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Unformatted text preview: man to a divorce upon her release from slavery. It is reported that a slave woman by the name of Barirah was owned by `A'ishah and was married to another slave, Mughith. `A'ishah set her free, and she wanted to be separated from Mughith, who was still a slave. The case was brought to the attention of the Prophet, who gave Barirah the choice either to remain married to Mughith or be separated. But a second report on the same subject informs us that Barirah's husband was a free man when she was emancipated. The two reports are thus conflicting with regard to the status of the husband. But since it is known for certain that Mughith was originally a slave, and there is no dispute over this, the report which negates this original state is Principles of Islamic Jurisprudence ~ Kamali 311 therefore ignored in view of the general rule that the affirmative, that is, the evidence which affirms continuation of the original state, takes priority over that which negates it. The jurists have consequently held that when a slave-woman is set free while married to a slave, she will have the choice of repudiating or retaining the marriage. If the husband is a free man, she will have no such choice according to Malik, Shafi'i, and the majority of scholars. Abu Hanifah, however, maintains that she will have the option even when her husband is a free man. footnote no. 1548; Badran, Usul, p. 465; Khudari, Usul, p.367.] [11. Abu Dawud, Sunan, II, 601-602, Hadith nos. 2223-7 and Another rule of preference which may be mentioned briefly is that prohibition takes priority over permissibility. Thus if there are two conflicting rules of equal strength on the same issue, one prohibitory and the other permissive, the former will take priority over the latter. Having said this, however, it is possible that the mujtahid may depart from this rule and instead apply that which brings ease in preference to the one that entails hardship. [12. Khallaf, `Ilm, p. 232; Badran, Usul, p. 470; Khudari, Usul, p. 367.] If the attempt at reconciling two conflicting texts, or at preferring one over the other, have both failed, recourse may be had to abrogation. This would necessitate an enquiry into the occasions of revelation (asbab al-nuzul), the relevant materials in the Sunnah, and the chronological order between the two texts. If this also proves unfeasible, then action must be suspended on both and the mujtahid may resort to inferior evidences in order to determine the ruling for the issue. Thus if the conflict happens to be between two rulings of the Qur'an, he may depart from both and determine the matter with reference to the Sunnah. Should there be a conflict between two rulings of the Sunnah, then the mujtahid may refer, in a descending order, to the fatwa of Companions, and failing that the issue may be determined on grounds of qiyas. However, if the mujtahid fails to find a ruling in any of the lower categories of proofs, then he may resort to the general norms of Shari'ah that may be applicable to the case. These may be illustrated in the following exam...
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