Principles of Islamic Jurisprudence by MH kamali

Abu zahrah usul p190 abdur rahim jurisprudence p 151

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Unformatted text preview: ught to introduce a change in the text of the Hadith which enacted the kaffarah to be freeing a slave, or sixty days of fasting, or feeding sixty poor persons. The fatwa given by the judge sought to change this order of priority on the dubious assumption that freeing a slave (or feeding sixty persons) was an easy matter for a ruler and he should therefore be required to observe the fasting only. The `illah of the penance in this case is held to be the breaking of the fast itself and not any disrespect to the sanctity of Ramadan, nor having sexual intercourse with one's wife, which might have occurred to the judge while formulating his fatwa. [41. Abu Zahrah, Usul, pp. 187, 190, 194.] Our next discussion concerning the `illah relates to the question of how the 'illah can be identified. Are there any methods which the jurist may utilise in his search for the correct cause/rationale of a given law? Identification of the 'Illah The effective cause of a ruling may be clearly stated, or suggested by indications in the nass, or it may be determined by consensus. When the 'illah is expressly identified in the text, there remains no room for disagreement. Differences of opinion arise only in cases where the 'illah is not identified in the Principles of Islamic Jurisprudence ~ Kamali 192 sources. An example of the 'illah which is expressly stated in the text occurs in sura al-Nisa (4:43): 'O you believers! Do not approach salah while you are drunk.' This ayah was revealed prior to the general prohibition of wine-drinking in sura al-Ma'idah (5:93), but it provides, nevertheless, a clear reference to intoxication, which is also confirmed by the Hadith 'every intoxicant is khamr [wine] and every khamr is forbidden'. [42. Abu Dawud, Sunan, III, 1043, Hadith no. 3672.] In another place, the Qur'an explains the effective cause of its ruling on the distribution of one-fifth of war booty to the poor and the needy 'so that wealth does not accumulate in the hands of the rich' (alHashr, 59:7). Instances are also found in the Hadith where the text itself identifies the rationale of its ruling. Thus the effective cause of asking for permission when entering a private dwelling is stated in the Hadith which provides that 'permission is required because of viewing'. The 'illah of asking for permission is thus to protect the privacy of the home against unsolicited viewing. [43. Muslim, Sahih, p. 375, Hadith no. 1424; Ghazali, Mustasfa, II, 74; Ibn Hazm, Ihkam, VIII, 91; Abu Zahrah, Usul, p. 193. There are also passages in the Qur'an on the subject of isti'shan, or asking permission before entering a private home. Note, for example, sura al-Nur (24:27) which enjoins: 'O you believers, do not enter houses other than your own unless you act politely and greet their occupants.'] In these examples, the occurrence of certain Arabic expressions such as kay-la (so as not to), li-ajli (because of), etc., are associated with the concept of ratiocination (ta`lil) and provide definite indications as...
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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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