Principles of Islamic Jurisprudence by MH kamali

In the case of the law of property for example both

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Unformatted text preview: oth usul al-fiqh and usul al-qanun are concerned with the sources of the law of property and not with the detailed rules governing transfer of ownership or regulating the contract of sale. These are subjects which fall within the scope of the law of property, not the methodology of law. Although the general objectives of usul al-fiqh and usul al-qanun are similar, the former is mainly concerned with the Quran, Sunnah, consensus, and analogy. The sources of Shari'ah are, on the whole, well-defined and almost exclusive in the sense that a rule of law or a hukm shar'i may not be originated outside the general scope of its authoritative sources on grounds, for example, of rationality (aql) alone. For 'aql is not an independent source of law in Islam. Usul al-fiqh is thus founded in divine ordinances and the acknowledgement of God's authority over the conduct of man. Usul al-qanun, on the other hand, consist mainly of rationalist doctrines, and reason alone may constitute the source of many a secular law. Some of these are historical sources such as Roman Law or British Common Law whose principles are upheld or overruled in light of the prevailing socioeconomic conditions of society. The sources of Shari'ah on the other hand, are permanent in character and may not be overruled on grounds of either rationality or the requirement of social conditions. There is, admittedly, a measure of flexibility in usul al-fiqh which allows for necessary adjustments in the law to accommodate social change. But in principle the Shari'ah and its sources can neither be abrogated nor subjected to limitations of time and circumstance. The role of the jurist and the mujtahid in usul alfiqh is basically one of deduction and inference of rules which are already indicated on the sources, while this is not necessarily the case with regard to usul al-qanun. The Parliament or the legislative assembly of a Western state, being the sovereign authority, can abrogate an existing statute or introduce a new law as it may deem fit. The legislative organ of an Islamic state, on the other hand, cannot abrogate the Qur'an or the Sunnah, although it may abrogate a law which is based on maslahah or istihsan, etc. Abrogation is, on the whole, of a limited application to the definite rulings of divine revelation and has basically come to an end with the demise of the Prophet. Principles of Islamic Jurisprudence ~ Kamali 16 [Two well known works [Cf. Badran, Usul., PP. 41-43] Sovereignty in Islam is the prerogative of Almighty God alone. He is the absolute arbiter of values and it is His will that determines good and evil, right and wrong. It is neither the will of the ruler nor of any assembly of men, not even the community as a whole, which determines the values and the laws which uphold those values. In its capacity as the vicegerent of God, the Muslim community is entrusted with the authority to implement the Shari'ah, to administer justice and to take all necessary measures in the interest of good government. The sovereignty of the people, if the use of the wo...
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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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