Principles of Islamic Jurisprudence by MH kamali

which means that the believers must avoid

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Unformatted text preview: in issuing a hukm, for he is ordered not to do so. Qiyas therefore violates the express terms of the Qur'an and the Sunnah. To sum up, Ibn Hazm's argument is based on two main points, one of which is that the nusus of the Qur'an and Sunnah provide for all event, and the other is that qiyas is an unnecessary addition to the nusus. Regarding the first point, the majority of ulema hold the view that the nusus do admittedly cover all events, either explicitly or through indirect indications. However, the Zahiris rely only on the explicit nusus and not on these indirect indications. The majority, on the other hand, go beyond the confines of literalism and validate qiyas in the light of the general objectives of the Shari'ah. For the majority, qiyas is not an addition or a superimposition on the nusus, but their logical extension. Hence the Zahiri argument that qiyas violates the integrity of the nusus is devoid of substance. pp. 179-80.] With reference to some of the Qur'anic passages that the opponents of qiyas have quoted, especially on the use of speculative evidence in law, it is contended that the ayat in question forbid recourse to speculation (zann) in matters of belief only. As for the practical rules of fiqh, most of them partake in zann, and a great deal of the nusus are themselves speculative in their purport and implication (zanni aldalalah). But this does not necessarily mean that action upon them must be suspended. On the contrary, a measure of diversity and variation in the practical rules of Shari'ah is not only tolerated, but is considered to be a sign of the bounty of Almighty God, and the essence of flexibility in the Shari'ah. Khallaf, `Ilm, p 79.] In principle, the Shi'ah Imamiyyah do not recognise the validity of qiyas, as they maintain that qiyas is pure conjecture which must be avoided. In addition, the Qur'an, the Sunnah and the rulings of the Imams, according to the Shi'i ulema, provide sufficient guidance for conduct, and any reference to analogy is unnecessary and unwarranted. [78. Mutahhari, Jurisprudence, p. 21.] This is definitely the view of the Akhbari branch of the Twelve Shi'ah, whose refutation of qiyas closely resembles that of the Zahiris. But the Usuli branch of the Shi'ah validate action upon certain varieties of qiyas, namely qiyas whose 'illah is explicitly stated in the text (qiyas mansus al-`illah), analogy of the superior (qiyas al-awla) and obvious analogy (qiyas jali). These varieties of qiyas, in their view, are not mere speculations; they either fall within the meaning of the text or else constitute a strong probability (al-zann al-qawi) which may be adopted as a guide for conduct. But they validate this through recourse to ijtihad and `aql rather than qiyas per se. Qiyas in Penalties [79. For further details see Asghari, Qiyas, pp.119,139.] Principles of Islamic Jurisprudence ~ Kamali 201 [76. Abu Zahrah, Usul, [77. The ulema of the various schools have discussed the application of qiyas to juridical, theological, linguistic, rational and customary matters, but the main question w...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.

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