Principles of Islamic Jurisprudence by MH kamali

Shirazi luma pp 83 84 the foregoing procedure has

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Unformatted text preview: f he finds a consensus among them, he applies it, otherwise he resorts to qiyas, but in doing so, he must pay more attention to the general principles of the Shari'ah than to its subsidiary detail. If he does not find this possible, and all else fails, then he may apply the principle of original absence of liability (al-bara'ah al-asliyyah). All this must be in full cognizance of the rules that apply to the conflict of evidences (al-ta`arud bayn al-adillah), which means that the mujtahid should know the methods deployed in reconciling such conflicts, or even eliminating one in favour of the other, should this prove to be necessary. The ruling so arrived at may be that the matter is obligatory (wajib), forbidden (haram), reprehensible (makruh), or recommended (mandub). Shawkani, Irshad, p. 258.] [53. Shafi'i, Risalah, pp. 261-62; From the viewpoint of the procedure that it employs, ijtihad may occur in any of the following four varieties. Firstly, there is the form of a juridical analogy (qiyas) which is founded on an effective cause (`illah). The second variety of ijtihad consists of a probability (zann) without the presence of any `illah, such as practicing a ijtihad in regard to ascertaining the time of salah or the direction of the qiblah. The third type of ijtihad consists of the interpretation of the source materials and the deduction of ahkam from an existing evidence. This type of ijtihad is called ijtihad bayani, or 'explanatory ijtihad', which takes priority over 'analogical ijtihad', or ijtihad qiyas. The fourth variety of ijtihad, referred to as ijtihad istislahi, is based on maslahah and seeks to deduce the ahkam in pursuance of the spirit and purpose of the Shari'ah, which may take the form of istislah, juristic preference (istihsan), the obstruction of means (sadd al-dhara'i'), or some other technique. Imam Principles of Islamic Jurisprudence ~ Kamali 327 [52. Shafi`i accepts only the first type, namely analogical ijtihad, but for the majority of ulema, ijtihad is not confined to qiyas and may take the form of any of the foregoing varieties. 258.] The Ijtihad of the Prophet and his Companions [54. Kassab, Adwa', p. 24; Hallaq, The Gate, p. The question to be discussed here is whether all the rulings of the Prophet should be regarded as having been divinely inspired or whether they also partake in ijtihad. The ulema are generally in agreement that the Prophet practiced ijtihad in temporal and military affairs, but they have differed as to whether his rulings in shar'i matters could properly fall under the rubric of ijtihad. According to the Ash'aris, the Mu'tazilah, Ibn Hazm al-Zahiri and some Hanbali and Shafi'i ulema, the Qur'an provides clear evidence that every speech of the Prophet partakes in wahy. A specific reference is thus made to sura al-Najm (53:3) which provides `He says nothing of his own desire, it is nothing other than revelation [wahy] sent down to him.' This ayah is quite categorical on the point that the Prophet is guided by divine revelation and that all his utterances are to be seen in this light. This would mean that all the rulings of the Prophet consist of d...
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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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