Principles of Islamic Jurisprudence by MH kamali

The basic ingredients of theft are present in this

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Unformatted text preview: s, one who steals the shroud of the dead, since a shroud is not a guarded property (mal muhraz). Imam Shafi'i and Abu Yusuf would apply the prescribed penalty of theft to the nabbash, whereas the majority of ulema only make him liable to the discretionary punishment of ta'zir. There is also an ijtihadi opinion which authorises the application of the hadd of theft to the pickpocket. The word 'qatil' (killer) in the Hadith that 'the killer shall not inherit', [32. Khallaf, 'Ilm, p.170; Badran, Usul, p. 410.] [33. Shafi'i, Al-Risalah, p. 80.] is also Khafi in respect of certain varieties of killing such as 'erroneous killing' (qatl al-khata'). The malikis have held that erroneous killing is not included in the meaning of this Hadith, whereas according to the Hanafis, it is in the interest of safeguarding the lives of the people to include erroneous killing within the meaning of this Hadith. [34. Badran, Usul, p. 411.] To remove the ambiguity in Khafi is usually a matter of ijtihad, which would explain why there are divergent rulings on each of the foregoing examples. It is the duty of the mujtahid to exert himself so as to clarify the ambiguity in the Khafi before it can constitute the basis of a judicial order. Principles of Islamic Jurisprudence ~ Kamali 97 [31. II.2 The Difficult (Mushkil) Mushkil denotes a word which is inherently ambiguous, and whose ambiguity can only be removed by means of research and ijtihad. The Mushkil differs from the Khafi in that the latter has a basic meaning which is generally clear, whereas the Mushkil is inherently ambiguous. There are, for example, words which have more than one meaning, and when they occur in a text, the text is unclear with regard to one or the other of those meanings. Thus the word 'qur' ' which occurs in sura al-Baqarah (2:228) is Mushkil as it has two distinct meanings: menstruation (hayd) and the clean period between two menstruations (tuhr). Whichever of these is taken, the ruling of the text will differ accordingly. Imam Shafi'i and a number of other jurists have adopted the latter, whereas the Hanafis and others have adopted the former as the correct meaning of qur'. Sometimes the difficulty arising in the text is caused by the existence of a conflicting text. Although each of the two texts may be fairly clear as they stand alone, they become difficult when one attempts to reconcile them. This may be illustrated in the following two ayat, one of which provides: 'Whatever good that befalls you is from God, and whatever misfortune that happens to you' is from yourself' (al-Nisa', 4:79). Elsewhere we read in sura Al-'Imran (3:154): 'Say that the matter is all in God's hands.' A similar difficulty is noted in the following two passages. According to the first, 'Verily God does not command obscenity/evil' (al-A'raf, 7:28). And then we read in sura Bani Isra'il (17: 16), 'When We decide to destroy a population, We first send a definite order to their privileged ones, and when they transgress, the word is proven a...
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