Principles of Islamic Jurisprudence by MH kamali

359 in the event where an issue cannot be determined

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Unformatted text preview: awud, Sunan, I, 304, Hadith nos. 1173-7.] The conflicting contents of these reports can neither be reconciled nor given preference one over the other. Hence action is suspended on all and the matter is determined on grounds of qiyas. In this case, since salat al-kusuf is a variety of salah, the normal rules of salah are applied to it. Since all obligatory salah, without any variation, contains one bowing and two prostrations, this is also by way of analogy extended to salat al-kusuf. Badran, Usul, p.469.] In the event of a conflict occurring between two analogies, if they cannot be reconciled with one another, then one of them must be given preference. The qiyas whose effective cause ('illah) is stated in an explicit text is to be preferred to the one whose 'illah has been derived through inference (istinbat). Similarly, a qiyas whose `illah is founded in an allusive text (isharah al-nass) takes priority over qiyas whose 'illah is merely a proper or reasonable attribute which is derived through inference and ijtihad. When the 'illah of qiyas is explicitly stated in the nass or when the result of qiyas is upheld by ijma', no conflict is expected to arise. In the unlikely event when the mujtahid constructs an analogy on the basis of an inferred effective cause ( 'illah mustanbatah) while the `illah is explicitly stated in the nass, and he reaches a divergent result, it is put down to his ignorance of the nass, and the result that he has reached will be ignored. [16. Khallaf, 'Ilm, p.232; Badran, Usul, p. 470.] A conflict may well arise between two analogies which are both founded on an inferred `illah, since this type of `illah involves a measure of speculative reasoning and ijtihad. Two mujtahids may thus arrive at different conclusions with regard to the identification of an 'illah. This is, for example, the case regarding the `illah of compulsory guardianship (wilayah al-ijbar) in the marriage of a minor girl. Imam Abu Hanifah considers the 'illah of the guardian's power of ijbar in marriage to be the minority of the ward, whereas Imam Shafi'i considers the 'illah to be her virginity. This difference of ijtihad Principles of Islamic Jurisprudence ~ Kamali 313 [13. [15. would in turn give rise to analogies whose results diverge from one another depending on which of the two effective causes they are based on. However, differences of this nature are tolerated and neither of the two Imams have attempted to discourage diversity in ijtihad. In the event where neither of the two conflicting analogies can be preferred to the other, it is for the mujtahid to choose the one that seems good to him even if there is no basis for such preference other than his own personal opinion. Usul, pp. 247-48; Khudari, Usul, p.360.] If none of the foregoing methods can be applied in order to determine the ruling of an issue, then the mujtahid may base his decision on the original norms of the Shari'ah. This would be done on the assumption that no specific indication could be found in the Shari'ah on the case. An example of this is to determine the ruling of the Shari`ah...
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