CHAPTER IX Qiyas (ANALOGICAL DEDUCTION)

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Q’iyas:

Literal meaning:

-a device used to measure or ascertain the length, weight, or quality of an object. : example—qassat al-thaub bi’l-dhira means the cloth was measured by the yard stick.-a comparison with a view of suggesting equality or similarity between two things, one of which is taken as the criterion for evaluating the other.: example—Zayd yuqas ila Khalid fi aqlihi wa nasabih means Zayd compares with Khalid in intelligence and descent.Technical meaning:

-extension of Shari’ah value from the original case (asl) to a new case because the latter has similar effective cause as the former.

Qiyas is a means of discovering, and perhaps of developing, the existing law. It is basically designed to ensure conformity with the letter and the spirit of the Qur’an and the Sunnah.

Qiyas is admittedly a rationalist doctrine but one in which the use of personal opinion (ra’y) is subservient to the terms of the divine revelation.

Qiyas can not be used as a means of altering the law of the text on grounds of either expediency of personal preference.

The majority of the ulema have define Qiyas as the application to a new case (far), on which the law is silent, the ruling (hukm) of an original case (asl) because of the effective cause (illah) which is common to both.

Notes:

1. The original case regulated by a given text & q’iyas aims to extend the same textual ruling to the new case.

2. The application of q’iyas is justified by virtue of the commonality of the effective cause (illah) between the original & the new case.

3. If the solution to a new case cannot be found in the Qu’ran, the Sunnah, or the definite ijma, then recourse to analogy is necessary. This is so because it would be useless to use q’iyas if the new case can be resolved under a ruling of an existing law. Thus, only in cases not covered by ijma & nusus that the law may be deducted from any of the sources by applying the analogical reasoning.

-can also means a general principle if it is used within the fugala. So, it is common to see that one ruling is different from an established analogy or to a general principle of law without any reference to analogy.

ANALOGICAL DEDUCTION is DIFFERENT from INTERPRETATION in the

FOLLOWING CONCEPTS:

1. Analogical deduction is concerned with the extension of the rationale of a given text to cases which may not fall within the terms of its language.

2. The emphasis in Qiyas is placed on the identification of a common cause between two cases which is not indicated in the language of the text.

THEORIES of the JURISTS

1. Jurists do not admit that extending the law through analogy is tantamount to creating a new law because Qiyas is only an extension of an existing law. Thus, Qiyas is a means of discovering and developing the existing law.

2. Basically designed to ensure conformity with the letter and the spirit of the Q’uran and the Sunnah, although Qiyas offers considerable potential for enrichment & creativity. Thus, Qiyas is more justified to be called as a proof (hujjah) or evidence (dalil) which aims to ensure consistency between revelation & reason in the development of Shari’ah.

3. Qiyas is a rationalistic doctrine but which the use of personal opinion (ra’y) is submissive to the term of the divine revelation.

Note: The identification of a common ‘illah’ between the original & the new case is the main sphere for the use of human judgment in qiyas.

One variety of Qiyas is where illah of qiyas is identified in the text,

qiyas in general can never rank as high an authority as the nass or a definite ijma.

EXAMPLES of METHODOLOGY of QIYAS

1. Qur’an forbids selling or buying goods after the last call for Friday prayer until the end of the prayers. By analogy, this prohibition extends to all kinds of transactions since the effective cause, ie, the diversion from prayer is common to all.

2. The prophet reported to have said that “the killer shall not inherit (from his victim). By analogy, this ruling extends to bequests, which means the killer cannot benefit from the will of his victim either.

3. It is forbidden for a man to make an offer of betrothal to a woman who is already betrothed to another man unless the latter permits it or has totally abandoned his offer.

Note: The illah is to avoid conflict and hostility among people. By analogy, the rule extends to all other transactions in which the same illah is found to be operative.

ESSENTIAL REQUIREMENTS of QIYAS

1. The original case (asl) seeks to extend to a new case.

Conditions pertainig to the original case (asl):

a. In the prohibition of wine, the asl is both the Qur’an which is the source, and wine which is the original case or the subject-matter of the prohibition.

b. One qiyas may not constitute the asl of the another qiyas. (this is in reference to the effective cause on which the second analogy is founded.)

c. One qiyas may be founded on another qiyas (based on the belief that it the qiyas has in it the seeds of enrichment and resourcefulness.)

d. Ijma does not always explain its own justification or rationale because in the absence of information, it is difficult to construct an analogy.

e. The illah may at times be specified in the sources but when it is otherwise, it is for the mujtahid to identify it in light of the objectives of the lawgiver.

2. The new case (far) on which a ruling is lacking.

Far—an incident in which ruling is sought to be deduced by recourse to analogy. To fulfill, the following conditions must be met:

a. The new case must not be covered by the text or ijma.

b. The effective cause of analogy must be applicable to the new case in the same way as to the original case.

c. The application of qiyas to a new case must not result in altering the law of the text, for it would mean overruling the text by means of qiyas, which is ultra vires.

3. The effective cause (illah) which is an attribute (wasf) of the asl and is found to be in common between the original and the new case. (This is also the most important requirement.)

Conditions:

a. The illah must be a consistent attribute which is applicable to all cases without being affected by the differences of persons, time, place, and circumstances.

b. The effective cause on which analogy is based must also be evident.

c. It must be proper attribute in that it bears a proper and reasonable relationship to the law of the text.

d. The illah must be transient, ie, an objective quality which is transferrable to other cases.

e. The effective cause must not be an attribute which runs counter to, or seeks to alter, the law of the text.

4. The rule (hukm) governing the original case which extends to the new case.

Example: The Qur’an prohibits wine drinking. By analogy, this prohibition extends to narcotic drugs and there shall be four pillars of analogy on this:

a. Asl—wine drinking

b. Far—taking drugs

c. Illah—the intoxicating effects

d. Hukm—prohibition

Conditions: (hukm: ruling)

a. It must be a practical shari ah ruling.

b. The Hukm is operative

c. Hukm must be rationale in the sense that human intellect is capable of understanding the reason or the cause of its enactment, or that the illah is given in the text itself.

d. The Hukm must not be confined to an exceptional situation or to a particular state of facts.

e. The law of the text must not represent a departure from the general rules of qiyas in the first place.

IDENTIFICATION of ILLAH

A. The illah may be identified in the text

Example: The text in al-Nisa 4:43 which says: “O, you believers! Do not approach salah while you are drunk.”

B. The illah may be a manifest nass

Example: The text in al-Maidah 5:38 which says: “as to the thieves, male and female so you cut of their hands.”

C. The text of a Hadith may allude to the illah of its ruling.

D. The illah may be identified in ijtihad.

Example: The hadith concerning the penance of conjugal relations during daytime in Ramadan is not precisely known whether the illah of the penance is the breaking of the fast or sexual intercourse.

VARIETIES of QIYAS

The Shafii jurists divided qiyas into three types:

1. Analogy of superior—the effective cause is more evident in the new case than the original case.

Example: as-Isra 17:23—“say not to them uff nor repel them but address them in dignified terms.”

2. Analogy of equals—the illah in this qiyas is equally effective in both the new and the original case, and so is the ruling which is deduced by analogy.

Example: al-Nisa 4:2—forbids devouring the property of the orphans. By analogy, it is concluded that all other forms of

destruction and mismanagement which lead to the loss of such property are equally forbidden.

3. Analogy of the inferior.—the effective cause is less clearly effective in the new case than the original case.

Example: 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 extends to apples since both wheat and apples are edible and measurable jurists.

QUIYAS IS further DIVIDED INTO TWO MORE TYPES (Hanafi division):

A. OBVIOUS ANALOGY (qiyas jalli) –the equation between the asl and far is obvious and the discrepancy between them is removed by clear evidence.

Example: equation drawn by ulema between the male and the female slave in regards to the rules of manumission. So that, if two persons jointly own a slave and one of them sets the slave free to the extent of his own share, it is the duty of the Imam to pay the other part-owner his share and release the slave.

B. HIDDEN ANALOGY (qiyas khafi) –the removal of discrepancy between the asl and the far is through probability (zann).

Example: in reference to the two varieties of wine namely, nabidh and khamr. Nabidh is derived from dates, while khamr is obtained from grapes.

The rule of prohibition extends to nabidh despite some discrepancy that might exist between the two.

PROOF (Hujjiyyah) of QIYAS

The proofs of qiyas are found on Qur’anic passages:

1. Al-Nisa 4:59—“should you dispute over something, refer it to God and to the messenger, if you do believe in God.”

2. Al-Nisa 4:105—“we have sent to you the Book with the Truth so tht you may judge among people by means of what God has shown you.”

3. The rationale of retaliation, ie, to protect life (al-Baqarah 2:79)

4. The rationale of zakah, ie, to prevent the concentration of wealth in a few hands (al-Hashr 59:7)

5. The permissibility of tayammum (ablution with sand in the absence of water) that “God does not intend to impose hardship on you” (al-Ma’idah 5:6)

6. Al-Hashr 59”2—“consider, O you possesors of eyes.”

TWO TYPES of INDICATION in the SUNNAH that the PROPONENTS of QIYAS have referred to:

1. Qiyas is a form of ijtihad which is expressly validated in the Hadith of Muadh b. Jabal

2. The Sunnah provides evidence that the prophet resorted to analogical reasoning on occasions when he did not receive a revelation on a particular matter.

Example: A woman came to the prophet to ask whether her own hajj will benefit her father who died without performing the same. The prophet replied with a question asking whether debt paid on behalf of her father would benefit him. The woman answered yes, to which the prophet affirmed saying : “The debt owed to God merits even greater consideration.”

ARGUMENTS against QIYAS

-Four Arguments by the Zahiri School

1. The rules of Shari’ah are conveyed in the form of commands and prohibitions.

Varieties of mubah:

a. recommended (mandub)

b. permissible (mubah)

Three types of ahkam:

a. Command

b. Prohibition

c. Permissibility

Notes: a and b are determined by clear authority of Qur’an, the Sunnah or ijma. There is no room for analogy in the determination of the ahkam.

2. The supporters of analogy proceed on the assumption that the Shari’ah fails to provide a nass for every matter, an assumption which is contrary to the explicit provisions of the Qur’an.

3. Qiyas derives its justification from an illah which is common to both the original case and the new case.

4. Qiyas is forbidden in the Qur’an (al-Hujarat 49:1—“O you believers! Do not press forward before God and His Messenger, and fear God…”

Note: The argument is based on two points—one is that the nusus of Qur’an and Sunnah provide for all events, and two is that qiyas is an unnecessary addition to nusus.

QIYAS in PENALTIES

Qiyas is applicable to hudud and kaffarat in the same way as it is to other rules of Shari’ah.

Example:

1. (hudud) the application of the punishment of theft to the nabbash, or who steals the shroud of the deas, as the common illah between them is taking away the property of another without his knowledge.

Note: The Hanafis agree that qiyas may validly operate in regards to ta zir

penalties, but disagreed to the application of qiyas in the prescribed penalties and kaffarat.

Example: The Hanafis do not approve the analogy between abusive words and false accusation, nor would they extend the hadd of zina by analogy to other sexual offences, because these crimes may be penalized under ta zir but not by analogy to the hudud.

2. (kaffarat) the application of qiyas in regards to kaffarat: the analogy between the two forms of breaking the fast—which are by having a sexual intercourse and eating during daytime in Ramadan—extends the kaffarah of the latter to the former.

3. Validated analogy between deliberate killing and erroneous homicide for purposes of kaffarah. (The Qur’an prescribes only a kaffarah for erroneous killing and such is extended by analogy to deliberate homicide.

Note: Although the jurists disagreed on the application of qiyas in penalties, it shall be noted that the ulema have on the whole discouraged recourse of qiyas in the field of criminal law.

CONFLICT between NASS and QIYAS

Two approaches (views) in resolving conflict between Nass and Qiyas:

1. According to Imam Shafi’i, Ahmad b. Hanbal, and one view which is attributed to Abu Hanifah, whenever there is nass on a matter of qiyas is absolutely redundant. Qiyas is only applicable when no explicit ruling could be found in the sources. Since recourse to qiyas in the presence of nass is ultra vires in the first place. The question of a conflict arising between the nass and qiyas is of no relevance.

2. (Malikis) Analogy could come into conflict with the Amm of the Qur’an and the solitary Hadith. It precludes the possibility of a conflict between qiyas and a clear text, but does not dismiss the possibility of a conflict arising between a speculative text and qiyas.

Other views which deserves attention:

Four types of qiyas:

1. Qiyas founded on a decisive nass, ie, when the original case and the effective cause are both stated in the nass. (This takes priority over the solitary Hadith.)

2. Qiyas founded on speculative evidence, ie, the asl is a speculative text and the illah is determined through logical education (istinbat). (This qiyas is inferior to solitary hadith and the latter takes priority over it.)

3. Qiyas in which both the asl and illah are founded on speculative nusus. In such a case, it is no more than a speculative form of evidence and should it conflict with a solitary hadith, the latter takes priority.

4. Qiyas in which the illah is determined through istinbat but whose asl is a clear text of the Qur’an or Mutawatir Hadith.