Principles of Islamic Jurisprudence by MH kamali

In addition since custom is basically unstable it is

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Unformatted text preview: basis of judicial decision-making. This is perhaps evident from the general reference to custom as a supplementary source of law in the civil codes of many Islamic countries of today. The typical style of reference to custom in such statutes appears to be that custom is authoritative in the absence of a provision in the statute concerning a particular dispute. Principles of Islamic Jurisprudence ~ Kamali 256 The fuqaha of the later ages (muta'akhkhirun) are on record as having changed the rulings of the earlier jurists which were based in custom owing to subsequent changes in the custom itself. The examples which are given below will show that the jurists have on the whole accepted 'urf not only as a valid basis of ijtihad but also as the key indicator of the need for legal reform: 1) Under the rules of fiqh, a man who causes harm to another by giving him false information is not responsible for the damage he has caused. The rule of fiqh that applies to such cases is that the mubashir, that is, the one who acted directly, is responsible for the losses. However owing to the spread of dishonesty and corruption, the later fuquha' have validated a departure from this rule in favour of holding the false reporter responsible for the losses caused. [24. Abu Zahrah, Usul, p.218.] 2) According to Imam Abu Hanifah, when the qadi personally trusts the reliability of a witness who testifies before him, there is no need for recourse to cross-examination or tazkiyah. This ruling is based on the Hadith which provides that 'Muslims are `udul [i.e. upright and trustworthy] in relationship to one another'. Abu Hanifah's ruling was obviously deemed appropriate for the time in which it was formulated. But experience in later times aroused concern over dishonesty and lying by witnesses. It was consequently considered necessary to take precautions so as to prevent perjury, and the ulema reached the opinion that tazkiyah should be applied as a standard practice to all witnesses. Abu Hanifah's disciples are reported to have given a fatwa in favour of making tazkiyah a regular judicial practice. Consequently tazkiyah was held to be a condition for admitting the testimony of witnesses, and a ruling was formulated to the effect that no testimony without tazkiyah may constitute the basis of a court decision. [25. Bayhaqi, al-Sunan al-Kubra, X, 155-56. Abu Zahrah, Usul, p. 219; Sabuni, Madkhal, pp.144-45] 3) According to the accepted rule of the Hanafi school, which is attributed to Abu Hanifah himself, noone was allowed to charge any fees for teaching the Qur'an, or the principles of the faith. For teaching these subjects was held to be a form of worship ('ibadah) and no reward for it was to be expected from anyone other than God. But subsequent experience showed that some people were reluctant to teach the Qur'an, and an incentive by way of remuneration was considered necessary in order to encourage the teaching of Islam. Consequently the fuqaha' gave a fatwa in favour of charging fees for teach...
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