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Thursday, May 31, 2012

Discuss and elaborate the theory of Istehsan under islamic law.

Q. Discuss and elaborate the theory of Istehsan and Qiyes under Islamic law. (1995, 1999)
Q. Define Qiyas (Analogy) how does the jurist use it to extend the law from the texts.? What is the difference between Qiyas and Istihsan? (1995)
Q. Is Analogical deduction more important than the consensus of opinion? Discuss in detail. (1993)


1. Introduction 
Qiyas is the secondary source of Islamic law. All the four schools of Islamic jurisprudence agree that in matters which have not been provided for by a Quran, Hadith or Ijma, the law may be deduced from what has been laid down by any of these three authorities by the use of Qiyas or analogy.



2. Meaning and definition of Qiyas
(I) Meaning
(i) Literal
Literally the word Qiyas means measuring or estimating one thing in terms of another.
(ii) Legal
It is process of deduction by which the law of a text is applied to cases by reason of the text.
(II) Definition
According to Hanafis:
“It is extension of law from the original text to which the process is applied to a particular case by means of a common Illat or effective cause, which cannt be ascertained merely by interpretation of the language of the text.”



3. Origin and development of Qiyas
Owing to the ever growing needs of society and the expansion of Islamic religion beyond the limited boundaries of Arabia, it was felt that the rules have to be deuced to meet the dynamic character of the society. To fulfill this need, the doctrine of Qiyas was originated by eminent jurists.



4. Arguments in support of Qiyas
(I) Quranic verses in support of it
Following Quranic verses support the necessity of Qiyas.
“And certainly we have setforth for mankind in this Quran all kinds of similitudes, that haply they may reflect.”
(II) Ahadiths in support of it
When the Holy Prophet (Peace be Upon Him) Sent Maaz Bin Jabal to Yemen as governor he said to him. “How are you going to decide cases Maaz answered; (by the light of) what is in the book of God. The Prophet (Peace be Upon Him) nest asked; and if you do no find anything in the Quran to guide you? “ I will decide in the way the Prophet (Peace be Upon Him) has been doing; But inquired the Prophet (Peace be Upon Him) ‘If you do not find any procedure from me what then’ I will do my best by exercising my judgement. The Prophet (Peace be Upon Him) there upon happily agreed.



5. Elements of Qiyas
Qiyas has following elements:
(I) Asl
The original case covered by the next. That is the root case or even the base upon which the analogy has been constructed.
(II) Hukm-Al-Asl
The hukm of the original case mentioned in the text.
(III) Illah
The underlying cause of the Hukm, which is determineds by the jurist is called the illah.
(IV) Far
The new case to which the hukm is extended is called the far or the offshoot.
It is the case which is analogically compared with the asl.



6. Kinds of Qiyas
According to Hanafis, following are the kinds of Qiyas.
(i) Qiyas Jail (Manifets)
(ii) Qiyay Khafi (Concealed)



7. Conditions for the validity of Qiyas
Following are the conditions of a valid analogical deduction of Qiyas.
(I) Original text not confined to particular facts
The law enunciated in the next to which analogy is sought to be applied must not have been intended to be confined to a particular state of facts.
Example:
The Holy Prophet (Peace be Upon Him) said that if Hazrat Khuzaima (R.A) Testified for any one, it is more than enough for him. Since tradition is personified, it does not lay down a general rule of testimony.
(II) Original text capable of understanding
The law of the text must not be such that its rais on d’ etre cannot be understood by human intelligence nor must it be in the nature of an exception to some general rule.
Example:
Eating by mistake during Ramzan by one who is fasting does not vitiate his fast, just because this is a Quranic text, no analogy can be applied on this rule.
(III) Deduction should be corollary to text law
The rule deduced by Qiyas must not be opposed to a text law nor covered by the words of a text. It should be in the nature of corollary of the text law.
(IV) Not change the law of text
(V) Analogy applies to cause and not to vocabulary
The analogy must not be applied to the vocabulary of the text but to the effective cause on which the law is based.



8. Scope of qiyas as a source of law
The function of qiyas is to extend the law of the text to cases not falling within the purview of its terms and not to establish a new rule of law. By application of analogy the law embodied in a text may be widened generally. Qiyas has no application to pure inference of facts which are to be made by the observations of science.



9. Nature of its authority as a source of law
Qiyas as a source of law do not rank so high as authority as Quran, Hadith and Ijma does. The reason is that with respect to analogical deduction, one cannot be certain, that they are what the law giver intended.



10. Examples of qiyas 
(i) There is a tradition from the Holy Prophet (Peace be Upon Him) that says,
“the murdered will not inherit.” By applying qiyas the rule is extended to the bequest and the murderer legatee is prevented from taking the bequeathed property.
( ii) At the time of Friday prayers indulging in sale is prohibited by Quran. By applying analogy this hukm is extended to other contracts like pledging or marriage that may have been planned at such a time.



11. Difference between Qiyas and Ijma
Qiyas is the opinion based on the similitude of circumstance whereas Ijma is a consensus of learned.

12. Conclusion
To conclude , I can, say that Qiyas is a process of deduction by which the law of a text is applied to cases which though not covered by the language, are governed by the reason of the text. It is subordinate to the Quran, Sunnah and Ijma and permissible to meet the changing needs of time.
Thus istihsan is an efficient method of legal reasoning that ensure analytical consistency in the system and helps the jurists identify general principles and exception besides giving importance to the consequence of the decision.

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