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Unformatted text preview: you agree on the terms of a sale, you may say: it is not binding and I have an option for three days. [30. Sahih al-Bukhari (trans. Khan), III, 575. Hadith no. 893; Sabuni, Madkhal, pp. 123-24.] 2.3. To illustrate exceptional istihsan which is authorised by ijma`, we may refer to istihsan`, or the contract for manufacture of goods. Recourse to this form of istihsan is made when someone places an order with a craftsman for certain goods to be made at a price which is determined at the time of the contract. Istihsan validates this transaction despite the fact that the object of the contract is non-existent at the time the order is placed. This form of istihsan closely resembles the one which is authorised by custom, as will later be discussed. [31. See Abu Zahrah, Usul, p. 211.] Principles of Islamic Jurisprudence ~ Kamali 226 2.4. An example of exceptional istihsan which is based on necessity (darurah) is the method adopted for the purification of polluted wells. If a well, or a pond for that matter, is contaminated by impure substances, its water may not be used for ablution. It will be noted, however, that the water in the well cannot be purified by removing that part which is impure-and it cannot be poured out either, for it is in continuous contact with the water which flows into the well. The solution has been found through istihsan, which provides that contaminated wells can be purified by removing a certain number, say a hundred, buckets of water from the well (the exact number is determined with reference to the type and intensity of pollution). Istihsan in this case is validated by reason of necessity and prevention of hardship to the people. [32. See Abu Zahrah, Usul, pp. 211-12.] In a similar vein, strict analogy requires that witnesses, in order to be admissible, must in all cases be `adl, that is, upright and irreproachable. For judicial decisions must be founded on truth, and this is facilitated by the testimony of just witnesses. However if the qadi happens to be in a place where adl witnesses cannot be found, then it is his duty, by virtue of istihsan, to admit witnesses who are nor totally reliable so that the rights of the people may be protected. [33. Cf. Sabuni, Madkhal, p.124.] Similarly with regard to the qadi the general rule requires that he be a mujtahid, but a non-mujtahid may be appointed as qadi where no mujtahid can be found for this office. 2.5. To illustrate exceptional istihsan which is authorised by custom, we may refer to the waqf of moveable goods. Since waqf, by definition, is the endowment of property on a permanent basis, and moveable goods are subject to destruction and loss, they are therefore not to be assigned in waqf. This general rule has, however, been set aside by the Hanafi jurists, who have validated the waqf of moveable such as books, tools and weapons on grounds of its acceptance by popular custom. Madkhal, p.124.] Similarly, a strict analogy would require that the object of sale be accurately defined and quantified. However, popular custom has departed from this rule i...
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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.
- Spring '13