Principles of Islamic Jurisprudence by MH kamali

But abu zahrah is careful to add that these

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Unformatted text preview: end our discussion of sadd al-dhara'i` by distinguishing the means from the preliminary (muqaddimah), although the two can at times coincide and overlap. Briefly, a 'preliminary' consists of something which is necessary for obtaining the result that it contemplates, in the sense that the latter cannot materialise without the former. For instance, ablution (wudu') is a preliminary to salah and the latter cannot be performed without the former. But a means to something does not stand in the same relationship to its end. Although the means is normally expected to lead to the end it contemplates, the latter may also be obtained through some other means. The end, in other words, is not exclusively dependent on the means. To give an example: traveling in order to commit a theft is a preliminary to the theft that it contemplates but not a means to it. Traveling which might consist of riding a train in a certain direction is basically neutral and cannot, on an objective basis, be said to constitute a means to theft. But tahlil, that is, an intervening marriage concluded in order to legalise remarriage between a divorced couple, is a means to the proposed marriage but not a preliminary to it, as the latter is not exclusively dependent on tahlil and can, for example, follow a normal intervening marriage. Similarly, seductive overtures between members of the opposite sexes are a means, but not a preliminary, to adultery, as the latter can materialise even without such overtures. Sexual overtures can only constitute a preliminary to zina when they actually lead to it. The other difference to note between the means and the preliminary for our purposes, is, as already indicated, that the former is usually evaluated and declared unlawful on an objective basis even without the realisation of its expected end. The preliminary to an act, on the other hand, is of little value without the actual occurrence of the act of which it becomes a part. The relationship between preliminary and its result is subjective in the sense that it can only be evaluated in the light of the completed or the intended result. Walking in the direction of a mosque to perform the Friday prayers, for example, can only acquire the value of the wajib if it actually leads to the performance of the prayers, not otherwise. Badran, Usul, pp. 245-246; Isma'il, Adillah, p. 171.] Principles of Islamic Jurisprudence ~ Kamali 276 [21. Cf. Principles of Islamic Jurisprudence ~ Kamali 277 Chapter Seventeen: Hukm Shar`i (Law or Value of Shari'ah) The ulema of usul define hukm shar`i as a locution or communication from the Lawgiver concerning the conduct of the mukallaf (person in full possession of his faculties) which consists of a demand, an option or an enactment A demand (talab, or iqtida') is usually communicated in the form of either a command or a prohibition. The former demands that the mukallaf do something, whereas the latter requires him to avoid doing something. A demand may either be binding, which leaves the mukallaf wi...
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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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