Principles of Islamic Jurisprudence by MH kamali

The text is definitive in regard to the prohibition

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Unformatted text preview: aughter and there is no disagreement on this point. However, the word banatukum ('your daughters') could be taken for its literal meaning, which would be a female child born to a person either through marriage or through zina, or for its juridical meaning. In the latter sense 'banatukum' can only mean a legitimate daughter. Principles of Islamic Jurisprudence ~ Kamali 28 The jurists are in disagreement as to which of these meanings should be read into the text. The Hanafis have upheld the first of the two meanings and have ruled on the prohibition of marriage to one's illegitimate daughter, whereas the Shafi'is have upheld the second. According to this interpretation, marriage with one's illegitimate daughter is not forbidden as the text only refers to a daughter through marriage. It would follow from this that the illegitimate daughter has no right to inheritance, and the rules of guardianship and custody would not apply to her. [Shaban,'Manhaj', P. 31] In a similar vein, the ulema have differed on the definition of futile, as opposed to deliberate, oaths, which occur in sura al-Maidah (5:92): 'God will not call you to account for what is futile (al-laghw) in your oaths, but He will call you to account for your deliberate oaths . . .' The text then continues to spell out the expiation, or kaffarah, for deliberate oaths, which consists of either feeding ten hungry persons who are in need, or setting a slave free, or fasting for three days. According to the Hanafis, a futile oath is one which is taken on the truth of something that is suspected to be true but the opposite emerges to be the case. The majority have, on the other hand, held it to mean taking an oath which is not intended, that is, when taken in jest without any intention. Similar differences have arisen concerning the precise definition of what may be considered as a deliberate oath (yamin al-mu'aqqadah). when a person takes an oath on the truth of something which he knows to be untrue; this is called yamin al-ghamus, which is a variety of yamin al-mu'aqqadah. [A typical form of a sinful oath is However the Hanafis maintain that the latter only refers to the situation where a person pledges to do something in the future but then refuses to fulfill it. He is then liable to pay the kaffarah.] There is also disagreement as to whether the three days of fasting should be consecutive or could be three separate days. Hence the text of this ayah, although definitive on the basic requirement of kaffarah for futile oaths, is speculative as to the precise terms of the kaffarah and the manner of its implementation. To give another example of zanni in the Quran, we may refer to the phrase yunfaw min al-ard ('to be banished from the earth') which occurs in sura al-Maidah (5:33). The phrase spells out the penalty for highway robbery (hirabah), or according to an alternative but similar interpretation, for waging war on the community and its legitimate leadership. Banishment (nafy) in this ayah can mean exile from the place the offence is committed in...
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