Principles of Islamic Jurisprudence by MH kamali

A definitive may not be limited nor specified by a

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Unformatted text preview: al ruling, there is a solitary Hadith which provides that 'the believer slaughters in the name of God whether he pronounces the name of God or not'. 240; Badran, Usul, p.383.] Principles of Islamic Jurisprudence ~ Kamali 105 [50. Abu Zahrah, [51. Bayhaqi, Al-Sunan al-Kubra, VII, According to the majority, this Hadith specifies the Qur'anic ayah, with the result that slaughter by a Muslim, even without pronouncing the name of God, is lawful for consumption. But to the Hanafis, it is not lawful, as the 'Amm of the Qur'an may not be specified by solitary (Ahad) Hadith. This disagreement between the juristic schools, however, arises in respect of the solitary Hadith only. As for the Mutawatir (and the Mashhur) there is no disagreement on the point that either of these may specify the general in the Qur'an just as the Qur'an itself sometimes specifies its own general provisions. Shawkani, Irshad, p. 157; Abu Zahrah, Usul, p.125.] A general proposition may be qualified either by a dependent clause, that is, a clause which occurs in the same text, or by an independent locution. The majority of ulema consider either of these eventualities as two varieties of takhsis. According to the Hanafis, however, an independent locution can specify another locution only if it is established that the two locutions are chronologically parallel to one another. but if they are not so parallel, the later in time abrogates the former, and the case is one of abrogation rather than takhsis. In the event where the qualifying words relate to what has preceded and do not form a complete locution by themselves, they are not regarded as independent propositions. According to the majority, but not the Hanafis, a dependent clause may qualify a general proposition by introducing an exception (istithna'), a condition (shart), a quality (sifah), or indicating the extent (ghayah) of the original proposition. Each of such clauses will have the effect of limiting and specifying the operation of the general proposition. An example of specification in the form of istithna' is the general ruling which prescribes documentation of commercial transactions that involve deferred payments in sura al-Baqarah (2:282). This general provision is then followed, in the same ayah, by the exception 'unless it be a transaction handled on the spot that you pass around among yourselves in which case it will not be held against you if you did not reduce it into writing'. This second portion of the ayah thus embodies an exception to the first. Specification (takhsis) in the form of a condition (shart) to a general proposition may be illustrated by reference to the Qur'anic text which prescribes the share of the husband in the estate of his deceased wife. The text thus provides, 'in what your wives leave, you are entitled to one half if they have no children' (al-Nisa' , 4:12). The application of the general rule in the first portion of the ayah has thus been qualified by the condition which the text itself has provided in its latter part, namely the...
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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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