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Unformatted text preview: or purposes of kaffarah. The Qur'an only prescribes a kaffarah for erroneous killing, and this is extended by analogy to deliberate homicide. The common 'illah between them is the killing of another human being. If kaffarah is required in erroneous killing, then by way of a superior analogy (qiyas al-awla) the 'illah is even more evident in the case of a deliberate killing. Both are therefore Principles of Islamic Jurisprudence ~ Kamali 202 liable to the payment of kaffarah, which is releasing a slave, or two months of fasting, or feeding sixty persons. The Hanafis are once again in disagreement with the majority, as they maintain that for purposes of analogy, the kaffarah resembles the hadd. Since doubt cannot be totally eliminated in the identification of their effective causes, kaffarat may not be extended by means of analogy. IV, 51.] Notwithstanding the fact that the jurists have disagreed on the application of qiyas in penalties, it will be noted that the ulema have on the whole discouraged recourse to qiyas in the field of criminal law. Consequently, there is very little actual qiyas to be found in this field. This is also the case in modern law, which discourages analogy in respect of penalties. The position is somewhat different to regard to civil transactions (mu`amalat), in which qiyas is generally permitted. Conflicts between Nass and Qiyas [86. Abu Zahrah, Usul, p. 206.] Since the 'illah in analogy is a general attribute which applies to all similar cases, there arises the possibility of qiyas coming into conflict with the nusus. The question to be asked is how such a conflict should be removed. Responding to this question, the ulema have held two different views, which may be summarised as follows: 1) According to Imam Shafi'i, Ahmad b. Hanbal, and one view which is attributed to Abu Hanifah, whenever there is a nass on a matter qiyas is absolutely redundant. Qiyas is only applicable when no explicit ruling could be found in the sources. Since recourse to qiyas in the presence of nass is ultra vires in the first place, the question of a conflict arising between the nass and qiyas is therefore of no relevance. [87. Abu Zahrah, Usul, p. 200.] 2) The second view, which is mainly held by the Malikis, also precludes the possibility of a conflict between qiyas and a clear text, but does not dismiss the possibility of a conflict arising between a speculative text and qiyas. Analogy could, according to this view, come into conflict with the `Amm of the Qur'an and the solitary Hadith. The Hanafis have maintained that the 'Amm is definitive in implication (qat`i al-dalalah), whereas qiyas is speculative. As a rule, a speculative item cannot qualify a definitive one, which would mean that qiyas does not specify the 'Amm of the Qur'an. The only situation where the Hanafis envisage a conflict between qiyas and the `Amm of the Qur'an is where the `illah of qiyas stated in a clear nass. For in this case, a conflict between the 'Amm of the Qur'an and qiyas would be that of one qat'i with another. How...
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