Principles of Islamic Jurisprudence by MH kamali

97ff 35 cf mustafa zayd maslahah p 121 abu in the

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Unformatted text preview: st Principles of Islamic Jurisprudence ~ Kamali 242 does not require otherwise.' own view.] [37. Mahmassani, Falsafah al-Tashri`, p. 117. This author also quotes Shaykh Mustafa al-Ghalayini in support of his Differences between Istislah, Analogy, and Istihsan In his effort to determine the shar`i ruling on a particular issue, the jurist must refer to the Qur'an, the Sunnah and ijma'. In the absence of any ruling in these sources, he must attempt qiyas by identifying a common 'illah between a ruling of the text and the issue for which a solution is wanting. However, if the solution arrived at through qiyas leads to hardship or unfair results, he may depart from it in favour of an alternative analogy in which the 'illah, although less obvious, is conducive to obtaining a preferable solution. The alternative analogy is a preferable qiyas, or istihsan. In the event, however, that no analogy can be applied, the jurist may resort to maslahah mursalah and formulate a ruling which, in his opinion, serves a useful purpose or prevents a harm that may otherwise ensue. 35.] It thus appears that maslahah mursalah and qiyas have a feature in common in that both are applicable to cases on which there is no clear ruling available in the nusus or ijma'. They also resemble one another in the sense that the benefit that is secured by recourse to them is based on a probability, or zann, either in the form of a 'illah in the case of qiyas, or of a rational consideration which secures a benefit in the case of maslahah mursalah. However, qiyas and maslahah differ from one another in certain respects. The benefit which is secured by qiyas is founded on an indication from the Lawgiver, and a specific 'illah is identified to justify the analogy to the nass. But the benefit which is sought through maslahah mursalah has no specific basis in the established law, whether in favour or against. Maslahah mursalah in other words stands on its own justification, whereas qiyas is the extension of a ruling which already exists. [38. Cf. Sabuni, Madkhal, pp.134- This explanation would also serve to clarify the main difference between maslahah and istihsan. A ruling which is based on maslahah mursalah is original in the sense that it does not follow, or represent a departure from, an existing precedent. As for istihsan, it only applies to cases on which there is a precedent available (usually in the form of qiyas), but istihsan seeks a departure from it in favour of an alternative ruling. This alternative may take the form of a hidden analogy (qiyas khafi), or of an exception to a ruling of the existing law, each representing a variation of istihsan. 217; Sabuni, Madkhal, p.135.] The Polemics over Maslahah [39. Cf. Badran, Usul, pp. 216- Principles of Islamic Jurisprudence ~ Kamali 243 The main point in the argument advanced by the opponents of istislah is that the Shari'ah takes full cognizance of all the masalih; it is all-inclusive and there is no maslahah outside the Shari'ah itse...
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