Principles of Islamic Jurisprudence by MH kamali

The third variety of mubah is not really mubah per se

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Unformatted text preview: pp. 84-88.] It would be incorrect, as al-Ghazali explains, to apply the term 'mubah' to the acts of a child, an insane person, or an animal, nor would it be correct to call the acts of God mubah. Acts and events which took place prior to the advent of Islam are not to be called mubah either. 'As far as we are concerned, our position regarding them is one of abandonment [tark]', which obviously means that such activities are not to be evaluated at all. Mubah proper, al-Ghazali adds, is established in the express permission of Almighty God which renders the commission or omission of an act permissible either in religious terms or in respect of a possible benefit or harm that may accrue from it in this world. [37. Ghazali, Mustasfa, I, 42.] The ulema of usul definitely consider mubah to be a hukm shar'i, although including it under al-hukm al-taklifi is on the basis of mere probability as there is basically no liability [taklif] in mubah as one of the five varieties of defining law. The Hanafis have only differed with the majority with regard to the sub-divisions of wajib and makruh as already explained, but not with regard to mubah. Bearing in mind the two sub-divisions of wajib and makruh that the Hanafis have added to al-hukm altaklifi, the Hanafis thus classify the latter into seven types, whereas the majority divide it into five varieties only. Principles of Islamic Jurisprudence ~ Kamali 289 II. Declaratory Law (al-Hukm al-Wad'i) 'Declaratory law' is defined as communication from the Lawgiver which enacts something into a cause (sabab), a condition (shart) or a hindrance (mani`) to something else. This may be illustrated by reference to the Qur'anic text regarding the punishment of adultery, which enacts the act of adultery itself as the cause of its punishment (al-Baqarah, 2:24). An example of the declaratory law which consists of a condition is the Qur'anic' text on the pilgrimage of hajj: 'Pilgrimage is a duty owed to God by people who can manage to make the journey' (Al-Imran 3:97). Both of the foregoing texts, in fact, consist of a defining law and a declaratory law side by side. The defining law in the first text is the ruling that the adulterer must be punished with a hundred lashes, and in the second text it is the duty of the hajj pilgrimage itself. The declaratory law in the first text is the cause, which is the act of adultery the affect being the punishment, and in the second, it is the condition which must be present if the law of the text is to be implemented. The second of the two texts thus enacts the ability of the individual to make the journey into a condition for performing the pilgrimage. A more explicit example of a declaratory law is the Hadith which provides that 'there is no nikah without two witnesses'. Sunan, II, 557, Hadith no. 2079.] The presence of two witnesses is thus rendered a condition for a valid marriage. And lastly, an example of a declaratory law consisting of a hindrance is the Hadith which provides that 'there shall be no beques...
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