The Great The Great Books of Islamic Civilization Books of Islamic Civilization The Translator V F T © µ The Reconciliation of the Fundamentals o u h of Islamic Law Al-Muwāfaqāt fī Usūl l n e ∏ u d al-Sharī∏ Imran Ahsan Khan Nyazee retired as m R © orµ a e PInrtoefrensasotiro onfa lS Ihsalarīmai ca nUdn iLvaewrs firtyo,m Is ltahme abad e I me co TIbhrāehīm R iben cMūosān Abcū Iislāiqa alt-Shiāoibnī Abū Is āaq, wal-rSithtāeni bbīy, iIsb arnāh inīmno ivbsanhta iMorīnū∏a siān in 2005. He then worked as ConsBuildtāanyat tf or I n n Islamic jurisprudence, for it was for the tahl-eM Muijntaishtirdy oTfh Lea Dwis atinndg uJuisshtiecde ,J uIsrliastm’sa bad ta c first time that the objectives of were i fPorrim twero yKeaitrāsb. Hale- Ahmasw tāral nTshlaet eBdo ok of ls li of the Fundamentals addressed, as thesyh aarreī∏ ain this book. The Revenue ( al-Hidāyah The Guidance a book is an authority in understanding the o t ), ( objectives of the . The difficulty that f i ) and Theorie s( of Islamic Law)., I o some may find in comprehending some of HIsela ims iacl sJou raisuptrhuodre onfc ae nOuumtlbineers o off b Iosloakmsi. c sl n of Islamic Law its pmaratqsā m§iday be attributed to thesh faacrīt∏ athat AJumriospnrgu tdheenscee aIrsel amic Law of Business a o it was the first time that the codification of m f Organisation: Partner,s hips Islamic Law of the or objectives of the was i t Business Orga,n isation: Corporations c h undertaken. It was first published in 188fi4q hin , L e Volume II Tunis, and since then it has been a source of , and a inspiratiomna, qmāo§idderation and renewal in . w two books on the topic of Ribā. At present The book, however, deals with much more he is occupied with research as Chairman, than the , and substantial research ATdhvea Rnecevdie Lweegral Studies Institute, Islamabad. is needed to unravel its full contribution. The author describes the contents of his book as follows: The reviewer, Raji M. Rammuny, is When the concealed secrets began I Professor of Arabic and Applied Linguistics br to be revealed … I started collecting ā in the Department of Near Eastern h their unique meanings … I did this to ī Studies, University of Michigan. He has m the extent of mπy ability andS ustnrneangth, made significant contributions to the ib while elaborating the purposes of n effective teaching of Arabic, ranging from M the Book (Qurān) and the … preparation of instructional materials ū organizing these precious gems and s through achievement and proficiency tests ā A gathering these benefits into meanings to audio and video collection on Arab/ b that have recourse to the principles ū Islamic life and culture. In addition, he has I helping in their comprehensio nfi qahnd s rendered great services to a number of © attachment, and I merged them with the ā national and international associations and q interpretation of principles of and organizations. He served as President and al- organized them on a shining and radiant S Board member of the American Association h string. ā of Teachers of Arabic and received the 2010 .tib The resulting bao©okkā mis divided into five Lifetime Achievement Award from the ī Islamic Studies parts: the fundamental concepts of the AATA. He is currently consultant to Center ∏ disciplsihnaer; īt∏hae a(r©uklāems) and what for Muslim Contribution to Civilization and is related to them; the legal purposes Coordinator of its Great Books of Islamic of thaed illa and the related to Civilization translation project. tijhtiehmād; the cotamqplīrdehensive treatment of Al-Muwāfaqāt fī Usūl al-Sharī a the (evidences); and the rules of and . Translated by Professor Imran Ahsan Khan Nyazee sharī∏a The present volume covers the third part, © Reviewed by Professor Raji M. Rammuny dealing with the purposes of the . www.garnetpublishing.co.uk Mu ammad bin Hamad Al-Thani Center for Muslim Contribution to Civilization in Association with Garnet Publishing Reconciliation Vol II cover FINAL.indd 1 11/12/2013 09:56 The Reconciliation of the Fundamentals of Islamic Law Volume II Reconciliation vol 2 prelims.indd 1 29/11/2013 12:14 Reconciliation vol 2 prelims.indd 2 29/11/2013 12:14 Mu©ammad bin Hamad Al-Thani Center for Muslim Contribution to Civilization Faculty of Islamic Studies Qatar Foundation for Education, Science and Community Development The Reconciliation of the Fundamentals of Islamic Law Volume II Al-Muwa¯faqa¯t f¯ı Usu¯l al-Shar¯ı∏a Ibra¯h¯ım ibn Mu¯ sa¯ Abu¯ Ish. a¯q al-Sha¯.tib¯ı Translated by Professor Imran Ahsan Khan Nyazee Reviewed by Professor Raji M. Rammuny (cid:31) a r n e t P U B L I S H I N G Reconciliation vol 2 prelims.indd 3 29/11/2013 12:14 The ReconciliaTion of The fundamenTals of islamic law Volume ii Published by Garnet Publishing Limited 8 Southern Court South Street Reading RG1 4QS UK www.garnetpublishing.co.uk Copyright © 2014 Mu©ammad bin Hamad Al-Thani Center for Muslim Contribution to Civilization All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without permission in writing from the publisher, except by a reviewer who may quote brief passages in a review. First Edition ISBN: 9781859643730 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Typeset by Samantha Barden Jacket design by Garnet Publishing Printed and bound in Lebanon by International Press: [email protected] Reconciliation vol 2 prelims.indd 4 11/12/2013 11:34 conTenTs Foreword xi About this Series xiii The Book of maq£™id (PuRPoses of The shaR~∏a) Introduction 3 PaRT i The PuRPoses of The lawgiVeR 1 The First Category: The Intention of the Lawgiver in Laying down 9 the Shar#∏a The First Issue: Legal Obligations and Their Underlying Purposes 9 The Second Issue: Matters Supplementing the Three Higher Categories 11 The Third Issue: The Completion and the Original Principle 12 The Fourth Issue: The Necessary Purposes and Their Disturbance 13 Elaboration of the First Point 14 Elaboration of the Second Point 15 Elaboration of the Third Point 16 Elaboration of the Fourth Point 17 Elaboration of the Fifth Point 20 The Fifth Issue: Worldly Interests and Injuries 20 The First Examination 21 The Second Examination 21 Sub-Issue: Unusual Circumstances 24 The Sixth Issue: Interests and Injuries Pertaining to the Hereafter 26 Reconciliation vol 2 prelims.indd 5 29/11/2013 12:14 vi THE RECONCILIATION OF THE FUNDAMENTALS OF ISLAMIC LAW The Seventh Issue: The Intention Underlying Legislation to Secure Interests 29 The Eighth Issue: Worldly Interests are Acknowledged from the 30 Perspective of the Hereafter Sub-Issue: Resulting Rules 31 The Ninth Issue: The Supporting Evidences of Fundamental Principles 35 Are Definitive The Tenth Issue: The Conflict between Subservient Interests Is Not Effective 38 The Eleventh Issue: The Purposes of the Shar#∏a Are Absolute and General 39 The Twelfth Issue: The Infallibility of the Shar#∏a? 41 The Thirteenth Issue: Preservation of the Fundamental Established 44 General Principles 2 The Second Category: The Aims of the Lawgiver in Laying down 51 the Shar#∏a for Comprehension by the Subject The First Issue: The Revelation of the Qurπ\n in Arabic 51 The Second Issue: Interpretation of Arabic Text 53 Sub-Issue: Difficulty in Translating the Qurπ\n 54 Sub-Issue: The Second Mode of Expression is Like an Attribute 54 of the First The Third Issue: The Unlettered Umma 55 Sub-Issue: Arab Sciences 56 The Fourth Issue: Basic Assumptions 61 Sub-Issue: Attributing Knowledge of the Sciences to the Qurπ\n 61 Sub-Issue: Following the Usual Meanings 62 Sub-Issue: Adopting the Understanding of the Majority 64 Sub-Issue: The Intended Meanings 66 Sub-Issue: Legal Obligations Are Meaningful to the Masses 67 The Fifth Issue: The Implied Meanings in the Texts 72 Sub-Issue: Additional Implied Meanings 77 3 The Third Category: The Intention of the Lawgiver Underlying 87 Legal Obligations The First Issue: Obligations and the Capacity of the Subject 87 The Second Issue: Obligation to Do the Impossible 87 Reconciliation vol 2 prelims.indd 6 29/11/2013 12:14 CONTENTS vii The Third Issue: Visible and Concealed Attributes 88 Sub-Issue: Affirming or Negating Concealed Attributes 89 The Fourth Issue: Instincts and Related Acts 90 Sub-Issue: Love and Hate Related to Acts 91 The Fifth Issue: Forms of Hardship 94 The Sixth Issue: Hardship That Is above the Normal 96 The Seventh Issue: The Aims of Obligation 97 Sub-Issue: Intending Hardship in Acts 100 Sub-Issue: The Subject Is Not to Opt for Hardship 103 Sub-Issue: Removal of Injury 105 Sub-Issue: Fear of Missing Performance 110 Sub-Issue: Unintended Hardship 114 Sub-Issue: Hardship Arising from External Factors 115 The Eighth Issue: The Aim of the Shar#∏a in Releasing the Subject 117 from the Control of his Whims The Ninth Issue: Goals of the Here and the Hereafter 117 The Tenth Issue: General and Specific Hardship 118 The Eleventh Issue: Normal Hardship 118 Sub-Issue: General and Specific Injury 121 The Twelfth Issue: The Aims of the Shar#∏a in Creating Obligations 123 Sub-Issue: Maintaining a Balance in Obligations 127 4 The Fourth Category: The Intention of the Lawgiver in Bringing 135 the Subject within the Fold of the Rules of the Shar#∏a The First Issue: The Goal of the Shar#∏a Is to Bring the Subject out 135 of the Compulsions of His Desire Sub-Issue: Nullity of Acts Based on Pure Desire 138 Sub-Issue: Pursuit of Desire a Means towards a Blameworthy Act 140 Sub-Issue: Pursuit of Desire in the Compliance of Legal Rules 141 The Second Issue: The Different Types of Purposes 141 The Third Issue: Types of Necessities 144 Sub-Issue: Aim of the Primary Interest Is the Benefit of the Individual 146 Sub-Issue: Acts of Three Types for Communal Interest 147 The Fourth Issue: The Pure Benefit of the Subject 148 Reconciliation vol 2 prelims.indd 7 29/11/2013 12:14 viii THE RECONCILIATION OF THE FUNDAMENTALS OF ISLAMIC LAW The Fifth Issue: Securing the Essential Interests 154 Sub-Issue: Worship 158 Sub-Issue: Building upon the Primary Purposes 159 Sub-Issue: Adopting the Primary Intention in All Its Purity 160 Sub-Issue: Complete Obedience and Reward 161 Sub-Issue: Obligations Based on Primary Purposes 162 The Sixth Issue: Securing the Secondary Interests 162 Sub-Issue: Temporal and Other Interests 169 Sub-Issue: Acts Related to Practices 172 Sub-Issue: Intention Contrary to the Intention of the Lawgiver Is a Nullity 176 The Seventh Issue: Acts That Can Be Delegated 177 Sub-Issue: Gifting Away Spiritual Rewards 185 The Eighth Issue: Persistence in Acts 187 Sub-Issue: Imposing Hardship 188 The Ninth Issue: The Shar#∏a Consists of General Rules 188 Sub-Issue: Benefits of this Principle 190 The Tenth Issue: Rules and Obligations General for all Subjects 192 Sub-Issue: Conclusive Presumptions Derived from the Principle 198 Sub-Issue: Examining Miracles 200 Sub-Issue: Acting on the Basis of Miracles 201 The Eleventh Issue: Acts Demolishing the Rules of the Shar#∏a 203 Sub-Issue: Permissible Acts 208 The Twelfth Issue: Rules General for Both Worlds 209 Sub-Issue: Supernatural Acts to Be Verified through the Shar#∏a 212 The Thirteenth Issue: Recurring Habits 213 The Fourteenth Issue: Recurring Practices 216 Sub-Issue: Difference in Rules for Recurring Practices 217 The Fifteenth Issue: Recurring Practices and Necessity 218 Sub-Issue: Disruption in Recurring Practices 219 Sub-Issue: Things Not in the Category of the Ordinary 222 The Sixteenth Issue: Types of Recurring Practice 226 The Seventeenth Issue: Obedience and Disobedience Linked to Interests 227 The Eighteenth Issue: Basis of Worship Is Ritual Obedience 228 Sub-Issue: The Basis in Human Practices Is to Turn to 231 Underlying Meanings Sub-Issue: Ritual Obedience in Human Practices 232 Reconciliation vol 2 prelims.indd 8 29/11/2013 12:14 CONTENTS ix The Nineteenth Issue: Matters of Ritual Obedience Cannot Be Extended 234 Sub-Issue: Implications of the Previous Principle 238 Sub-Issue: Rights of All\h and Rights of the Individual 239 The Twentieth Issue: The Blessings of All\h 241 PaRT ii The PuRPoses of The suBjecT 5 The Intention of the Subject in Meeting Obligations 255 The First Issue: Acts Are Determined by Intentions 255 The Second Issue: Intention Conforming to the Intention of the Lawgiver 259 Sub-Issue: Intentions and Causes 260 The Third Issue: Going against the Intention of the Lawgiver and 261 against Shar#∏a The Fourth Issue: Compatible and Incompatible Intentions and Acts 264 The Fifth Issue: Interests Causing Injury to Another 271 The Sixth Issue: Securing of Interests for Others 283 The Seventh Issue: Ability to Secure Interests 284 Sub-Issue: The Maintenance of an Individual from the Bayt al-M\l 285 Sub-Issue: Causing Injury to One’s Self 286 Sub-Issue: Repelling Injury with Accompanying Utility 289 The Eighth Issue: When Interests Are Known 290 The Ninth Issue: Absence of Choice in the Case of the Right of All\h 291 The Tenth Issue: The Meaning of ∂iyal (Legal Fictions) 294 The Eleventh Issue: Legal Fictions Are Unlawful 295 The Twelfth Issue: Acts Considered in the Light of the Ma§\li© 298 Sub-Issue: Three Kinds of Legal Fiction 300 Sub-Issue: Concluding the Book of Maq\§id 303 Sub-Issue: Secondary Purposes in Acts 310 Glossary of Terms 327 Index 333 Reconciliation vol 2 prelims.indd 9 29/11/2013 12:14