90 MOHAMMAD HASHIM KAMALI

without entering into it, he will not be liable to an expiation (kaffāra) for breaking an oath. This is because, customarily, the expression means entering the house, and not the literal meaning that it conveys.²³

The maxim which declares "profit follows responsibility" (al-kharāj bil-ḍamān)²⁴ is a direct rendering of a hadith in those identical words. Thus, the yield of trees and animals, etc., belongs to those who are responsible for their upkeep and maintenance. Suppose that person A, who has bought a machine, decides to return it to the seller when he finds it to be defective. Suppose, also, that the machine has yielded profit during the interval when it was with A. Does A have to return to the seller the profit he made through the use of the machine? By applying the legal maxim before us, the answer is that A may keep the profit, as the machine was his responsibility during the interval, and he would have been responsible for its destruction and loss before he returned it to the seller.²⁵

The maxim that a ruling of "ijtihād is not reversed by its equivalent" (al-ijtihād la yunqaḍ bi-mithlih)²⁶ has, in turn, been attributed to a statement of the Caliph 'Umar Ibn al-Khattab, which is also upheld by the consensus of the Companions. Supposing a judge has adjudicated a dispute on the basis of his own ijtihād, that is, in the absence of a clear text to determine the issue. Then he retires, and another judge, whether of the same rank or at the appellate level, looks into the case, and the latter's ijtihād leads him to a different conclusion on the same issue. Provided that the initial decision does not violate any of the rules that govern the propriety of ijtihād a mere difference of opinion on the part of the new judge, or a different ijtihād he might have attempted, does not affect the authority of the initial ijtihād, simply because one ruling of ijtihād is not reversible by another ruling of ijtihad. It is further noted that the Caliph 'Umar had ruled, in one or two similar cases, contrary to what his predecessor Abu Bakr had done, but he did not attempt to declare Abu Bakr's ruling invalid, on the analysis that his own ijtihād was not necessarily better than that of Abu Bakr.²⁷