Principles of Islamic Jurisprudence by MH kamali

Principles of Islamic Jurisprudence by MH kamali

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Unformatted text preview: ter permits it or has totally abandoned his offer. The 'illah of this rule is to obviate conflict and hostility among people. By analogy the same rule is extended to all other transactions in which the same `illah is found to be operative. trans. ) II, 556, Hadith no. 2075; Tabrizi, Mishkat, II, 940, Hadith no.3144; Musa, Ahkam, p. 45.] The majority of ulema have defined qiyas as the application to a new case (far'), on which the law is silent, of the ruling (hukm) of an original case (asl) because of the effective cause ('illah) which is in common to both. [8. Amidi, Ihkam, III, 186.] [7. Abu Dawud Sunan (Hasan's The Hanafi definition of qiyas is substantially the same, albeit with a minor addition which is designed to preclude certain varieties of qiyas (such as qiyas al-awla and qiyas al-musawi, [q.v,]) from the scope of qiyas. The Hanafi jurist, Sadr al-Shari'ah, in his Tawdih, as translated by Aghnides, defines qiyas as `extending the (Shari'ah) value from the original case over to the subsidiary (far`) by reason of an effective cause which is common to both cases and cannot be understood from the expression (concerning the original case) alone.' Tawdih fi Hall Ghawamid al-Tanqih, p. 444; Aghnides, Muhammedan Theories, p. 49.] [9. `Ubaydullah ibn Mas'ud Sadr al-Shari'ah, al- The essential requirements of qiyas which are indicated in these definitions are as follows: 1) The original case, or asl, on which a ruling is given in the text and which analogy seeks to extend to a new case. 2) The new case (far`) on which a ruling is wanting. 3) The effective cause ( `illah) which is an attribute (wasf) of the asl and is found to be in common between the original and the new case. 4) The rule (hukm) governing the original case which is to be extended to the new case. 193) is however of the view that the result of qiyas, that is the ruling which is to be applied to the new case (i.e. hukm al-far`), should not be included in the essential requirements (arkan) of qiyas. For the hukm is only arrived at the end of the process; it should therefore not be rukn. Isnawi has on the other hand included the hukm al-far` among the essentials of qiyas. The disagreement is perhaps mainly theoretical as the hukm of the new case is, for all intents and purposes, identical with the hukm of the original case. Cf. Zuhayr, Usul, IV, 58-59.] To illustrate these, we might adduce the example of the Qur'an (al-Ma'idah, 5:90), which explicitly forbids wine drinking. If this prohibition is to be extended by analogy to narcotic drugs, the four pillars of analogy in this example would be: Principles of Islamic Jurisprudence ~ Kamali 182 [10. Amidi (Ihkam, III, asl far` `Illah hukm wine drinking taking drugs the intoxicating effect prohibition Each of the four essentials (arkan) of analogy must, in turn, qualify a number of other conditions which are all designed to ensure propriety and accuracy in the application of qiyas. It is to these which we now turn. I. Conditions Pertaining to the Original...
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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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