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Unformatted text preview: slamic Jurisprudence ~ Kamali 186 Nor may the crime of zina be made the basis of analogy so as to apply its penalty to similar cases. Shawkani, Irshad, p. 222; Abu Zahrah, Usul, p. 185.] 4) The fourth requirement concerning the hukm is that it must not be confined to an exceptional situation or to a particular state of affairs. Qiyas is essentially designed to extend the normal, not the exceptional, rules of the law. Thus when the Prophet admitted the testimony of Khuzaymah alone to be equivalent to that of two witnesses, he did so by way of an exception. The precedent in this case is therefore not extendable by analogy. Mustasfa; II, 88; Abu Dawud, Sunan, III, 1024, Hadith no.3600.] [26. The relevant Hadith reads: 'If Khuzaymah testifies for anyone, that is sufficient as a proof.' Ghazali, Some of the rulings of the Qur'an which relate exclusively to the Prophet, such as polygamy beyond the maximum of four, or the prohibition in regard to marriage for the widows of the Prophet (al-Ahzab, 33:53) are similarly not extendable by analogy. The legal norms on these matters have elsewhere been laid down in the Qur'an which enacts the minimum number of witnesses at two, the maximum for polygamy at four, and allow a widow to remarry after the expiry of the `iddah waiting period. 5) And lastly, the law of the text must not represent a departure from the general rules of qiyas in the first place. For example, traveling during Ramadan is the cause of a concession which exonerates the traveler from the duty of fasting. The concession is an exception to the general rule which requires everyone to observe the fast. It may therefore not form the basis of an analogy in regard to other types of hardship. Similarly the concession granted in wudu' (ablution) in regard to wiping over boots represents a departure from the general rule which requires washing the feet. The exception in this case is not extendable by way of analogy to similar cases such as socks. But according to the Shafi'is, when the 'illah of a ruling can be clearly identified, analogy may be based on it even if the ruling was exceptional in the first place. For example, the transaction of 'araya, or the sale of fresh dates on the tree in exchange for dry dates, is exceptionally permitted by a Hadith notwithstanding the somewhat usurious nature of this transaction; the rules of riba forbidding exchange of identical commodities of unequal quantity. The 'illah of this permissibility is to fulfill the need of the owner of unripe dates for the dried variety. By way of analogy, the Shafi'is have validated the exchange of grapes for raisins on the basis of a similar need. The Hanafis have, however, disagreed, as the riding of 'araya is exceptional in the first place. III. The New Case (Far') [27. Muslim, Sahih Muslim, p. 247, Hadith no. 920; Sha`ban, Usul, p 130.] The far' is an incident or a case whose ruling is sought by recourse to analogy. The far` must fulfill the following three conditions. Principles of Islamic Jurisprudence ~ Kamali 187...
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