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Unformatted text preview: : the waqf of cultivated lands, without its ancillary rights, would frustrate the basic purpose of waqf, which is to facilitate the use of the property for charitable purposes. To avoid hardship, a recourse to an alternative analogy, namely, to qiyas khafi, is therefore warranted. The hidden analogy in this case is to draw a parallel, not with the contract of sale, bur with the contract of lease (ijarah). For both of these involve a transfer of usufruct (intifa'). Since usufruct is the essential purpose of ijarah, this contract is valid, on the authority of a Hadith, even without a clear reference to the usufruct. This alternative analogy with ijarah would enable us to say that waqf can be validly concluded even if it does not specify the attached rights to the property in detail. To give another example, supposing A buys a house an a single transaction from Band C at a price of 40,000 pounds payable in installments. A pays the first installment of 2,000 pounds to B assuming that B will hand over C's portion to him. But before this happens, B loses the 2,000 and the question arises as to who should suffer the loss. By applying qiyas jali, B and C should share the loss. For B received the money on behalf of the partnership and not for himself alone. Their position in sharing the loss, in other words, is analogous to their status as partners in the first place. But by applying istihsan, only B, who received the money, suffers the loss. For C, although a partner, was basically under no obligation to obtain his portion of the 2,000 from B. It was only his right/privilege, and he would be at the liberty to waive it. C's portion of the 2,000 pounds would consequently become a part of the remainder of the price (or the debt) that A owed to both. Only B is therefore to suffer the loss. The solution is based on the subtle analogy that one who is under no obligation should not have to pay any compensation either. [25. Khallaf, 'Ilm, p.82; al-Nabhani, Muqaddimah, p. 67.] 2) The second variety of istihsan consists of making an exception to a general rule of the existing law, which is why some writers have called this type `exceptional istihsan' (istihsan istithna'i), as opposed to 'analogical istihsan' (istihsan qiyasi) - the latter consisting of a departure from one qiyas to another. Note the use of these terms e.g., in Sabuni, Madkhal, p. 123.] Of these two, exceptional istihsan is considered to be the stronger, for it derives support from another recognised source, especially when this is the Qur'an or the Sunnah. The scholars of various schools are generally in agreement on the validity of the istihsan for which authority can be found in the primary sources, but they have disputed istihsan which is based on qiyas khafi alone. In fact the whole controversy over istihsan focuses on this latter form of istihsan. Thus the Maliki jurist Ibn al-Hajib classifies istihsan into three categories of accepted (maqbul), rejected (mardud) and uncertain (mutaraddid), addi...
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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.
- Spring '13