Principles of Islamic Jurisprudence by MH kamali

The illah of this permissibility is to fulfill the

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Unformatted text preview: [25. 1) The new case must not be covered by the text or ijma`. For in the presence of a ruling in these sources, there will be no need for a recourse to qiyas. However, some Hanafi and Maliki jurists have at times resorted to qiyas even in cases where a ruling could be found in the sources. But they have done so only where the ruling in question was of a speculative type, such as a solitary Hadith. We shall have occasion to elaborate on this point later. 2) The effective cause of analogy must be applicable to the new case in the same way as to the original case. Should there be no uniformity, or substantial equality between them, the analogy is technically called qiyas ma'al-fariq, or `qiyas with a discrepancy', which is invalid. If, for example, the `illah in the prohibition of wine is intoxication then a beverage which only causes a lapse of memory would differ with wine in respect of the application of 'illah, and this would render the analogy invalid. Irshad, p. 209.] To give another example, according to the Hanafis, a sane and adult woman is competent to conclude a contract of marriage on her own behalf. They have inferred this by an analogy to the Qur'anic ruling (alNisa, 4:6) which entitles her to enter business transactions at her own free will. The majority of jurists, however, disagree, as they consider the analogy in question to be qiyas with a discrepancy. Marriage differs from other transactions; business transactions are personal matters but marriage concerns the family and the social status of the parents and guardians. Hence an analogy between marriage and other transactions is unjustified. [29. Sha`ban, Usul, p. 134.] 3) The application of qiyas to a new case must not result in altering the law of the text, for this would mean overruling the text by means of qiyas which is ultra vires. An example of this is the case of false accusation (qadhf) which by an express nass (sura al-Nur, 24:4) constitutes a permanent bar to the acceptance of one's testimony. Al-Shafi`i has, however, drawn an analogy between false accusation and other grave sins (kaba'ir): a person who is punished for a grave sin may be heard as a witness after repentance. In the case of false accusation, too, repentance should remove the bar to the admission of testimony. To this the Hanafis have replied that an analogy of this kind would overrule the law of the text which forever proscribes the testimony of a false accuser. [30. Aghnides, Muhammedan Theories, p.62.] On a similar note, the validity of the contract of salam has been established in a Hadith which defines it as the advance sale of an article to be delivered at a fixed date. But when the Shafi`i's hold that such a contract is lawful even if no date is fixed for delivery, they are charged with introducing a change in the law of the text. [31. Bukhari, Sahih (Istanbul edn.), III, 44 (Kitab al-Salam, Hadith no. 3); Sarakhsi (Usul, p. 152) writes: The Prophet forbade the sale of an object which does not exist at the time of sale but permitted salam as an ex...
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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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