5. DEFINITION OF QIYAS
• MEASURING
• ESTIMATING
LITERAL
• THE EQUALITY OF A CASE, WHOSE HUKM IS NOT MENTIONED EXPLICITLY IN THE
TEXTS, WITH A CASE WHOSE HUKM IS MENTIONED, ON THE BASIS OF THE
EQUALITY BETWEEN THE UNDERLYING CAUSES FOUND IN THE TWO CASES.
TECHNICAL
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6. HUKM
AL-ASL
THE EQUALITY OF A CASE, WHOSE HUKM IS NOT
MENTIONED EXPLICITLY IN THE TEXTS, WITH A CASE
WHOSE HUKM
IS MENTIONED, ON THE BASIS OF THE EQUALITY
BETWEEN THE UNDERLYING CAUSES FOUND IN THE TWO
CASES.
ILLAH
FAR’
ASL
EXPLAINATION…
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9. Q: Identify the elements of Qiyas.
Kindly refer to page: 215-217 (Nyazee)
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10. THE MEANING OF
ILLAH
SABAB IS THE CAUSE ON THE BASIS OF WHICH A PRIMARY
RULE OR HUKM TAKLIFI IS INVOKED OR ESTABISLISHED.
JOURNEY – PERMISSIBLITY OF NOT FASTING
DRIKING KHAMR – OBLIGATION OF HADD
WHEN THE JUDGE ANGRY - HE SHOULD NOT JUDGE
BETWEEN TWO PEOPLE (PROHIBIT JUDGEMENT)
: notes
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11. GHARADH (GOALS/PURPOSES) :
SEEKING OF BENEFIT OR THE REPELLING OF HARM AS
DIRECTED BY THE LAWGIVER
PERMISSIBLITY OF NOT FASTING WHILE IN JOURNEY : DAF’
AL-MASYAQQAH
OBLIGATION OF HADD FOR DRIKING KHAMR : AZ-ZAJR
PROHIBITION OF JUDGEMENT WHILE ANGRY :
العدل لتحقيق الذهن تشوش دفع
Cont… THE MEANING OF
ILLAH
: notes
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13. HIKMAH (WISDOM) OF THE LAW IS
SOMETHING INTERNAL AND CONCEALED
AND CANNOT BE VERIFIED WITH EASE.
THE HIKMAH ACCORDING TO AL-RAZI IS
THE ILLAH OF THE ILLAH.
Cont… THE MEANING OF
ILLAH
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16. CONDITIONS
PERTAINING TO THE ELEMENTS OF QIYAS
CONDITIONS OF AL-ASL
CONDITIONS PERTAINING TO THE HUKM OF THE ASL
CONDITIONS PERTAINING TO THE FAR’
CONDITIONS PERTAINING TO THE ‘ILLAH
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17. CONDITIONS OF AL-ASL
SHOULD NOT BE AN EXTENSION
(FAR’)
Remember..
Al-Asl is the
original case!!!
: notes
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18. CONDITIONS PERTAINING TO
THE HUKM OF THE ASL
SHOULD HAS BEEN ESTABISHED DIRECTLY FROM AL-QURAN, AL-SUNNAH OR IJMA
ILLAH FOR THE HUKM SHOULD BE RATIONALLY UNDERSTOOD TO BE THE CAUSE OF THE HUKM
(MA’QUL AL-MA’NA)
SHOULD NOT HAVE BEEN ABROGATED
SHOULD NOT RESTRICTED TO A SPECIFIC CASE BY ANOTHER TEXT (MARRIAGE MORE THAN 4 IS
ONLY FOR RASULULLAH)
SHOULD NOT PERTAIN TO AN EXEMPTION (BAI SALAM)
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19. CONDITIONS PERTAINING TO
THE ‘ILLAH
1) MUST BE APPARENT CAUSE ( EVIDENT HIDDEN)
2) SHOULD BE A CONSTANT AND STABLE ATTRIBUTE
3) SHOULD BE EXTENDIBLE (TRANSFERABLE) AND NOT CONFINED TO THE ASL
(ÍLLAH AL-QASIRAH)
4) COMPATIBLE WITH THE PURPOSES OF THE LAW (MUNASIB)
: notes
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20. CONDITIONS PERTAINING TO
THE FAR’
1) THE TEXTS SHOULD BE SILENT ABOUT ITS HUKM
2) THE ILLAH OF THE ASL SHOULD BE FOUND IN THE FAR’
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21. TYPE OF QIYAS
CLASSIFICATION ACCORDING TO THE STRENGHT
OF THE HUKM ESTABLISHED IN THE FAR
(ÍLLAH IN ASL VS ‘ILLAH IN FAR)
AL-ASL
AL-FAR
QIYAS AWLA
QIYAS MUSAWI
QIYAS ADNA
: notes
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23. داميت الحاج نورأسمح سيتي
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QIYAS MUSAWI
Al-Asl : Consumption of the
minor’s (yatim) wealth
Hukm al-Asl : Prohibited
Al-Far’ : Burn the minor’s
house
‘illah : Destruction
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QIYAS ADNA
Al-Asl : Judgement while angry
Hukm al-Asl : Prohibited
Al-Far’ : Judgement while feel
sleepy
‘illah : De stabilizing thought
25. JUSTIFICATION OF QIYAS
AS A SOURCE OF ISLAMIC LAW
• MAJORITY MUSLIM JURIST
UPHOLD QIYAS
• ZAHIRIS, SOME OF MU’TAZILAH AND JA’FARI
(SHI’AH)
REJECTED QIYAS
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27. END OF PART ONE…
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28. PLEASE LET ME KNOW IF YOU HAVE ANY QUESTION OR
CONCERN
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Notes de l'éditeur
Interchangable words with ‘illah: sabab, gharadh and hikmah
Deterrence (zajr) is the underlying principle of all fields of Islamic criminal law. Since, according to the jurist, the threat of punishmentin the Hereafterdoes not suffieciently deter people from commiting forbidden acts, punishment in this world is a necessity. For the fixed punishments, deterrence is referred to by the words "an examplary punishement" and fhe hadd penalties must be carried out in public ( Rudolph Peter, Crime and Punishment in Islamic Law )
Anger is a de stabilizing thought. Thus anger takes place when we are not in control of ourselves, but the devil is controlling us. It takes away judgment, leads to depression, madness and wrong actions that we would repent later on when we are not angry. That is why Islam prohibit judgement while angry.
As a conclusion, Illah is a cause that can be rationally perceived to be a reason for the existence of the hukm, BUT when the cause is obscure (not clear) for human reason and it is not possible to understand why the cause has been associated with hukm, the cause is simply a sabab and not an illah. For example, human reason can comprehend why journey has been determined to be the cause (illah) for the permissibility of not fasting. But it may understand why the month of Ramadan has been fixed for fasting. Another way of looking at it would be to say that illah ia a sabab that can be rationalized (Nyazee, Islamic Jurisprudence, pg 75)
Details – read Nyazee paragraph 12.1.4
Example:
Evident not hidden: The cause that makes a contract valid is the outward expression (ijab and qabul) not intention (redha). Redha is hidden
Constant and stable: Curtailment of prayer on a journey. The illah is journey itself not hardship.
Transferable: The illah for prohibition of khamar is intoxication, which ruling can be extended to all intoxicants.
Munasib (must bear proper and reasonable relation with the ruling): Khamar is prohibited not because of its colour or taste but it is intoxicant and the illah of the prohibition of khamar is compatible with the “preservation of the intellect”