Principles of Islamic Jurisprudence by MH kamali

But this is not the case with ijma once an ijma is

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Unformatted text preview: ally divided into two types, namely verbal (qawli) and actual (fi'li). Verbal `urf consists of the general agreement of the people on the usage and meaning of words deployed for purposes other than their literal meaning. As a result of such agreement, the customary meaning tends to become dominant and the original or literal meaning is reduced to the status of an exception. There are many examples in the Qur'an and Sunnah of words which have been used for a meaning other than their literal one, which were as a result commonly accepted by popular usage. Words such as salah, zakah and hajj have been used in the Qur'an for purposes other than their literal meanings, and this usage eventually became dominant to the extent that the literal meaning of these words was consigned to obscurity. The verbal custom concerning the use of these words thus originated in the Qur'an and was subsequently accepted by popular custom. We also find instances of divergences between the literal and the customary meanings of words in the Qur'an where the literal meaning is applied regardless of the customary meaning. The word walad, for example, is used in the Qur'an in its literal sense, that is `offspring' whether a son or daughter (note sura al-Nisa', 4:11), but in its popular usage walad is used for sons only. Another example is lahm, that is, meat, which in its Qur'anic usage includes fish, but in its customary usage is applied only to meat other than fish. Whenever words of this nature, that is, words which have acquired a different meaning in customary usage, occur in contracts, oaths and commercial transactions, their customary meaning will prevail. For example, when a person takes an oath that he will never 'set foot' at so-and-so's house, what is meant by this expression is the customary meaning, namely, actually entering the house. In this sense, the person will have broken the oath if he enters the house while never 'setting foot', such as by entering the house while mounted. But if he only Principles of Islamic Jurisprudence ~ Kamali 253 technically sets his foot in the house without entering it, he will not be liable to expiation (kaffarah) for breaking his oath. [16. Isma'il, Adillah, pp. 392-393; Sabuni, Madkhal, p. 137; Badran, Usul, p. 226.] For this would not amount to what is customarily meant by 'setting foot in the house. Actual `urf consists of commonly recurrent practices which are accepted by the people. An example of actual 'urf is the give-and-take sale, or bay' al-ta'ati, which is normally concluded without utterances of offer and acceptance. Similarly, customary rules regarding the payment of dower in marriage may require a certain amount to be paid at the time of contract and the rest at a later date. The validity of this type of custom is endorsed by the legal maxim which reads: 'What is accepted by 'urf is tantamount to a stipulated agreement (al-ma'ruf `urfan ka'l-mashrut shartan).' Consequently, actual `urf is to be upheld and applied in the absence of an agreement to the contrary. `Urf, whether actual or...
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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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