Principles of Islamic Jurisprudence by MH kamali

Banishment nafy in this ayah can mean exile from the

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Unformatted text preview: the first place. This is, in fact, the obvious meaning of the phrase, and the one which has been adopted by the majority of the ulema. But the Hanafi jurists maintain that the phrase means imprisonment, not exile. According to the Hanafis, a literal approach to the interpretation of this phrase does not prove to be satisfactory: if one is to be literal, then how can one be banished from the face of the earth by any method but death? Nafy, or exile, on the other hand, is a penalty other than killing. Furthermore, if the offender is to be banished from one place to another within the Muslim territories, the harm is not likely to be prevented as he may commit further offences. The Hanafis have further argued that banishing a Muslim outside the territory of Islam is not legally permissible. The only proper meaning of the phrase which would achieve the Shariah purpose behind the penalty, is, therefore, imprisonment. Principles of Islamic Jurisprudence ~ Kamali 29 And lastly, the whole ayah of muharabah in which the phrase yunfaw min al-ard occurs is open to divergent interpretations. The ayah in question reads: The punishment of those who wage war against God and His Messenger and strive to make mischief in the land is that they should be killed or crucified or their hands and their feet should be cut off on opposite sides, or they should be banished from the earth. In this passage, confusion arises from the combination of phrases which contain differential penalties for hirabah. This is mainly due to the use of the article aw, meaning 'and' between the three phrases which provide three different penalties for the offence in question. It is thus not known for certain as to which of the three penalties are to be applied to the offender, that is, the muharib. The majority view is that the muharib is liable to execution when he actually robs and kills his victim, but if he only robs him, the offender is liable to the mutilation of hands. And finally, if there be no killing involved and no robbery, then the penalty is banishment. In the more intensified cases where the offender kills and robs his victim, the former is to be killed and crucified. According to an alternative juristic opinion, it is for the ruler to determine one or the other, or a combination of these penalties, in individual cases. A Quranic injunction may simultaneously possess a definitive and a speculative meaning, in which case each of the two meanings will convey a ruling independently of the other. An example of this is the injunction concerning the requirement of ablution for prayers which reads in part ' . . . and wipe your heads' (al-Maidah, 5:6). This text is definitive on the requirement of wiping (mash) of the head in wudu', but since it does not specify the precise area of the head to be wiped, it is speculative in regard to this point. Hence we find that the jurists are unanimous in regard to the first, but have differed in regard to the second aspect of this injunction. [Badran, Usul, p. 66.] There are sometime instances where the scope of disagreement over...
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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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