Principles of Islamic Jurisprudence by MH kamali

The majority of ulema however do not agree with the

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Unformatted text preview: may, this example will serve to show that the scope of ijtihad is not always confined to the 'Amm but that even the Khass and definitive rulings may require elaboration which might be based on speculative reasoning. Furthermore, the Khass of the Quran normally occurs in the form of a command or a prohibition which, as discussed below in a separate chapter, can either be qati or zanni. The zanni component of a command or a prohibition is readily identified by the fact that a command in the Quran may amount either to wajib or to mandub or even to a mere mubah. Similarly, it is not always certain whether a prohibition in the Quran amounts to a total ban (tahrim) or to a mere abomination (karahah). The absolute (Mutlaq) and the qualified (Muqayyad) are also classified as the sub-varieties of Khass. But these too can be related to the qati zanni division in at least two ways. Firstly, that somewhat like the Amm, the absolute is speculative in regard to the precise scope of its application. Secondly, the qualification of the absolute, the grounds on which it is qualified and the nature of the relationship between the qualified and the qualifier are not always a matter of certain knowledge. The absolute in the Quran is sometimes qualified on speculative grounds, which is why the jurists are not in agreement over the various aspects of qualifying the Mutlaq. Further detail on the subject of Mutlaq and Muqayyad and juristic disagreements over its various aspects can be found in a separate chapter below. Suffice it here to give an illustration: there are two separate rulings on the subject of witnesses in the Quran, one of which is absolute and the other qualified in regard to the attributes of the witness. First it is provided with regard to the transaction of sale to 'bring witnesses when you conclude a sale - washhidu idha tabaya tum' (al-Baqarah, 2:282). In this ayah, the witness is not qualified in any way whatsoever. But elsewhere we find in a reference to the subject of revocation in divorce (rijah), the Principles of Islamic Jurisprudence ~ Kamali 32 command to 'bring two just witnesses' (al-Talaq, 65:2). The ulema have on the whole related these two ayat to one another and the conclusion is drawn that the qualified terms of the second ayah must also be applied to the first, which would mean that witnesses must be upright and just whether it be a case of a commercial transaction or of revocation in divorce. This is the settled law, but to relate this to our discussion over the qati and the zanni, it will be noted that determining the precise scope of the first ayah is open to speculation. Does the requirement of witnesses apply only to sale or to all commercial transactions? To enter a detailed discussion on this point might seem out of place in the face of the fact that notwithstanding the clear terms of the Quranic injunction, the rules of fiqh as developed by the majority of ulema, with the exception of the Zahiris, do not require any witnesses either in sale or in the revocation of divorce. The ulema have, of course, found reasons in support of their rulings both from within and o...
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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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