Principles of Islamic Jurisprudence by MH kamali

The author then quotes al shawkani at some length to

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Unformatted text preview: .] Although the leading Imams of jurisprudence are in agreement on the point that the fatwa of a Companion is authoritative, none has categorically stated that it is a binding proof. Nonetheless, the four leading Imams consider the fatwa of a Companion to be a persuasive source of guidance in that it carries a measure of authority which merits careful consideration, and commands priority over the ijtihad of other mujtahidun. Principles of Islamic Jurisprudence ~ Kamali 216 Chapter Twelve: Istihsan, or Equity in Islamic Law The title I have chosen for this chapter draws an obvious parallel between equity and istihsan which should be explained, for although they bear a close similarity to one another, the two are not identical. 'Equity' is a Western legal concept which is grounded in the idea of fairness and conscience, and derives legitimacy from a belief in natural rights or justice beyond positive law. [1. Osborn's Concise Law Dictionary, at p. 124, defines equity as follows: 'Primarily fairness or natural justice. A fresh body of rules by the side of the original law, founded on distinct principles, and claiming to supersede the law in virtue of a superior sanctity inherent in those principles. Equity is the body of rules formulated and administered by the Court of Chancery to supplement the rules and procedure of the Common Law.'] Istihsan in Islamic law, and equity in Western law, are both inspired by the principle of fairness and conscience, and both authorise departure from a rule of positive law when its enforcement leads to unfair results. The main difference between them is, however, to be sought in the overall reliance of equity on the concept of natural law, and of istihsan on the underlying values and principles of the Shari'ah. But this difference need not be over-emphasised if one bears in mind the convergence of values between the Shari`ah and natural law. Notwithstanding their different approaches to the question of right and wrong, for example, the values upheld by natural law and the divine law of Islam are substantially concurrent. Briefly, both assume that right and wrong are not a matter of relative convenience for the individual, but derive from an eternally valid standard which is ultimately independent of human cognizance and adherence. But natural law differs with the divine law in its assumption that right and wrong are inherent in nature. [2. See for a discussion Kerr's Islamic Reform,p.57.] From an Islamic perspective, right and wrong are determined, not by reference to the 'nature of things', but because God has determined them as such. The Shari'ah is an embodiment of the will of God, the Lord of the universe and the supreme arbiter of values. If equity is defined as a law of nature superior to all other legal rules, written or otherwise, then this is obviously not what is meant by istihsan. For istihsan does not recognise the superiority of any other law over the divine revelation, and the solutions which it offers are for the most part based on principles which are uph...
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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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