Principles of Islamic Jurisprudence by MH kamali

Principles of islamic jurisprudence kamali 35 abu

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Unformatted text preview: constitutional and international affairs is, on the whole, confined to an exposition of the general principles and objectives of the law. With regard to civil transactions, for example, the nusus of the Quran on the fulfillment of contracts, the legality of sale, the prohibition of usury, respect for the property of others, the documentation of loans and other forms of deferred payments are all concerned with general principles. Thus in the area of contracts, the Quranic legislation is confined to the bare minimum of detail, [Of the two ayat on the subject of contracts, one is in the form of a command and the other in the form of a question, as follows: 'O you believers, fulfill your contracts' (al-Maidah, 5: 1) . and 'O you believers, why do you say things which you do not carry through?' (al-Saff, 61:2). These are, in turn, confirmed by another ayah (al-Nisa', 4:58) where an emphasis is laid on the fulfillment of trusts and the principle of fair treatment: God commands you to turn over trusts to those to whom they belong, and when you judge among people, judge righteously.' Contracts must therefore not amount to a violation of justice, a breach of trust, or a departure from the moral ideals of the law.] and in the area of civil transactions and property, the believers are enjoined to 'devour not the properties of one another unlawfully, but let there be lawful trade by mutual consent' (al-Nisa, 4:29). Elsewhere we read in surah al-Baqarah (2:275) that 'God has permitted sale and prohibited usury'. The detailed varieties of lawful trade, the forms of unlawful interference with the property of others, and the varieties of usurious transactions, are matters which the Quran has not elaborated. Some of these have been explained and elaborated by the Sunnah. As for the rest, it is for the scholars and the mujtahidun of every age to specify them in the light of the general principles of the Shariah and the needs and interests of the people. [Cf. Badran, Bayan, pp. 2-3] In the sphere of crimes and penalties, the Quranic legislation is specific with regard to only five offences, namely murder, theft, highway robbery, zina and slanderous accusation. As for the rest, the Quran authorises the community and those who are in charge of their affairs (i.e. the ulu al-amr) to determine them in the light of the general principles of Shariah and the prevailing conditions of society. Once again the Quran lays down the broad principles of penal law when it provides that 'the punishment of an evil is an evil like it' (al-Shura, 42:40), and 'when you decide to punish then punish in proportion to the offence committed against you' (al-Nahl, 16:126). In the area of international relations, the Quran lays down rules which regulate war with the unbelievers and expound the circumstances in which their property may be possessed in the form of booty. But the general principle on which relations between Muslims and non-Muslims are to be regulated is stated in the following passage: God does not forbid you to act considerately towards those who have never fought you over religion nor evicted you from your homes, nor [does he forbid you] to act fairly towards them. God loves the fairminded. He only forbids you to be friendly with the ones who have fought you over [your]...
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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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