Principles of Islamic Jurisprudence by MH kamali

In order principles of islamic jurisprudence kamali

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Unformatted text preview: yas. Whenever a ruling can be found to the Qur'an (or the Sunnah), the jurist is obliged to follow it and should, basically, have no choice of resorting to qiyas or to istihsan. If the Qur'an provides the choice of an alternative ruling which seems preferable, then the alternative in question is still a Qur'anic rule, not istihsan. It would appear that the fuqaha' initially used the term istihsan close to its literal sense, which is to `prefer' or to deem something preferable. The literal meaning of istihsan was naturally free of the restrictions which were later evolved by the fuqaha'. A measure of confusion between the literal and technical meanings of istihsan probably existed ever since it acquired a technical meaning in the usage of the jurists. This distinction between the literal and juristic meanings of istihsan might help explain why some ulema have applied istihsan to the rulings of the Qur'an, the Sunnah, and ijma'. When we say that the Qur'an, by way of istihsan, permitted bequests to be made during the lifetime of the testator, we are surely not using istihsan in its technical/juristic sense - that is, giving preference to one qiyas over another or making an exception to an existing legal norm - but merely saying that the Qur'an preferred one of the two conceivable solutions in that particular case. When the Qur'an authorises bequests, then one might say that it has established a legal norm in its own right regardless as to whether it can be described as an exception to another norm or not. To regard this Qur'anic ruling as an istihsan can only be true if istihsan is used in its literal sense. For as a principle of jurisprudence, istihsan can add nothing to the authority of the Qur'an and the Sunnah. Although one might be able to find the genesis of istihsan in the Qur'an, this would have nothing to do with the notion of constructing istihsan as an alternative to, or a technique of escape from, qiyas. Furthermore, to read istihsan into the lines of the Qur'an would seem superfluous in the face of the legal theory of the usul that there is no room for rationalist doctrines such as istihsan in the event that a ruling can be found in the nusus. Notwithstanding the fact that many observers have considered Abu'l-Hasan al-Karkhi's definition to be the most acceptable, my enquiry leads to the conclusion that the Maliki approach to istihsan and Ibn al`Arabi's definition of it, is wider in scope and probably closest to the original conception of istihsan, for it does not seek to establish a link between istihsan and qiyas. Istihsan has undoubtedly played a significant role in the development of Islamic law, a role which is sometimes ranked even higher than that of qiyas. Notwithstanding a measure of reticence on the part of the ulema to highlight the role of istihsan, it in reality features most prominently in bridging the gap Principles of Islamic Jurisprudence ~ Kamali 232 between law and social realities by enabling the jurist to pay individual attention to circumstances and the peculiarities of particular problems. But for reasons which have already been explained, the fuqaha' have exercised restraint in the use of istihsan, which, as a result, has not been utilised to the maximum...
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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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