Principles of Islamic Jurisprudence by MH kamali

The majority of ulema as already noted do not

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Unformatted text preview: ir in that both are speculative and both are open to qualification and ta'wil. Usul, p. 383.] [62.Abu Zahrah, Usul, p. 131; Badran, The two foregoing approaches to takhsis may be illustrated by the conflict arising in the following two ahadith concerning legal alms (zakah). One of these provides, 'whatever is watered by the sky is subject to a tithe'. The second Hadith provides that 'there is no charity in less than five awsaq'. nos. 1794 & 1797; Abu Zahrah, Usul, p. 131.] [63. Al-Tabrizi, Mishkat, I, 563-65, Hadith Principles of Islamic Jurisprudence ~ Kamali 109 A wasaq (sing. of awsaq) is a quantitative measure equivalent to about ten kilograms. The first Hadith contains a general ruling in respect of any quantity of agricultural crops, but the second Hadith is specific on this point. The majority of ulema (including the Shafi'is) have held that the second Hadith explains and qualifies the first. The first Hadith lays down the general principle and the second enacts the quorum (nisab) of zakah. For the Hanafis, however, the first Hadith abrogates the second, as they consider that the first Hadith is of a later origin than the second. According to the Hanafis, when the 'Amm is of a later origin than the Khass, the former abrogates the latter completely. Hence there is no case for takhsis and the Hanafis as a result impose no minimum quantitative limit with regard to zakah on produce obtained through dry farming. The two views remain far apart, and there is no meeting ground between them. However, as already indicated, the majority opinion is sound, and recourse to abrogation in cases of conflict between the 'Amm and Khass is often found to be unnecessary. In modern law too one often notices that the particular usually qualifies the general, and the two can coexist. The 'Amm and the Khass can thus each operate in their respective spheres with or without a discrepancy in their time of origin and the degree of their respective strength. Classification III: The Absolute (Mutlaq) and the Qualified (Muqayyad) [64. Cf. Abu Zahrah, Usul, p. 132.] Mutlaq denotes a word which is neither qualified nor limited in its application. When we say, for example, a 'book', a 'bird' or a 'man', each one is a generic noun which applies to any book, bird or man without any restriction. In its original state, the Mutlaq is unspecified and unqualified. The Mutlaq differs from the 'Amm, however, in that the latter comprises all to which it applies whereas the former can apply to any one of a multitude, but not to all. [65. Khallaf, 'Ilm, p. 192; Badran, Usul, pp.351, 371.] However, the ulema have differed regarding the Mutlaq and the Muqayyad. To some ulema, including al-Baydawi, the Mutlaq resembles the 'Amm, and the Muqayyad resembles the Khass. Hence anything which specifies the 'Amm can qualify the Mutlaq. Both are open to ta'wil and Mutlaq/Muqayyad are complementary to 'Amm/Khass respectively. [66. Ansari, Ghayat al-Wusul, p. 84.] When the Mutlaq is qualified by another word or words it becomes a Muqayyad, such as qualifying 'a book' as 'a green book'...
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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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