Principles of Islamic Jurisprudence by MH kamali

The various sources of islamic law that feature next

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Unformatted text preview: ten based on analogy, maslahah, or istihsan, and so on, despite its being designated as ijma'. Similarly, qiyas and istihsan are closely related to one another in the sense that one of the two main varieties of istihsan consists of a selection between two analogies on the same issue. The difference between maslahah and istihsan is largely procedural, for they are essentially the same, the one being reflective of the Maliki and the other of the Hanafi approach to ijtihad. It is thus evident that all the non-revealed proofs of Shari'ah are an embodiment of the single phenomenon of ijtihad. Being a derivation from the root word jahada, ijtihad literally means striving, or self-exertion in any activity which entails a measure of hardship. It would thus be in order to use jahada in respect of one who carries a heavy load, but not so if he carries only a trivial weight. Juridically, however, ijtihad mainly consists not of physical, but of intellectual exertion on the part of the jurist. Ijtihad is defined as the total expenditure of effort made by a jurist in order to infer, with a degree of probability, the rules of Shari'ah from their detailed evidence in the sources. Principles of Islamic Jurisprudence ~ Kamali 315 [1. Amin Islahi [2. Amidi, Ihkam, IV, 162; Shawkani, Irshad, p. 250; Khudari, Usul, p. 367.] Some ulema have defined ijtihad as the application by a jurist of all his faculties either in inferring the rules of Shari'ah from their sources, or in implementing such rules and applying them to particular issues. [3. Abu Zahrah, Usul, p.301.] Ijtihad essentially consists of an inference (istinbat) that amounts to a probability (zann), thereby excluding the extraction of a ruling from a clear text. It also excludes the discovery of a hukm by asking a learned person or by consulting the relevant literature without the exercise of one's own opinion and judgment. Thus a person who knows the rules of Shari'ah in detail but is unable to exercise his judgment in the inference of the ahkam direct from their sources is not a mujtahid. Ijtihad, in other words, consists of the formulation of an opinion in regard to a hukm shar'i. The presence of an element of speculation in ijtihad implies that the result arrived at is probably correct, while the possibility of its being erroneous is not excluded. Zann in this context is distinguished from 'ilm, which implies positive knowledge. Since the decisive rules of Shari'ah impart positive knowledge, they are excluded from the scope of ijtihad. [4. Shawkani, Irshad, p. 250; Zuhayr, Usul, IV, 223-25; Badran, Usul, p. 471.] Essential to the meaning of ijtihad is also the concept that the endeavour of the jurist involves a total expenditure of effort in such a manner that the jurist feels an inability to exert himself further. If the jurist has failed to discover the evidence which he was capable of discovering, his opinion is void. Amidi, Ihkam, IV, 162.] [5. Ghazali, Mustasfa, II, 102; And lastly, the definition of ijtihad is explicit on the point that only a jurist (faqih) may practice ijtihad. Th...
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