Principles of Islamic Jurisprudence by MH kamali

Similarly when the hukm of the lawgiver consists of a

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Unformatted text preview: a hindrance (mani`) to inheritance, the subject-matter of hukm in all these consists of the act of the mukallaf. Occasionally, the mahkum fih does not consist of the conduct of the individual, but even then it is related to it. For example, the arrival of Ramadan which is the cause (sabab) of fasting is not an act of the individual, but is related to the latter in the sense that the effect (musabbab) of that cause, namely the fasting, consists of the act of the mukallaf. [59. Khallaf, `Ilm, p. 128; Abu Zahrah, Usul, p. 249.] In order to constitute the subject matter of a hukm, the conduct which the individual is required to do, or avoid doing, must fulfill the following three conditions. Firstly, the individual must know the nature of the conduct so that he can perform what is required of him or refrain from that which is forbidden. [60. Knowledge in this context means understanding the nature of a command or a prohibition by the individual to the extent that he can act upon it. It does not mean affirmation of the mind (tasdiq). For if this were to be a requirement, the unbelievers would have been excluded from the meaning of mukallaf, which they are not. See Shawkani, Irshad, p. 11.] An ambivalent text or a locution which does not impart this knowledge cannot constitute the basis of either a command or a prohibition. The ambivalent (mujmal) text of the Qur'an concerning salah, zakah and hajj, for example, did not obligate anyone until these matters were explained and clarified by the Prophet. The manner in which these obligations were to be discharged was also explained in precise terms. Furthermore, the ulema are in agreement to the effect that the necessary instruction or explanations must not be delayed and must be given in time when they are needed, otherwise they would fail to provide the basis of obligation (taklif). When we say that the individual must know the nature of the act he is required to do, it means that it should be possible for him to obtain such knowledge. Hence when a person is in full possession of his capacities and it is possible for him to learn the law, he is presumed to know his legal obligations. The law is therefore applied to him, and his ignorance of the rules of Shari'ah is no excuse. For if actual knowledge by the individual were to be a requirement of the law, it would be very difficult to prove such knowledge in all cases of violation. It is therefore sufficient to ensure that the individual can acquire knowledge of the Shari'ah either directly or by asking those who have such knowledge. Secondly, the act which the individual is required to do must be within his capability, or, in the case of a prohibition, be within his capability to avoid. No law may thus demand something which is beyond the capacity of the individual. The principle here is dearly stated in the Qur'an, which declares that `God does not obligate a living soul beyond the limits of his capacity' (al-Baqarah, 2:256) and that `God puts no burden on any person beyond what He has given him' (al-Talaq, 65:7). An act may be conceptually unfeasible, such as asking a person to be awake and asleep at...
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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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