Principles of Islamic Jurisprudence by MH kamali

The text thus provides in what your wives leave you

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Unformatted text preview: absence of children. And then to illustrate takhsis by way of providing a description or qualification (sifah) to a general proposition, we may refer to the Qur'anic text regarding the prohibition of marriage with one's step-daughter where we read '[and forbidden to you are] your step-daughters under your guardianship from your wives with whom you have consummated the marriage' (al-Nisa', 4:23). Thus the general prohibition in the first part of the ayah has been qualified by the description that is provided in the latter part. And lastly, to illustrate takhsis in the form of ghayah, or specifying the extent of application of a general proposition, we may refer to the Qur'anic text on ablutions for salah. The text prescribes the 'washing of your hands up to the elbows' (al-Ma'idah, 5:6). Washing the hands, which is a general ruling, is thus specified in regard to the area which must be covered in washing. Similarly when it is said 'respect your fellow citizens unless they violate the law', the word 'citizens' includes all, but the succeeding phrase specifies the extent of the operation of the general ruling. [53. Abdur Rahim, Jurisprudence, pp. 83-84; Khallaf, 'Ilm, p.187; Badran, Usul, pp. 375-378.] Principles of Islamic Jurisprudence ~ Kamali 106 [52. When the application of a general proposition is narrowed down, not by a clause which is part of the general locution itself, but by an independent locution, the latter may consist of a separate text, or of a reference to the general requirements of reason, social custom, or the objectives of Shari'ah (hikmah altashri'). It is by virtue of reason, for example, that infants and lunatics are excluded from the scope of the Qur'anic obligation of hajj, which occurs in sura Al-'Imran (3:97). Similarly, the general text of the Qur'an which reads that '[a wind] will destroy everything by the command of its Lord' (al-Ahqaf, 46:25), customarily denotes everything which is capable of destruction. Similarly, in the area of commercial transactions, the general provisions of the law are often qualified in the light of the custom prevailing among people. We have already illustrated specification of one text by another in regard to the waiting period ('iddah) of divorced women. The general provision that such women must observe a 'iddah consisting of three menstrual cycles occurs in sura al-Baqarah (2:228). This has in turn been qualified by another text in sura al-Ahzab (33:49) which removes the requirement of 'iddah in cases where divorce takes place prior to the consummation of marriage. Jurisprudence, p. 84; Badran, Usul, p. 379.] [54. Abu Zahrah, Usul, p. 128; Abdur Rahim, And lastly, the general provision of the Qur'an concerning retaliation in injuries on an 'equal for equal' basis (al-Ma'idah, 5:48) is qualified in the light of the objectives of the Lawgiver in the sense that the offender is not to be physically wounded in the manner that he injured his victim, but is to be punished in proportion to the gravity of his offence. Next, there arises the question of chronological order between the general and the specifying provisions. The specifying clause is either parallel in origin to the general, or is of later origin, or their chronological order is unknown. According to the Hanafis, when the specifying clause is of a later...
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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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