Principles of Islamic Jurisprudence by MH kamali

Just as a general text remains general until it is

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Unformatted text preview: ] To say that a text is general or specified, or that a text remains valid and has not been abrogated, is thus determined on grounds of interpretation of words and not by the application of istishab. For example, the Qur'anic rule which assigns to the male a double share of the female in inheritance (al-Nisa, 4:11) is general and would have remained so if it were not qualified by the Hadith that `the killer does not inherit'. Sunan, II, 913, Hadith no. 2735; al-Darimi, Sunan (Kitab al-Fara'id), II, 384.] Similarly, the ruling of the Sunnah concerning the direction of the qiblah remained in force until it was abrogated by the Qur'anic injunction in Sura al-Baqarah (2:144), which changed the qiblah from Jerusalem to the Ka'bah. This is all obvious so far, and perhaps al-Shawkani is right in saying that there is no need for a recourse to istishab in these cases. What istishab might tell us in this context may be that in the event where there is doubt as to whether the general in the law has been qualified by some other enactment, or when there is doubt as to whether the law on a certain point has been abrogated or not, istishab would presume the absence of specification and abrogation until the contrary is established by evidence. [24. Ibn Majah, 3) Presumption of original freedom from liability (bara'ah al dhimmah al-asliyyah), which means freedom from obligations until the contrary is proved. No person may, therefore, be compelled to perform any obligation unless the law requires so. For example, no-one is required to perform the hajj pilgrimage more than once in his lifetime, or to perform a sixth salah in one day, because the Shari'ah imposes no such liability. Similarly, no-one is liable to punishment until his guilt is established through lawful evidence. [25. Shawkani, Irshad, p. 238; Mahmassani, Falsafah, p. 90. The principle of original freedom from liability appears in al-Suyuti's al- Ashbah wa al-Naza'ir and in the Majallah al-Ahkam al-`Adliyyah (Art. 8).] However, the detailed implementation of this principle too has given rise to disagreement between the Shafi'i and Hanafi jurists. To give an example, A claims that B owes him fifty dollars and B denies it. The question may arise as to whether a settlement (sulh) after denial is lawful in this case. The Hanafis have answered this in the affirmative, but the Shafi'is have held that a settlement after denial is not permissible. The Shafi'is argue that since prior to the settlement B denied the claim, the principle of original freedom from liability would thus apply to him, which means that he would bear no liability at all. As such it would be unlawful for A to take anything from B. The settlement is therefore null and void. The Hanafis have argued, on the other hand, that B's non-liability after the claim is not inviolable. The claim, in other words, interferes with the operation of the principle under discussion. B can no longer be definitely held to be free of liability; this being so, a s...
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