Justice: The Judge And The Court 2

This is another article in the chapter Justice from the classical manual on Sharia called Reliance of the Traveller. The articles are posted one by one in the order they are given in the book.

(III) Types of analogical reasoning (qiyas) include:

( 1) making an a fortiori analogy between acts p and q, where if p takes a ruling, q is even likelier to take the same ruling. For example, if saying “eff!” to one’s parents is unlawful (n: as at Koran 17:23), one may analogically infer that beating them must also be unlawful;

(2) making an analogy between acts p and q, where if p takes a ruling, one may infer that q is equally likely to take the same ruling. For example, if it is unlawful to wrongfully consume an orphan’s property, then it must also be unlawful to destroy his property by burning it up;

(3) and making an analogy between acts p and q, where if p takes a ruling, one may infer that it is likely, though less certain, that q takes the same ruling (A: because of a common feature in the two acts which functions as the basis (‘illa) for the analogy). For example, if usurious gain (rib a) is unlawful in selling wheat (dis: k3.1), then it is also unlawful in selling apples, the basis for the analogy being that both are food.

The meaning of knowledge of the above matters is (A: for a judge) to know part of what is connected with the Koran, sunna (A: i.e. hadith), and analogy, not complete knowledge .of the Book .of Allah, total familiarity with the rules of the sunna, .or comprehensive mastery .of the rules of analogical reasoning. but rather that which is pertinent to giving judgements in court (A: though an absolute expert in Islamic legal reasoning (mujtahid mutlaq) such as Abu Hanifa, Malik, Shafi’i, .or Ahmad, is .obliged to know what relates to every subject matter in Sacred Law). He must know the reliability ratings of hadith narrators in strength and weakness. When two primary texts seem to contend, he gives precedence to:

(1) those of particular applicability (khass) .over those of general applicability (“amm);

(2) those that take restrictions (muqayyad) .over those that do not (mutlaq);

(3) those which unequivocally settle a particular question (nass) .over those of merely probabilistic legal significance (zahir);

(4) those which are literal (muhkam) .over those which are figurative (mutashabih);

(5) and those which supersede previous rulings, those with a contiguous channel .of transmission, and those with a well-authenticated channel .of transmission, .over their respective .opposites.

He must also have knowledge .of the Arabic language. its lexicon. grammar. word morphology and rhetoric.

He must likewise know the positions .of the scholars .of Sacred Law regarding their consensus and differences, and not contradict their consensus (A: which is unlawful (dis: b7 .2)) with his .own reasoning.

If no one possesses the above-mentioned qualifications, and a strong ruler appoints an unfit Muslim to the bench, such as some.one who is immoral, .or who (A: is incapable of independent legal reasoning (ijtihad) and) merely follows .other qualified scholars (taqlid), .or a child, .or a woman, then the appointee’s decisions are implemented because .of necessity, so as not to vitiate people’s concerns and interests (A: and this is what exists in .our day, when the conditions for an Islamic judge are seldom met with));

(e) sound hearing;

(f) sound eyesight;

(g) and the faculty of speech.

(0: The author did not mention the necessary condition of being a Muslim, evidently feeling that uprightness ( (c) above) was sufficient to imply it.)


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