Principles of Islamic Jurisprudence by MH kamali

39 abu zahrah usul p 189 khallaf ilm pp 69 70 4

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Unformatted text preview: not be applied in the same way to other devotional acts (ibadat). Similarly, if we were to confine the `illah in the prohibition of wine to that variety which is derived from grapes, we would be precluding all the other varieties of wine from the scope of the prohibition. Transferability (ta'diyah) of the effective cause is not, however, required by the Shafi'is, who have validated qiyas on the basis of an `illah which is confined to the original case (i.e. 'illah qasirah). The Shafi'is (and the Hanafi jurist, Ibn al-Humam) have argued that ta'diyah is not a requirement of the 'illah: when the 'illah is confined to the original case, it is probable that the Lawgiver had intended it as such. The probability may not be ignored merely for lack of ta'diyah. It is a requirement which is intellectually conceived without due regard for the precise terms of the law itself. The Shafi'is have further argued that the utility of the `illah is not to be sought solely in its transferability. There is thus no inherent objection to the possibility of an 'illah being confined to the original case. The ulema are, however, in agreement that the textually prescribed causes must be accepted as they are regardless as to whether they are inherently transient or not. Principles of Islamic Jurisprudence ~ Kamali 191 [38. The requirement of ta`diyah would imply that the `illah of analogy must be an abstract quality and not a concrete activity or object. To illustrate this, we may again refer to the foregoing examples. Traveling, which is a concession in connection with fasting, is a concrete activity, whereas intoxication is an abstract quality which is not confined in its application. Similarly in the Hadith, regarding usury (riba), the `illah of its ruling which prohibits quantitative excess in the sale of the six specified articles is the quality of such articles being saleable by the measurement of weight or capacity and not their particular species. The Hadith thus provides that 'gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates and salt for salt must be equal for equal, hand to hand [...]' Transaction in these commodities must, in other words, be without excess on either side and delivery shall be immediate, otherwise the transaction would amount to usury, which is forbidden. The 'illah of this prohibition is none of the concrete objects that are specified but an attribute or a concept which applies to all, namely their sale ability by capacity or weight. Abu Zahrah, Usul, p.190; Abdur Rahim, Jurisprudence, p. 151-2.] [40. Muslim, Sahih Muslim, p. 252. Hadith no. 949; Ghazali, Mustasfa, II, 98; Khudari, Usul, p. 320; 5) And finally, the effective cause must not be an attribute which runs counter to, or seeks to alter, the law of the text. To illustrate this we may refer to the story of a judge, Imam Yahya of al-Andalus, who was asked by an Abbasid ruler as to the penance (kaffarah) of having conjugal relations during daytime in Ramadan. The judge responded that the kaffarah in this case was sixty days of fasting. This answer was incorrect as it so...
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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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