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Unformatted text preview: jurist and the judge must therefore enforce the law whenever its 'illah is known to exist regardless of its hikmah. Hence it would be a mistake for the judge to entitle to the right of pre-emption a person who is neither a partner nor a neighbouring owner on the mere assumption that he may be harmed by the sale of the property to a certain purchaser. [35. Shawkani, Irshad, pp. 207-208, Khallaf, Ilm, pp.88-97.] Principles of Islamic Jurisprudence ~ Kamali 189 The Malikis and the Hanbalis, on the other hand, do not draw any distinction between the 'illah and the hikmah. In their view, the hikmah aims at attracting an evident benefit or preventing an evident harm, and this is the ultimate objective of the law. When, for example, the law allows the sick not to observe the fast, the hikmah is the prevention of hardship to them. Likewise the hikmah of retaliation (qisas) in deliberate homicide, or of the hadd penalty in theft, is to protect the lives and properties of the people. Since the realisation of benefit (maslahah) and prevention of harm (mafsadah) is the basic purpose of all the rules of Shari'ah, it would be proper to base analogy on the hikmah. [36. Abu Zahrah, Usul, p. 188.] The Hanafis and the Shafi'is however maintain that the `illah must be both evident and constant. In their view the `illah secures the hikmah most of the time but not always. Their objection to the hikmah being the basis of analogy is that the hikmah of the law is often a hidden quality which cannot be detected by the senses, and this would in turn render the construction of analogy upon them unfeasible. The hikmah is also variable according to circumstances, and this adds further to the difficulty of basing analogy on it. The hikmah, in other words, is neither constant nor well-defined, and may not be relied upon as a basis of analogy. To give an example, the permission granted to travelers to break the fast while traveling is to relieve them from hardship. This is the hikmah of this ruling. But since hardship is a hidden phenomenon and often varies according to persons and circumstances, it may not constitute the effective cause of an analogy. The concession is therefore attached to traveling itself which is the `illah regardless of the degree of hardship that it may cause to individual travelers. [37. Khallaf, `Ilm, p.64.] To give another example, the 'illah in the prohibition of passing a red traffic light is the appearance of the red light itself. The hikmah is to prevent traffic irregularities and accidents. Anyone who passes a red light is committing an offence even if no accident is caused as a result. The 'illah and hikmah can as such exist independently of one another, the latter being less easily ascertainable than the former. On a similar note, the `illah in awarding a law degree is passing one's final examinations and obtaining the necessary marks therein. The hikmah may be the acquisition of a certain standard of knowledge in the disciplines concerned. Now it is necessary that university degrees are awarded on a constant and relia...
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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.
- Spring '13