Principles of Islamic Jurisprudence by MH kamali

Badran usul pp 245 246 ismail adillah p 171 principles

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Unformatted text preview: th no choice but to conform, or may not be binding. When a demand to do or not to do something is established by definitive proof (dalil qat'i) it is referred to as wajib or haram respectively. Such is the majority view, but according to the Hanafi jurists, if the text which conveys such a demand is not definitive in its meaning (dalalah) or authenticity (thubut), it is wajib, but if it is definitive in both respects, it is fard. As for the demand to avoid doing something, the Hanafis maintain that if it is based on definitive proof in terms of both meaning and authenticity, it is haram, otherwise it is makruh tahrimi. When a demand is not utterly emphatic and leaves the individual with an element of choice it is known as mandub (recommended). The option (takhyir), on the other hand, is a variety of hukm shar'i which leaves the individual at liberty either to do or to avoid doing something. A hukm of this kind is commonly known as mubah (permissible). An enactment, or wad`, is neither a demand nor an option, but an objective exposition of the law which enacts something as a cause (sabab) or a condition (shart) of obtaining something else; or it may be conveyed in the form of a hindrance (mani`) that might operates an obstacle against obtaining it. [1. Ghazali, Mustasfa, I, 42; Shawkani, Irshad, p. 6; Khallaf, `Ilm, p. 100.] To give some examples, the Qur'anic command which addresses the believers to `fulfill your contracts' (al-Ma'idah, 5:1) is a speech of the Lawgiver addressed to the mukallaf which consists of a particular demand. A demand addressed to the mukallaf which conveys a prohibition may be illustrated by reference to the Qur'anic text which provides: 'O you believers, let not some people ridicule others, for it is possible that the latter are better than the former [ ...]' (al-Hujurat, 49:11). To illustrate a hukm which conveys an option, we refer to the Qur'anic text which permits the believers to 'hunt when you have come out of the state of ihram' (sacred state entered into for the purpose of performing the hajj pilgrimage) (al -Ma'idah, 5:2). Another Qur'anic text which consists of an option occurs in sura alBaqarah (2:229) which provides: `If you fear that they [i.e. the spouses] would be unable to observe the limits set by God, then there would be no sin on them if she gives a consideration for her freedom.' The married couple are thus given the choice to incur a divorce by mutual consent, known as khul', if they so wish, but they are under no obligation if they do not. Another form of option which occurs to the Qur'an may be illustrated with reference to the expiation (kaffarah) of erroneous killing. The perpetrator has here been given the choice either to set a slave free, or feed sixty destitute, or fast for two consecutive months (al-Nisa', 4:92). The following Hadith also conveys a hukm in which the individual Principles of Islamic Jurisprudence ~ Kamali 278 is given a choice. The Hadith reads: 'If any of you sees something evil, he should set it right by his hand; If he is unable to do so, then by his t...
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