Principles of Islamic Jurisprudence by MH kamali

The explicit meaning of this text is that divorce is

Info iconThis preview shows page 1. Sign up to view the full content.

View Full Document Right Arrow Icon
This is the end of the preview. Sign up to access the rest of the document.

Unformatted text preview: e. The text implies this to be the case' and that a marriage can legally exist even without the assignment of a mahr. [6. Badran, Usul, p. 420.] To give yet another example of isharah al-nass we may refer to the Qur'anic text on consultation (shura) where we read, in an address to the Prophet, 'So pardon them [the Companions] and ask for [God's] forgiveness for them and consult them in affairs' (Al-'Imran, 3:159). The 'ibarah al-nass in this text requires that community affairs must be conducted through consultation. The alluded meaning of this text requires the creation of a consultative body in the community to facilitate the consultation which is required in the obvious text. The effect of isharah al-nass is similar to that of 'ibarah al-nass in that both constitute the basis of obligation, unless there is evidence to suggest otherwise. To illustrate this, we may refer once again to the Qur'anic text (al-Baqarah, 2:233) which laid down the rule that the child follows the descent of his father. This is a definitive ruling (hukm qat'i) which has, however, been set aside by ijma' in respect of slavery to the effect that the offspring of a slave does not necessarily acquire the status of his father. In this example, the isharah al-nass initially laid down a definitive ruling but it has been set aside in respect of slavery by another definitive evidence, namely the ijma'. III. The Inferred Meaning (Dalalah al-Nass) [7. Badran, Usul, p. 421.] Principles of Islamic Jurisprudence ~ Kamali 120 This is a meaning which is derived from the spirit and rationale of a legal text even if it is not indicated in its words and sentences. Unlike the explicit meaning and the alluded meaning which are both indicated in the words and signs of the text, the inferred meaning is not so indicated. Instead, it is derived through analogy and the identification of an effective cause ('illah) which is in common between the explicit meaning and the meaning that is derived through inference. This might explain why some ulema have equated dalalah al-nass with analogical deduction, namely qiyas jali. To illustrate this, we may refer to the Qur'anic text on the obligation to respect one's parents. In particular, the text provides, 'and say not uff to them' (al-Isra' 17:23), which obviously forbids the utterance of the slightest word of contempt to the parents. The effective cause of this prohibition is honouring the parents and avoiding offence to them. There are, of course, other forms of offensive behaviour, besides a mere contemptuous word such as uff, to which the effective cause of this prohibition would apply. The inferred meaning of this text is thus held to be that all forms of abusive words and acts which offend the parents are forbidden even if they are not specifically mentioned in the text under consideration. [8. Abu Zahrah, Usul, p. 112.] To give another example, the Qur'an proclaims, concerning the property of orphans, that 'those who unjustly devour the property of the orphans only devour fire into their bodies' (al-Nisa', 4:10). The explicit meaning of this text forbids guardians and executors from devouring the prop...
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.

Ask a homework question - tutors are online