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Unformatted text preview: that might have to be applied to a hermaphrodite whose gender, whether male or female, cannot be determined and where neither side could be preferred to the other. A recourse to the original norms in this case means that the issue remains where it was in the first place. Since neither of the two possibilities can be preferred to the other, action will be based on one side or the other, not because of any evidence to warrant such a preference but as a precautionary measure when the circumstances may indicate such a course of action. Thus in some situations, in the distribution of shares in inheritance, for example, the hermaphrodite will be presumed a male, while he will be presumed a female in other situations as considerations of caution and prevention of possible harm to him may suggest. [18. Badran, Usul, pp. 469-70.] In making such decisions, it is essential that the mujtahid does not act against the general principles and spirit of the Shari'ah. When he weighs the merits and demerits of conflicting evidences he must never lose sight of the basic objectives of the Lawgiver. Principles of Islamic Jurisprudence ~ Kamali 314 [17. Abu Zahrah, Chapter Nineteen: Ijtihad, or Personal Reasoning Ijtihad is the most important source of Islamic law next to the Qur'an and the Sunnah. The main difference between ijtihad and the revealed sources of the Shari'ah lies in the fact that ijtihad is a continuous process of development whereas divine revelation and prophetic legislation discontinued upon the demise of the Prophet. In this sense, ijtihad continues to be the main instrument of interpreting the divine message and relating it to the changing conditions of the Muslim community in its aspirations to attain justice, salvation and truth. Since ijtihad derives its validity from divine revelation, its propriety is measured by its harmony with the Qur'an and the Sunnah. The sources of Islamic law are therefore essentially monolithic, and the commonly accepted division of the roots of jurisprudence into the primary and secondary is somewhat formal rather than real. The essential unity of the Shari'ah lies in the degree of harmony that is achieved between revelation and reason. Ijtihad is the principal instrument of maintaining this harmony. The various sources of Islamic law that feature next to the Qur'an and the Sunnah are all manifestations of ijtihad, albeit with differences that are largely procedural in character. In this way, consensus of opinion, analogy, juristic preference, considerations of public interest (maslahah), etc., are all interrelated not only under the main heading of ijtihad, but via it to the Qur'an and the Sunnah. (Islamic Law, p. 109) has thus aptly stated that: 'There are three prominent and fundamental sources of Islamic Law: the Holy Qur'an, the Sunnah of the holy Prophet (p.b.u.h.) and ijtihad.] It is partly due to the formalistic character of these sub-divisions that they are often found to be overlapping and concurrent. Thus a ruling of ijma' is of...
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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.
- Spring '13