Principles of Islamic Jurisprudence by MH kamali

For a valid ijma may never be concluded in

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Unformatted text preview: dication (dalil) or not. If it is not based on any dalil, then it is likely to be erroneous, and if it is based on a dalil this could either be a nass or qiyas. If the basis (sanad) of ijma` is a qiyas, then abrogation is not permissible (as we shall explain later); and if the sanad of ijma` is a nass, then abrogation is by that nass, not by ijma`. The share of the mu'allafah al-qulub was discontinued by Umar b. al-Khattab on the grounds of the Shari'ah-oriented policy (al-siyasah alshar`iyyah), which is explained in the caliph's widely-quoted phrase that `God has exalted Islam, which is no longer in need of their favor.' [7. Amidi, Ihkam, III, 161; Taj, Siyasah, p. 28.] According to the general rule a Qur'anic nass or a Mutawatir Hadith cannot be abrogated by a weaker Hadith, by ijma' or by qiyas. For they are not of equal authority to the nass. This is, in fact, the main argument in support of the rule, already referred to, that no abrogation of the nusus is possible after the demise of the Prophet, for the Qur'an and the Sunnah ceased to be revealed with his demise. Since nothing weaker than the Qur'an and Sunnah can abrogate anything in either of these sources, abrogation, to all intents and purposes, came to an end with the death of the Prophet. Ijma`, qiyas and ijtihad, being weaker in comparison to the nusus, cannot abrogate the rules of divine revelations. Ilm, p. 228.] Principles of Islamic Jurisprudence ~ Kamali 140 [8. Khallaf, It is in view of these and similar considerations that the ulema have arrived at the general rule that ijma' can neither abrogate anything nor be abrogated itself. Abrogation in other words is generally not relevant to ijma`. The preferable view, however, is that ijma' cannot abrogate the rulings of the Qur'an, the Sunnah, or of another ijma' which is founded in the Qur'an, Sunnah, or qiyas. However, a subsequent ijma' may abrogate an existing ijma` which might be founded in considerations of public interest, or maslahah mursalah. This would in theory appear to be the only situation a which ijma` could operate as an abrogator. [9. Badran, Usul, p. 459.] And finally, since the principal function of qiyas is to extend the rulings of the Qur'an and Sunnah to similar cases, it may never operate in the opposite direction, namely, to repeal a text of the Qur'an or Sunnah. Broadly speaking, qiyas has no place in the theory of naskh: qiyas cannot be an abrogator, basically because it is weaker than the nass and ijma and thus cannot abrogate either. Nor can qiyas itself be abrogated, for qiyas is normally based on a textual ruling and is bound to remain valid for as long as the original text remains valid. It is thus inconceivable that a qiyas be abrogated while the text to which it is founded remains in force. Furthermore, an established analogy is not exactly abrogated by a subsequent analogy. If the first analogy is based on the Qur'an, or Sunnah, then a conflicting analogy would presumably be erroneous. Besides, the two analogies can coexist and be c...
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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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