Unformatted text preview: have the ability and knowledge to deduce the correct answer themselves. The ahl al-dhikr in this ayah refers to the ulema, regardless as to whether they actually know the correct ruling of an issue or not, provided they have the capacity to investigate and find out. [15. Amidi, Ihkam, IV, 206; Kassab, Adwa', p. 121.] When a mujtahid exerts himself and derives the ruling of a particular issue on the basis of probability, but after a period of time changes his opinion on the same issue, he may set aside or change his initial ruling if this would only affect him personally. For example, when he enters a contract of marriage with a woman without the consent of her guardian (wali) and later changes his opinion on the validity of such a marriage, he must annul the nikah. But if his ijtihad affects others when, for example, he acts as a judge and issues a decision on the basis of his own ijtihad, and then changes his views, he may not, according to the majority of ulema, set aside his earlier decision. For if one ruling of ijtihad could be set aside by another, then the latter must be equally subject to reversal, and this would lead to uncertainty and loss of credibility in the ahkam. [16. Amidi, Ihkam, IV, 14; Khudari, Usul, p. 380.] It is reported that `Umar b. alKhattab adjudicated a case, known as Hajariyyah, in which the deceased, a woman, was survived by her husband, mother, two consanguine and two uterine brothers. 'Umar b. al-Khattab entitled all the brothers to a share in one-third of the estate. but was told by one of the parties that the previous year, he (`Umar) had not entitled all the brothers to share the portion of one-third. To this the caliph replied, 'That was my decision then, but today I have decided it differently.' Thus the Caliph Umar upheld both his decisions and did not allow his latter decision to affect the validity of the former. 177; Kassab, Adwa', p. 108; Badran, Usul, p. 485.] Similarly, the decision of one judge may not be set aside by another merely because the latter happens to have a different opinion on the matter. It is reported that a man whose case was adjudicated by 'Ali and Zayd informed Umar b. al-Khattab of their decision, to which the latter replied that he would have ruled differently if he were the judge. To this the man replied, 'Then why don't you, as you are the Caliph?' `Umar b. al-Khattab replied that had it been a matter of applying the Qur'an or the Sunnah, he would have intervened, but since the decision was based in ra'y, Principles of Islamic Jurisprudence ~ Kamali 319 [17. Ibn al-Qayyim, I'lam, I, they were all equal in this respect. [18. Ibn al-Qayyim, I'lam, I, 177; Kassab, Adwa', p. 108; Badran, Usul, p. 485.] Since in matters of juristic opinion no-one can be certain that a particular view is wrong, the view that has already been embodied in a judicial decree has a greater claim to validity than the opposite view. The position is, however, different if the initial decision is found to be in violation of the law, in which case it must be set...
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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.
- Spring '13