Principles of Islamic Jurisprudence by MH kamali

Principles of Islamic Jurisprudence by MH kamali

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Unformatted text preview: ception. Salam is valid on condition that the time of delivery is stipulated and that the parties are able to meet the conditions of their agreement. See also Abdur Rahim, Jurisprudence, p. 145] Principles of Islamic Jurisprudence ~ Kamali 188 [28. Shawkani, IV. The Effective Cause ('Illah) This is perhaps the most important of all the requirements of qiyas. `Illah has been variously defined by the ulema of usul. According to the majority, it is an attribute of the asl which is constant and evident and bears a proper (munasib) relationship to the law of the text (hukm). It may be a fact, a circumstance, or a consideration which the Lawgiver has contemplated in issuing a hukm. In the works of usul, the `illah is alternatively referred to as manat al-hukm (i.e. the cause of the hukm), the sign of the hukm (amarah al-hukm), and sabab. [32.Shawkani, Irshad, p. 207; Abu Zahrah, Usul, p. 188.] Some ulema have attached numerous conditions to the 'illah, but most of these are controversial and may be summarised in the following five. recorded only eleven.] [33. Note, for example, Shawkani, (Irshad, p. 207-208) who has listed 24 conditions for the 'illah whereas the Maliki jurist, Ibn Hajib has 1) According to the majority of ulema, the `illah must be a constant attribute (mundabit) which is applicable to all cases without being affected by differences of persons, time, place and circumstances. The Malikis and the Hanbalis, however, do not agree to this requirement as they maintain that the `illah need not be constant, and that it is sufficient if the 'illah bears a proper or reasonable relationship to the hukm. The difference between the two views is that the majority distinguish the effective cause from the objective (hikmah) of the law and preclude the latter from the scope of the `illah. Usul, p. 188.] [34. Khallaf, `Ilm, 64; Abu Zahrah, The `illah is constant if it applies to all cases regardless of circumstantial changes. To give an example, according to the rules of pre-emption (shuf`) the joint, or the neighbouring, owner of a real property has priority in buying the property whenever his partner or his neighbour wishes to sell it. The `illah in preemption is joint ownership itself, whereas the hikmah of this rule is to protect the partner/neighbour against a possible harm that may arise from sale to a third party. Now the harm that the Lawgiver intends to prevent may materialise, or it may not. As such, the hikmah is not constant and may therefore not constitute the `illah of pre-emption. Hence the `illah in pre-emption is joint ownership itself, which unlike the hikmah is permanent and unchangeable, as it does not fluctuate with such changes in circumstances. The majority view maintains that the rules of Shari'ah are founded in their causes (`ilal), not in their objectives (hikam). From this, it would follow that a hukm shar'i is present whenever its `illah is present even if its hikmah is not, and a hukm shar`i is absent in the absence of its 'illah even if its hikmah is present. The...
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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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