Principles of Islamic Jurisprudence by MH kamali

the married couple are thus given the choice to

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Unformatted text preview: ongue; and if he is unable to do even that, then within his heart- but this is the weakest form of faith.' [2. Muslim, Sahih Muslim, p.16, Hadith no.34.] Here the choice is given according to the ability of the mukallaf and the circumstances which might influence his decision. Lastly, to illustrate a hukm which consists of an enactment (wad') we may refer to the Hadith which provides that 'the killer does not inherit'. 2735.] [3. Shafi'i, Risalah, p. 80; Ibn Majah, Sunan, II, 913, Hadith no. This is a speech of the Lawgiver concerning the conduct of the mukallaf which is neither a demand nor an option but an objective ruling of the law that envisages a certain eventuality. The ulema of usul have differed with the fuqaha' in regard to the identification of hukm shar`i. To refer back to the first example where we quoted the Qur'an concerning the fulfillment of contracts; according to the ulema of usul, the text itself, that is, the demand which is conveyed in the text, represents the hukm shar'i. However, according to the fuqaha', it is the effect of that demand, namely the obligation (wujub) that it conveys which embodies the hukm shar`i. To give another example, the Qur'anic prohibition which provides in an address to the believers: 'Do not approach adultery' (al-Isra', 17:32), is itself the embodiment of the hukm shar`i, according to the ulema of usul. But according to the fuqaha, it is the effect of the demand in this ayah, namely the prohibition (tahrim) which represents the hukm shari. Similarly, the Qur'anic text in respect of the permissibility of hunting which we earlier quoted is itself the embodiment of the hukm shar`i according to the ulema of usul, but it is the effect of that text, namely the permissibility (ibahah) which is the hukm according to the fuqaha'. Having explained this difference of perspective between the ulema of usul and the fuqaha', it will be noted, however, that it is of no practical consequence concerning the rulings of the Shari'ah, in that the two aspects of hukm that they highlight are to all intents and purposes concurrent. [4. Khallaf, `Ilm, 100; Khudari, Usul, p. 18; Abu 'Id, Mabahith, p.58.] Hukm shar'i is divided into the two main varieties of al-hukm al-taklifi (defining law) and al-hukm alwad'i (declaratory law). The former consists of a demand or an option, whereas the latter consists of an enactment only. `Defining Law' is a fitting description of al-hukm al-taklifi, as it mainly defines the extent of man's liberty of action. Al-hukm al-wad'i is rendered 'declaratory law', as this type of hukm mainly declares the legal relationship between the cause (sabab) and its effect (musabbab) or between the condition (shart) and its object (mashrut) [5. Cf. Abdur Rahim, Jurisprudence, p. 193, for the use of English terminology.] . Defining law may thus be described as a locution or communication from the Lawgiver which demands the mukallaf to do something or forbids him from doing something, or gives him an option between...
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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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