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Unformatted text preview: either expediency or personal preference. The jurist who resorts to qiyas takes it for granted that the rules of Shari'ah follow certain objectives (maqasid) which are in harmony with reason. A rational approach to the discovery and identification of the objectives and intentions of the Lawgiver necessitates recourse to human intellect and judgment in the evaluation of the ahkam. It is precisely on this ground, namely the propriety or otherwise of adopting an inquisitive approach to the injunctions of the Lawgiver, referred to as ta'lil, that qiyas has come under attack by the Mu'tazilah, the Zahiri, the Shi'i and some Hanbali ulema. Since an enquiry into the causes and objectives of divine injunctions often involves a measure of juristic speculation, the opponents of qiyas have questioned its essential validity. Their argument is that the law must be based on certainty, whereas qiyas is largely speculative and superfluous. If the two cases are identical and the law is clearly laid down in regard to one, there is no case for qiyas, as both will be covered by the same law. If they are different but bear a similarity to one another, then it is impossible to know whether the Lawgiver had intended the subsidiary case to be governed by the law of the original case. It is once again in recognition of this element of uncertainty in qiyas that the ulema of all the juristic schools have ranked qiyas as a 'speculative evidence'. With the exception, perhaps, of one variety of qiyas, namely where the 'illah of qiyas is clearly identified in the text, qiyas in general can never be as high an authority as the nass or a definite ijma', for these are decisive evidences (adillah qat'iyyah), whereas qiyas in most cases only amounts to a probability. It is, in other words, merely probable, but not certain, that the result of qiyas is in conformity with the intentions of the lawgiver. The propriety of qiyas is thus always to be measured by the degree of its proximity and harmony with the nusus. In our discussion of the methodology of qiyas it will at once become obvious that the whole purpose of this methodology is to ensure that under no circumstances does analogical deduction operate independently of the nusus. It would be useful to start by giving a few examples. 1) The Qur'an (al-Jumu'ah, 62:9) forbids selling or buying goods after the last call for Friday prayer until the end of the prayer. By analogy this prohibition is extended to all kinds of transactions, since the effective cause, that is, diversion from prayer, is common to all. [5. Khallaf, `Ilm, p.52, Abdur Rahim, Jurisprudence, p. 138.] Principles of Islamic Jurisprudence ~ Kamali 181 2) The Prophet is reported to have said, 'The killer shall not inherit [from his victim]' By analogy this ruling is extended to bequests, which would mean that the killer cannot benefit from the will of his victim either. [6. Ibn Qayyim, I'lam, II, 242; Khallaf, `Ilm, p.53.] 3) According to a Hadith, it is forbidden for a man to make an offer of betrothal to a woman who is already betrothed to another man unless the lat...
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- Spring '13