Principles of Islamic Jurisprudence by MH kamali

For purposes of drawing an analogy between wine and a

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Unformatted text preview: yas From the viewpoint of the strength or weakness of the 'illah, the Shafi'i jurists have divided qiyas into three types: a) 'Analogy of the Superior' (qiyas al-awla). The effective cause in this qiyas is more evident in the new case than the original case, which is why it is called qiyas al-awla. For example, we may refer to the Qur'anic text in sura al-Isra' (17:23) which provides regarding parents: 'say not to them uff [i.e. a single word of contempt] nor repel them, but address them in dignified terms'. By analogy it may be deduced that the prohibition against lashing or beating them is even more obvious than verbal abuse. Similarly, the, penance (kaffarah) of erroneous killing is, by way of analogy, applicable to intentional killing as the transgression which invokes the kaffarah is even more evident in the latter. This is the Shafi'i view, but the Hanafis do not consider the first example to be a variety of qiyas but a mere implication of the text (dalalah al-nass) which falls within the scope of interpretation rather than analogy. Likewise the Hanafis do not require kaffarah for deliberate killing, a ruling which has been determined on grounds of interpretation rather than qiyas. Zuhayr, Usul, IV, p. 44.] [56. Muslim, Sahih Muslim, p. 41, Hadith no. 119; Ibn Hazm, Ihkam, VII, 54-55; Abu Zahrah, Usul, p.195-196. b) 'Analogy of Equals' (qiyas al-musawi). The 'illah in this type of qiyas is equally effective in both the new and the original cases, as is the ruling which is deduced by analogy. We may illustrate this by reference to the Qur'an (al-Nisa', 4:2) which forbids 'devouring the property of orphans'. By analogy, it is concluded that all other forms of destruction and mismanagement which lead to the loss of such property are equally forbidden. But this is once again regarded by the Hanafis to fall within the scope of interpretation rather than analogy. To give another example, according to a Hadith, a container which is licked by a dog must be washed seven times. The Shafi'is extend the same ruling by analogy to a container which is licked by swine. The Hanafis, however, do not allow this Hadith in the first place. Abu Zahrah, Usul, p.195-196. Zuhayr, Usul, IV, p. 44.] [57. Muslim, Sahih Muslim, p. 41, Hadith no. 119; Ibn Hazm, Ihkam, VII, 54-55; c) 'Analogy of the Inferior' (qiyas al-adna). The effective cause in this form of qiyas is less clearly effective in the new case than the original case. Hence it is not quite so obvious whether the new case falls under the same ruling which applies to the original case. For example, the rules of riba, prohibit the exchange of wheat and of other specified commodities unless the two amounts are equal and delivery is immediate. By analogy this rule is extended to apples, since both wheat and apples are edible (according to Shafi'i) and measurable (according to Hanafi) jurists. But the `illah of this qiyas is Principles of Islamic Jurisprudence ~ Kamali 196 weaker in regard to apples which, unlike wheat, are not a staple food. Ibn Hazm, Ihkam, VII, 54-55; Abu Z...
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