Principles of Islamic Jurisprudence by MH kamali

The classical definitions of ijtihad and ijma might

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Unformatted text preview: irit that characterised the period of the pious caliphs and the early imams of jurisprudence. Dr Yusuf's criticism of Iqbal's proposed reform is based on the dubious assumption that an elected legislative assembly will not reflect the collective conscience of the community and will unavoidably be used as an instrument of power politics. Although the cautious advice of this approach may be persuasive, the assumption behind it goes counter to the spirit of maslahah and of the theory of ijma` which endows the community with the divine trust of having the capacity and competence to make the Principles of Islamic Jurisprudence ~ Kamali 178 right decisions. If one is to observe the basic message of the textual authority in support of the `ismah of the community, then one must trust the community itself to elect only persons who will honour their collective conscience and their maslahah. In addition, Dr Yusuf's critique of Iqbal merely suggests that nothing should he done to relate ijma' to the realities of contemporary life. The critic is content with the idea of letting ijma` and ijtihad remain beyond the reach of the individuals and societies of today. On the contrary, the argument for taking a positive approach to ijma` is overwhelming. The gap between the theory and practice of Shari'ah law has grown to alarming proportions, and any attempt at prolonging it further will have to be exceedingly persuasive. While the taking of every precaution to safeguard the authentic spirit and natural strength of ijma` is fully justified, this should not necessarily mean total inertia. The main issue in institutionalizing ijma`, as Shaltut has rightly assessed, is that freedom of opinion should be vouchsafed the participants of ijma`. This is the essence of the challenge which has to be met, not through a laissez-faire attitude toward ijtihad and ijma`, but by nurturing judicious attitudes and by evolving correct methods and procedures to protect freedom of opinion. The consensus that is arrived at in this spirit will have kept a great deal, if not all, of the most valuable features of ijma`. Principles of Islamic Jurisprudence ~ Kamali 179 Chapter Nine: Qiyas (Analogical Deduction) Literally, qiyas means measuring or ascertaining the length, weight, or quality of something, which is why scales are called miqyas. Thus the Arabic expression, qasat al-thawb bi'l-dhira' means that `the cloth was measured by the yardstick'. [1. Amidi, Ihkam, III, 183.] Qiyas also means comparison, with a view to suggesting equality or similarity between two things. Thus the expression Zayd yuqas ila Khalid fi `aqlihi wa nasabih means that `Zayd compares with Khalid in intelligence and descent'. 54.] Qiyas thus suggests an equality or close similarity between two things, one of which is taken as the criterion for evaluating the other. Technically, qiyas is the extension of a Shari'ah value from an original case, or asl, to a new case, because the latter has the same effective cause as the f...
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