Principles of Islamic Jurisprudence by MH kamali

If this prohibition is to be extended by analogy to

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Unformatted text preview: Case (Asl) Asl has two meanings. Firstly, it refers to the source, such as the Qur'an or the Sunnah, which reveals a particular ruling. The second meaning of asl is the subject-matter of that ruling. In the foregoing example of the prohibition of wine in the Qur'an, the asl is both the Qur'an, which is the source, and wine, which is the original case or the subject-matter of the prohibition. However, to all intents and purposes, the two meanings of asl are convergent. We tend to use asl to imply the source as well as the original case, for the latter constitutes the subject-matter of the former, and the one cannot be separated from the other. [11. Shawkani, Irshad, pp.204-205; Abu Zahrah, Usul, p. 180.] The ulema are in unanimous agreement that the Qur'an and the Sunnah constitute the sources, or the asl, of qiyas. According to the majority of jurists, qiyas may also be founded on a rule that is established by ijma` validates guardianship over the property of minors, a rule which has been extended by analogy to authorise the compulsory guardianship (wilayah al-ijbar) of minors in marriage. [12. Abu Zahrah, Usul, p. 181.] There is, however, some disagreement as to whether ijma `constitutes a valid asl for qiyas. Those who dispute the validity of ijma' as a basis of analogical deduction argue that the rules of consensus do not require that there should be a basis (sanad) for ijma`. In other words, ijma' does not always explain its own justification or rationale. In the absence of such information, it is difficult to construct an analogy. In particular it would be difficult to identify the 'illah, and qiyas cannot be constructed without the `illah. [13. Khallaf,`Ilm, p.53, Shawkani, Irshad,p.210.] But this view is based on the assumption that the `illah of qiyas is always identified in the sources, which is not the case. The `illah may at times be specified in the sources, but when this is not so, it is for the mujtahid to identify it in the light of the objectives (maqasid) of the Lawgiver. The mujtahid, in other words, is faced with the same task whether he derives the `illah from ijma or from the nusus. Furthermore, the majority view which validates the founding of analogy on ijma` maintains that consensus itself is a Principles of Islamic Jurisprudence ~ Kamali 183 basis (sanad) and that the effective cause of a ruling which is based on consensus can be identified through ijtihad. [14. Abu Zahrah, Usul, p.128.] According to the majority of ulema, one qiyas may not constitute the asl of another qiyas. This is explained in reference to the effective cause on which the second analogy is founded. If this is identical with the original `illah, then the whole exercise would be superfluous. For instance, if it be admitted that the quality of edibility is the effective cause which world bring an article within the scope of usury (riba) then it would justify an analogy to be drawn between wheat and rice. But an attempt to draw a second analogy between rice and edible oil for...
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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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