Principles of Islamic Jurisprudence by MH kamali

The shafiis and malikis however maintain that the

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Unformatted text preview: ran, Bayan, pp. 103-104.] To determine which of the two or more meanings of the Mushtarak is to be upheld in a particular locution, reference is usually made to the context and circumstances in which it occurs. If it is a locution that pertains to the Shari'ah, then determining the precise purport of its words must also take into consideration the general principles and objectives of the Shari'ah. The Mushtarak is in the nature of Mushkil (difficult) and it is for the Mujtahid to determine its correct meaning by means of research and ijtihad; it is his duty to do so in the event where Mushtarak constitutes the basis of a judicial order . [84. Abu Zahrah, Usul, p.133; Khallaf, 'Ilm, p.179.] The mujtahid will normally look into the context. When, for example, a homonym has two meanings, one literal and the other juridical, and it occurs in a juridical context, than as a rule the juridical meaning will prevail. With words such as salah and talaq, for example, each possesses a literal meaning, that is 'supplication' and 'release' respectively, but when they occur in a juridical context, then their juridical meanings will take priority. As such, salah would be held to refer to a particular form of worship, and talaq would mean 'dissolution of marriage'. Finally it will be noted in passing that Mushtarak as a concept is not confined to nouns but also includes verbs. In our discussion of commands and prohibitions in a separate chapter, we have shown how a word in its imperative mood can impart more than one meaning. We have also discussed and illustrated the words of the Qur'an that occur in the imperative mood, but the juridical value that they convey can either be an obligatory command, a recommendation, or mere permissibility. Principles of Islamic Jurisprudence ~ Kamali 117 Chapter Five: Rules of Interpretation II: Al-Dalalat (Textual Implications) The law normally requires compliance not only with the obvious meaning of its text but also with its implied meaning, and indirect indications and inferences that could be drawn from it. With reference to the textual rulings of the Qur'an and the Sunnah, the ulema of usul have distinguished several shades of meaning that a nass may be capable of imparting. The Hanafi jurists have distinguished four levels of meaning in an order which begins with the explicit or immediate meaning of the text. Next in this order is the 'alluded' meaning which is followed by the 'inferred' meaning, and lastly by the 'required' meaning. There is yet a fifth variety of meaning, namely the 'divergent' meaning, which is somewhat controversial but has, in principle, been accepted, as our discussion will show. The explicit meaning (ibarah al-nass), which is based on the words and sentences of the text, is the dominant and most authoritative meaning which takes priority over the other levels of implied meanings that might be detectable in the text. In addition to its obvious meaning, a text may impart a meaning which is indicated by the signs and allusions that it might contain. This secondary meaning is referred to as isharah al-nass, that is the alluded meaning. A legal text may also convey a meaning which may not have been indicated by the words or signs...
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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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