Principles of Islamic Jurisprudence by MH kamali

This is the view of the hanafi and maliki schools and

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Unformatted text preview: ified by the Muqayyad. This may be illustrated by referring to the two Qur'anic ayat concerning ablution, one of which reads, in an address to the believers, to 'wash your faces and your hands [aydikum] up to the elbows' (al-Ma'idah, 5:7). The washing of hands in this ayah has been qualified by the succeeding phrase, that is 'up to the elbows'. The second Qur'anic provision which we are about to quote occurs in regard to tayammum, that is, ablution with clean sand in the event where no water can be found, in which case the Qur'an provides, 'take clean sand/earth and wipe your faces and your hands' (al-Nisal, 4:43). The word 'aydikum' (your hands) occurs as a Muqayyad in the first text but as a Mutlaq in the second. However the two texts have the same cause in common, which is cleanliness for salah. There is admittedly a difference between the two rulings, in that the first requires washing, and the second wiping, of the hands, but this difference is of no consequence. The first is a Muqayyad in regard to the area of the hands to be washed whereas the second is conveyed in Principles of Islamic Jurisprudence ~ Kamali 111 absolute terms. The second is therefore qualified by the first, and the Muqayyad prevails. Consequently in wiping the hands in tayammum, too, one is required to wipe them up to the elbows. And lastly we give another illustration, again of two texts, one Mutlaq, the other Muqayyad, both of which convey the same ruling but differ in respect of their causes. Here we refer to the two Qur'anic ayat on the subject of witnesses. One of these, which requires the testimony of two witness in all commercial transactions, is conveyed in absolute terms, whereas the second is qualified. The first of the two texts does not qualify the word 'men' when it provides 'and bring two witnesses from among your men' (al-Baqarah, 2:282). But the second text on same subject, that is, of witnesses, conveys a qualified command when it provides and bring two just witnesses [when you revoke a divorce]' (al-Talaq, 65:2). The ruling in both of these texts is the same, namely the requirement of two witnesses, but the two rulings differ in respect of their causes. The cause of the first text, as already noted, is commercial transactions which must accordingly be testified to by two men; whereas the cause of the second ruling is the revocation of talaq. In the first ayah witnesses are not qualified, but they are qualified in the second ayah. The latter prevails over the former. Consequently, witnesses in both commercial transactions and the revocation of talaq must be upright and just. [68. Khallaf, 'Ilm, p.194; Badran, Usul, p.354.] The foregoing basically represents the majority opinion. But the Hanafis maintain that when the Muqayyad and the Mutlaq differ in their causes, the one does not qualify the other and that each should be implemented independently. The Hanafis basically recognise only one case where the Muqayyad qualifies the Mutlaq, namely when both convey the same ruling and have the same...
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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.

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