Principles of Islamic Jurisprudence by MH kamali

Modern arabic writings on usul al fiqh tend to differ

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Unformatted text preview: usul al-fiqh tend to differ from the older works on the subject in that the former take cognizance of recent developments both in the Muslim communities and beyond. Thus, the reader of many a modern work often comes across comments and comparisons which seek to explain the application and relevance of the Shariah doctrines to modern legislation, and to the principles of Western jurisprudence. Much to their credit, some ulema and writers of modern works have attempted to relate the classical formulations and doctrines of usul al-fiqh to the contemporary socio-legal conditions of their communities. There exists a level of concern over the gap that has gradually developed between the Shariah and modern law and over the fact that the problem still remains to be tackled. There have also been attempts, be they in the form of individual reform proposals, a call for fresh ijtihad over particular issues, or formal resolutions adopted at national and international gatherings of scholars, which seek to tap the resources of usul al-fiqh in bridging the gap between the Shariah and modern conditions of society. A full account of such developments would fall well beyond the scope and objective of the present work. [For an account of the recent trends and developments in scholarly publications, conference resolutions, and the various periodicals and encyclopedias which are designed to promote such tendencies, the reader is referred to Muhammad Faruq al-Nabhan, Al- Madkhal li al- Tashri al-Islami, pp 342-407 and Manna al-Qattan, Al-Tashri wa al-Fiqh fi al-lslam, pp. 311-355.] But in discussing certain doctrines such as ijtihad, ijma', istihsan and maslahah, I have attempted to present the modern current of opinion, and occasionally my own views, as to how these principles could be utilised in contemporary legal and judicial processes. I have taken this liberty despite the awareness that it might fall beyond the brief of a work which seeks to be an exposition of the existing doctrines and institutions as they are. I wish to add here that I alone bear full responsibility for the propriety or otherwise of my views. Furthermore, the recent Arabic texts on usul al-fiqh tend to treat their subject matter in a more consolidated and simplified form which makes it manageable to the modern student of law. These works are on the whole more concise by comparison with the earlier authorities on the subject. It is primarily in matters of format and style in which they differ from the older works. As for substantive matters, the modern works are normally expected to preserve the continuity of the earlier authorities, and the two are basically indistinguishable in this regard. Having said this, one might add further that the modern works tend to differ from their predecessors in one other respect, namely that the former tend to offer a more even-handed treatment of the views and doctrines of such schools of thought as the Mu'tazilah, the Shi'ah and the Zahiriyyah, etc., and tend to treat ideas on...
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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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