Islamic Jurisprudential Maxims

-

English
210 Pages
Read an excerpt
Gain access to the library to view online
Learn more

Description

نسلط في هذا الكتاب الضوء على القاعدة بعد ابن لادن، وما إذا كانت ستصمد وتبقى في الساحة، أم أنها ستتوارى عن الأنظار وتختفي باختفاء مؤسسها الذي غيبه الموت.
تكتسب هذه المسألة مزيدًا من الأهمية في ظل التطورات الكبرى التي لا تشمل الاضطرابات العربية التي تعيشها المنطقة منذ عام وأكثر فحسب، وإنما أيضًا خروج القوات الأميريكية من العراق، والانسحاب المتوقع لقوات التحالف من أفغانستان. وفي هذا الإصدار النادر بالعربية، نعرض وجهات نظر متعددة لأسماء مرموقة من الباحثين والخبراء العالميين.

Subjects

Informations

Published by
Published 01 January 2012
Reads 0
EAN13 9796500040066
Language English
Document size 1 MB

Legal information: rental price per page 0.0045€. This information is given for information only in accordance with current legislation.

Report a problem

ً





114
ﺔﻴﻬﻘﻓ ةﺪﻋﺎﻗ
ﺔﻳﺰﻴﻠﺠﻧﻹا ﱃإ ﺎﻬﻠﻘﻧو ﻼﺼﻔﻣ ﺎﻬﺣﴍ





رﻮﺘﻛﺪﻟا ذﺎﺘﺳﻻا
ﰲﺎﺼﻟا ﻲﻗﺎﺒﻟا ﺪﺒﻋ










































Amwaj
for Publication and Distribution
Jordan – Amman
amwajpub@yahoo.com




























Islamic
Jurisprudential
Maxims
114 Maxims Expounded
&
Rendered Into English

.
























Islamic Jurisprudential
Maxims
114 Maxims Expounded
&
Rendered Into English







Prof. Abdul Baki As-Safi









ّ







ﱃوﻷا ﺔﻌﺒﻄﻟا
2012

The Hashemite Kingdom of Jordan
The Deposit Number at The National Library
(3821/10/2011)
ﻦﻋ ﻒﻨﺼﳌا اﺬﻫ ﱪﻌﻳ ﻻو ﻪﻔﻨﺼﻣ ىﻮﺘﺤﻣ ﻦﻋ ﺔﻴﻧﻮﻧﺎﻘﻟا ﺔﻴﻟوﺆﺴﳌا ﻞﻣﺎﻛ ﻒﻟﺆﳌا ﻞﻤﺤﺘﻳ .ىﺮﺧأ ﺔﻴﻣﻮﻜﺣ ﺔﻬﺟ يأ وأ ﺔﻴﻨﻃﻮﻟا ﺔﺒﺘﻜﳌا ةﺮﺋاد يأر


















Rajaa, Mazin, Ma’an, & AL‐Hamza

































Table of Contents
Page
Transliteration ................................................................. 9
Preface .............................................................................. 11
Chapter One
Introduction
1.0. Preliminaries ............................................................... 14
1.1. Review of Related Literature ..................................... 15
1.2. Basic Assumptions ..................................................... 18
1.3. Significance of the Book ............................................ 18
1.4. Purpose of the Book .................................................. 19
1.5. Methodology ............................................................... 19
1.6. Terms Adopted in the Book ....................................... 21
Chapter Two
Religio-Legal Translation: A Theoretical
Perspective
2.0. Preliminaries ............................................................... 24
2.1. Translation Strategies ................................................. 24
2.2. Translation Equivalence ............................................. 27
2.3. Language Specificity .................................................. 30
2.4. Culture Specificity ...................................................... 33
2.5. Religio-Legal Specificity ........................................... 36
Chapter Three
Jurisprudential Maxims, Fundamentalitic Maxims
and Jurisprudential Canons
3.1 Jurisprudential Maxims: Historical Development ....... 38
3.2. Significance of Jurisprudential Maxims in Islamic 40
Life .....................................................................................

7


3.3. Differences between Jurisprudential Maxims and
Fundamentalistic Maxims ................................................ 41
3.4. Maxims Deemed to be Both Jurisprudential and
Fundamentalistic………………………………………… 42
3.5. Differences between Jurisprudential Maxims and 43
Canons ...............................................................................
3.6. Differences between a Jurisprudential Maxim and 44
a Jurisprudence Theory ......................................................
Chapter Four: Jurisprudential Maxims ....................... 47
163 Chapter Five: Concluding Remarks ..............................
Glossary ............................................................................ 175
Appendix : Index of Maxims , Alphabetically Arranged ... 191
References ......................................................................... 205















8


Transliteration

أa
بb
تt
ثth
جj
حh
خkh
ذth
رr
زz
سs
شsh
صs
ضdh
طt
ظz
ع‘
غgh
فf
قq
كk
لl
مm
نn
ء"
ـﻫh
وw
يy

9




Short Vowels

u dhamma
a fatha
i kasra

Long Vowels
ﻒﻟا aa
واﻮﻟا oo
ءﺎﻴﻟا ee
ءﺎﻴﻟ ay












10




Preface

The present book deals with rules or maxims derived from the Islamic
jurisprudence (fiqh) which subsumes all facets of Muslims’ life: worship,
material affairs and daily transactions. Islamic jurisprudence is the
framework of practical aspects of Islam itself. It is of a hybrid nature as it is
marrying up religion and law, for it stipulates man’s rights and obligations
based on certain jurisprudential maxims. Hence, the maxims are deemed to
be of paramount importance that must be translated to those who aspire at
fathoming the true nature of Islamic jurisprudence on the one hand, and
those who work in the field of translation of law and religion on the other.
Islamic religion has been revealed through the Arabic language, i.e.
initially to the people of the Arab peninsula. This language is incongruent to
English. Moreover, jurisprudence (fiqh) is replete with concepts which pose
a real challenge to the translator of jurisprudential maxims into English.
The Islamic legal system, philosophy and practice have basically been the
evolution and elaboration of the Islamic law, Shari’ah which is historically
a divinely ordained legal system of the Islamic state to control and regulate
the Muslim society.
Since the advent of Islam, jurisprudence has been for many generations
an autonomous and pure science wherein law has appeared as a body of
rules, or preferably legal maxims, which, we may propound, are based on
four categories of sources: (a) the Qur’an, (b) the Prophetic Tradition,
hadiths (Prophet Muhammad's sayings), (c) both the Qur’an and the
Prophetic hadiths, and (d) certain renowned jurisprudents.
Perhaps it is worth noting that there has been a controversy and
inconsistency among translators of the Qur'an and Islamic studies into

11


English as regards the transliterated word Allah or the English equivalent
God. In a random survey of 15 available translators of the Quran, the author
has found 10 translators using 'Allah', namely: Abdulhaqq and Aisha
Bewley, Al-Hayik, Bell, Dawood, Ghali, Hilali and Khan, Kassab, Khan
(Zafrulla), Mushaf Al-Madinah An-Nabawiyah, and Pichthall compared to
5 using 'God', namely: Ali, Arberry, Asad, Irving, and Rodwell. The last
five translators among others surmise that many languages have their own
terms in reference to Allah. Arabic is not an exception, where Allah is the
name of God among Arabs and Muslims. Interestingly enough, in Google,
under the topic: "About Allah", the word 'God' is used in the verses rendered
into English and the sections like 'God's Attributes' and 'The Oneness of
God.' The following anecdote may shed light on their predilection for
adopting God: in the Golf War II, few days prior to the withdrawal of the
invading Iraqi troops from Kuwait, an American pilot of a warplane targeted
a school and killed a number of pupils inside and some people around.
When he pressed the button to launch air-to-ground missile, he said: "Let
your Allah save you", thinking the Allah is like (Gautama) Buddha.
Definitely, he would not have dared to say, "Let (your) God save you".
On the other hand, the proponents of adopting ‘Allah’ instead of ‘God’
refer to the Christian Trinity: God the Father, God the Son and God the
Holy Ghost, which undermines the fundamental Islamic concept of
monotheism or the oneness of Allah. Unlike ‘Allah’, ‘GOD’, especially in
the spoken and not the written form with capital G, can be pluralized,
‘genderized’ and compounded as in gods, goddess and Godhead
respectively ( e.g. worshipping the Godhead, i.e., God) . Interestingly yet
pertinently enough, the latest revised editions of the Qur’an by Yusuf
‘Abdullah ‘Ali, deemed one of the most renowned and authentic translators
of the Qur’an, has replaced the word ‘God’, adopted in the earlier editions,
by the word ‘Allah’. The author has, therefore, opted for the transliterated
form, ie., Allah , rather than the translated equivalent, ie., God, since the
book deals with the Islamic jurisprudential maxims.


12



























Chapter One
Introduction Introduction

Chapter One

Introduction

1.0. Preliminaries
Translation of religious and legal discourses is one of the most
problematic and complicated kinds of translation. This is due to
several reasons:
1. Religious texts in general, and jurisprudence (fiqh) in
particular, are replete with terms which are deeply rooted in
Islam. Therefore, the translator of such texts will encounter many
lexical gaps that hinder the process of smooth translation.
Inevitably, the translator finds himself in a dire need for
adopting certain strategies to address problems engendered from
cultural incongruity .
2.These texts, particularly jurisprudential ones, deal with a broad
spectrum of many aspects of human life such as conducts and
transactions .
3.The language of these texts is very formal , which aggravates
the problems which the translator encounters . Jurisprudential
maxims are based on the Qur’an, Prophetic Tradition and
renowned scholars and leaders of the jurisprudence schools.
Many articles in the contemporary civil codes in, for example,
Syria, Iraq and Jordan lie squarely on Islamic jurisprudence
(fiqh). They also pertain to culture which reflects people’s ways
of life.
4. Due to the above fact that the jurisprudential maxims draw
upon two thorny areas with respect to translation, namely
religion and law, these two areas have many blind spots that
resist translation; that is why wide gaps float on the surface. In
order to bridge these gaps , the translator should be both bi-

14 Chapter One

lingual and well-versed in Islamic Jurisprudence fiqh if he
aspires to produce an optimal translation.
5.The fact that the culture of Islam is expressed in Arabic
whereas non-Arabic culture such as English uses a different
medium of expression which requires due recognition, and by
corollary a special treatment is required when translating
jurisprudential maxims involving linguistic/cultural gaps which
must be bridged by certain strategies or techniques. The problem
here is that the translator works without having constant , reliable
principles or guidelines so that each translator has to try his best
to find out the proper equivalents, if any.
6. Since Islamic jurisprudential maxims are religion-laden and
thus they are characterized by sanctification which requires
utmost fidelity, accuracy and meticulousness.
7. Finally , Arabic-English dictionaries have contributed to the
complexity of religious translation as they give either inaccurate
equivalents or ones with pejorative connotations. Hans Wehr
(1960) is but one example of such bilingual dictionaries. For
instance , this dictionary cites the meaning of jihad as fight ,
battle, holy war ( against the infidels, as a religious duty). Thus,
it restricts the deep religious sense of this term to an exclusively
military sense notwithstanding that it has more than this
restricted meaning as in the Prophet’s hadith ‘ The true jihaad
(holy fight) is against self-whims : ﺲﻔﻨﻟا دﺎﻬﺟ دﺎﻬﺠﻟا which
indicates self–discipline and combating the soul’s vanity; and
‘The greatest jihad is to utter a just word before a tyrant ruler’
ﺮﺋﺎﺟ نﺎﻄﻠﺳ ﺪﻨﻋ لﺪﻋ ﺔﻤﻠﻛ دﺎﻬﺠﻟا ﻢﻈﻋا which calls for telling the truth
regardless of consequences.
1.1. Review of Related Literature :
There is a conspicuous dearth of treatises on Islamic
jurisprudence in English . Consequently , our review of literature
surveys the seminal sources in Arabic .

15 Introduction

1. The first and perhaps the best to start with is The Mejella
(Magazine): The Ottoman Civil Code compiled in 1877 AD,
1293 AH, based on the Hanafi juristic school. It remained
until the 1950s the Civil Codes of Syria, Iraq and Jordan.
2. The second important source is the English version of the
above called the Mejella translated by C.R.Tayser, D.G.
Demetriades and Ismail Haqqi Effendi, (Kuala Lumpur: The
Other Press,2003).
3. Third is a course book for students of Islamic law shari’ah
titled (Al-Wajeez fi Sharh Al-Qawa’id Al-Fiqhiyah fi
AlShari’ah Al-Islamiyah) by Abdul Kareem Zeidan .
4. The fourth source is An-Nadwi's AL-Qawa’id al-Fiqhiyah
(The Jurisprudential Maxims) based on an M.A thesis
conducted at Umm AL-Qura University in Mecca in the
early 1980s .
An-Nadwi's research comprises two main parts and seven
chapters: part one contains chapter one which includes seven
sections which give the meaning and significance of the
jurisprudential maxims,the difference between the jurisprudential
maxims and jurisprudential holistic (comprehensive) maxims,
the difference between the jurisprudential maxims and the
jurisprudence theory, the difference between the jurisprudential
maxims and the fundamentalistic maxims, the similarities
(ashbaah هﺎﺒﺷا ) and counterparts (nadhaa"ir ﺮﺋﺎﻀﻧ ) in language
and terminology. Chapter two provides a historical glimpse about
the creation and recording of jurisprudential maxims covering
three phases (1) creation and formation ,(2) growth and
recording, and (3) stability and arrangement. Chapter three
presents a general view of the sources of jurisprudential maxims
comprising four sections in which An-Nadwi presents the
sources according to the four common schools in Islam :
Hanafism, Malikism , Shafism and Hanbalism .

16 Chapter One


Part two covers three chapters:
Chapter one deals with the most significant maxims and
furnishes an introduction and two sections. In the introduction he
classifies the maxims according to proofs. In section one he
presents the maxims derived from the Prophetic hadith and in
section two the maxims taken from the reasoned, legislative
texts. These maxims are eight in number.
Chapter two addresses the function and position of the
jurisprudential maxims in iftaa" , religio-legal judgments, and
jurisdiction. It comprises three sections :
(1) The function of jurisprudential maxims,
(2) Can a jurisprudential maxim be a proof from which judgment
is inferred?
(3) The reliability of jurisprudential maxims on Iftaa" and
jurisdiction .
Chapter three explicates certain significant maxims
with application and comprises an introduction and five sections,
all of which deal with fifty-five maxims. An-Nadwi's treatise
ends with significant results .
The fifth important source dealing with jurisprudential
maxims is AL-Zarqa’s AL-Qawaa'id AL-Fiqhiya
(Jurisprudential Maxims ). Interestingly, AL-Zarqa has written
an introduction to An-Nadwi's book on jurisprudential maxims.
The sixth and partially contributive source is Nasir's The
Islamic Law of the Personal Status. He devotes the first chapter,
'introduction', to Islamic jurisprudence, especially the subsection
titled 'Islamic legal rules and practices' (pp.24-28) where maxims
are grouped under five headings: intention, proof, flexibility,
injury and custom.
Needless to say there are other books written on the same
subject, but the present author thinks he has cited only the ones

17 Introduction

which he has access to, and which he thinks the most significant
ones.

1.2. Basic Assumptions:
The present book sets the following basic assumptions:
1. Jurisprudential maxims are an autonomous, sub-variety of
language which may be called religio-legal, as it depends on
both religion and law.
2. Jurisprudential maxims exhibit some sort of
culturespecificity, i.e. many terms are culture-bound that resist
natural translation.
3. The corollary of the above is that there is no perfect
one-toone equivalence between jurisprudence (fiqh) lexical items
and their English counterparts.
4. Transliteration and explicatory translation, among others, are
the main important strategies that will be resorted to when
translating jurisprudential maxims.
5. Translating the Arabic cultural terms of the jurisprudence
(fiqh) discourse into English involves a kind of semantic loss
which may require some sort of compensation.
6. The rendition of maxims must convey the two dimensions:
religion and law in addition to the linguistic/rhetorical one.

1.3. Significance of the Book:
The significance of the present book emerges from the fact
that it tackles a vitally significant subject in both Islamic law
and religion, i.e., jurisprudential maxims .
1. The maxims will be explicated and analyzed from the
linguistic perspective before being translated into English.
2. The book also provides proposed English equivalent
jurisprudential maxims for the Arabic ones, which will furnish
the foundations for further research in this field.

18