Principles of Islamic Jurisprudence by MH kamali

The prophet did not take an attitude of opposition to

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Unformatted text preview: Life on earth is thus a cumulative construct of moral and religious teachings, aided and abetted by enlightened human nature which seeks to rectify what it deems to be wrong, unjust and undesirable. The Shari'ah has also left many things unregulated, and when this is the case human action may in regard to them be guided by good conscience and the general teachings of divine revelation. This is the substance, as Turabi explains, of the juridical doctrine of istishab. In its material part istishab declares permissibility to be the basic norm in Shari'ah; that people are deemed to be free of liability unless the law has determined otherwise; and that human beings may utilise everything in the earth for their benefit unless they are forbidden by the law. It thus appears that istishab, as a proof of Shari'ah, merits greater prominence and recognition than we find to be the case in the classical formulations of this doctrine. [29. Turabi, Tajdid, pp. 27-28.] Principles of Islamic Jurisprudence ~ Kamali 268 Chapter Sixteen: Sadd al-Dhara'i` (Blocking the Means) Dhari'ah (pl. dhara'i') is a word synonymous with wasilah, which signifies the means to obtaining a certain end, while sadd literally means `blocking'. Sadd al-dhara'i` thus implies blocking the means to an expected end which is likely to materialise if the means towards it is not obstructed. Blocking the means must necessarily be understood to imply blocking the means to evil, not to something good. Although the literal meaning of sadd al-dhara'i` might suggest otherwise, in its juridical application, the concept of sadd al-dhara'i' also extends to `opening the means to beneficence'. But as a doctrine of jurisprudence, it is the former meaning, that is, blocking the means to evil, which characterises sadd aldhara'i`. The latter meaning of this expression is not particularly highlighted in the classical expositions of this doctrine, presumably because opening the means to beneficence is the true purpose and function of the Shari'ah as a whole and as such is not peculiar to sadd al-dhara'i'. When the means and the end are both directed toward beneficence and maslahah and are not explicitly regulated by a clear injunction (nass), the matter is likely to fall within the ambit of qiyas, maslahah, or istihsan, etc. Similarly, when both the means and the end are directed towards evil, the issue is likely to be governed by the general rules of Shari'ah, and a recourse to sadd al-dhara'i' would seem out of place. Based on this analysis, it would appear that as a principle of jurisprudence, sadd al-dhara'i' applies when there is a discrepancy between the means and the end on the good-neutral-evil scale of values. A typical case for the application of sadd al-dhara'i` would thus arise when a lawful means is expected to lead to an unlawful result, or when a lawful means which normally leads to a lawful result is used to procure an unlawful end. Both the means and the end may be good or evil, physical or moral, an...
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