Principles of Islamic Jurisprudence by MH kamali

16 badran usul p 245 another similar instance in which

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Unformatted text preview: nal knowledge, that it is lawful. Some ulema have also held the view that testimony by a relative may in fact facilitate justice and may not lead to evil, especially if relations testify against each other, which is why the ulema of various schools have allowed the testimony of father or son, or of spouses, against one another, but not in favour. p. 186; Badran, Usul, p. 244; Isma'il, Adillah, p. 211.] The jurists have thus disagreed over the application of sadd aldhara'i` to particular issues and the extent to which it may be validly applied to different situations. 4) The last of the four varieties of means are those which are rarely expected to lead to evil and are most likely to lead to a benefit. An example of this would be to dig a water well in a place which is not likely to cause injury or harm to anyone, or speaking a word of truth to a tyrannical ruler or growing certain varieties of fruits, such as grapes, on one's own property. In all of these, as in many other matters, there is a possibility that a mafsadah might be caused as a result. In the case of growing grapes, for example, it is possible that the fruit may be fermented into wine, but a mere possibility of this kind is overlooked in view of the stronger likelihood of the benefit that it would otherwise achieve. The Principles of Islamic Jurisprudence ~ Kamali 274 [13. [17. Shalabi, Fiqh, ulema are generally in agreement on the permissibility of this type of means. The basic norm in regard to acts and transactions that would fall under this category of means is permissibility, and no one may be prevented from attempting them on account of the mere possibility that they may lead to a mafsadah. On a similar note, no-one may be prevented from giving testimony in judicial disputes, nor may anyone be obstructed from telling the truth to a tyrannical ruler because of a mere possibility that this might give rise to a mafsadah. [18. Shatibi, Muwafaqat, II, 249; Badran, Usul, p. 245; Abu Zahrah, Usul, p. 230.] The foregoing discussion of sadd al-dhara'i` has primarily been concerned with means which led to an unlawful end. There was, in other words, no attempt to change the haram into halal: whenever there was a likelihood that a lawful means led to an unlawful end, the means itself became unlawful. But the application of sadd al-dhara'i' also covers the eventuality where a haram may be turned into halal or mubah if this is likely to present a greater evil. A lesser evil is, in other words, tolerated in order to prevent a greater one. To give an example: it is permissible to seek the release of Muslim prisoners of war in exchange for the payment of a monetary ransom. To give money to the warring enemy is basically unlawful as it adds strength to the enemy, which is generally harmful. But it is permitted here as it achieves the freedom of Muslim prisoners, which would in turn add to the strength of the Muslim forces. This ruling is based in the principle of sadd al-dhara'i', and consists of opening, ra...
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