Principles of Islamic Jurisprudence by MH kamali

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Unformatted text preview: ssed to Almighty God, and is hence a demand from a position of inferiority, which indicates that the correct meaning of nahy in this context is supplication, or du'a. 110;Badran, Usul, pp. 366-368; Hitu, Wajiz, p. 150.] III. Value of Legal Injunctions [15. Shawkani, Irshad, pp.109- The object of a prohibition may be to prevent an act such as adultery (zina), or it may be to prevent the utterance of words such as those purporting to effect the sale of dead corpses, or of a freeman, by means of offer and acceptance. In either case, the prohibition does not produce any rights or legal effects whatsoever. Hence no right of paternity is established through zina; on the contrary, the perpetrator is Principles of Islamic Jurisprudence ~ Kamali 135 liable to punishment. Similarly, no contract is concluded and no right of ownership is proven as a result of the sale of a corpse. If the object of prohibition is an act, and it is prohibited owing to an extraneous attribute rather than the essence of the act itself, such as fasting on the day of `id, then the act is null and void (batil) according to the Shafi`is but is irregular (fasid) according to the Hanafis, The act, in other words, can produce no legal result according to the Shafi`is, but does create legal consequences according to the Hanafis, although it is basically sinful. The Hanafis consider such acts to be defective and must be dissolved by means of annulment (faskh), or must be rectified if possible. If the prohibition consists of words such as concluding a contract of sale which partakes in usury, it is still batil according to the Shafi'is but fasid according to the Hanafis, which means that it should be either revoked or amended to the extent that it is purified of its usurious content. The position is, however, different with regard to devotional matters (`ibadat) whose purpose is seeking the pleasure of God. The fasid in this area is equivalent to batil. Hence there is no merit to be gained by fasting on the day of id, nor will it be taken into account in compensation to the fasting owed by the mukallaf. But if the prohibition is due to an external factor such as a sale concluded at the time of the Friday prayer, or when salah is performed in usurped land (al-ard al-maghsubah), the ulema are generally in agreement that all the legal consequences will follow from the prohibited act, although the perpetrator would have incurred a sin. Thus the sale so concluded will prove the right of ownership and the salah is valid and no compensatory performance of the same salah will be required. p. 369.] [16. Shawkani, Irshad, p.110; Badran, Usul, Further detail on the fasid and batil can be found in our discussion of the ahkam, which is the subject of a separate chapter. As for the question of whether a prohibition requires both immediate as well as repeated compliance, the ulema are generally in agreement that it does and that this is the only way a prohibition can be observed. Unless the object of a prohibition is avoided at all times, the prohibition is basically not observed. It is therefore necessary to...
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