Principles of Islamic Jurisprudence by MH kamali

This is a general ruling in the sense that sale that

Info iconThis preview shows page 1. Sign up to view the full content.

View Full Document Right Arrow Icon
This is the end of the preview. Sign up to access the rest of the document.

Unformatted text preview: e are certain varieties of sale which are specifically forbidden by the Sunnah. Consequently, the Amm of this ayah is specified by the Sunnah to the extent that some varieties of sale, such as sale of unripened fruit on a tree, were forbidden and therefore excluded from the scope of this ayah. The ulema are all in agreement to the effect that once the Amm has been specified even in a narrow and limited sense, the part which still remains unspecified is reduced to zanni and will be treated as such. Broadly speaking, the Khass is definitive. When, for example, the Quran (al-Nur, 24:4) prescribes the punishment of eighty lashes for slanderous accusation (qadhf), the quantitative aspect of this punishment is specific (Khass) and not susceptible to any speculation. But then we find that the same passage (al-Nur, 24:4) prescribes a supplementary penalty for the slanderous accuser (qadhif) where it reads: 'Never accept their testimony, for they are evildoers (fasiqun), except for those who repent afterwards and make amends.' This text is clear and definitive on the point that the qadhif is to be disqualified as a witness, but then an element of doubt is introduced by the latter portion of the text which tends to render ambiguous the precise scope of its application. Having enacted both the principal and the supplementary penalties for slanderous accusers and fasiqun it becomes questionable whether the qadhif should qualify as a witness after repentance. Does the text under discussion mean that the Principles of Islamic Jurisprudence ~ Kamali 31 concession is only to be extended to the fasiqun and not necessarily to slanderous accusers? If the answer is in the affirmative, then once the qadhif is convicted of the offence, no amount of repentance will qualify him as an upright witness again. The whole confusion is due to uncertainty in the meaning of a pronoun, namely al-ladhina (i.e. 'those') which is not known to refer to all or only part of the preceding elements in the text. The Hanafis disqualify the qadhif permanently from being a witness, whereas the Shafiis would admit him as a witness after repentance. This example also serves to show that it is not always self-evident whether a text is qati or zanni as this too may be open to interpretation. But the main point of citing this example is to show that although the Khass is qati, an aspect thereof may be zanni in a way that might affect the definitive character of the Khass as a whole. Although in principle the Khass is qati and, as such, is not open to speculative interpretation, there may be exceptions to this general rule. For example, the penance (kaffarah) of a false oath according to a textual ruling of the Quran (al-Maidah, 5:92) is of three types, one of which is to feed ten poor persons. This is a specific ruling in the sense that 'ten poor persons' has only one meaning. But even so, the Hanafis have given this text an alternative interpretation, which is that instead of feeding ten poor persons, one such person may be fed ten times. The majority of ulema, however, do not agree with the Hanafis on this point. Be that as it...
View Full Document

Ask a homework question - tutors are online