Principles of Islamic Jurisprudence by MH kamali

Similarly when both the means and the end are

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Unformatted text preview: d they may be visible or otherwise, and the two need not necessarily be present simultaneously. For example, khalwah or illicit privacy between members of the opposite sexes, is unlawful because it constitutes a means to zina whether or not it actually leads to it. All sexual overtures which are expected to lead to zina are similarly forbidden by virtue of the certainty or likelihood that the conduct in question would lead to zina. Dhari'ah may also consist of the omission of a certain conduct such as trade and commercial transactions during the of the Friday congregational prayer. The means which obstruct the said prayer, in other words, must be blocked, that is, by abandoning trade at the specified time. The whole concept of sadd al-dhara'i' is founded in the idea of preventing an evil before it actually materialises. It is therefore not always necessary that the result should actually obtain. It is rather the objective expectation that a means is likely to lead to an evil result which renders the means in question unlawful even without the realisation of the expected result. This is the case in both the examples given Principles of Islamic Jurisprudence ~ Kamali 269 above: khalwah is thus unlawful even without actually leading to zina, and trading during the time of the Friday prayer is unlawful whether or not it actually hinders the latter. Furthermore, since sadd aldhara'i' basically contemplates preventing an evil before its occurrence, the question of intention to procure a particular result cannot be a reliable basis for assessing the means that leads to that result. Abu Zahrah has aptly observed that the nature and value of the means is determined by looking at the purpose that it pursues regardless as to whether the latter is intended or otherwise. When a particular act is deemed to lead to a certain result, whether good or evil, it is held to be the means toward that end. The question of the intention of the perpetrator is, as such, not relevant to the objective determination of the value of the means. It is rather the expected result which determines the value of the means. If the result is expected to be good and praiseworthy, so will be the means towards it, and if it is expected to be blameworthy the same will apply to the means regardless of the intention of the perpetrator, or the actual realisation of the result itself. This is, for example, borne out by the Qur'anic text which forbids the Muslims from insulting idol worshippers, notwithstanding the inherent enormity of idolworshipping or the actual intention behind it. The text thus proceeds: 'And insult not the associators lest they [in return] insult God out of spite and ignorance' (al-An'am; 6:108). The means to an evil is thus obstructed by putting a ban on insulting idol-worshippers, a conduct which might have been otherwise permissible and even praiseworthy, as it would mean denunciation of falsehood and firmness of faith on the part of the believer. Thus a means which is intrinsically praiseworthy leads to an evil result, and acquires the value of the la...
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