Principles of Islamic Jurisprudence by MH kamali

Principles of Islamic Jurisprudence by MH kamali

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Unformatted text preview: on the grounds that the necessary ruling regarding the means can be derived by recourse to other principles such as qiyas, and the Hanafi doctrines of istihsan and 'urf. But the Maliki and Hanbali jurists have validated sadd aldhara'i` as a proof of Shari'ah in its own right. Despite the different approaches that the ulema have taken to this doctrine, the Maliki jurist al-Shatibi has reached the conclusion that the ulema of various schools are essentially in agreement over the conceptual validity of sadd al-dhara'i` but have differed in its detailed application. Their differences relate mainly to the grounds which may be held to constitute the means to something else, and also to the extent to which the concept of sadd al-dhara'i` can be validly applied. [8. Shatibi, Muwafaqat, IV, 201.] Abu Zahrah has reached essentially the same conclusion by observing that the Shafi'i and Hanafi jurists are for the most part in agreement with their Maliki and Hanbali counterparts, and that they differ only in regard to some issues. [9. Abu Zahrah, Usul, pp.227-228.] The following classification of sadd al-dhara'i' may cast light on the consensus, as well as some of the areas which the ulema are in disagreement, over the application of this doctrine. It is perhaps well to remember at this point that notwithstanding the application of sadd al-dhara'i' in respect of opening the means to beneficence (maslahah), it is usually the prevention of evil (mafsadah) that acquires greater prominence in the discussion of this principle. From the viewpoint of the degree of probability or otherwise that a means is expected to lead to an evil end, the ulema of usul have divided the dhara'i` into four types. 1 ) Means which definitely lead to evil, such as digging a deep pit next to the entrance door to a public place which is not lit at night, so that anyone who enters the door is very likely to fall into it. Based on the near-certainty of the expected result of injuring others, the means which leads to that result are equally forbidden. The ulema of all schools are, in principle, unanimous on the prohibition of this type of dhari'ah and a consensus (ijma`) is said to have been reached on this point. Usul, p. 243.] [10. Abu Zahrah, Usul, p. 228; Badran, Having said this, however, it should be added that the jurists have envisaged two possible eventualities. Firstly, the dhari`ah may consist of an unlawful act of transgression in the first place, as was the case in the foregoing example, in which case the perpetrator is held to be responsible for any loss or damage that might be caused, as by digging a pit in a place where he has no right or authority to do so. Secondly, the dhari'ah may consist of an act which is basically lawful, in which case the ulema have disagreed over the question of responsibility. If, for example, someone digs a water well in his own house but so close to the wall of his neighbour that the wall collapses as a result, the act here is held to be basically lawful as it consists of the exercise of the right of ownership, which is said...
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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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