Principles of Islamic Jurisprudence by MH kamali

47 abu dawud sunan iii 1018 hadith no 3582 ghazali

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Unformatted text preview: ion as to its sabab. Thus we find in sura al-Isra' (17:78) which enjoins, `Perform the salah from the decline of the sun [li-duluk al-shams] until twilight at night,' the sabab (cause) of salah is the time when the salah is due. Since the cause of the ruling in this text is not discernable to human intellect, it is referred to as a sabab but not as an 'illah. From this distinction, it would appear that every 'illah is concurrently a sabab, but not every sabab is necessarily an 'illah. [49 . Khallaf, `Ilm, pp. 67-68.] Next, the effective cause of a ruling may be established by consensus. An example of this is the priority of germane over consanguine brothers in inheritance, the 'illah for which is held to be the former's superior tie with the mother. This ruling of ijma' has subsequently formed the basis of an analogy according to which the germane brother is also given priority over the consanguine brother in respect of guardianship (wilayah). Ijma' has also determined the 'illah of the father's right of guardianship over the property of his minor child to be the minority of the child. Once again this right has, by analogy, been acknowledged for the grandfather. [50. Shawkani, Irshad, p.210.] No ijma' can, however, be claimed to exist in regard to 'illah of the father's right of guardianship over the property of his minor daughter. While the majority of ulema consider the 'illah in this case to be minority, for the Shafi'is, the 'illah in ijbar is virginity. The right of ijbar thus terminates upon loss of virginity even if the girl is still a minor. Nawawi, Minhaj (Howard's trans.), p. 284.] When the 'illah is neither stated nor alluded to in the text, then the only way to identify it is through ijtihad. The jurist thus takes into consideration the attributes of the original case, and only that attribute which is considered to be proper (munasib) is identified as the 'illah. For example, in the Hadith referred to above concerning the penance of conjugal relations during daytime in Ramadan, it is not precisely known whether the 'illah of the penance is the breaking of the fast (iftar), or sexual intercourse. Although intercourse with one's wife is lawful, it may be that in this context it is regarded as a form of contempt for the sanctity of Ramadan. But it is equally reasonable to say that intercourse in this context is no different to other forms of iftar, in which case it is the iftar itself that is the 'illah of Principles of Islamic Jurisprudence ~ Kamali 194 [51. penance. [52. Ghazali, Mustasfa, II, 54; Abu Zahrah, Usul, p. 194; Khallaf, `Ilm, p. 78.] The method of reasoning which the mujtahid employs in such cases is called tanqih al-manat, or isolating the 'illah, which is to be distinguished from two other methods referred to as takhrij al-manat (extracting the 'illah) and tahqiq al-manat (ascertaining the 'illah) respectively. This process of enquiry is roughly equivalent to what is referred to by some ulema of usul as al-sidr wa'l-taqsim, or elimination of the improper and assignment of the proper 'illah to the hukm. Tanqih al-manat implies that a ruling may...
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