Principles of Islamic Jurisprudence by MH kamali

13 ibn al qayyim ilam ii 242 mustafa zayd maslahah

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Unformatted text preview: ished law, and hence no longer a maslahah mursalah. Historically, the notion of maslahah mursalah originated in the practice of the Companions. This is, of course, not to say that the Prophet did not rule in favour of maslahah, but merely to point out that as a principle of jurisprudence, maslahah mursalah does not apply to the rulings of the Sunnah. The practice of the Companions, the Successors and the leading mujtahidun of the past tends to suggest that they enacted laws and took measures in pursuance of maslahah despite the lack of textual authority to validate it. The Caliph Abu Bakr, for example, collected and compiled the scattered records of the Qur'an in a single volume; he also waged war on those who refused to pay the zakah; and he nominated `Umar to succeed him. [14. Shatibi, I`tisam, II, 287; Khallaf, `Ilm, p.86.] Similarly, `Umar b. al-Khattab held his officials accountable for the wealth they had accumulated in abuse of public office and expropriated such wealth. He also poured away milk to which water had been added as a punishment to deter dishonesty in trade. Furthermore, `Umar b. al-Khattab suspended the execution of the prescribed punishment for theft in a year of famine, and approved of the views of the Companions to execute a group of criminals for the murder of one person. [15. Ibn al-Qayyim, I`lam, I, 185; Abu Zahrah, Usul, pp. 222-223; Mustafa Zayd, Maslahah, p. 52.] These decisions were taken despite the clear ruling of the Qur'an concerning retaliation (qisas), which is `life for life' and the Qur'anic text on the amputation of the hand, which is not qualified in any way whatsoever. But the Caliph Umar's decision concerning qisas was based on the rationale that the lives of the people would be exposed to aggression if participants in murder were exempted from qisas. Public interest thus dictated the application of qisas for all who took part in murdering a single individual. Furthermore, the third Caliph, `Uthman, distributed the authenticated Qur'an and destroyed all the variant versions of the text. He also validated the right to inheritance of a woman whose husband had divorced her in order to be disinherited. The fourth Caliph, `Ali, is also on record as having held craftsmen and traders responsible for the loss of goods that were placed in then custody. this he considered to be for the maslahah of the people so that traders should take greater care in safeguarding people's property. [16. Shatibi, I'tisam, II, 292, 302; Ibn al-Qayyim, I`lam, I, 182; Abu Zahrah, Usul, p. 223.] In a similar vein, the ulema Principles of Islamic Jurisprudence ~ Kamali 237 of the various schools have validated the interdiction of the ignorant physician, the clowning mufti, and the bankrupt trickster, on grounds of preventing harm to the people. The Malikis have also authorised detention and ta`zir for want of evidence of a person who is accused of a crime. `Ilm, p.86, Abu Zahrah, Usul, p. 223.] [17. Shatibi, I`tisam, II, 293. Khallaf, In all t...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.

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