Principles of Islamic Jurisprudence by MH kamali

50 shawkani irshad p 255 abu zahrah usul p318 badran

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Unformatted text preview: had, p. 255; Badran, Usul. p.486.] One might add here that in modern times, in view of the sheer bulk of information and the more rapid pace of its growth, speation in any major area of knowledge would seem to hold the key to originality and creative ijtihad. Divisibility of ijtihad would thus seem to be in greater harmony with the conditions of research in modern times. By way of a postscript, one might also remark that the classification of mujtahids into various ranks, such as mujtahids in a particular school or on particular issues, takes for granted the idea that ijtihad is divisible. Procedure of Ijtihad Since ijtihad occurs in a variety of forms, such as qiyas, istihsan, maslahah mursalah, and so on, each of these is regulated by its own rules. There is, in other words, no uniform procedure for ijtihad as such. The ulema have nevertheless suggested that in practicing ijtihad, the jurist must first of all look at the nusus of the Qur'an and the Hadith, which must be given priority over all other evidences. Should there be no nass on the matter, then he may resort to the manifest text (zahir) of the Qur'an and Hadith and interpret it while applying the rules pertaining to the general (`amm) and specific (khass), the absolute and the qualified, and so forth, as the case may be. Should there be no manifest text on the subject in the Qur'an and the verbal Sunnah, the mujtahid may resort to the actual (fi'li) and tacitly approved (taqriri) Sunnah. Failing this, he must find out if there is a ruling of ijma` or qiyas available on the problem in Principles of Islamic Jurisprudence ~ Kamali 326 the works of the renowned jurists. In the absence of any guidance in these works, he may attempt an original ijtihad along the lines of qiyas. This would entail a recourse to the Qur'an, the Hadith, or ijma` for a precedent that has a `illah identical to that of the far' (i.e.. the case for which a solution is wanting). When this is identified, he is to apply the principles of qiyas in order to deduce the necessary ruling. In the absence of a textual basis on which an analogy could be founded, the mujtahid may resort to any of the recognised methods of ijtihad such as istihsan, maslahah mursalah, istishab, etc, and derive a solution while applying the rules that ensure the proper implementation of these doctrines. Shirazi, Luma', pp. 83-84.] The foregoing procedure has essentially been formulated by al-Shafi'i, who is noted to have observed the following. When an incident occurs, the mujtahid must first check the nusus of the Qur'an, but if he finds none, he must refer to Mutawatir Hadiths and then to solitary Hadiths. If the necessary guidance is still not forthcoming, he should postpone recourse to qiyas until he has looked into the manifest (zahir) text of the Qur'an. If he finds a manifest text which is general, he will need to find out if it can be specified by means of Hadith or qiyas. But if he finds nothing that would specify the manifest text, he may apply the latter as it stands. Should he fail to find a manifest text in the Qur'an or the Sunnah, he must look into the madhahib. I...
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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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