Qiyas (Analogical Deduction)
Qiyas
(Analogical Deduction)
Introduction
Qiyas is placed
on first secondary sources of Islamic Law, based on rationality. The rational
sources are techniques of legal reasoning that the Mujtahid employs during his
Ijtihad. The extension of material sources i.e. Quran, Sunnah and Ijma to a new
case is known as Qiyas.
Meaning
a) Literal
Literally,
qiyas means measuring or ascertaining the length, weight, or quality of
something. Qiyas also means comparison, with a view to equality or close
similarity between two things so that one of which is taken as the criterion
for evaluating the other.
b) Technical
Technically,
qiyas is the extension of a Shari'ah value from an original case, or asl, to a
new case.
Condition precedent
A
recourse to analogy is only warranted if the solution of a new case cannot be
found in the Qur'an, the Sunnah or a definite ijma.
Qiyas as Interpretation or legislating
Analogical
deduction is different from interpretation in that the former is primarily
concerned with the extension of the rationale, it is thus a step beyond the
scope of interpretation. And since it is essentially an extension of the
existing law, the jurists do not admit that extending the law by the process of
analogy amounts to establishing a new law. Qiyas is a means of discovering, and
perhaps of developing, the existing law.
The
main sphere of qiyas is the identification of common Illah, which once
identified then extended to a new case.
Elements of Qiyas
a) Definition
“The
majority of ulema have defined qiyas as the application to a new case (far'),
on which the law is silent, of the ruling (hukm) of an original case (asl)
because of the effective cause ('illah) which is in common to both”.
b) Essentials
The
essential requirements of qiyas which are indicated in these definitions are as
follows:
I.
The original
case, or asl, on which a ruling is given in the text and which analogy seeks to
extend to a new case.
II.
The rule (hukm)
governing the original case which is to be extended to the new case.
III.
The new case
(far) on which a ruling is wanting.
IV.
The effective
cause (illah) which is an attribute of the asl and is found to be in common
between the original and the new case.
The
example of the Qur'an (al-Ma'idah, 5:90), which explicitly forbids wine
drinking. If this prohibition is to be extended by analogy to narcotic drugs,
the four pillars of analogy in this example would be:
|
asl
|
far
|
Illah
|
Hukm
|
|
wine drinking
|
taking drugs
|
the intoxicating effect
|
Prohibition
|
(i) The Original Case (Asl)
Asl
has two meanings. Firstly, it refers to the source, i.e. the Qur'an or the
Sunnah, the second meaning is the subject-matter. However it is used to imply
the source as well as the original case.
A. Ijma as Asl
According
to the majority of jurists, qiyas may also be founded on a rule that is
established by ijma but to some extent there is disagreement as to whether ijma
constitutes a valid asl for qiyas, because ijma does not always explain its own
justification or rationale so it is difficult to construct an analogy.
B. Qiyas as Asl
According
to the majority of ulema, one qiyas may not constitute the asl of another
qiyas. This is because the effective cause on which the second analogy is
founded. If this is identical with the original illah, then the whole exercise
would be superfluous. But according to Hanbali’s it is possible as the Far of
the second Qiyas becomes an independent Asl from which a different Illah may be
deducted.
(ii) The Hukm
A
hukm is a ruling, such as a command or a prohibition, dispensed by the Qur'an,
the Sunnah or ijma.
The
hukm must fulfill the following conditions;
·
It must be a
practical shari ruling.
·
The hukm must
be operative.
·
The hukm must
be rational.
·
The illah must
be clearly given in the text, e.g. prohibition of gambling.
·
The hukm must
not be confined to an exceptional situation, e.g. prohibition in regard to
marriage widows of Prophet.
(iii) The New Case (Far)
The far
is an incident or a case whose ruling is sought by recourse to analogy. The
far` must fulfill the following three conditions;
·
The new case
must not be covered by the text or ijma.
·
The effective
cause must be applicable to the new case.
·
The application
of qiyas to a new case must not result in altering the law of the text,
otherwise qiyas will be ultra vires.
(iv) The Effective Cause (Illah)
Illah
is an attribute of the asl which is constant and evident and bears a proper
relationship to the law of the text (hukm). It may be a fact, circumstances or
consideration. Following are the conditions for Illah;
·
Illah must be a
constant attribute applicable to all cases.
·
The effective
cause on which analogy is based must also be evident (zahir).
·
Illah is that
it must be a proper attribute e.g. wine is prohibited not because of its colour
or taste but because it is an intoxicant.
·
Illah must be
“transient” that is, an objective quality which is transferable to other cases.
·
And finally,
the effective cause must not be an attribute which runs counter to, or seeks to
alter, the law of the text.
A.
Identification
of the Illah
The effective
cause of a ruling may be clearly stated, or suggested by indications in the
nass. E.g. in the Qur'anic text (al-Ma'idah 5:38);
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“As
to the thieves, male and female, cut off their hands”. Theft itself is the
cause of the punishment.
Examples of Qiyas
a) In Quran
The
Quran (al-Jumuah, 62:9);
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“O you who believe (Muslims)! When the call is proclaimed for the
Salât (prayer) on Friday come to the remembrance of Allâh and leave off
business that is better for you if you did but know”.
It
forbids selling or buying goods after the last call for Friday prayer until the
end of the prayer. By analogy this prohibition is extended to all kinds of
transactions, as the effective cause, diversion from prayer, is common to all.
b) In Hadith
The
Prophet is reported to have said, “The killer shall not inherit [from his
victim]”. By analogy this ruling is extended to bequests as well.
Varieties of Qiyas
a) Shafi’s division
From
the viewpoint of the strength or weakness of the illah, the Shafi'i jurists
have divided qiyas into following three types;
(i) Analogy of the Superior (qiyas al-awla)
The
effective cause in this qiyas is more evident in the new case than the original
case, e.g. sura al-Isra' (17:23) which provides regarding parents;
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“Say
not to them uff nor repel them, but address them in dignified terms”.
By
analogy it may be deduced that the prohibition against lashing or beating them
is even more obvious than verbal abuse.
(ii) Analogy of Equals (qiyas al-musawi)
The
'illah in this type of qiyas is equally effective in both the new and the
original cases. E.g. Qur'an (al-Nisa', 4:2) which forbids “devouring the
property of orphans”. By analogy, it is concluded that all other forms of
destruction and mismanagement of such property is forbidden.
(iii) Analogy of the Inferior (qiyas al-adna)
The
effective cause in this form of qiyas is less clearly effective in the new case
than the original case. E.g. the rules of riba, prohibit the exchange of wheat
and of other specified commodities unless the two amounts are equal and
delivery is immediate. By analogy this rule is extended to apples, but illah is
weaker in regard to apples which, are not a staple food.
b) Hanafi’s division
Qiyas
has been further divided into two types, namely obvious analogy (qiyas jali)
and hidden
analogy (qiyas
khafi). This is mainly a Hanafi division.
(i) Obvious analogy (qiyas jali)
Here
the equation between the asl and far is obvious and the discrepancy between
them is removed by clear evidence. The jurist does not have to ponder too much
over the attributes of the Illah.
(ii) Hidden analogy (qiyas khafi)
The
removal of discrepancy between the asl and the far is by means of a probability
(zann). Here the Illah is less apparent and the jurist has to expend
considerable efforts to discover it. This is also known as Istihsan, in Islamic
Jurisprudence.
Arguments For and Against Qiyas
a) Arguments for Qiyas (Proof of Qiyas)
(i) In Quran
The
ulema of the four Sunni schools and the Zaydi Shi'ah have validated qiyas. A
reference is made to sura al-Nisa (4:59) which reads, in an address to the
believers:
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“Should
you dispute over something, refer it to God and to the Messenger, if you do
believe in God”.
The
proponents of qiyas have reasoned that a dispute can only upon following the
signs and indications in the Qur'an and Sunnah, which is Qiyas.
The
Qur'an often indicates the rationale of its Laws, i.e. the rationale of
retaliation, is to protect life, stated in the text (al- Baqarah. 2:179);
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“And there is (a saving of) life for you in Al-Qisâs (the
Law of Equality in punishment), O men of understanding, that you may become
Al-Muttaqûn” (179).
(ii) In Sunnah
The
Qiyas is expressly validated in the Hadith of Mu`adh b. Jabal.
It
is reported that the Prophet asked Mu`adh upon the latter's departure as judge
to the Yemen, questions in answer to which Mu`adh told the Prophet that he
would resort to his own ijtihad in the event that he failed to find guidance in
the Qur'an and the Sunnah, and the Prophet was pleased with this reply.
It is also reported that;
Umar b. al-Khattab asked the Prophet whether kissing vitiates the
fast during Ramadan. The Prophet asked him in return: `What if you gargle with
water while fasting?' ‘Umar replied that this did not matter. The Prophet then
told him that `the answer to your first question is the same'.
b) Arguments against Qiyas
The leading
Zahiri jurist, Ibn Hazm, is the most outspoken against qiyas. He mainly argue
that;
·
The rules of
the Shari'ah are in form of command, prohibition, and permissibility, which are
determined by the clear authority of the Qur'an, the Sunnah, or ijma', in whose
absence the matter would automatically fall under mubah, thus no room for
analogy.
·
He quote the
Ayat; 'We have neglected nothing in the Book' (al-An'am, 6:89) and proceed that
to consider qiyas as an additional proof would be tantamount that Qur'an fails
to provide complete guidance.
·
Qiyas based on
Illah, and if Illah is indicated in the text, then qiyas is redundant.
Concluding
the topic, to quote Imam Abu Hanifa, “all nusus of Sharia are rational and
their causes can be ascertained except of Ibadat”. And Qiyas is based on
rationality so considers as proper, rational source of Islamic Law.
Very well written. Jaza kum Allah O Khair.
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