Principles of Islamic Jurisprudence by MH kamali

This view clearly discourages principles of islamic

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Unformatted text preview: n forbidden because of his questioning'. Ibn Hazm continues: we firmly deny that all the ahkam of Shari'ah can be explained and rationalised in terms of causes. Almighty God enacts a law as He wills. The question of `how and why' does not and must not be applied to His will. Hence it is improper for anyone to enquire, in the absence of a clear text, into the causes of divine laws. Anyone who poses questions and searches for the causes of God's injunctions 'defies Almighty God and commits a transgression'. 423, Hadith no, 1599.] [23. Ibn Hazm, Ihkam, VIII, 102; Muslim, Sahih Muslim, I, For he would be acting contrary to the purport of the Qur'an where God describes Himself, saying, 'He cannot be questioned for His acts, but they will be questioned for theirs' (alAnbiya', 21:21). It is thus known, Ibn Hazm concludes, that causes of any kind are nullified from the acts and words of God. For justification and ta'lil is the work of one who is weak and compelled (mudtarr), and God is above all this. [24. Ibn Hazm, Ihkam, VIII, 103.] The issue of causation acquires a special significance in the context of divinely-ordained laws, simply because the revelation was discontinued with the demise of the Prophet, who is no longer present to explain and identify the causes of the revealed laws. The Muslim jurists, like other believing Muslims, have shown a natural reluctance to be too presumptuous in their efforts to identify the causes of the divine laws. But the Issue does not pose itself in the same way regarding secular or man-made law. The norm in regard to modern laws is that they all have identifiable causes which can be ascertained with reasonable certainty. As such, analogical deduction in the context of modern law is a relatively easier proposition. But there are certain restrictions which discourage a liberal recourse to analogy even in modern law. For one thing, the operation of analogy in modern law is confined to civil law, as in the area of crimes the constitutional principle of legality discourages the analogical extension of the text. It should be further noted that owing to extensive reliance on statutory legislation, there is no crime and no punishment in the absence of a statutory text which clearly defines the offence or the penalty in question. Crimes and penalties are thus to be governed by the text of the law and not by the analogical extension of the text. It will thus be noted that owing to the prevalence of statutory legislation in modern legal systems the need for recourse to analogy has been proportionately diminished. This would in turn explain why qiyas tends to play a more prominent role in the Shari'ah than in modern law. But in Shari'ah law too, as we shall later elaborate, there are restrictions on the operation of qiyas in regard to crimes and penalties. The qadi, as a result, may not draw analogies between, for example, wine-drinking and hashish owing to the similar effects that they- might have on the human intellect. Principles of I...
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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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