Mohaghegh (Tehran: Sherkat-e
Entesharat-e Elmi va Farhangi, 1364 H.), p. 60.
12
AmidT, op. cit., II, pp. 22 (11. 12-22), 27 (11. 12-15);
SakkakT,op. cit., pp. 192, 198 (1.19). The opposite of qarTna
mdni'a is qarTnasarifa.
13
MawardT, Adab al-QddT, ed. M. H. Sarhan, 2 vols.
(Baghdad: Matba'at al-Irshad, 1971), I, p. 278; GhazalT,
Mustasfa, I, pp. 419-20, 429-30; Muwaffaq al-Din Ibn
Qudama, Rawdat al-Ndzir wa-Jannat al-Mundzir (Beirut:
Dar al-Kitab al-'Arabl, 1981), p. 170.
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477
al-mukhassisa or al-mubayyina particularize and delimit a
general notion.'4
Ascertaining the import of an ambiguous legal text may
prove impossible without a number of qard'in which must
combine in order to make intelligible what seems to the jurist
the intended meaning of the text. In other words, the induc-
tive aggregation of qara'in in support of a meaning is sought
by the jurist in order to lend clarity and credibility to his
interpretation. Consider, for instance, the problem in the
interpretation of a hadith with regard to a certain Ghaylan
b. Salma who, upon converting to Islam, asked the Prophet
what to do with his ten wives, whereupon the Prophet
enjoined him to "retain four of them and part with the
others." The injunction was taken by later jurists to mean
that Ghaylan was to retain four wives without having to
remarry them, not, as certain opponents argued, to divorce
them all and subsequently marry only four. This interpreta-
tion was supported not by a single qarTnabut by several.
First, the Companions, who were presumed to have intimately
known the intentions and wishes of the Prophet, understood
this statement to mean retaining four wives without remarry-
ing them. Second, the Prophet gave Ghaylan alone the
choice to keep four wives; viz., had he wanted him to form
another contract of marriage according to the new religion,
he, the Prophet, would have mentioned the need to secure
the consent of the four wives or that of their marriage
guardians. Third, the Prophet began his injunction by utter-
ing the word "retain," which represents a positive command
not to part, even momentarily, with the four he decides to
keep. Had the Prophet wanted him to divorce all of them
first, and only then marry four, he would have said so
explicitly. Fourth, if the Prophet intended Ghaylan to enter
into a new contract with four wives he would have stipulated
the legal conditions and qualifications of marriage under
Muslim law, since Ghaylan had just converted to the new
religion of Islam, and was thus presumed ignorant of its
laws.'5
Of particular interest in this interpretation is the fourth
qarTna,which is, in effect, an argument from the negative; it
is simply founded on an absent piece of evidence. The
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
14 Ibn CAbd
al-Shakur, op. cit., I, pp. 380 (11. 15-19, 25),
283 (1. 26); Ghazal, op. cit., I, pp. 350, 355; Ibn Qudama,
op. cit., p. 164.
15
GhazalT, op. cit., I, pp. 390-92; Ibn Qudama, op. cit.,
p. 158.
478 Journal of the American Oriental Society 108.3 (1988)
thing may be taken as a meaningful qarTnain 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 qaradinhad 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 qarTnais
often used interchangeably, or in conjunction with the word
daltl, the latter defined as that which leads to the knowledge
of the unobserved on the basis of the observed.'8 It is not
uncommon to unravel and determine the dalTi through
qara'in. Qaradincan then also be instrumental in the actual
process of law-making.19
III
The other category of qara'in, commonly known as qardain
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, qaradinplayed a central role
in the evaluation of the authenticity of Prophetic traditions.
But qara'in 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. Qaradin,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.20These signifiers or indices of circumstantial evidence
ranked high on the jurists' list of the means by which
16
Farra', op. cit., I, pp. 221-22.
17 GhazalT, op. cit., I, p. 406. See also idem., al-Mankhul
min Ta'lrqdt al-Usil, ed. M. H. Hayti (Damascus: n. p.,
1970), p. 51.
18 Sulayman Ibn Khalaf al-Baji, al-Hudiid f al-Usul, ed.
Nazih Hammad (Beirut and Homs: Mu'assasat al-Zu'bT,
1973), p. 38.
19
Farra', op. cit., p. 245 (1. 16); Abu al-Walid al-Baji, al-
Minhdj ft TartTbal-.Hijaj, ed. Abdel Magid Turki (Paris:
G.-P. Maisonneuve et Larose, 1978), p. 17(1. 5); Ibn Qudama,
op. cit., p. 157 (11.19-20).
20 Shihab al-Din Ibn IdrTs al-QarSfT, Sharh Tanq.h al-
Fusul, ed. T. 'Abd al-Ra'uf Sa'd (Cairo: Dar al-Fikr, 1973),
pp. 354-55.
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knowledge is obtained (maratib al-'ulum). Ghazali, for ex-
ample, accords qara'in a fifth place after the knowledge of
such things as the law of the excluded middle and the
knowledge obtained through sensory perception (mahsisat)
and recurrent traditions (tawatur).21 Juwayni, on the other
hand, places them as sixth in his classification.22
Inasmuch as the considerable loss of weight signifies suffer-
ing 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
qaradin that attest to the authenticity of a Prophetic tradi-
tion.23 If a tradition were transmitted by a chain of trans-
mitters who are surrounded by a set of strong qaradin, the
probability that this tradition is authentic is raised signi-
ficantly. The weight that qara'in lend to Prophetic traditions
derives not only from the fact that the qaradin simply sur-
round the tradition with supportive and authenticating evi-
dence but also from their being a source of knowledge in
themselves. In fact, a group of jurists went as far as to argue
that qaradincan, in their aggregation, yield certain knowledge
even when they accompany weak traditions.24It 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 qard'in may well
have been the underlying cause for an established controversy
21
Ghazali, Mankhul, pp. 46-47, 51.
22
Imam al-Haramayn al-Juwayni, al-Burhdn ft Usuil al-
Fiqh, ed. 'Abd al-'Azim Dlb, 2 vols. (Cairo: Dar al-Ansar,
1979), I, p. 131, par. 50.
23
AmidT, op. cit., I, p. 232 (1. 9); Abu al-Barakat Hafiz
al-Din al-Nasafi, Kashf al-Asrdr, 2 vols. (Cairo: Bfulq,
1316 H.), II, pp. 12-13; al-Muhaqqiq al-Hilli, Ma'drij al-
Usil, ed. M. H. Radwi (Qum: Matba 'at Sayyid al-Shuhada',
1403 H.), p. 148.
24 Ghazali, Mustasfd, I, p. 135 (1. 8); Ibn Qudama, op. cit.,
p. 87 (11. 5-6). In his al-Mankhul, 237, 238, Ghazali was
prepared to say that it is the qardainsurrounding the tradition
which constitute the proof of truthfulness and authenticity,
not the language or the content of the traditions themselves.
25
Ibn Qudama, op. cit., pp. 87-88.
 HALLAQ:Notes on the Term qarina in Islamic Legal Discourse
concerning whether or not a solitary tradition (khabar dhdd)
can yield certain knowledge of the information it conveys. A
number of jurists insisted that an dhdd tradition may lead to
certainty only if accompanied by strong qarfain. 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'in relevant to the tradition we heard. The first qarTnais
our knowledge that the son had for sometime been afflicted
with a fatal disease. But contemporaneous qard'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 dhdd tradition can lead to certainty in
conjunction with qard'in.27The chief argument adduced in
support of this view was that even four witnesses, whose
personal integrity ('adala) 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 qard'in
al-ahwdl 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 trans-
mitted 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 qardain
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 tawdtur, but rather the outcome of an interplay between
26 Mustafa al-IctimadT
al-Tabrizi, Sharh Ma'alim al-DTnf
al- Usal (Qum: Kitab-TFurushl Mustafawi, 1377 H.), pp. 295f.
27
On the parties to this dispute see Abu Bakr al-SarakhsT,
Usul, ed. Abu al-Wafa' al-Afghani, 2 vols. (Cairo: Dar al-
Kitab al-'Arabl, 1372 H.), I, p. 330; Qarafi, op. cit., pp. 354f.;
Amidi, op. cit., I, pp. 234, 237, 238; Ibn Qudama, op. cit.,
p. 92; Kamal al-Din Ibn al-Humam, al-TahrTrfJ Usiil al-
Fiqh (Cairo: Mustafa Babi al-Halabi, 1351 H.), p. 331; Hill,
op. cit., p. 141; Kamal al-Din al-Anbari, Luma' al-Adilla f
Usiil al-Nahw, ed. Attia Amer (Stockholm: Almqvist &
Wiksell, 1963), p. 34.
28
Ibn Qudama, op. cit., p. 87 (11.3-6); GhazalT, Mustasfd,
I, p. 135 (11.4-6); AmidT, op. cit., I, pp. 229, 230 (11. 1-3);
Qarafi, op. cit., p. 352 (11. 12-15). For a detailed analysis of
tawdtur knowledge and the element of subjectivity in it see
W. B. Hallaq, "On Inductive Corroboration, Probability and
Certainty in Sunni Legal Thought" (forthcoming).
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479
highly probable traditions-i.e., traditions stronger than the
common dhdd but weaker than the consummate mutawdtir-
and an adequate set of qardain. Qard'in may thus be sub-
stitutes for instances of transmission, strengthening a tradition
to a degree of certainty.29 Qarafi, for one, admitted the
conclusiveness of such a tradition, but refused to give it the
designation "mutawatir." He simply did not know what it
was technically called.30
Qard'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 con-
sensus 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.31Qardainthen are not restricted to any
one type; they may be circumstantial, rational or even
textual.32
IV
In positive and substantive law, qard'in 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 custom-
ary practice here is in itself evidence bearing upon the
truthfulness of the seller (fal-qawlu qawlu al-ba'i'i li-quwwati
qarTnatisidqihi).33 Any context, be it a given or presumed set
of facts underlying a particular situation, or any circum-
stantial evidence affecting a matter under consideration, is
considered a qarTna;when it bears upon truthfulness it is
qarinat al-sidq, and when it has to do with a price it would
be qarTnatal-tascTr; if the matter entails preference, say a
male over a female as a witness in a court of law, it would be
qarinat al-tafdTl,etc.34
29
Amidi, op. cit., I, p. 238.
30
Qarafi, 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. 441ff.
32
Basri, op. cit., II, pp. 912-20, especially 913 (11.10-11).
33 Burhan al-Din Muhammad Ibn
Farhun, Tabsirat al-
Hukkdm ft Usfil al-Aq.diya wa-Mandhij al-Ahkdm, 2 vols.
(Cairo: Dar al-Kutub al-'Ilmiyya, 1301 H.), II, p. 250.
34 Ghazali, Mi'ydr al-cllmft Fann
al-Mantiq, ed. Sulayman
Dunya (Cairo: Dar al-MaC'rif, 1961), p. 75. On the general
uses of qard'in in positive law see Ahmad b. Yahya al-
WansharisT,al-Mi'ydr al-Mucrib, ed. M. Hajji (Beirut: Dar
al-Gharb al-Islami, 1981), III, pp. 213-14, passim.
480 Journal of the American Oriental Society 108.3 (1988)

Qaradinmay also appear as non-linguistic, "rational" fac-
tors, determining the scope of the application of the law. The
existence of al-qaradin al-'aqliyya 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 substantive source of law, the Sunna. Although the inter-
The pervasive effect of qaradinin 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
qard'in 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 qaradin surrounding them. The absence from legal theory
of a control for defining what the qard'in 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
pretative 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 mini-
mal at best. On the other hand, the qaradinplayed 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.
WAELB. HALLAQ

35 Amidi,
op. cit., II, p. 77. MCGILL UNIVERSITY

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