Principles of Islamic Jurisprudence by MH kamali

Principles of Islamic Jurisprudence by MH kamali

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Unformatted text preview: arly indicated in these sources or it may be identified by way of inference (istinbat). In either case, qiyas essentially consists of the discovery of a hukm which is already indicated in the divine sources. [Cf. Badran, Usul, pp. 51-52.] Some fuqaha' have drawn a distinction between dalil and amarah (lit. sign or allusion) and apply dalil to the kind of evidence which leads to a definitive ruling or that which leads to positive knowledge ('ilm). Amarah on the other hand is reserved for evidence or indication which only leads to a speculative Principles of Islamic Jurisprudence ~ Kamali 19 ruling. [Amidi, Ihkam, I, 9.] In this way, the term 'dalil' would only apply to the definitive proofs, namely the Quran, Sunnah and ijma', and the remaining proofs which comprise a measure of speculation, such as qiyas and istihsan, etc., would fall under the category of amarat. The proofs of Shari'ah have been further divided into transmitted proofs (adillah naqliyyah) and rational proofs (adillah 'aqliyyah). The authority of the transmitted proofs is independent of their conformity or otherwise with the dictates of reason, although as we shall later elaborate, most of the transmitted proofs can also be rationally justified. However, the authority and the binding force of the Quran, Sunnah and ijma' are independent of any rational justification that might exist in their favour. To these are added two other transmitted proofs, namely the ruling of the Companions, and the laws revealed prior to the advent of Islam (shara'i man qablana) [Cf. Badran, Usul, PP. 54-55.] The rational proofs are, on the other hand, founded in reason and need to be rationally justified. They can only be accepted by virtue of their rationality. Qiyas, istihsan, istislah and istishab are basically all rationalist doctrines although they are in many ways dependent on the transmitted proofs. Rationality alone is not an independent proof in Islam, which is why the rational proofs cannot be totally separated from the transmitted proofs. Qiyas, for example, is a rational proof, but it also partakes in the transmitted proofs to the extent that qiyas in order to be valid must be founded on an established hukm of the Quran, Sunnah or ijma'. However the issue to which qiyas is applied (i.e. the far') must have a 'illah in common with the original hukm. To establish the commonality of the 'illah in qiyas is largely a matter of opinion and ijtihad. Qiyas is therefore classified under the category of adillah aqliyyah. As noted above, the adillah Shariyyah are on the whole in harmony with reason. This will be clear from the fact that the Shariah in all of its parts is addressed to the mukallaf, that is, the competent person who is in possession of his faculty of reasoning. The Shariah as a whole does not impose any obligation that would contradict the requirements of 'aql. Since the criterion of obligation (taklif) is 'aql, and without it all legal obligations fall to the ground, it would follow that a hukm shar'i which is abhorrent to 'aql is of no consequence. [Amidi, Ihkam, III, 180; Badran, Usul, P. 50] The adillah Sh...
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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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