This preview shows page 1. Sign up to view the full content.
Unformatted text preview: sale in question might entail. The Imams Abu Hanifah and al-Shafi'i have, on the other hand, ruled that unless it definitely leads to evil, the basic legality of sale must be held to prevail. Sale is basically lawful in all of it varieties, deferred or otherwise, and in the absence of either positive knowledge ('ilm) or of a dominant zann that a sale would lead to riba, a mere frequency of occurrence should not be allowed to override the original legality of sale. The preferred view, however, is that of the Maliki and Hanbali schools, for there is evidence in the Sunnah to the effect that original permissibility may be overruled in the face of a Principles of Islamic Jurisprudence ~ Kamali 273 [12. Abu Zahrah, likelihood (or customary practice), even without definite evidence, that it might open the way to evil. Shatibi, Muwafaqat, IV, 200; Badran, Usul, p. 244; Abu Zahrah, Usul, p. 232.] The ulema have similarly differed over the validity or otherwise of a marriage that is concluded with the intention of merely satisfying one's sexual desire without a life-long commitment. Imam Malik considers this to be invalid (batil), as acts, according to this view, are to be judged by the intention behind them, and since the norm in marriage is permanence, the absence of an intention to that effect vitiates the nikah. The main thrust of this view is to prevent the likely abuse to which the marriage in question is likely to lead. Imam Shafi`i has on the other hand held that the nikah is valid so long as there is nothing in the contract to vitiate it. The Shari'ah, according to this view, cannot operate on the hidden intentions of people but only on tangible facts that are susceptible to proof. Whether the nikah in this case is a means to abuse is a matter for the conscience of the individual, and not the positive application of the law. [14. Isma'il, Adillah, p. 175.] The difference here is one of perspective. Whereas the Shafi'i and Hanafi view is based on the apparent validity of a contract, the Maliki and Hanbali view takes into consideration the objective of a contract and the necessary caution that must be taken in order to prevent an evil. [15. Abu Zahrah, Usul, p. 231.] The ulema are, on the other hand, all in agreement on the prohibition of illicit privacy (khalwah) which is founded in the likelihood, though not amounting to positive proof, that it might lead to adultery. [16. Badran, Usul, p. 245.] Another, similar instance in which the jurists have invoked the principle of sadd al-dhara'i` is the ruling, disputed by some, that close relatives may neither act as witnesses nor as judges in each other's disputes. Likewise, a judge may not adjudicate a dispute on the basis of his personal knowledge of facts without the formal presentation of evidence, lest it lead to prejudice in favour or against one of the parties. The principle involved here is that such activities might constitute the means to an evil end, namely miscarriage of justice, and are therefore to be avoided. The Hanafis on the other hand maintain, particularly in reference to adjudication on the basis of perso...
View Full Document
- Spring '13