Principles of Islamic Jurisprudence by MH kamali

A conflict may however be encountered between two

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Unformatted text preview: ver the other. For example, of the two conflicting solitary or Ahad Hadith, the one which is narrated by a faqih is considered to be stronger than that which is narrated by, non-faqih. [1. Badran, Usul, p. 461; Khudari, Usul, p. 359; Aghnides, Muhammedan Theories, p. 66.] Conflict can only arise between two evidences which cannot be reconciled, in the sense that the subjectmatter of one cannot be distinguished from the other, nor can they be so distinguished in respect of the time of their application. There are, for example, three different rulings in the Qur'an on wine-drinking, but since they were each revealed one after the other, not simultaneously, there is consequently no case of conflict between them. Similarly, if investigation reveals that each of two apparently conflicting rules can be applied to the same issue under a different set of circumstances, then once again there will be no conflict. A genuine conflict can arise between two speculative (zanni) evidences, but not between definitive (qat`i) proofs. In this way, all cases of conflict between the definitive rulings of the Qur'an and Sunnah are deemed to be instances of apparent, not genuine, conflict. Furthermore, the ulema have maintained the view that a genuine conflict between two ayat or two ahadith, or between an ayah and a Hadith, does not arise; whenever a conflict is observed between these proofs, it is deemed to be only apparent (zahiri), and lacking in reality and substance. For the all-pervasive wisdom of the Lawgiver cannot countenance the enactment of contradictory laws. It is only the mujtahid who is deemed unable to envision the purpose and intention of the Lawgiver in its entirety who may therefore find cases of apparent conflict in the divinely-revealed law. Only in cases of evident abrogation (naskh), which are Principles of Islamic Jurisprudence ~ Kamali 307 largely identified and determined by the Prophet himself, could it be said that a genuine conflict had existed between the rulings of divine revelation. [2. Ghazali, Mustasfa, II. 126; Khallaf, 'Ilm, p. 230.] When there is a case of apparent conflict between the rulings of the nusus, one must try to discover the objective of the Lawgiver and remove the conflict in the light of that objective. Indeed, the rules of reconciliation and preference proceed on the assumption that no genuine conflict can exist in the divine laws; hence it becomes necessary to reconcile them or to prefer one to the other. This would mean that either both or at least one of the evidences at issue can be retained and implemented. The mujtahid must therefore try to reconcile them as far as possible, but if he reaches the conclusion that they cannot be reconciled, then he must attempt to prefer one over the other. If the attempt at reconciliation and preference fails, then one must ascertain whether recourse can be had to abrogation, which should be considered as the last resort. But when abrogation also fails to offer a way out of the problem, then ac...
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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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