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Unformatted text preview: ty, may not be allowed to disprove a certain fact. The marriage is certain and the talaq a doubtful, hence the former is presumed to continue. Imam Malik, on the other hand, considers the occurrence of a divorce to be the certainty in this case. What is in doubt is the husband's right to the revocation of the talaq. As for determining the precise number of talaqs, which is crucial to the question of revocation, Imam Malik holds that the right to revocation cannot be established by a mere doubt. Hence the husband has no right to revocation, which means that the divorce is final. [19. Ibn al-Qayyim, I'lam, I, 296; Abu Zahrah, Usul, p. 238.] While the majority of jurists consider marriage to be the certain factor in this case, for Imam Malik it is the actual pronouncement of talaq, regardless of the form it might have taken, which represents the Principles of Islamic Jurisprudence ~ Kamali 264 state of certainty and the basis on which istishab must operate. While commenting on these differences, both Ibn al-Qayyim and Abu Zahrah have considered the majority decision to be preferable. The marriage in this case must therefore not be allowed to be disproved by a doubtful talaq. I, 296; Abu Zahrah, Usul, p. 238.] To give yet another example: when a man repudiates one of his two wives, but is not certain as to which one, according to the Malikis the certain fact is that a talaq has been pronounced, while the uncertainty in this case is the identity of the divorcee. Both are divorced, on grounds of istishab, which establishes that certainty must prevail over doubt. For the majority of ulema, however, the certain fact is that the man has two wives, in other words, the existence of a valid marriage in respect of both. The doubt concerning the identity of the divorcee must not be allowed to disprove the state of certainty, namely the marriage. Hence neither of the two are divorced. [21. Abu Zahrah, Usul, p. 239.] Once again the juristic disagreement in this case arises from the differential perception of the ulema as to identifying the state of certainty on which the rules of istishab must operate. 2) Presumption of generality until the general is subjected to limitation is another maxim that originates in istishab. The general (`amm) must therefore remain 'amm in its application until it is qualified in some way. Just as a general text remains general until it is specified, so is the validity of that text, which is presumed to continue until it is abrogated. This would mean that a legal text remains valid and must be implemented as such unless it is abrogated or replaced by another text. p. 90.] Principles of Islamic Jurisprudence ~ Kamali 265 [20. Ibn al-Qayyim, I'lam, [22. Khudari, Usul, p. 356; Mahmassani, Falsafah, While discussing the maxim under discussion, al-Shawkani records the variant view which is held by some ulema to the effect that the rule of law in these situations is established through the interpretation of words and not by the application of istishab. [23. Shawkani, Irshad, p. 238....
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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