Unformatted text preview: s, evidence and factual proof and the judgment which is issued as a result. The first part is situational and does not constitute general law, whereas the second part lays down general law, with the proviso however, that it does not bind the individual directly, and no-one may act upon it without the prior authorization of a competent judge. Since the Prophet himself acted in a judicial capacity, the rules that he has enacted must therefore be implemented by the office of the qadi. [43. Shawkani, Irshad, p. 36; Khallaf, 'Ilm, p. 44.] [40. Abu Dawud, Sunan, II, 758, Hence when a person has a claim Principles of Islamic Jurisprudence ~ Kamali 56 over another which the latter denies, but the claimant knows of a similar dispute which the Prophet has adjudicated in a certain way, this would not entitle the claimant to take the law into his own hands. He must follow proper procedures to prove his claim and to obtain a judicial decision. [44 Shaltut, Al-Islam, p. 514.] To distinguish the legal from non-legal Sunnah, it is necessary for the mujtahid to ascertain the original purpose and context in which a particular ruling of the Sunnah has been issued and whether it was designed to establish a general rule of law. The Hadith literature does not always provide clear information as to the different capacities in which the Prophet might have acted in particular situations, although the mujtahid may find indications that assist him to some extent. The absence of adequate information and criteria on which to determine the circumstantial and non-legal Sunnah from that which constitutes general law dates back to the time of the Companions. The difficulty has persisted ever since, and it is due mainly to the shortage of adequate information that disagreement has arisen among the ulema over the understanding and interpretation of the Sunnah. Mutawalli, Mabadi', p. 38.] [45. Ghazali, Mustasfa, II, 51; Badran, Bayan, pp. 41-42; To give another example, juristic disagreement has arisen concerning a Hadith on the reclamation of barren land which reads, 'whoever reclaims barren land becomes its owner. 873, Hadith no. 3067; Tabrizi, Mishkat, II, 889, Hadith no. 2945.] [46. Abu Dawud, Sunan (Hasan's trans.), II, The ulema have differed as to whether the Prophet uttered this Hadith in his prophetic capacity or in his capacity as head of state. If the former is established to be the case then the Hadith lays down a binding rule of law. Anyone who reclaims barren land becomes its owner and need not obtain any permission from the Imam or anyone else. For the Hadith would provide the necessary authority and there would be no need for official permission. If on the other hand it is established that the Prophet uttered this Hadith in his capacity as Imam, then it would imply that anyone who wishes to reclaim barren land must obtain the prior permission of the lmam. The Hadith in other words, only entitles the lmam to grant the citizen the right to reclaim barren land. The majority of jurists have adopted the first view whereas...
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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.
- Spring '13