Al-Shāfi’ī’s position on analogical reasoning in Islamic criminal law: Jurists debates and human rights implications
Al-Sha¯fi’ı¯ (d. 204/820) has been unreservedly credited as one of the designers, if not the “master architect,” of uṣūl al-fiqh (Principles of Islamic jurisprudence). His most important scholarly work, Al-Risa¯lah (The Epistle), clearly demonstrates his cognitive creativity in this field. One of...
| Summary: | Al-Sha¯fi’ı¯ (d. 204/820) has been unreservedly credited as one of the
designers, if not the “master architect,” of uṣūl al-fiqh (Principles of Islamic
jurisprudence). His most important scholarly work, Al-Risa¯lah (The Epistle), clearly
demonstrates his cognitive creativity in this field. One of the methodologies for the
decision of cases under Islamic law that Al-Sha¯fi’ı¯ championed is qiyās (analogical
reasoning), which he equated with ijtihād (legal reasoning). His balanced approach
invites further enquiry into the extensive use of qiyās in general and in criminal law
in particular. The extent to which qiyās can be applied to Islamic criminal law
depends upon the degree or typology of qiyās being used, taking into account the
Islamic theory of criminology. This article will analyse the position of al-Sha¯fi’ı¯ in
this regard. It will critically examine al-Sha¯fi’ı¯’s complex views on the use of qiyās
as a method for establishing culpability under Islamic criminal law. It will then
explore how his position corresponds to the human rights paradigm in the contemporary
age. This article concludes that, while the use of qiyās in criminal law,
especially in law of retaliation (qiṣāṣ) and predetermined punishments (ḥudūd) in
accordance with al-Sha¯fi’ı¯’s approach is tantamount to incriminating a person based
on less than certainty (yaqīn), it also represents the most promising way of protecting
the right of victim. |
|---|