Principles of Islamic Jurisprudence by MH kamali

6 sabuni madkhal p 138 ismail adillah p 403 the rules

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Unformatted text preview: the prevailing custom. It is well -known, for example, that Imam alShafi`i laid the foundations of his school in Iraq, but that when he went to Egypt, he changed some of his earlier views owing to the different customs he encountered in Egyptian society. Aghnides, Muhammedan Theories, p. 82.] Customs which were prevalent during the lifetime of the Prophet and were not expressly overruled by him are held to have received his tacit approval and become part of what is known as Sunnah taqririyyah. Pre-Islamic Arabian custom which was thus approved by the Prophet was later upheld by the Companions, who often referred to it through statements such as 'we used to do such-and-such while the Prophet was alive'. [8. Ziadeh,' 'Urf and Law ', p. 62; Abdul Rahim, Jurisprudence, p. 137; Mahmassani, Falsafah, p. 132.] Islam has thus retained many pre-Islamic Arabian customs while it has at the same time overruled the oppressive and corrupt practices of that society. Islam also attempted to amend and regulate some of the Arab customary laws with a view to bringing them into line with the principles of the Shari'ah. The Principles of Islamic Jurisprudence ~ Kamali 249 [7. Abu Zahrah, Usul, p. 217; reverse of this is also true in the sense that pre-Islamic customs of Arabia influenced the Shari'ah in its formative stages of development. Even in the area of the verbal and actual Sunnah, there are instances where Arabian custom has been upheld and incorporated within the Sunnah of the Prophet An example of this is the rulings of the Sunnah concerning the liability of the kinsmen of an offender (i.e. the `aqilah) for the payment of blood money, or diyah. Similarly, the Sunnah which regulates certain transactions such as mortgage (rahn), advance sale (salam) and the requirement of equality (kafa'ah) in marriage have their roots in the pre-Islamic custom of the Arabs. There are also vestiges of pre-Islamic custom in the area of inheritance, such as the significance that the rules of inheritance attach to the male line of relationship, known as the `asabah. As for the post-Islamic custom of Arabian society, Imam Malik has gone so far as to equate the amal ahl al-Madinah, that is the customary practice of the people of Madinah, with ijma`. This type of 'amal ( lit.' practice') constitutes a source of law in the absence of an explicit ruling in the Qur'an and Sunnah. Custom has also found its way into the Shari'ah through juristic preference (istihsan) and considerations of public interest (maslahah). And of course, ijma` itself has to a large extent served as a vehicle of assimilating customary rules which were in harmony with the Shari'ah, or were based in necessity (darurah), into the general body of the Shari'ah. Falsafah, p. 132; Sabuni, Madkhal, p. 143; Badran, Usul, p. 242.] Conditions of Valid `Urf In addition to being reasonable and acceptable to people of sound nature, `urf, in order to be authoritative, must fulfill the following requirements. 1) `Urf must represent a common and recurrent phenomenon. The practice of a few individuals or of a limited...
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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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