Principles of Islamic Jurisprudence by MH kamali

this ruling is general as it applies to all those

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Unformatted text preview: the same passage. This second ayah makes an exception in the case of the husband who is allowed to prove a charge of adultery against his wife by taking four solemn oaths instead of four witnesses, but the wife can rebut the charge by taking four solemn oaths herself (al-Nur, 24:6). The general ruling of the first ayah has thus been qualified insofar as it concerns a married couple. Principles of Islamic Jurisprudence ~ Kamali 104 [47. Badran, An indefinite word (al-nakirah) when used to convey the negative is also generic in its effect. For instance the Hadith la darar wa la dirar fi'l-Islam ('no harm shall be inflicted or reciprocated in Islam') is general in its import, as 'la darar' and 'la dirar' are both indefinite words which convey their concepts in the negative, thereby negating all to which they apply. The word 'man' ('he who') is specific in its application, but when used in a conditional speech, it has the effect of a general word. To illustrate this in the Qur'an, we may refer to the text which provides: 'Whoever [wa-man] kills a believer in error, must release a believing slave' (al-Nisa', 4:92); and 'Whoever [fa-man] among you sees the new moon must observe the fast' (al-Baqarah, 2:185). There is general agreement to the effect that the Khass is definitive (qat'i) in its import, but the ulema have differed as to whether the 'Amm is definitive or speculative (zanni). According to the Hanafis, the application of 'Amm to all that it includes is definitive, the reason being that the language of the law is usually general and if its application were to be confined to only a few of the cases covered by its words without a particular reason or authority to warrant such limited application, the intention of the Lawgiver would be frustrated. [49. Shatibi, Muwafaqat, III, 153; Abu Zahrah, Usul, p.124; Abdur Rahim, Jurisprudence, p. 82.] The majority of ulema, including the Shafi'is, Malikis and Hanbalis, maintain on the other hand that the application of 'Amm to all that it includes is speculative as it is open to limitation and ta'wil, and so long as there is such a possibility, it is not definitive. The result of this disagreement becomes obvious in the event of a conflict between the 'Amm of the Qur'an and the Khass of the Hadith, especially the weak or the solitary Hadith. According to the majority view, a solitary Hadith may specify a general provision of the Qur'an, for the 'Amm of Qur'an is zanni and the Khass of a solitary Hadith, although definitive in meaning, is of speculative authenticity. A zanni may be specified by a qat'i or another zanni. Usul, p.125; Badran, Usul, p.381.] To the Hanafis, however, the 'Amm of Qur'an is definite, and the solitary Hadith, or qiyas for that matter, is speculative. A definitive may not be limited nor specified by a speculative. The two views may be illustrated with reference to the Qur'anic text concerning the slaughter of animals, which provides 'eat not [of meat] on which God's name has not been pronounced' (al-An'am, 6: 121). In conjunction with this gener...
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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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