Principles of Islamic Jurisprudence by MH kamali

As stated above in the event of a conflict between

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Unformatted text preview: in cases of murder' (al-Baqarah, 2:178). But elsewhere in the Qur'an, it is provided: 'Whoever deliberately kills a believer, his punishment will be permanent hellfire' (al-Nisa', 4:93). The explicit meaning of the first ayah provides that the murderer must be retaliated against; the explicit meaning of the second ayah is that the murderer is punished with permanent hellfire. The alluded meaning of the second ayah is that retaliation is not a required punishment for murder; instead the murderer will, according to the explicit terms of this ayah be punished in the hereafter. There is no conflict in the explicit meanings of the two texts, but only between the explicit meaning of the first and the alluded meaning of the second. A conflict thus arises as to which of the two punishments are to be upheld. But since the first ruling constitutes the explicit meaning of the text and the second is an alluded meaning, the former prevails over the latter. [11. Abu Zahrah, Usul, p.115; Khallaf, 'Ilm, p.150.] For another illustration of a conflict between the explicit and the alluded meanings, we refer to the Qur'anic text which informs the believers of the dignified status of the martyrs, as follows: 'And think Principles of Islamic Jurisprudence ~ Kamali 122 not of those who are slain in God's way as dead; they are alive, finding their sustenance in the presence of God' (Al-'Imran, 3:169). The explicit terms of this text obviously declare the martyrs to be alive and that anyone who thinks they are dead is mistaken. The alluded meaning of this text is held to be that no funeral prayer is necessary for the martyr as he is deemed to be still alive. However, this conclusion conflicts with the explicit meaning of another Qur'anic text which orders, concerning the dead in general, to 'pray on their behalf [salli 'alayhim] as your prayers are a source of tranquility for them' (alTawbah, 9:103). This text explicitly requires prayers for everyone, martyr or otherwise, as they are dead literally and juridically and their property may be inherited by their legal heirs, etc. This is the explicit meaning of this second text and it prevails over the alluded meaning of the first. [12. Badran, Usul, p. 428.] To illustrate the conflict between the alluded meaning and the inferred meaning, we refer firstly to the Qur'anic text on the expiation of erroneous homicide which provides: 'The expiation (kaffarah) of anyone who erroneously kills a believer is to set free a Muslim slave' (al-Nisa', 4:92). The explicit meaning of this ayah is that erroneous homicide must be expiated by releasing a Muslim slave. By way of inference, it is further understood that freeing a Muslim slave would also be required in intentional homicide. For the purpose of kaffarah is compensation and atonement for a sin. It is argued that the murderer is also a sinner and has committed a sin far greater then the one who kills as a result of error. The inferred meaning derived in this way is that the murderer is liable, at least, to the same kaffarah which i...
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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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