Principles of Islamic Jurisprudence by MH kamali

14 abu zahrah usul p128 according to the majority of

Info iconThis preview shows page 1. Sign up to view the full content.

View Full Document Right Arrow Icon
This is the end of the preview. Sign up to access the rest of the document.

Unformatted text preview: the purpose of extending the rules of riba to the latter would be unnecessary, for it would be preferable to draw a direct analogy between wheat and edible oil, which would eliminate the intermediate analogy with the rice altogether. p 205.] [15. Ghazali, Mustasfa, II, 87; Shawkani, Irshad, However, according to the prominent Maliki jurist, Ibn Rushd (whose views are here representative of the Maliki school) and some Hanbali ulema, one qiyas may constitute the asl of another: when one qiyas is founded on another qiyas, the far' of the second becomes an independent asl from which a different 'illah may be deduced. This process may continue ad infinitum with the only proviso being that in cases where an analogy can be founded in the Qur'an, recourse may not be had to another qiyas. [16. Ibn Rushd, Bidayah, I, 4-5: Abu Zahrah, Usul, p. 183; Nour, `Qiyas', 29.] But al-Ghazali rejects the proposition of one qiyas forming the asl of another altogether. He compares this to the work of a person who tries to find pebbles on the beach that look alike. Finding one that resembles the original, he then throws away the original and tries to find one similar to the second, and so on. By the time he finds the tenth, it would not be surprising if it turned out to be totally different from the first in the series. Thus, for al-Ghazali, qiyas founded on another qiyas is like speculation built upon speculation, and the further it continues along the line, the more real becomes the possibility of error. [17. Ghazali, Mustasfa, II, 87.] Having discussed Ibn Rushd's view at some length, however, Abu Zahrah observes that from a juristic viewpoint, one has little choice but to agree with it. This is reflected, for example, in modern judicial practice where court decisions are often based on the analogical extension of the effective cause (i.e. ratio decidendi) of an existing decision to a new case. The new decision may be based on the rationale of a previous case but may differ with it in some respect. In this event the new case is likely to constitute an authority in its own right. When, for example, the Cassation Court (mahkamah al-naqd) in Egypt approves a judicial ruling, it becomes a point of reference in itself, and an analogy upon it is made whenever appropriate without further inquiry into its origin. What Abu Zahrah is saying is that the doctrine of stare decisis, which is partially adopted in some Islamic jurisdictions, takes for granted the validity of the idea that one qiyas may become the asl of another qiyas. [18. Cf. Abu Zahrah, Usul, p. 184.] According to the Syrian jurist Mustafa al-Zarqa, the formula that one qiyas may be founded on another qiyas has in it the seeds of enrichment and resourcefulness. No unnecessary restrictions should Principles of Islamic Jurisprudence ~ Kamali 184 therefore be imposed on qiyas and on its potential contribution to the Shari'ah. available to me, my knowledge of his views is confined to the extent that he is quoted by Nour, 'Qiyas, 29.] II. Conditions Pertaining to the Hukm [19. Since al-Zarqa's work is not A hukm is a ruling, such as a command or a prohibitio...
View Full Document

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.

Ask a homework question - tutors are online