Principles of Islamic Jurisprudence by MH kamali

Zann in this context is distinguished from ilm which

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Unformatted text preview: is is explained by the requirements of ijtihad, namely the qualifications that must be fulfilled for attainment to the rank of mujtahid. When these requirements are met, it is inevitable that the mujtahid must also be a faqih. Thus the definition of ijtihad precludes self-exertion by a layman in the inference of ahkam. [6. Shawkani, Irshad, p. 250.] The subject of ijtihad must be a question of Shari'ah; more specifically, ijtihad is concerned with the practical rules of Shari'ah which usually regulate the conduct of those to whom they apply (i.e. the mukallaf). This would preclude from the scope of ijtihad purely intellectual (`aqli) and customary (urfi) issues, or matters that are perceptible to the senses (hissi) and do not involve the inference of a hukm shar'i from the evidence present in the sources. Thus ijtihad may not be exercised in regard to such issues as the createdness of the universe, the existence of a Creator, the sending of prophets, and so forth, because there is only one correct view in regard to these matters, and any one who differs from it is wrong. Similarly, one may not exercise ijtihad on matters such as the obligatory status of the pillars of the faith, or the prohibition of murder, theft, and adultery. For these are evident truths of the Shari'ah which are determined in the explicit statements of the text. Muhammedan Theories, p. 91; Badran, Usul, p. 471.] [7. Shawkani, Irshad, p. 252; Zuhayr, Usul, IV, 225; Aghnides, The detailed evidences found in the Qur'an and the Sunnah are divided into four types, as follows. 1) Evidence which is decisive both in respect of authenticity and meaning. 2) Evidence which is authentic but speculative in meaning. 3) That which is of doubtful authenticity, but definite in meaning. Principles of Islamic Jurisprudence ~ Kamali 316 4) Evidence which is speculative in respect both of authenticity and meaning. Ijtihad does not apply to the first of the foregoing categories, such as the clear nusus concerning the prescribed penalties (hudud). But ijtihad can validly operate in regard to any of the remaining three types of evidence, as the following illustrations will show: 1) An example of ijtihad concerning evidence which is definite of proof but speculative of meaning is the Qur'anic text in sura al-Baqarah (2:228): 'The divorced women must observe three courses (quru') upon themselves.' There is no doubt concerning the authenticity of this text, as the Qur'an is authentic throughout. However its meaning, in particular the precise meaning of the word quru', is open to speculation. Quru' is a homonym meaning both `menstruations' and `the clean periods between menstruations'. Whereas Imam Abu Hanifah and Ibn Hanbal have adopted the former, Imam Shafi'i and Malik have adopted the latter meaning, and their respective ijtihad leads them to correspondingly different results. [8. Kassab, Adwa', p. 29; Badran, Usul, p. 473.] 2) Ijtihad in regard to the second variety of evidence relates mainly to Hadith material, which may have a definitive meaning but whose authenticity is open to doubt. To give an example, the Hadith which provides in...
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