Science of Sources. Lesson 27 Legislative Evidence.
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Transcript of Science of Sources. Lesson 27 Legislative Evidence.
The science of sources deals with deducing the legal rulings based on
evidence derived from Shari`ah sources.
First: Evidence
Shari`ah sources are utilized in the following order:
Qur’an, Sunnah,
consensus (Ijma`), and reasoning based on analogy (Qiyas).
Qur’an
The Qur’anic rulings are unquestionable, as each word was revealed by Allah to the Prophet (SAWS), and is preserved from corruption, until the end of time.
Concerning the number of transmitters, the Sunnah is either Mutawatir (well-
known) or Ahad (singular).
(Refer to lesson 22)
The Sunnah which is Mutawatir is a narration from the Prophet (SAWS) that can be traced back to the Prophet
himself without any doubt.
The well-known Sunnah is where the transmission can be traced back to the Prophet with great probability of its
being authentic, along with great conclusiveness of its attribution to the
Companions .
The Prophet's (SAWS) personal thoughts, inclinations, personal habits, and the way
in which he dealt with his everyday affairs, are not considered abiding
legislation, unless they contain some element of guidance to be followed.
Consensus
Consensus is the agreement of the majority of Muslim scholars who exercise Ijtihad
(independent reasoning based on religious sources), after the Prophet's death, pertaining
to a legal ruling.
Analogy
Analogy means to draw a similitude between two similar incidents. One can
be judged directly according to the authentic text while the other can not,
and both have common attributes relevant to the same ruling.
The use of analogy is considered an authentic means of deducing Islamic rulings according to the majority of
scholars.
iv- the “effective case” (an attribute of the source which was the cause of the ruling,
and which is shared by the branch)
The effective case should be a characteristic which is:
a) Obviousb) accurately defined
c) conducive to the wisdom behind the ruling
d) not restricted to the source alone.
The scholars of jurisprudence differ regarding the validity of the following evidence:
* application of discretion
* public interest
* prevalent customs
* presumption of continuity
* the laws of (pre-Islamic) predecessors
* and the particular school of thought of a Companion.
The Application of Discretion
The application of discretion means to prioritize:
- an exceptional ruling over a common one - due to a more substantiated proof,
- a special ruling over a general one,
- or a latent analogy over an evident one.
Public Interests
Public interests are those interests for which no explicit ruling exists
to allow or forbid.
Prevalent Customs
Prevalent customs are practices that are known and followed by people, but which
do not contradict a piece of evidence, do not permit what is prohibited, do not prohibit what is permitted, and do not annul a religious duty.
Presumption of Continuity
Presumption of continuity means to maintain a ruling that was valid
in the past until a real need to change it emerges.
The School of Thought of a Companion
The school of thought of a Companion is what is pertinent to him
other than his narrations of the Hadith
Legislative Evidence
When the Prophet of Allah (SAWS) intended to send Mu`adh Ibn-Jabal to Yemen, he
asked: How will you judge when you are asked to rule on something? He replied: I shall judge in accordance with Allah’s
Book.
He asked: (What will you do) if you do not find any guidance in Allah’s Book?
He replied: (I shall act) in accordance with the Sunnah of the Prophet of Allah
(SAWS).
He asked: (What will you do) if you do not find any guidance in the Sunnah of the Prophet of Allah (SAWS) and in Allah’s Book? He replied: I shall do my best to
reach a ruling and I shall spare no effort.
The Prophet (SAWS) then patted him on the breast and said: Praise be to Allah Who
has helped the messenger of the Messenger of Allah to find something
which pleases the Messenger of Allah.” (Reported by At-Tirmidhi)
The Validity of Sunnah
Allah says:
الله� ﴿ طيع�واأ� ن�وا آم� ال�ذين� ا ي�ه�
� أ ي�انك�م� م ر م�
األ� لي و�أ� و� ول� س� الر� طيع�وا
أ� و� الله إل�ى د�وه� ر� ف� ء% ي� ش� في ع�ت�م� ت�ن�از� إن ف�
ول س� الر� ﴾و� : [59النساء]
This means: “O you who believe! Obey Allah and obey
the Messenger (Muhammad SAWS), and those of you (Muslims) who are in
authority. (And) if you differ in anything amongst yourselves, refer it to Allah and
His Messenger (SAWS).” (Surah An-Nisa’: 59)
And:
ك0م�وك� ﴿ ي�ح� ت�ى ح� ن�ون� الي�ؤ�م ب0ك5 ر� و� ال� ف�ث�م� م� ب�ي�ن�ه� ر� ج� ش� يم�ا ف
ا م� م0 جا> ر� ح� م� ه س نف�أ� في د�وا ي�ج ال�
< ا ليم� ت�س� ل0م�وا ي�س� و� ي�ت� : ﴾ق�ض� [65النساء]
This means: “But no, by your Lord, they can have no Faith, until they make you (O Muhammad SAWS) judge in all disputes between them,
and find in themselves no resistance against your decisions, and accept (them)
with full submission.” (Surah An-Nisa’: 65)
This means:
“And whatsoever the Messenger (Muhammad SAWS) gives you, take it, and
whatsoever he forbids you, abstain (from it).”
(Surah Al-Hashr: 7)
This means:
“Say (O Muhammad SAWS): Obey Allah and the Messenger (Muhammad SAWS).”
(Surah Al-`Imran: 32)
This means:
“He who obeys the Messenger (Muhammad SAWS), has indeed obeyed
Allah.”
(Surah An-Nisa’: 80)
And says:
ق�ض�ى ﴿ إذ�ا ن�ة% ؤ�م م� و�ال� ؤ�من% لم� ك�ان� ا و�م� < را م�أ� ول�ه� س� و�ر� الله�
م� ره م�أ� من� ة� ي�ر� ال�خ م� ل�ه� ي�ك�ون� ن
﴾أ� : [36األحزاب]
This means:
“It is not for a believer, man or woman, when Allah and His Messenger have
decreed a matter that they should have any option in their decision.”
(Surah Al-Ahzab: 36)
The Validity of Consensus
Allah says:
أ�طيع�وا ﴿ و� الله� طيع�واأ� ن�وا آم� ال�ذين� ا ي�ه�
� أ ي�انك�م� م ر م�
األ� لي و�أ� و� ول� س� ﴾الر�
: [59النساء]
This means:
“O you who believe! Obey Allah and obey the Messenger (Muhammad SAWS), and
those of you (Muslims) who are in authority.”
(Surah An-Nisa’: 59)
And says:
و�لي ﴿أ� ل�ى إ و� ول س� الر� إل�ى د�وه� ر� ل�و� و�
ت�نبط�ون�ه� ي�س� ال�ذين� ه� ل�ع�لم� م� ن�ه� م ر م�األ�
م� ن�ه� ﴾ م : [83النساء]
This means:
“If only they had referred it to the Messenger or to those charged with authority among them, the proper
investigators would have understood it from them (directly).”
(Surah An-Nisa’: 83)
Allah says:
ت�ب�ي�ن� ﴿ ا م� ب�ع�د من� ول� س� الر� اقق ي�ش� و�م�ننين� ؤ�م ال�م� بيل س� غ�ي�ر� ي�ت�بع� و� د�ى ال�ه� ل�ه�اء�ت� و�س� ن�م� ه� ج� له ن�ص� و� ت�و�ل�ى ا م� ل0ه ن�و�
< يرا ﴾م�ص : [115النساء]
This means:
“And whoever contradicts and opposes the Messenger (Muhammad SAWS) after the right path has been shown clearly to him, and follows other than the believers' way.
We shall keep him in the path he has chosen, and burn him in Hell - what an
evil destination.”
(Surah An-Nisa’: 115)