Principles of Islamic Jurisprudence by MH kamali

The conflict between istisna and the ruling of the

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Unformatted text preview: he contract, although not limited by the terms of his appointment, is nevertheless qualified by the prevalent custom. In the matter of sale, for example, the expected price which represents the fair market price would be upheld, and the currency of the locality would be accepted in exchange. According to a Hadith, the Prophet is said to have forbidden conditional sale, that is, sale with conditions that may not be in agreement with the nature of this contract. An example of this would be when A sells his car to B for 10,000 dollars on condition that B sells his house to A for 50,000 dollars. The Hadith quoted to this effect provides that the Prophet 'forbade sale coupled with a condition'. However, the majority of Hanafi and Maliki jurists have validated conditions which are accepted by the people at large and which represent standard custom. Here again the general prohibition is retained, but only conditions that are adopted by `urf are upheld; the general terms of the Hadith are, in other words, qualified by custom. [14. Shawkani, Irshad, p. 161; Abu Zahrah, Usul, p. 217; Badran, Usul, p. 230.] It would be useful in this connection to distinguish 'urf from ijma' , for they have much in common with one another, which is why they are sometimes confused. But despite their similarities, there are substantial differences between `urf and ijma` which may be summarised as follows: 1) `Urf materialises by the agreement of all, or the dominant majority of, the people and its existence is not affected by the exception or disagreement of a few individuals. Ijma` on the other hand requires, for its conclusion, the consensus of all the mujtahidun of the period or the generation in which it materialises. Disagreement and dissension has no place in ijma`, and any level of disagreement among the mujtahidun invalidates ijma`. Principles of Islamic Jurisprudence ~ Kamali 252 2) Custom does not depend on the agreement of the mujtahidun, but must be accepted by the majority of the people, including the mujtahidun. The laymen have, on the other hand, no say in ijma' on juridical matters, which require the participation only of the learned members of the community. 3) The rules of `urf are changeable, and a custom may in course of time give way to another custom or may simply disappear with a change of circumstances. But this is not the case with ijma`. Once an ijma' is concluded, it precludes fresh ijtihad on the same issue and is not open to abrogation or amendments. `Urf on the other hand leaves open the possibility of fresh ijtihad, and a ruling of ijtihad which is founded in 'urf may be changed even if the `urf in which it originates does not. 4) Lastly, `urf requires an element of continuity in that it can only materialise if it exists over a period of time. Ijma` can, on the other hand, come into existence whenever the mujtahidun reach a unanimous agreement which, in principle, requires no continuity for its conclusion. Types of Custom [15. Badran, Usul, p. 225; Isma'il, Adillah, p. 291.] Custom is initi...
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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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