Principles of Islamic Jurisprudence by MH kamali

The hikmah is to prevent traffic irregularities and

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Unformatted text preview: ble basis, which is passing the exams. The acquisition of legal knowledge often, but not always, goes hand in hand with the ability to pass exams, but this by itself is not as readily ascertainable as are the exam results. 2) As already stated, the effective cause on which analogy is based must also be evident (zahir). Hidden phenomena such as intention, goodwill, consent, etc., which are not clearly ascertainable may not constitute the `illah of analogy. The general rule is that the `illah must be definite and perceptible to the senses. For example, since the consent of parties to a contract is imperceptible in its nature, the law proceeds upon the act of offer and acceptance. Similarly the `illah in establishing the paternity of a Principles of Islamic Jurisprudence ~ Kamali 190 child is matrimonial cohabitation (qiyam firash al-zawjiyyah), or acknowledgement of paternity (iqrar), both of which are external phenomena and are susceptible to evidence and proof. Since conception through conjugal relations between the spouses is not an obvious phenomenon, it may not form the 'illah of paternity. On a similar note, the law adopts as the 'illah of legal majority, not the attainment of intellectual maturity, but the completion of a certain age, which is evident and susceptible to proof. Shawkani, Irshad, p. 207, Abdur Rahim, Jurisprudence, p.149; Abu Zahrah, Usul, p. I89; Khallaf, `Ilm, p. 69.] 3) The third condition of 'illah is that it must be a proper attribute (al-wasf al-munasib) in that it bears a proper and reasonable relationship to the law of the text (hukm). This relationship is munasib when it serves to achieve the objective (hikmah) of the Lawgiver, which is to benefit the people and to protect them against harm. For example, killing is a proper ground on which to exclude an heir from inheritance. For the basis of succession is the tie of kinship which relates the heir to the deceased, and is severed and nullified by killing. Similarly, the intoxicating effect of wine is the proper cause of its prohibition. An attribute which does not bear a proper relationship to the hukm does not qualify as an 'illah. To give an example, murder must be retaliated for, not because the perpetrator happens to be a Negro or an Arab, but because he has deliberately killed another. Similarly, wine is prohibited not because of its colour or taste but because it is an intoxicant. [39. Abu Zahrah, Usul, p. 189; Khallaf, `Ilm, pp. 69-70.] 4) The `illah must be 'transient' (muta'addi), that is, an objective quality which is transferable to other cases. For analogy cannot be constructed on a 'illah which is confined to the original case only. As the Hanafis explain, the very essence of 'illah, as much as that of qiyas in general, is its capability of extension to new cases, which means that the 'illah must be a transferable attribute. Traveling, for example, is the `illah of a concession in connection with fasting. As such, it is an 'illah which is confined to the asl and can...
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