Principles of Islamic Jurisprudence by MH kamali

Both of them possess an active legal capacity which

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Unformatted text preview: . As for transactions which partake in both benefit and loss, they are valid but only with the permission of the guardian (wali), otherwise they are null and void. Thirdly, active legal capacity is complete upon the attainment of intellectual maturity. Hence every major person who has acquired this ability is presumed to possess active legal capacity unless there is evidence to show that he or she is deficient of intellect or insane. Principles of Islamic Jurisprudence ~ Kamali 305 [73. An [72. Persons who are fully competent may sometimes be put under interdiction (hajr) with a view to protecting the rights of others. A person may be interdicted by means of a judicial order which might restrict his powers to conclude certain transactions. A debtor may thus be interdicted so that the rights of his creditors may be protected. A person in his death-illness (marad al-mawt) is also deficient of legal capacity, as severe illness and fear of imminent death affect the physical and mental faculties of the individual. But ordinary illness and other conditions which do not impair the intellectual capacity of a person have no bearing on his active legal capacity. This is partly why Imam Abu Hanifah has differed with the majority of jurists by holding the view that foolishness (safahah), indebtedness and carelessness (ghaflah), do not affect the active legal capacity of a person. Abu Hanifah refuses to accept these as proper grounds of interdiction, as in his view the benefit of interdiction in these cases is far outweighed by its possible harm. `Ilm, p.140; Abdur Rahim, Jurisprudence, p. 220.] Principles of Islamic Jurisprudence ~ Kamali 306 [74. Khallaf, Chapter Eighteen: Conflict of Evidences Conflict (ta`arud) occurs when each of two evidences of equal strength requires the opposite of the other. This would mean that if one of them affirms something, the other would negate it at the same time and place. A conflict is thus not expected to arise between two evidences of unequal strength, as in this case the stronger of the two evidences would naturally prevail. Thus a genuine conflict cannot arise between a definitive (qat'i) and a speculative (zanni) evidence, nor could there be a conflict between the nass and ijma', nor between ijma` and qiyas, as some of these are stronger than others and would prevail over them. A conflict may, however, be encountered between two texts of the Qur'an, or between two rulings of Hadith, or between a Qur'anic ayah and a Mutawatir Hadith, or between two non-Mutawatir Hadith, or between two rulings of qiyas. When there is a conflict between two Qur'anic ayat, or between one Hadith and a pair of ahadith, or between one qiyas and a pair of analogies, it is a case of conflict between equals, because strength does not consist in number and consequently a single ayah, Hadith or qiyas is not necessarily set aside to make room for the pair. The strength of two conflicting evidences is determined by reference to the evidence itself or to the extraneous/additional factors which might tip the balance in favour of the one o...
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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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