Principles of Islamic Jurisprudence by MH kamali

The hanafi position in regard to the division of

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Unformatted text preview: Alternatively the text may state that the mukallaf will not incur a sin, blame or liability if he wishes to act in a certain way. Concerning the permissibility of betrothal, for example, the Qur'an provides, `there is no blame on you [la junaha `alaykum] if you make an offer of betrothal to a woman [. . .]' (al-Baqarah, 2:235). Similarly, committing a sinful act out of sheer necessity is permissible on the authority of the Qur'an, which provides, `If someone is compelled by necessity without willful disobedience or transgression, then he is guiltless [fala ithma `alayh]' (al-Baqarah, 2:173). [35. Ghazali, Mustasfa, I, 42; Khallaf, 'Ilm, p. 115; Abdur Rahim, Jurisprudence, p. 198.] Sometimes a command to the Qur'an may only amount to permissibility when the nature of the conduct in question or other relevant evidence indicates that such is the case. An example of this is the text which orders worshippers to `scatter in the earth' once they have completed the Friday prayers (alJumu`ah, 62:10). Although the believers have been ordered to `scatter in the earth', the nature of this command and the type of activity to which it relates suggest that it conveys permissibility only. Principles of Islamic Jurisprudence ~ Kamali 288 [33. Abu Dawud, In the event where the law provides no ruling to specify the value of a certain form of conduct, then according to the doctrine of istishab al-asl (presumption of continuity), permissibility (ibahah) remains the original state which is presumed to continue. The authority for this presumption is found in the Qur'anic text which provides, in an address to mankind, that God Almighty `has created everything in the earth for your benefit' (al-Baqarah, 2:29). By implication, it is understood that the benefit in question cannot materialise unless `everything in the earth' is made mubah for mankind to use and to utilise in the first place. Mubah has been divided into three types. The first is mubah which does not entail any harm to the individual whether he acts upon it or not, such as eating, hunting or walking in the fresh air. The second type of mubah is that whose commission does not harm the individual although it is essentially forbidden. Included in this category are the prohibited acts which the Lawgiver has made permissible on account of necessity, such as uttering words of unbelief raider duress, or eating the flesh of a dead carcass to save one's life. The third variety of mubah is not really mubah per se; it is included under mubah for lack of a better alternative. This category of mubah consists of things which were practiced at one time but were then prohibited with the proviso that those who indulged in them before the prohibition are exonerated. The Qur'an thus prohibits marriage with certain relatives, and the text then continues to make an exception for such marriages that might have occurred in the past (al-Nisa', 4:22). Similarly, wine-drinking was not prohibited until the Prophets migration to Madinah, and fell under the category of mubah until the revelation of the ayah in sura al-Ma'idah (5:90) which imposed a total ban on it. [36. Abu 'Id, Mabahith,...
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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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