This preview shows page 1. Sign up to view the full content.
Unformatted text preview: t to an heir', [39. Abu Dawud, Sunan, II, 808; Hadith no. 2864.] which obviously enacts the tie of kinship between the testator and the legatee into a hindrance to bequest. Similarly, the Hadith which lays down the rule that 'the killer shall not inherit', renders killing a hindrance to inheritance. II, 913, Hadith no. 2735.] Principles of Islamic Jurisprudence ~ Kamali 290 [38. Abu Dawud, [40. Shafi`i, Risalah, p. 80; Ibn Majah, Sunan, To execute the defining law is normally within the capacity of the mukallaf. The demands, for example, addressed to the mukallaf concerning prayers and zakah are both within his means. Declaratory law may, on the other hand, be within or beyond the capacity of the mukallaf. For instance, the arrival of a particular time of day which is the cause (sabab) of salah is beyond the means and capacity of the worshipper. [41. Khallaf, 'Ilm, p. 102; Abu 'Id, Mabahith, p. 60.] The function of declaratory law is explanatory in relation to defining law, in that the former explains the component elements of the latter. Declaratory law thus informs us whether certain facts or event, are the cause, condition or hindrance in relationship to defining law. It is, for example, by means of declaratory law that we know offer and acceptance in a contract of sale to be the cause of the buyer's ownership, that divorce causes the extinction of marital rights and obligations, and that the death of a person is the cause of the right of the heir to his inheritance. Similarly, it is by means of a declaratory law that we know intellectual maturity to be the condition of voluntary disposition of property in gift (hibah) and charitable endowment (waqf). [42. Abdur Rahim, Jurisprudence. pp. 61-62.] The basic notion of dividing the rules of Shari'ah into taklifi and wad'i is also applicable to modern western law. When we read, in the Rent Act for example, a clause which requires the tenant to pay the rent in accordance with the tenancy contract, it is a hukm taklifi which consists of a command. Similarly, when there is a clause which requires the tenant not to use the premises for commercial purposes, it is a demand consisting of a prohibition. And if there be a clause to the effect that the tenant may sublet the property, it is an option which the tenant may or may not wish to exercise. Needless to say, any aspect of such provisions may be subjected to certain conditions or hindrances as the contracting parties may wish to stipulate. [43. Cf. Khallaf, 'Ilm, p. 104.] As noted above, declaratory law is divided into five varieties. The first three of these, namely cause, condition and hindrance, have already been discussed to some extent. Two other varieties which are added to these are the `azimah (strict law) as opposed to rukhsah (concessionary law), and valid (sahih) as opposed to invalid (batil). To include the first three under al-hukm al-wad'i is obvious from the very definition of the latter. But classifying the last two divisions, that is, azimah-rukhsah and sahih-batil, under al-hukm al-wad'i ma...
View Full Document
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