Islamic Jurisprudence

Tutorial Seminar THREE

Topic: Sources of Islamic Law- Ijma and Qiyas
Time: One hour
Tutor: Dr Anowar Zahid
1. What are the essential requirements that ijma must fulfill to be accepted as a valid source
of law?
-plurality of qualified mutjahidun
-total unamity
-ijma must be expressed
-ijma must have a sanad basis in the quran or Sunnah
2. Prophet Muhammad (peace be upon him) said, The murderer will not inherit. What is
the illah behind this hukm? Can we apply this illah to a case where the son killed his
father who bequeathed a property in his favour?.
Yes. The illah is that it is unfair for a murderer to inherit when he had been the reason the
person is dead. He is hastening the benefit prioer to its appointed time through a criminal
act or unjustified enrichment. This hukm can be extended through qiyas to a a legatee
whose murdered the testator, who has bequeathed his property to the legatee in his will.
[extra] 3.There is a hadith: A believer is a brother to his believer, therefore, it is not
permitted for a believer to make a proposal (for marriage) where the proposal of his
brother is still pending, or to make an offer of sale where his brothers offer is pending
The underlying cause or illah is causing harm to anothers interest. The proscription can
be extended to the hiring of services or property through analogy. 4.Indulging in sale
when the call for the Friday prayer is made is prohibited by the text of the Quran. The
underlying cause is reducing the incentive to offer the Friday prayer. This hukm can be
extended to other contracts like pledging or marriage that may have been planned at such
a time.
3. What conditions must a hukm fulfill to be extended to a new case? Do not go near salah
(prayer) while you are drunk (Quran 4:43) - can this hukm be applied to a new case?
HUKUM MUST BE
-operative
Rational
Not debatable
Not exceptional
And not exception to the general rule of qiyas
do not go near salah (prayer) while you are drunk
This cannot be applicable to a new case. There is new verses which totally prohibited the
consumption of alcohol

4. What conditions must a new case (far) satisfy to be considered for qiyas? Can you extend
the wine hukm of Shariah to a drug that does not intoxicate, but causes lapses of
memory? Support your view with reasons.
New case must not be covered by quran and Sunnah
Cannot because the illah is not the same. A wine intoxicate but a drug only causes lapse
of memory.
5. Remarriage of any Muslim widow is prohibited on the ground that the Prophets widows
were not remarriageable. Is this fatwa valid? Give reasons.
No. only the prophets widows cannot be married. This is because they are the mother of
believers. But this does not extend to remarriage of any muslim widow. This is an
exceptional hukm.