Principles of Islamic Jurisprudence by MH kamali

Penance 52 ghazali mustasfa ii 54 abu zahrah usul

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Unformatted text preview: have more than one cause, and the mujtahid has to identify the one that is proper (munasib), as was the case in the foregoing examples. Literally, tanqih, means 'purifying', whereas manat is another word for 'illah. Technically, tanqih al-manat means 'connecting the new case to the original case by eliminating the discrepancy between them' (ilhaq al-far' bi'l-asl biilgha' al-fariq). [53. Shawkani, Irshad, pp. 221-22; Abu Zahrah, Usul, p. 194] Extracting the `illah, or takhrij al-manat, is in fact the starting point to the enquiry concerning the identification of 'illah, and often precedes tanqih al-manat In all areas where the text or ijma' does not identify the effective cause, the jurist extracts it by looking at the relevant causes via the process of ijtihad. He may identify more than one cause, in which case he has completed the step involved in takhrij al-manat and must move on to the next stage, which is to isolate the proper cause. To illustrate this, the prohibition of usury (riba) in wheat and five other articles is laid down in the Hadith. When the jurist seeks to draw an analogy between wheat and raisins-to determine for example whether one should apply the tax of one tenth by analogy to raisins-the 'illah may be any of the following: that both of them sustain life, that they are edible, that they are both grown in the soil, or that they are sold by measure. Thus far the jurist has completed the first step, namely extracting the `illah. But then he proceeds to eliminate some of these by recourse to tanqih al-manat. The first `illah is eliminated because salt, which is one of the six articles, does not sustain life; the second is also eliminated because gold and silver are not edible; and so is the third as neither salt nor precious metals are grown in the soil. The `illah is therefore the last attribute, which comprises all the specified items in the Hadith of riba. The difference between the two stages of reasoning is that in takhrij al-manat the jurist is dealing with a situation where the `illah is not identified, whereas in tanqih al-manat, more than one cause has been identified and his task is to select the proper 'illah. [54. Ghazali, Mustasfa, II, 55; Khallaf, Ilm, p. 77.] Ascertaining the `illah, or tahqiq al-manat, follows the two preceding stages of investigation in that it consists of ascertaining the presence of an `illah in individual cases. For purposes of drawing an analogy between wine and a herbal drink, for example, the investigation which leads to the conclusion that the substance in question has the intoxicating quality in common with wine is in the nature of tahqiq al-manat. Similarly, in the case of drawing an analogy between a thief and a pickpocket, the investigation as to whether or not the latter falls under the definition of theft is in the nature of tahqiq al-manat. [55. Abu Zahrah, Usul, p.195; Khallaf, 'Ilm, p. 78. For other examples see Shawkani, Irshad, p. 222.] Principles of Islamic Jurisprudence ~ Kamali 195 Varieties of Qi...
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