Principles of Islamic Jurisprudence by MH kamali

there is no doubt concerning the authenticity of

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Unformatted text preview: regard to zakah on camels that `a goat is to be levied on every five camels.' (Hasan's trans.), II, 407, Hadith no. 1562.] has a clear meaning, which is why the jurists are in agreement that there is no zakah on less than five camels. But since this is a solitary Hadith, its authenticity remains speculative. Ijtihad concerning this Hadith may take the form of an investigation into the authenticity of its transmission and the reliability of its narrators, matters on which the jurists are not unanimous due to the different criteria that they apply. This would in turn lead them to different conclusions. Should the differences of ijtihad and the rulings so arrived at be conflicting to the point that no reliance can be placed on any, they are all to be abandoned and no obligation may be established on their basis. Principles of Islamic Jurisprudence ~ Kamali 317 [9. Abu Dawud, Sunan [10. Kassab, Adwa', p. 30; Badran, Usul, p. 474.] 3) To give an example of ijtihad concerning evidence that is speculative in both authenticity and meaning, we may refer to the Hadith which provides: 'There is no salah [la salata] without the recitation of sura al-Fatihah.' [11. Abu Dawud, Sunan (Hasan's trans.), I, 209, Hadith no. 819.] Being a solitary Hadith, its authenticity is not proven with certainty. Similarly it is open to different interpretations in the sense that it could mean either that salah without the Fatihah is invalid, or that it is merely incomplete. The Hanafis have held the latter, whereas the Shafi'is have adopted the former meaning of the Hadith. And finally with regard to such matters on which no evidence can be found in the nusus or ijma`, ijtihad may take the form of analogical deduction, juristic preference (istihsan), or the consideration of public interest (maslahah), and so on. The Value (Hukm) of Ijtihad Legal theory in all of its parts derives its validity from the revealed sources. It is partly for this reason and partly for the reason of man's duty to worship his Creator that the practice of ijtihad is a religious duty. The ulema are in agreement that ijtihad is the collective obligation (fard kafa'i) of all qualified jurists in the event where an issue arises but no urgency is encountered over its ruling. The duty remains unfulfilled until it is performed by at least one mujtahid. If a question is addressed to two mujtahids, or to two judges for that matter, and one of them exerts himself to formulate a response, the other is absolved of his duty. But ijtihad becomes a personal obligation (wajib or fard `ayn) of the qualified mujtahid in urgent cases, that is, when there is fear that the cause of justice or truth may be lost if ijtihad is not immediately attempted. This is particularly the case when no other qualified person can be found to attempt ijtihad. With regard to the mujtahid himself, ijtihad is a wajib 'ayni: he must practice ijtihad in order to find the ruling for an issue that affects him personally. This is so because imitation (taqlid)...
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