Principles of Islamic Jurisprudence by MH kamali

Since the hadith does not specify any form of

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Unformatted text preview: half? The Prophet asked her: 'Supposing your father had a debt to pay and you paid it on his behalf, would this benefit him?' To this her reply was in the affirmative, and the Prophet said, `The debt owed to God merits even greater consideration. Mustasfa, II, 64; Shawkani, Irshad, p. 212; Ibn Qayyim, I`lam, I, 200.] It is also reported that Umar b. al-Khattab asked the Prophet whether kissing vitiates the fast during Ramadan. The Prophet asked him in return: `What if you gargle with water while fasting?' `Umar replied that this did not matter. The Prophet then told him that `the answer to your first question is the same'. [66. Ibn Hazm, Ihkam, VII, 100; Ibn Qayyim, I'lam, I, 200; Khallaf, `Ilm, p. 57.] The Companions are said to have reached a consensus on the validity of qiyas. We find, for example, that the first Caliph, Abu Bakr, drew an analogy between father and grandfather in respect of their entitlements in inheritance. Similarly, `Umar ibn al-Khattab is on record as having ordered Abu Musa al-Ash'ari `to ascertain the similitudes for purposes of analogy'. [67. Ibn Hazm, Ihkam, VII, 147; Abu Zahrah, Usul, p. 177.] Furthermore, the Companions pledged their fealty (bay`ah) to Abu Bakr on the strength of the analogy that `Umar drew between two forms of leadership: 'Umar had asked the Companions, `Will you not be satisfied, as regards worldly affairs, with the man with whom the Prophet was satisfied as regards religious affairs?' And they agreed with 'Umar, notwithstanding the fact that the issue of succession was one of the utmost importance. [68. Ibn Hazm, Ihkam, VII, 160; Ibn Qayyim, I'lam, I. 182.] Again, when the Companions held a council to determine the punishment of wine-drinking, `Ali b. Abi Talib suggested that the penalty of false accusation should be applied to the wine drinker, reasoning by way of analogy, 'When a person gets drunk, he raves and when he raves, he accuses falsely.' [69. Shawkani, Irshad, p. 223; Abu Zahrah, Usul, p.177] It is thus concluded that qiyas is validated by the Qur'an, the Sunnah, and the ijma' of the Companions. The Argument Against Qiyas This has been advanced mainly by the Zahiri school, and some Mu'tazilah, including their leader, Ibrahim al-Nazzam. The leading Zahiri jurist, Ibn Hazm, is the most outspoken against qiyas. The main points of his argument may be summarised as follows: 1) The rules of the Shari'ah are conveyed in the form of commands and prohibitions. There are also the intermediate categories of 'recommended' (mandub) and `reprehensible' (makruh), which are essentially two varieties of mubah (permissible). There are thus only three types of ahkam: command, prohibition, and permissibility. Should there be no clear text in respect of any matter, then it would fall under the principle of ibadah (permissibility) winch is established to the Qur'an. Principles of Islamic Jurisprudence ~ Kamali 199 [65. Ghazali, [70. Two of the Qur'anic ayat which validate ibahah are as follows: It is He who has created for you all things that are on earth' (al-Baqarah, 2:29); and `O...
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