Principles of Islamic Jurisprudence by MH kamali

Thus when a man tells his wife you are divorced the

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Unformatted text preview: den to me', or when he asks her to 'join your relatives', no divorce will take place unless there is evidence to show that the husband intended a divorce. [77. Badran, Usul, p. 398] Legal matters which require certainty, such as offences entailing the hadd punishment, cannot be established by language which is not plain. For example when a person confesses to such offences in allusive words, he is not liable to punishment. [78. Abdur Rahim, Jurisprudence, p. 98.] The jurists are in agreement that a word may be used metaphorically while still retaining its literal meaning, such as the word 'umm' (mother) which the Arabs sometimes use metaphorically for 'grandmother' and yet still retains its literal meaning. But there is disagreement among the ulema of usul as to whether both the literal and metaphorical meanings of a word can be applied simultaneously. When, for example, a man orders his servant to 'kill the lion', could this also include a brave person? The Hanafis and the Mu'tazilah have answered this question in the negative, saying that words normally carry their literal meanings unless there is evidence to warrant a departure to another meaning. The Shafi'is and the ulema of Hadith have held, on the other hand, that the literal and the metaphorical meaning of a word can be simultaneously applied. They have thus validated either of the two meanings of the Qur'anic provision 'or when you have touched women' (al-Nisa', 4:43), which could mean touching the women with the hand, or touching in the sense of having sexual intercourse. The text in Principles of Islamic Jurisprudence ~ Kamali 115 which this ayah occurs spells out the circumstances that break the state of purity. Thus when a Muslim 'touches a woman' he must take a fresh ablution for the next salah. But according to the Hanafis, the Qur'anic ayah on this point only conveys the metaphorical meaning of 'touching', that is, sexual intercourse. Hence when a person is in the state of ablution, and then touches a woman by the hand, his ablution remains intact. For the Shafi'is, however, the key word in this ayah carries both its literal and metaphorical meanings simultaneously. Consequently the state of purity is broken, not only by sexual intercourse, but also by a mere touch such as a handshake with a woman who is not of one's family. Badran, Usul, p. 397.] The Homonym (Mushtarak) A homonym is a word which has more than one meaning. Some ulema, including al-Shafi'i, have held the view that the homonym is a variety of 'Amm. The two are, however, different in that the homonym inherently possesses more than one meaning, which is not necessarily the case with the 'Amm. An example of the Mushtarak in Arabic is the word "ayn' which means several things, including eye, water-spring, gold, and spy. Similarly the word 'qur" has two meanings, namely menstruation, and the clean period between two menstruations. The Hanafis, the Hanbalis and the Zaydis have upheld the first, while the Shafi'is, Malikis and Ja'faris have upheld the second meaning of qur'. 132; EI2, IV, 101.] The plurality of meanings in a ho...
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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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