Unformatted text preview: n respect of devotional matters (`ibadat) and the specific injunctions of the Shari'ah (muqaddarat). Thus the nusus regarding the prescribed penalties (hudud) and penances (kaffarat), the fixed entitlements in inheritance (fara'id), the specified periods of `iddah which the divorced women must observe, and such other ahkam which are clear and decisive fall outside the scope of istislah. Since the precise values and causes of `ibadat cannot be ascertained by the human intellect, ijtihad, be it in the form of istislah, jurist, preference (istihsan) or qiyas, does not apply to them. Furthermore, with regard to 'ibadat and other clear injunctions, the believer is duty-bound to follow them as they are. But outside these areas, the majority of ulema have validated reliance on istislah as a proof of Shari'ah in its own right. [5. Badran, Usul, p. 210; Sabuni, Madkhal, p. 134.] Istislah derives its validity from the norm that the basic purpose of legislation (tashri`) in Islam is to secure the welfare of the people by promoting their benefit or by protecting them against harm. The ways and means which bring benefit to the people are virtually endless. The masalih (pl. of maslahah), in other words, can neither be enumerated nor predicted in advance as they change according to time and circumstance. [6. Shatibi, Muwafaqat, II, 2-3; Sabuni, Madkhal, p. 134.] To enact a law may be beneficial at one time and harmful at another; and even at one and the same time, it may be beneficial under certain conditions, but prove to be harmful in other circumstances. The ruler and the mujtahid must therefore Principles of Islamic Jurisprudence ~ Kamali 235 be able to act in pursuit of the masalih as and when these present themselves. 211.] [7. Khallaf, 'Ilm, p. 84; Badran, Usul, p. The majority of ulema maintain that istislah is a proper ground for legislation. When the maslahah is identified and the mujtahid does not find an explicit ruling in the nusus, he must act in its pursuit by taking the necessary steps to secure it. This is justified by saying that God's purpose in revealing the Shari'ah is to promote man's welfare and to prevent corruption in the earth. This is, as al-Shatibi points out, the purport of the Qur'anic ayah in Sura al-Anbiya' (21:107) where the purpose of the Prophethood of Muhammad is described in the following terms: `We have not sent you but as a mercy for all creatures.' In another passage, the Qur'an describes itself, saying: `O mankind, a direction has come to you from your Lord, a healing for the ailments in your hearts [...]' (Yunus, 10:75). The message here transcends all barriers that divide humanity; none must stand in the way of seeking mercy and beneficence for human beings. Elsewhere, God describes His purpose in the revelation of religion, saying that it is not within His intentions to make religion a means of imposing hardship (al-Hajj, 22:78). This is confirmed elsewhere in sura al-Ma'idah (5:6) where we read, in more general terms, that `God never intends to impose hardship upon people.' [8. Cf. Shatibi, Muwafaqat, II, 3; M...
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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.
- Spring '13