Principles of Islamic Jurisprudence by MH kamali

To this the man replied then why dont you as you are

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Unformatted text preview: aside. This is the purport of the ruling of `Umar ibn al-Khattab which he conveyed in his well-known letter to Abu Musa al-Ash'ari as follows: 'After giving a judgment, if upon reconsideration you arrive at a different opinion, do not let the judgment stand in the way of retraction. For justice may not be disregarded, and you are to know that it is better to retract than to persist injustice.' [19. Ghazali, Mustasfa, II, 120; Amidi, Ihkam, IV, 184; Ibn al-Qayyim, I'lam, I, 71-72; Mahmassani, Falsafah (Ziadeh's trans.), p. 97.] The precedent of the Companions on this issue has led to the formulation of a legal maxim which provides that 'ijtihad may not be overruled by its equivalent' (al-ijtihad la yunqad bi-mithlih). Consequently, unless the judge and the mujtahid is convinced that his previous ijtihad was erroneous, he must not attempt to reverse it. Thus a judicial decision which is based on the personal opinion and ijtihad of a particular judge-cum-mujtahid is irreversible on the basis of a mere difference of opinion by another judge. It is further suggested that the issuing judge himself may change his initial decision which was based on ijtihad in a subsequent case if he is convinced that this is a preferable course to take. But the credibility of judicial decisions is a factor that would discourage the issuing judge to change his initial decision unless it proves to have been manifestly oppressive. The Proof (Hujjiyyah) of Ijtihad Ijtihad is validated by the Qur'an, the Sunnah and the dictates of reason (`aql). Of the first two, the Sunnah is more specific in validating ijtihad. The Hadith of Mu`adh b. Jabal, III, 1019, Hadith no 3585. The full version of this Hadith appears at page 218.] [20. Abu Dawud, Sunan (Hasan's trans.), as al-Ghazali points out, provides a clear authority for ijtihad. The same author adds: The claim that this Hadith is mursal (i.e. a Hadith whose chain of narration is broken at the point when the name of the Companion who heard it from the Prophet is not mentioned) is of no account. For the ummah has accepted it and has consistently relied on it; no further dispute over its authenticity is therefore warranted. [21. Ghazali, Mustasfa, II, 63-64.] According to another Hadith, 'When a judge exercises ijtihad and gives a right judgment, he will have two rewards, but if he errs in his judgment, he will still have earned one reward.' [22. Abu Dawud, Sunan, III, 1013, Hadith no. 3567.] This Hadith implies that regardless of its results, ijtihad never partakes in sin. When the necessary requirements of ijtihad are present, the result is always meritorious and never blameworthy. Mustasfa, II, 105; Amidi, Ihkam, IV, 186.] In another Hadith, the Prophet is reported to have said: 'Strive and Principles of Islamic Jurisprudence ~ Kamali 320 [23. Ghazali, endeavour, (ijtahidu), for everyone is ordained to accomplish that which he is created for.' (Istanbul ed.), VI, 84; Amidi, Ihkam, IV, 209.] There is also the Hadith which reads: 'When God favours one of His servants, He enables him to acquire knowledge (tafaqquh) in religion.' [25. Bukhari, Sahih (Istanbul ed.), I, 25-26.] The ulema of usul ha...
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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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