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Thursday, 4 June 2015

Is common law derived from sharia law?



My scrappy notes:


qiyaas -

juristic analogy
al takdir - measure/evaluate/ass

al musawat - equivalent - tangible equivalence
   intangible equivalance -

4 the pillars of qiyaas

Fari - new matter - issue

Asl - old matter - in divine text eg 8:60

Hukm - divine rule of asl

Illah - divine reason of the hukm

008.060
YUSUFALI: Against them make ready your strength to the utmost of your power, including steeds of war, to strike terror into (the hearts of) the enemies, of Allah and your enemies, and others besides, whom ye may not know, but whom Allah doth know. Whatever ye shall spend in the cause of Allah, shall be repaid unto you, and ye shall not be treated unjustly.
PICKTHAL: Make ready for them all thou canst of (armed) force and of horses tethered, that thereby ye may dismay the enemy of Allah and your enemy, and others beside them whom ye know not. Allah knoweth them. Whatsoever ye spend in the way of Allah it will be repaid to you in full, and ye will not be wronged.
SHAKIR: And prepare against them what force you can and horses tied at the frontier, to frighten thereby the enemy of Allah and your enemy and others besides them, whom you do not know (but) Allah knows them; and whatever thing you will spend in Allah's way, it will be paid back to you fully and you shall not be dealt with unjustly.

Attributing the divine of the old rule [hukm] to the new matter [asl] because they share the same reason [illah].

Nuclear weapons

the higher analogy - awla - if horses all the more nuclear weaons

062.009
YUSUFALI: O ye who believe! When the call is proclaimed to prayer on Friday (the Day of Assembly), hasten earnestly to the Remembrance of Allah, and leave off business (and traffic): That is best for you if ye but knew!
PICKTHAL: O ye who believe! When the call is heard for the prayer of the day of congregation, haste unto remembrance of Allah and leave your trading. That is better for you if ye did but know.
SHAKIR: O you who believe! when the call is made for prayer on Friday, then hasten to the remembrance of Allah and leave off trading; that is better for you, if you know.

The reason to stop business is because otherwise it would keep you busy from prayer.

equal analogy - the reason applies equally to the root and the branch

lower analogy -

apparent qiyaas
hidden qiyaas

SHURUT AL ASL - conditions for old matter
4 types of illah

explicit
indicated
derived
by analogy

Precedent and Analogy in Legal Reasoning

Did English law come from qiyas or did qiyas come from English law?

The Islamic Empire was clearly more advanced than England before it declined.

http://www.thelatinlibrary.com/imperialism/notes/islamchron.html

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