Principles of Islamic Jurisprudence by MH kamali

Iv 195 badran usul p 242 3 shatibi muwafaqat diraz

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Unformatted text preview: or this prohibition was that the word 'ra`ina', being a homonym, had two meanings, one of which was 'please look at us or attend to us', while with a slight twist the same word would mean 'our shepherd'. The Jews used to insult the Prophet with it, and in order to block the means to such abuse, the Muslims were forbidden from using that form of address to the Prophet despite their good intentions and the fact that the word under discussion was not inherently abusive. [4. Cf. Abu Zahrah, Usul, p.228; Isma'il, Adillah, p 197.] Authority is also found for the principle of sadd al-dhara'i' in the Sunnah, especially the ruling in which the Prophet forbade a creditor from taking a gift from his debtor lest it became a means to usury and the gift a substitute to riba. The Prophet also forbade the killing of hypocrites (al-munafiqun) and people who were known to have betrayed the Muslim community during battles. It was feared that killing such people would become a means to evil, namely, of giving rise to a rumour that 'Muhammad kills his own Companions' [5. Shatibi, Muwafaqat, IV, 62; Shatibi, Fiqh, p. 187.] which would, in turn, provide the enemy with an excuse to undermine the unity of the Muslim community. Consequently the Prophet put a ban on killing the munafiqun. On a similar note, the Prophet suspended enforcement of the hadd penalty for theft during battles so as to avoid defection to enemy forces. It was for this reason, namely to block the means to an evil, that the army commanders were ordered not to enforce tire prescribed penalties during military engagements. [6. Abu Zahrah, Usul, p. 229; Shalabi, Fiqh, p.187; Isma'il, Adillah, p. 200.] The leading Companions are also known to have entitled to inheritance the divorced woman whom her husband had irrevocably divorced during his death illness in order to exclude her from inheritance. This was forbidden by the Companions so that a divorce of this kind would not become a means to abuse. It is also reported that during the time of the caliph Umar b. al-Khattab, one of his officials, Hudhayfah, married a Jewish women in al-Mada'in. The caliph wrote to him saying that he should divorce her. Hudhayfah then asked the caliph if the marriage was unlawful. To this the Caliph replied that it was not, but that his example might be followed by others who might be lured by the beauty of the women of ahl al-dhimmah. The caliph thus forbade something which the Qur'an had declared lawful so as to block the means to an evil as he perceived it at the time. It might be interesting to add here that Ibn Qayyim al- Principles of Islamic Jurisprudence ~ Kamali 271 Jawziyyah records at least seventy-seven instances and rulings of the learned Companions and the subsequent generations of ulema in which they resorted to sadd al-dhara'i `so as to block the means that led to evil. [7. Ibn Qayyim al-Jawziyyah, I`lam, III, 122ff; Shalabi, Fiqh, p.188.] The ulema are, however, in disagreement over the validity of sadd al-dhara'i`. The Hanafi and Shafi'i jurists do not recognise it as a principle of jurisprudence in its own right,...
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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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