Principles of Islamic Jurisprudence by MH kamali

226 principles of islamic jurisprudence kamali 255 18

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Unformatted text preview: e another. The commentators, however, further add that since the word 'urf in this ayah can mean many things, including `profession of the faith', `that which the people consider good', and of course `that which is familiar and known', as well as `urf in the sense of custom, it cannot be quoted as textual authority for custom as such. Ziadeh,' 'Urf and Law', pp.61-62.] [20. Tabari, Tafsir, IV, 30; Isma'il, Adillah, pp. 401-402; Among the indirect evidence in support of 'urf the ulema have also quoted the following saying of the prominent Companion, `Abd Allah b. Mas'ud, that 'what the Muslims deem to be good is good in the sight of God'. Although many scholars have considered this to be a Hadith from the Prophet, it is more likely, as alShatibi points out, to be a saying of `Abd Allah b. Mas`ud. [21. Shatibi, I'tisam, II, 319. Mahmassani (Falsafah, p. 77) has also reached the conclusion that this is the saying of `Abd Allah b. Mas'ud. But Amidi (Ihkam, I. 214) has quoted it as a Hadith.] The critics have, however, suggested that this saying/Hadith refers to the approval of `al-muslimun', that is, all the Muslims, whereas `urf varies from place to place, and the approval of all Muslims in its favour cannot be taken for granted. In response to this, it has been further suggested that `muslimun' in this context only denotes those among them who possess sound intellect and judgement, and not necessarily every individual member of the Muslim community. [22. Cf. Isma'il, Adillah, p.402.] The upshot of this whole debate over the authoritativeness of 'urf seems to be that notwithstanding the significant role that it has played in the development of the Shari'ah, it is not an independent proof in its own right. The reluctance of the ulema in recognising 'urf as a proof has been partly due to the circumstantial character of the principle, in that it is changeable upon changes of conditions of time and place. This would mean that the rules of fiqh which have at one time been formulated in the light of the prevailing custom would be liable to change when the same custom is no longer prevalent. The differential fatwas that the later ulema of different schools have occasionally given in opposition to those of their predecessors on the same issues are reflective of the change of custom on which the fatwa was founded in the first place. In addition, since custom is basically unstable it is often difficult to ascertain its precise terms. These terms may not be self-evident, and the frequent absence of written records and documents might ass to the difficulty of verification. [23. Cf. Badran, Usul, p. 233.] Another factor which merits attention in this context is the development of statutory legislation as an instrument of government in modern times. The attempt to codify the law into self-contained statutes has to some extent reduced the need to rely on social custom as the basis of decision-making. But even so, it would be far from accurate to say that custom has ceased to play an important role both as a source of law and a...
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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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