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Unformatted text preview: [23. Bayhaqi, al-Sunan al-Kubra, III, 10.] Fifthly, haram is also identified by the enactment of a punishment for a certain form of conduct. There are many instances of this in the Qur'an and Sunnah. The hudud penalties are the most obvious examples of this variety of haram. As is implied by its name, the hadd penalty is specific in reference to both the quantity of punishment and the type of conduct which it penalises. Alternatively, the text which communicates tahrim may only consist of an emphatic condemnation of a certain act without specifying a penalty for it as such. Thus the Qur'an prohibits devouring the property of orphans by denouncing it in the following terms: 'Those who eat up the property of orphans swallow fire into their own bodies; they will soon be enduring a blazing fire' (al-Nisa', 4:10). Principles of Islamic Jurisprudence ~ Kamali 285 Haram is divided into two types: (a) haram li-dhatih or `that which is forbidden for its own sake', such as theft, murder, adultery, marrying a close relative and performing salah without an ablution, all of which are forbidden for their inherent enormity; and (b) haram li-ghayrih, or 'that which is forbidden because of something else'. An act may be originally lawful but has been made unlawful owing to the presence of certain circumstances. For example: a marriage which is contracted for the sole purpose of tahlil, that is, in order to legalise another intended marriage, performing salah in stolen clothes, and making an offer of betrothal to a woman who is already betrothed to another man. In each of these examples, the act involved is originally lawful but has become haram owing to the attending circumstances. A consequence of this distinction between the two varieties of haram is that haram lidhatih, such as marriage to one's sister or the sale of dead carcasses, is null and void ab initio (batil), whereas violating a prohibition which is imposed owing to an extraneous factor is fasid (irregular) but not batil, and as such may fulfill its intended legal purpose. A marriage which is contracted for the purpose of tahlil is clearly forbidden, but it validly takes place nevertheless. Similarly, a contract of sale which is concluded at the time of the Friday prayer is haram li-ghayrih and is forbidden. But according to the majority of ulema the sale takes place nevertheless; with the exception of the Hanbalis and Zahiris, who regard such a sale as batil. [24. Khallaf, 'Ilm, p. 113; Abu Zahrah, Usul, p. 34; Abu 'Id, Mabahith, p. 70ff.] Another consequence of this distinction is that haram li-dhatih is not permissible save in cases of dire necessity (darurah) of a kind which threatens the safety of the 'five principles' of life, religion, intellect, lineage and property. In this way, uttering a word of infidelity, or drinking wine, is only permitted when it saves life. Haram li-ghayrih, on the other hand, is permissible not only in cases of absolute necessity but also when it prevents hardship. Thus a physicia...
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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.
- Spring '13