Principles of Islamic Jurisprudence by MH kamali

Analogy could according to this view come into

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Unformatted text preview: ever, for the most part qiyas is a speculative evidence, and as such may not specify the 'Amm of the Principles of Islamic Jurisprudence ~ Kamali 203 [85. Zuhayr, Usul, Qur'an. But once the 'Amm is specified, on whatever grounds, then it becomes speculative itself, at least in respect of that part which remains unspecified. After the first instance of specification (takhsis), in other words, the 'Amm becomes speculative, and is then open to further specification by means of qiyas. For example, the word bay` (sale) in the Qur'anic text stating that 'God has permitted sale and prohibited usury' (al-Baqarah, 2:275) is `Amm, but has been qualified by solitary ahadith which prohibit certain types of sale. Once the text has been so specified, it remains open to further specification by means of qiyas. [88. Abu Zahrah, Usul, pp. 201-202.] This was the Hanafis' view of conflict between a general text and qiyas. But the Malikis who represent the majority view, consider the `Amm of the Qur'an to be speculative in the first place. The possibility is therefore not ruled out, according to the majority, of a conflict arising between the nass and qiyas. In such an event, the majority would apply the rule that one speculative principle may be specified by another. Based on this analysis, qiyas, according to most of the jurists, may specify the `Amm of the Qur'an and the Sunnah. [89. Abu Zahrah, Usul, p. 203.] As for conflict between qiyas and a solitary Hadith, it is recorded that Imam Shafi`i, Ibn Hanbal and Abu Hanifah do not give priority to qiyas over such a Hadith. An example of this is the vitiation of ablution (wudu') by loud laughter during the performance of salah, which is the accepted rule of the Hanafi school despite its being contrary to qiyas. Since the rule here is based on the authority of a solitary Hadith, the latter has been given priority over qiyas, for qiyas would only require vitiation of salah, not the wudu'. [90. Bukhari, Sahih (Istanbul edn.), I, 51 (Kitab al-Wudu', Hadith no. 34); Khan, Athar, p. 403.] Although the three Imams are in agreement on the principle of giving priority to solitary Hadith over qiyas, regarding this particular Hadith, only the Hanafis have upheld it. The majority, including Imam Shafi'i, consider it to be Mursal and do not act on it. Additionally, there are other views on the subject which merit brief attention. Abu'l Husayn al-Basri, for example, divides qiyas into four types, as follows: 1 ) Qiyas which is founded in a decisive nass, that is, when the original case and the effective cause are both stated in the nass. This type of qiyas takes priority over a solitary Hadith. 2) Qiyas which is founded in speculative evidence, that is, when the asl is a speculative text and the 'illah is determined through logical deduction (istinbat). This type of qiyas is inferior to a solitary Hadith and the latter takes priority over it. Al-Basri has claimed an 'ijma on both one and two above. 3) Qiyas in which both the asl and the 'illah are...
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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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