Principles of Islamic Jurisprudence by MH kamali

qiyas also means comparison with a view to

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Unformatted text preview: ormer. The original case is regulated by a given text, and qiyas seeks to extend the same textual ruling to the new case. [3. Shawkani, Irshad, p. 198.] It is by virtue of the commonality of the effective cause, or 'illah, between the original case and the new case that the application of qiyas is justified. A recourse to analogy is only warranted if the solution of a new case cannot be found in the Qur'an, the Sunnah or a definite ijma`. For it would be futile to resort to qiyas if the new case could be resolved under a ruling of the existing law. It is only in matters which are not covered by the nusus and ijma` that the law may be deduced from any of these sources through the application of analogical reasoning. Abdur Rahim, Jurisprudence, p.137.] In the usage of the fuqaha', the word 'qiyas' is sometimes used to denote a general principle. Thus one often comes across statements that this or that ruling is contrary to an established analogy, or to a general principle of the law without any reference to analogy as such. Analogical deduction is different from interpretation in that the former is primarily concerned with the extension of the rationale of a given text to cases which may not fall within the terms of its language. Qiyas is thus a step beyond the scope of interpretation. The emphasis in qiyas is clearly placed on the identification of a common cause between two cases which is not indicated in the language of the text. Identifying the effective cause often involves intellectual exertion on the part of the jurist, who determines it by recourse not only to the semantics of a given text but also to his understanding of the general objectives of the law. Since it is essentially an extension of the existing law, the jurists do not admit that extending the law by the process of analogy amounts to establishing a new law. Qiyas is a means of discovering, and perhaps Principles of Islamic Jurisprudence ~ Kamali 180 [2. Ghazali, Mustasfa, II, [4. Cf. of developing, the existing law. Although qiyas offers considerable potential for creativity and enrichment, it is basically designed to ensure conformity with the letter and the spirit of the Qur'an and the Sunnah. In this sense, it is perhaps less than justified to call qiyas one of the sources (masadir) of the Shari'ah; it is rather a proof (hujjah) or an evidence (dalil) whose primary aim is to ensure consistency between revelation and reason in the development of the Shari'ah. Qiyas a admittedly a rationalist doctrine, but it is one in which the use of personal opinion (ra'y) is subservient to the terms of the divine revelation. The main sphere for the operation of human judgment in qiyas is the identification of a common 'illah between the original and the new case. Once the `illah is identified, the rules of analogy then necessitate that the ruling of the given text be followed without any interference or change. Qiyas cannot therefore be used as a means of altering the law of the text on grounds of...
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