Principles of Islamic Jurisprudence by MH kamali

This is for example borne out by the quranic text

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Unformatted text preview: tter. Furthermore, the prohibition in this example is founded on the likelihood that the associators would insult God as a result. It is, in other words, the expected result which is taken into account. Whether the latter actually materialises or not is beside the point: insulting the idols and their worshippers is thus forbidden regardless of the actual result that such conduct may lead to. Similarly, the question of intending whether or not to bring about a particular result is irrelevant to the prohibition under discussion. Insulting idol worshippers is thus forbidden even when a Muslim does not intend to bring about the expected result, that is, an insult to God; his intention may be good or bad, in either case, insulting the idols and their worshippers is forbidden as it is, on an objective basis, most likely to invoke the expected result. [1. Cf. Abu Zahrah, Usul, p. 228.] The doctrine of sadd al-dhara'i` contemplates the basic objectives of the Lawgiver. Hence the general rule regarding the value of the means in relationship to the end is that the former acquires the value of the latter. Al-Shatibi has aptly observed that the Lawgiver has legalised certain forms of conduct and prohibited others in accordance with the benefit or harm that they lead to. When a particular act or form of conduct brings about a result which is contrary to the objectives of the Lawgiver, then the latter would be held to prevail over the former. [2. Shatibi, Muwafaqat (Diraz edition), IV, 194.] If the means, in other words, violate the basic purpose of the Shari'ah, then they must be blocked. The laws of Shari'ah are for the most part distinguishable in regard to their objectives (maqasid), and the means which procure or obstruct those objectives. The means are generally viewed in the light of the ends they are expected to obtain, and it is logically the latter which prevail over the former in that the means follow their ends, not vice versa. Normally the means to wajib become wajib and the means to haram become haram. Principles of Islamic Jurisprudence ~ Kamali 270 Means may at times lead to both a good and an evil in which case, if the evil (mafsadah) is either equal to or greater than the benefit (maslahah), the former will prevail over the latter. This is according to the general principle that 'preventing an evil takes priority over securing a benefit'. IV, 195; Badran, Usul, p. 242.] [3. Shatibi, Muwafaqat (Diraz edition), Sadd al-dhara'i` thus becomes a principle of jurisprudence and a method of deducing the juridical ruling (hukm shar`i) of a certain issue or type of conduct which may not leave been regulated in the existing law but whose ruling can be deduced through the application of this principle. In addition to the Qur'anic ayah (al-An'am, 6:108) on the prohibition of insulting idols as referred to above, the ulema have quoted in authority for sadd al-dhara'i` the Qur'anic passage in sura al-Baqarah (2:104), as follows: 'O believers! Address not the Prophet by the word ra'ina, but address him respectfully and listen to him.' The reason f...
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