Principles of Islamic Jurisprudence by MH kamali

17 khallaf ilm p 166 14 tabrizi mishkat ii 1203 as

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Unformatted text preview: f which is a Nass in regard to the prohibition of wine, and the other a Zahir in regard to the permissibility of eating and drinking in general. The two passages are as follows: O believers! Intoxicants, games of chance and sacrificing to stones and arrows are the unclean works of Satan So avoid them . . . (al-Ma'idah, 5:93). On those who believe and do good deeds, there is no blame for what they consume while they keep their duty and believe and do good deeds (al-Ma'idah, 5:96) Principles of Islamic Jurisprudence ~ Kamali 91 The Nass in the first ayah is the prohibition of wine, which is the main purpose and theme of the text. The Zahir in the second ayah is the permissibility of eating and drinking without restriction. The main purpose of the second ayah is, however, to accentuate the virtue of piety (taqwa) in that taqwa is not a question of austerity with regard to food, it is rather a matter of God-consciousness and good deeds. There is an apparent conflict between the two ayat, but since the prohibition of wine is established in the Nass, and the permissibility regarding food and drink is in the form of Zahir, the Nass prevails over the Zahir. [18. Abu Zahrah, Usul, p.95.] To give an example of Zahir in modern criminal law, we may refer to the word 'night' which occurs in many statutes in connection with theft. When theft is committed at night, it carries a heavier penalty. Now if one takes the manifest meaning of 'night', then it means the period between sunset and sunrise. However this meaning may not be totally harmonious with the purpose of the law. What is really meant by 'night' is the dark of the night, which is an accentuating circumstance in regard to theft. Here the meaning of the Zahir is qualified with reference to the rational purpose of the law and the nature of the offence in question. [19. Cf. Khallaf, 'Ilm, p. 166.] I. 3 & 4 Unequivocal (Mufassar) and Perspicuous (Muhkam) Mufassar is a word or a text whose meaning is completely clear and is, in the meantime, in harmony with the context in which it appears. Because of this and the high level of clarity in the meaning of Mufassar, there is no need for recourse to ta'wil. But the Mufassar may still be open to abrogation which might, in reference to the Qur'an and Sunnah, have taken place during the lifetime of the Prophet. The idea of the Mufassar, as the word itself implies, is that the text explains itself. The Lawgiver has, in other words, explained His own intentions with complete clarity, and the occasion for ta'wil does not arise. The Mufassar occurs in two varieties, one being the text which is self-explained, or Mufassar bidhatih, and the other is when the ambiguity in one text is clarified and explained by another. This is known as Mufassar bighayrih, in which case the two texts become an integral part of one another and the two combine to constitute a Mufassar. [20. Abu Zahrah, Usul, p. 96; Badran, Usul, pp. 404-405.] An example of Mufassar in the Qur'an is the text in...
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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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