Principles of Islamic Jurisprudence by MH kamali

Abul husayn al basri for example divides qiyas into

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Unformatted text preview: founded in speculative nusus, in which case it is no more than a speculative form of evidence and, should it conflict with a solitary Hadith, the latter takes priority. On this point al-Basri quotes Imam Shafi'i in support of his own view. Principles of Islamic Jurisprudence ~ Kamali 204 4) Qiyas in which the `illah is determined through istinbat but whose asl is a clear text of the Qur'an or Mutawatir Hadith. This type of qiyas is stronger than two and three above, and the ulema have differed as to whether it should take priority over a solitary Hadith. [91. Basri, Mu`tamad, II, 162-64.] The Malikis, and some Hanbali ulema, are of the view that in the event of a conflict between a solitary Hadith and qiyas, if the latter can be substantiated by another principle or asl of the Shari'ah, then it will take priority over a solitary Hadith. If for example the `illah of qiyas is `removal of hardship', which is substantiated by several texts, then it will add to the weight of qiyas, and the latter will take priority over a solitary Hadith. For this kind of evidence is itself an indication that the Hadith in question is weak in respect of authenticity. [92. Abu Zahrah, Usul, p. 204.] Similarly, some Hanafis have maintained that when a solitary Hadith, which is in conflict with qiyas, is supported by another qiyas, then it must be given priority over the conflicting qiyas. This is also the view which Ibn al-'Arabi has attributed to Imam Malik, who is quoted to the effect that whenever a solitary Hadith is supported by another principle, then it must take priority over qiyas. But if no such support is forthcoming, then the solitary Hadith must be abandoned. For example, the following Hadith has been found to be in conflict with another principle: `When a dog licks a container, wash it seven times, one of which should be with clean sand. [93. Ibn Hazm, Ihkam, VIII, 79; Abu Zahrah, Usul, p. 205.] It is suggested that this solitary Hadith is in conflict with the permissibility of eating the flesh of game which has been fetched by a hunting dog. The game is still lawful for consumption notwithstanding its having come into contact with the dog's saliva. There is, on the other hand, no other principle that could be quoted in support of either of the two rulings, so qiyas takes priority over the solitary Hadith. Our second example is of a solitary Hadith which is in conflict with one principle but stands in accord with another. This is the Hadith of 'araya, which provides that `the Prophet (upon whom be peace) permitted the sale of dates on the palm tree for its equivalent in dry dates'. This is permitted despite its being in conflict with the rules of riba, However the permissibility in this case is supported by the principle of daf` al-haraj `removal of hardship' in that the transaction of araya was permitted in response to a need, and, as such, it takes priority over the qiyas which might bring it under the rules of riba. (Hasan's trans.) II, 955, Hadith 3355; Ibn Hazm, Ihkam, VIII, 106; Zuhayr, Usul, IV, 50-58; Abu Zahrah, Usul, p. 205.] Prin...
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