Principles of Islamic Jurisprudence by MH kamali

1323 29 iv 30 ziadeh urf and law pp 60 61 ismail

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Unformatted text preview: dhering to God's injunctions. The reason for the position taken by the exegetes becomes apparent if one bears in mind Islam's perspective on good and evil (husn wa-qubh) which are, in principle, determined by divine revelation. Hence when God ordered the promotion of ma'ruf, He could not have meant the good which reason or custom decrees to be such, but what He enjoins. [4. Cf. Ziadeh,' 'Urf and Law', p. 62.] Principles of Islamic Jurisprudence ~ Kamali 248 [3. Tabari, Tafsir, (Bulaq This would also explain why `urf in the sense of custom is not given prominence in the legal theory of the usul al-fiqh, although it carries some authority, as we shall presently explain. Custom which does not contravene the principles of Shari'ah is valid and authoritative; it must be observed and upheld by a court of law. According to a legal maxim which is recorded by the Shafi'i jurist al-Suyuti, in his well-known work, al-Ashbah wa al-Nazai'r, 'What is proven by 'urf is like that which is proven by a shar'i proof.' This legal maxim is also recorded by the Hanafi jurist al-Sarakhsi, and was subsequently adopted in the Ottoman Majallah which provides that custom, whether general or specific, is enforceable and constitutes a basis of judicial decisions. Usul, p. 216; Mahmassani, Falsafah, p. 132.] [5. The Mejelle (Tyser's trans.) (Art. 36); Abu Zahrah, The ulema have generally accepted 'urf as a valid criterion for purposes of interpreting the Qur'an. To give an example, the Qur'anic commentators have referred to `urf in determining the precise amount of maintenance that a husband must provide for his wife. This is the subject of sura al-Talaq (65:7) which provides: `Let those who possess means pay according to their means.' In this ayah, the Qur'an does not specify the exact amount of maintenance, which is to be determined by reference to custom. Similarly, in regard to the maintenance of children, the Qur'an only specifies that this is the duty of the father, but leaves the quantum of maintenance to be determined by reference to custom (bi'l-ma`ruf) (al-Baqarah, 2:233). The Shari'ah has, in principle, accredited approved custom as a valid ground in the determination of its rules relating to halal and haram. This is in turn reflected in the practice of the fuqaha', who have adopted 'urf, whether general or specific, as a valid criterion in the determination of the ahkam of Shari'ah. [6. Sabuni, Madkhal, p. 138; Isma'il, Adillah, p. 403.] The rules of fiqh which are based in juristic opinion (ra'y) or in speculative analogy and ijtihad have often been formulated in the light of prevailing custom; it is therefore, permissible to depart from them if the custom on which they were founded changes in the course of time. The ijtihad rules of fiqh are, for the most part, changeable with changes of time and circumstance. To deny social change due recognition in the determination of the rules of fiqh would amount to exposing the people to hardship, which the Shari'ah forbids. Sometimes even the same mujtahid has changed his previous ijtihad with a view to bringing it into harmony with...
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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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