Principles of Islamic Jurisprudence by MH kamali

The next purpose of this classification is to provide

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Unformatted text preview: ufassar takes priority over the Nass, and so on. But this order of priority applies only when the two conflicting texts both occur in the Qur'an. However, when a conflict arises between, say, the Zahir of the Qur'an and the Nass of the Sunnah, the former would prevail despite its being one degree weaker in the order of priority. This may be illustrated by the ayah of the Qur'an concerning guardianship in marriage, which is in the nature of Zahir. The ayah provides: 'If he has divorced her, then she is not lawful to him until she marries (hatta tankiha) another man' (al-Baqarah, 2:229). This text is Zahir in respect of guardianship as its principal theme is divorce, not guardianship. From the Arabic form of the word 'tankiha' in this text, the Hanafis have drawn the additional conclusion that an adult woman can contract her own marriage, without the presence of a guardian. However there is a Hadith on the subject of guardianship which is in the nature of Nass, which provides that 'there shall be no marriage without a guardian (wali). [29. Abu Dawud, Sunan (Hasan's trans.), II, 555 Hadith no. 2078; Badran, Usul, p. 408.] This Hadith is more specific on the point that a woman must be contracted in marriage by her guardian. Notwithstanding this, however, the Zahir of the Qur'an is given priority, by the Hanafis at least, over the Nass of the Hadith. The majority of ulema have, however, followed the ruling of the Sunnah on this point. [30. Badran,Usul, p.409.] II. Unclear Words (al-Alfaz Ghayr al-Wadihah) Principles of Islamic Jurisprudence ~ Kamali 96 These are words which do not by themselves convey a clear meaning without the aid of additional evidence that may be furnished by the Lawgiver Himself, or by the mujtahid. If the inherent ambiguity is clarified by means of research and ijtihad, the words are classified as Khafi (obscure) and Mushkil (difficult). But when the ambiguity could only be removed by an explanation which is furnished by the Lawgiver, the word is classified either as Mujmal (ambivalent) or Mutashabih (intricate), as follows. Khallaf, 'Ilm, p.162; Badran, Usul, p. 409.] II. 1 The Obscure (Khafi) Khafi denotes a word which has a basic meaning but is partially ambiguous in respect of some of the individual cases to which it is applied: the word is consequently obscure with regard to these cases only. The ambiguity in Khafi needs to be clarified by extraneous evidence which is often a matter of research and ijtihad. An example of Khafi is the word 'thief' (sariq) which has a basic meaning but which, when it is applied to cases such as that of a pickpocket, or a person who steals the shrouds of the dead, does not make it immediately clear whether 'thief' includes a pickpocket or not and whether the punishment of theft can be applied to the latter. The basic ingredients of theft are present in this activity, but the fact that the pickpocket uses a kind of skill in taking the assets of a person in wakefulness makes it somewhat different from theft. Similarly, it is not certain whether 'thief' includes a nabbash, that i...
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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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