FORMULASI RECHTSVINDING DENGAN PENALARAN ANALOGIS DALAM EPISTEMOLOGI HUKUM ISLAM (Telaah Metodologis Qiyas sebagai Ra’y terhadap Mashâdir al-Ahkâm asy-Syar’iyyah)

Abstract

Qiyas is one of the methods of legal discovery in the epistemology of Islamic law that can be applied in describing contemporary cases with analogical forms of reasoning. This paper aims to describe qiyas as a method of legal discovery. This type of research is normative legal research with a conceptual approach. The results of the discussion showed that the discovery of the law through qiyas is built on four elements that become the pattern of the formation of the law, namely ashl, far ', hukm al-ashl and ' illat. The law can be found when there is a common legal motive ('illat) between a legal case that has no direct provision in the nash (far') and a legal case that has been established in nash (ashl). In the process of qiyas application there is also a search for legal motives (masâlik al-'illat), because there is 'illat listed in nash ('illat manshushah) and which is not listed in the nash/results istinbath ('illat mustanbathah). Qiyas in the study of conventional legal theory methodologically has the same pattern of legal discovery as argumentum per analogium which is part of the legal construction method.