Principles of Islamic Jurisprudence by MH kamali

25 to illustrate exceptional istihsan which is

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Unformatted text preview: n the case of entry to public baths where the users are charged a fixed price without any agreement on the amount of water they use or the duration of their stay. [35. Shatibi, I'tisam, II, 318.] Another example is bay' al-ta ati, or sale by way of `give and take', where the general rule that offer and acceptance must be verbally expressed is not applied owing to customary practice. 2.6. And finally, to illustrate istihsan which is founded on considerations of public interest (maslahah), we may refer to the responsibility of a trustee (amin) for the loss of goods which he receives in his custody. The general rule here is that the trustee is not responsible for loss or damage to such property unless it can be attributed to his personal fault or negligence (taqsir). Hence a tailor, a shoemaker or a craftsman is not accountable for the loss of goods in his custody should they be stolen, or destroyed by fire. But the jurists, including Abu Yusuf and al-Shaybani, have set aside the general rule in this case and have held, by way of istihsan, the trustee to be responsible for such losses, unless the loss in question is caused by a calamity, such as fire or flood, which is totally beyond his control. This istihsan Principles of Islamic Jurisprudence ~ Kamali 227 [34. Cf. Sabuni, has been justified on grounds of public interest so that trustees and tradesmen may exercise greater care in safeguarding people's property. [36. Sabuni, Madkhal, p. 125.] The Hanafi - Shafi'i Controversy Over Istihsan Al-Shafi`i has raised serious objections against istihsan, which he considers to be a form of pleasureseeking (taladhdhudh wa-hawa) and 'arbitrary law-making in religion'. VII, 271.] [37. Shafi'i, Kitab al-Umm, 'Kitab Ibtal al-Istihsan', A Muslim must obey God and His Messenger at all times, and follow injunctions which are enshrined in the clear texts (nusus). Should there arise any problem or difference of opinion, they must be resolved with reference to the Qur'an and the Sunnah. In support of this, al-Shafi`i quotes the Qur'anic nass in sura al-Nisa' (4:59): `Should you dispute over a matter among yourselves, refer it to God and His Messenger, if you do believe in God and the Last Day.' Al-Shafi`i continues on the same page: Anyone who rules or gives a fatwa on the basis of a nass or on the basis of ijtihad which relies on an analogy to the nass has fulfilled his duty and has complied with the command of the Lawgiver. But anyone who prefers that which neither God nor His Messenger has commanded or approved, his preference will be acceptable neither to God nor to the Prophet. Istihsan involves, according to al-Shafi'i, personal opinion, discretion and the inclination of the individual jurist, an exercise which is not in harmony with the Qur'anic ayah which reads: 'Does man think that he will be left without guidance [an yutraka suda]?' (al-Qiyamah, 75:36). Commentators are in agreement that 'suda' in this ayah means a state of lawlessness in which the individual is not subject to any rules, commands or prohibitions. With this meaning in mind, Imam Shafi'i observes: if ev...
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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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