not a proof on its own, Imam Malik held that it is. There is some disagreement among the disciples of
Malik as to the interpretation of the views of their Imam. Some of these disciples have observed that
Imam Malik had only meant that the ijma` of the people of Madinah is a proof 'from the viewpoint of
narration and factual reporting' (min jihah al-naql wa'l-riwayah) as they were closest to the sources of
the Shari'ah. Other Maliki jurists have held that Malik only meant the Madinese ijma' to be preferable
but not exclusive. There are still others who say that Malik had in mind the ijma' of the Companions
alone. The proponents of the Madinese
ijma` sought to substantiate their views
with ahadith which include the following: 'Madinah is sacred, and throws out its dross as fire casts out
the dross of metal,' and 'Islam will cling to Madinah as a serpent clings to its hole.'
[69. Bukhari, Sahih (Istanbul
edn.), II, 221; Muslim, Sahih, p.17, Hadith no.38; Amidi, Ihkam, I, 243. Ibn Hazm discusses ijma' ahl al-Madinah in some length, but cites none of the ahadith that
are quoted by Amidi and others. He merely points out that some of the ahadith which are quoted in support of the Maliki doctrine are authentic (sahih), while
others are mere fabrications (makdhub/ mawdu`) reported by one 'Muhammad ibn Hasan ibn Zabalah' (Ihkam IV, 154-155)]
The majority of jurists, however, maintain that these ahadith merely speak of the dignity of Madinah
and its people. Even if the ahadith are taken to rule out the presence of impurity in Madinah, they do
not mean that the rest of the ummah is impure, and even less that the Madinese ijma' alone is
authoritative. Had the sacred character of a place been a valid criterion, then one might say that the
consensus of the people of Mecca would command even greater authority, as Mecca is the most
virtuous of cities (afdal al-bilad) according to the nass of the Qur'an. Furthermore, knowledge and
competence in ijtihad are not confined to any particular place. This is the purport of the Hadith in which
the Prophet said: 'My Companions are like stars. Whomsoever of them that you follow will guide you
to the right path.'
This Hadith pays no attention whatsoever to the place where a Companion might have resided.
Ihkam, I, 243ff.]
To this analysis, Ibn Hazm adds the point that there were, as we learn from the Qur'an,
profligates and transgressors (fussaq wa'l-munafiqun) in Madinah just like other cities. The
Companions were knowledgeable in the teachings of the Prophet wherever they were, within or outside
Madinah, and staying in Madinah by itself did not necessarily enhance their standing in respect of
knowledge, or the ability to carry out ijtihad.
Basis (Sanad) of Ijma`
[71. Ibn Hazm, Ihkam, IV, 155.]
According to the majority if ulema, ijma` must be founded in a textual authority or in ijtihad. Al-Amidi
points out that it is unlikely that the ummah might reach unanimity over something that has no
foundation in the sources.
[72. Amidi, Ihkam, I, 261.]
The ulema are in agreement that ijma `may be based on the
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[70. Amidi,Kamali 173
Qur'an or the Sunnah. There is, however, disagreement as to whether ijma' can be based on a ruling in
the secondary proofs such as qiyas or maslahah.
There are three views on this point, the first of which is that ijma` may not be founded on qiyas, for the
simple reason that qiyas itself is subject to a variety of doubts. Since the authority of qiyas as a proof is
not a subject on which the ulema are in agreement, how then could ijma` be founded on it? It is further
noted that the Companions did not reach a consensus on anything without the authority of the Qur'an or
the Sunnah. In all cases in which the Companion are known to have reached a consensus, at the root of
it there has been some authority in the primary sources.
[73. Abu Zahrah, Usul, pp.165-166.]
The second view is that qiyas in all of its varieties may form the basis of consensus. For qiyas itself
consists of an analogy to the nass. Relying on qiyas is therefore equivalent to relying on the nass, and
when ijma` is based on a qiyas, it relies not on the personal views of the mujtahidun but on the nass of
the Shari'ah.
The third view on this subject is that when the effective cause (`illah) of qiyas is clearly stated in the
nass, or when the 'illah is indisputably obvious, then qiyas may validly form the bases of ijma'. But
when the 'illah of qiyas is hidden and no clear indication to it can be found in the nusus, then it cannot
form a sound foundation for ijma'. Abu Zahrah considers this to be a sound opinion: when the `illah of
qiyas is indicated in the nusus, reliance on qiyas is tantamount to relying on the nass itself.
Usul, pp.165-166.]
Instances could be cited of ijma` which is founded upon analogy. To give an example, a father is
entitled to guardianship over the person and property of his minor child. By ijma' this right is also
established for the grandfather regarding his minor grandchild. This ruling of ijma` is founded upon an
analogy between the father and grandfather. A similar example is given regarding the assignment of
punishment for wine drinking (shurb). This penalty is fixed at eighty lashes, and an ijma' has been
claimed in its support. When the Companions were deliberating the issue, `Ali b. Abi Talib drew an
analogy between shurb and slanderous accusation (qadhf). Since shurb can lead to qadhf, the prescribed
penalty for the latter was, by analogy, assigned to the former. The alleged ijma` on this point has,
however, been disputed in view of the fact that 'Umar b. al-Khattab determined the hadd of shurb at
forty lashes, a position which has been adopted by Ahmad b. Hanbal. To claim an ijma' on this point is
therefore unwarranted.
Transmission of Ijma`
[75 Abu Zahrah, Usul, pp.166, 193.]
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[74. Abu Zahrah,Kamali 174
The issue to be examined here is the nature of the evidence by which the fact that a particular question
has been determined by ijma' may be proved. From this perspective, ijma' is divided into two types,
namely 'acquired' (muhassal) and `transmitted' (manqul). The first is concluded with the direct
participation of the mujtahid without the mediation of reporters or transmitters. The mujtahid thus gains
direct knowledge of the opinions of other mujtahidun when they all reach a consensus on a ruling. But
transmuted ijma' is established by means of reports which may either be solitary (ahad) or conclusive
(mutawatir). In the case of transmission by tawatur there is no problem of proof, and ijma' which is
transmitted by tawatur is proven in the same way as acquired ijma'. But there is disagreement regarding
ijma' which is transmitted by way of solitary reports. Al-Ghazali points out that a solitary report is not
sufficient to prove ijma', although some fuqaha have held otherwise. The reason is that ijma' is a
decisive proof whereas an ahad report amounts to no more than speculative evidence; thus, it cannot
establish ijma' .
[76. Ghazali, Mustasfa, I, 127; Sadr, Ijma', pp. 97-98.]
Al-Amidi explains that a number of the ulema of the Shafi'i, Hanafi and Hanbali schools validate the
proof of ijma' by means of solitary reports whereas another group of Hanafi and Shafi'i ulema do not.
All have nevertheless agreed that anything which is proved by means of a solitary report is speculative
of proof (thubut) even if definitive in respect of content (matn).
[77. Amidi, Ihkam, I, 281.]
Proof by means of tawatur can only be claimed for the ijma` of the Companions; no other ijma' is
known to have been transmitted by tawatur. This is the main reason why the fuqaha have differed in
their views concerning any ijma` other than that of the Companions. A large number of the ulema of
usul have maintained that transmission through solitary reports amounts to speculative evidence only.
When ijma' is based on such evidence, it loses its value and the hukm for which ijma` is claimed must
be referred back to the source from which it was derived in the first place.
Reform Proposals
[78. Abu Zahrah, Usul, pp.167-68.]
The modern critics of ijma' consider that ijma' according to its classical definition fails to relate to the
search for finding solutions to the problems of the community in modern times. Ijma` is hence
retrospective and too slow a process to accommodate the problems of social change. These and other
considerations concerning the relevance of ijma` to social realities have prompted a response from
modern scholars. We have already discussed the view of `Abd al-Wahhab Khallaf in regard to the
feasibility of ijma`. Khallaf, however, was not the first to criticise ijma'.
An early- critique of ijma' was advanced by Shah Wali Allah Dihlawi (d. 1176/1762), who tried to
bring ijma` closer to reality and came out in support of `relativity' in the concept of ijma`. Dihlawi
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Kamali 175
overruled the notion of universal consensus in favour of relative ijma`. Dihlawi is also critical of the
interpretation that is given to the ahadith concerning ijma`. He argues that the Hadith, `My community
shall never agree upon an error' did not envisage ijma` at all. Hence the correct meaning of this Hadith
may be determined in the light of another Hadith which provides that `a section of my community will
continue to remain on the right path [...].' Ijma` in other words does not mean a universal agreement but
only the consensus of a limited number of mujtahidun. With regard to the other ahadith that are quoted
in support of ijma`, Dihlawi maintains that the two principal aims of these ahadith are the political unity
of the ummah, and the integrity of the Shari'ah. The same author maintains that ijma' can be justified on
the bases of all such ahadith that protect the unity and integrity of the community. But he adds that
ijma` has never been meant to consist of the universal agreement of every member of the community
(or of every learned member of the community for that matter), as this is plainly impossible to achieve.
It has neither happened in the past nor could it conceivably happen in the future. Ijma', according to
Shah Wali Allah, is the consensus of the ulema and men of authority in different towns and localities. In
this sense, ijma' can be held anywhere at any time. The ijma' of the Companions during the caliphate of
Umar b. al-Khattab, and the ijma` that was concluded in Mecca and Madinah under the pious caliphs,
are all examples of ijma` in its relative sense.
[79. Shah Wali Allah, Izalah, I, 266.]
Muhammad Iqbal is primarily concerned with the question of how to utilise the potentials of ijma` in
the process of modern statutory legislation. He considers it an important doctrine, but one which has
remained largely theoretical. `It is strange,' Iqbal writes, that this important notion 'rarely assumed the
form of a permanent institution'. He then suggests that the transfer of the power of ijtihad `from
individual representatives of schools to a Muslim legislative assembly [...] is the only possible form
ijma` can take in modern times'.
[80. Iqbal, Reconstruction, pp. 173, 174.]
In such an assembly, the ulema should play a
vital part, but it must also include in its ranks laymen who happen to possess a keen insight into affairs.
Furthermore Iqbal draws a distinction between the two functions of ijma', namely:
Discovering the law and implementing the law. The former function is related to the
question of facts and the latter relates to the question of law. In the former case, as for
instance, when the question arose whether the two small suras known as
'Mu'awwazatain' formed part of the Qur'an or not, and the Companions unanimously
decided that they did, we are bound by their decision, obviously because the
Companions alone were in a position to know the fact. In the latter case, the question is
one of interpretation only, and I venture to think, on the authority of Karkhi, that later
generations are not bound by the decisions of the Companions.
[81. Iqbal, Reconstruction, p.175.
Iqbal goes on to quote the Hanafi jurist Abu'l-Hasan al-Karkhi as saying: 'The Sunnah of the companions is binding in matters which
cannot be cleared up by qiyas, but it is not so in matters which can be established by qiyas'. (No specific reference is given to al-Karkhi's
work.)]
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Kamali 176
It is thus clear that Iqbal retains the binding character of ijma' only insofar as it relates to points of fact,
but not with regard to ijma' that is based on juridical ijtihad. This distinction between the factual and
juridical ijma' will presumably not apply to the ijma` that Iqbal has proposed: the collective decisions of
the legislative assembly will naturally be binding on points of law.
Iqbal's proposed reform has been fairly widely supported by other scholars. It is a basically sound
proposal. But to relate this to the idea of a distinction between the factual and ijtihadi ijma` seems
questionable. Apart from the difficulty that might be involved in distinguishing a factual from a
juridical ijma' one can expect but little support for the view that the ijma` of the Companions on ijtihadi
matters is not binding.
Iqbal's views have, however, been criticised on other grounds. S. M. Yusuf has observed that Iqbal was
mistaken in trying to convert ijma` into a modern legislative institution. Yusuf argues that ijtihad and
ijma' have never been the prerogatives of a political organisation, and any attempt to institutionalise
ijma' is bound to alter the nature of ijma` and defeat its basic purpose. For ijtihad is a non-transferable
right of every competent scholar, and a mujtahid is recognised by the community by virtue of his merits
known over a period of time, not through election campaigns or awards of official certificates. The
process of arriving at ijma` is entirely different from that of legislation in a modern state assembly.
Ijma' passes through a natural process which resembles that of the 'survival of the fittest'. No attempt is
made in this process to silence the opposition or to defeat the minority opinion. Opposition is tolerated
until the truth emerges and prevails. Ijma' is a manifestation of the conscience of the community, and it
is due mainly to the natural strength of ijma' and the absence of rigid organisation 'that no one is able to
lay his hands on Islam; when anyone tries to hammer Islam, he ultimately finds to his chagrin that he
has only been beating in the air'.
[82. Yusuf, Studies, pp. 212-218.]
Ahmad Hasan finds some weaknesses In Yusuf's criticism of Iqbal, and observes that `Dr Yusuf has
probably not understood Iqbal's view correctly.' Hasan finds Iqbal's view to the effect that ijtihad should
be exercised collectively instead of being a preserve of the individual mujtahidun, to be basically sound.
`Ijtihad today cannot be exercised in isolation. Modern conditions demand that it should be exercised
collectively. A mujtahid may be expert in Islamic learnings, but he cannot claim to be perfectly
acquainted with the social conditions of a country and the diverse nature of its problems.
244.]
Ahmad Hasan goes on to point out that the legislative assembly is `the right place' for the purpose
of collective ijtihad, which would in turn provide an effective method of finding solutions to urgent
problems.
[84. Hasan, Doctrine. p. 244.]
The late Shaykh of al-Azhar, Mahmud Shaltut, observes that the conditions of a conclusive ijma`,
especially the one which requires the agreement of all the mujtahidun of the ummah, is no more than a
theoretical proposition which is never expressed in reality. Ijma', in reality, has often meant either the
absence of disagreement (`adam al-ilm bi'l-mukhalif), or the agreement of the majority only (ittifaq al-
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[83. Hasan, Doctrine. p.Kamali 177
kathrah). Both of these are acceptable propositions which may form the basis of general legislation.
Shaltut goes on to quote in support the Qur'anic ayah in sura al-Baqarah (2:286) that `God does not
assign to any soul that which falls beyond its capacity.' Shaltut is not opposed to the institutionalization
of ijma` provided that this does not violate the freedom of opinion which must in all eventualities be
granted to the constituents of ijma`. Consensus must never be subjected to a condition which subjugates
freedom of opinion to the arbitrary exercise of political power. Shaltut further adds that since the
realization of maslahah through consensus is the objective of ijma`, maslahah as bound to vary
according to circumstances of time and place. Hence the mujtahidun who participate in ijma`, and their
successors, should all be able to take into consideration a change of circumstances and it should be
possible for them to review a previous ijma` if this is deemed to be the only way to realize the
maslahah. Should they arrive at a second ijma`, this will nullify and replace the first, and constitute a
binding authority on all members of the community.
Conclusion
[85. Shaltut, Islam, pp. 558-559.]
Under their classical definitions, ijma` and ijtihad were both subject to conditions that virtually drove
them into the realm of utopia. The unreality of these formulations is reflected in modern times in the
experience of Muslim nations and their efforts to reform certain areas of the Shari'ah through the
medium of statutory legislation. The juristic basis for some of the modern reforms introduced in the
areas of marriage and divorce, for example, has been sought through novel interpretations of the
relevant passages of the Qur'an. Some of these reforms may rightly be regarded as instances of ijtihad
in modern times. Yet in none of these instances do the statutory texts or their explanatory memoranda
make an open reference to ijtihad or ijma`. The total absence of these terms in modern statutes is a sad
reflection of the unreality that is encountered in the strict definitions of these concepts. The classical
definitions of ijtihad and ijma` might, at one time, have served the purpose of discouraging excessive
diversity which was felt to be threatening the very existence and integrity of the Shari'ah. But there is
no compelling reason to justify the continued domination of a practice which was designed to bring
ijtihad to a close Ijtihad and ijma' were brought to a standstill, thanks to the extremely difficult
conditions that were imposed on them, conditions which often ran counter to the enterprising and
creative spirit that characterised the period of the pious caliphs and the early imams of jurisprudence.
Dr Yusuf's criticism of Iqbal's proposed reform is based on the dubious assumption that an elected
legislative assembly will not reflect the collective conscience of the community and will unavoidably be
used as an instrument of power politics. Although the cautious advice of this approach may be
persuasive, the assumption behind it goes counter to the spirit of maslahah and of the theory of ijma`
which endows the community with the divine trust of having the capacity and competence to make the
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Kamali 178
right decisions. If one is to observe the basic message of the textual authority in support of the `ismah of
the community, then one must trust the community itself to elect only persons who will honour their
collective conscience and their maslahah. In addition, Dr Yusuf's critique of Iqbal merely suggests that
nothing should he done to relate ijma' to the realities of contemporary life. The critic is content with the
idea of letting ijma` and ijtihad remain beyond the reach of the individuals and societies of today. On
the contrary, the argument for taking a positive approach to ijma` is overwhelming. The gap between
the theory and practice of Shari'ah law has grown to alarming proportions, and any attempt at
prolonging it further will have to be exceedingly persuasive. While the taking of every precaution to
safeguard the authentic spirit and natural strength of ijma` is fully justified, this should not necessarily
mean total inertia. The main issue in institutionalizing ijma`, as Shaltut has rightly assessed, is that
freedom of opinion should be vouchsafed the participants of ijma`. This is the essence of the challenge
which has to be met, not through a laissez-faire attitude toward ijtihad and ijma`, but by nurturing
judicious attitudes and by evolving correct methods and procedures to protect freedom of opinion. The
consensus that is arrived at in this spirit will have kept a great deal, if not all, of the most valuable
features of ijma`.
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Kamali 179
Chapter Nine: Qiyas (Analogical Deduction)
Literally, qiyas means measuring or ascertaining the length, weight, or quality of something, which is
why scales are called miqyas. Thus the Arabic expression, qasat al-thawb bi'l-dhira' means that `the
cloth was measured by the yardstick'.
[1. Amidi, Ihkam, III, 183.]
Qiyas also means comparison, with a view to
suggesting equality or similarity between two things. Thus the expression Zayd yuqas ila Khalid fi
`aqlihi wa nasabih means that `Zayd compares with Khalid in intelligence and descent'.
54.]
Qiyas thus suggests an equality or close similarity between two things, one of which is taken as the
criterion for evaluating the other.
Technically, qiyas is the extension of a Shari'ah value from an original case, or asl, to a new case,
because the latter has the same effective cause as the former. The original case is regulated by a given
text, and qiyas seeks to extend the same textual ruling to the new case.
[3. Shawkani, Irshad, p. 198.]
It is by virtue
of the commonality of the effective cause, or 'illah, between the original case and the new case that the
application of qiyas is justified.
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`. For it would be futile to resort to qiyas if the new case could be resolved
under a ruling of the existing law. It is only in matters which are not covered by the nusus and ijma` that
the law may be deduced from any of these sources through the application of analogical reasoning.
Abdur Rahim, Jurisprudence, p.137.]
In the usage of the fuqaha', the word 'qiyas' is sometimes used to denote a general principle. Thus one
often comes across statements that this or that ruling is contrary to an established analogy, or to a
general principle of the law without any reference to analogy as such.
Analogical deduction is different from interpretation in that the former is primarily concerned with the
extension of the rationale of a given text to cases which may not fall within the terms of its language.
Qiyas is thus a step beyond the scope of interpretation. The emphasis in qiyas is clearly placed on the
identification of a common cause between two cases which is not indicated in the language of the text.
Identifying the effective cause often involves intellectual exertion on the part of the jurist, who
determines it by recourse not only to the semantics of a given text but also to his understanding of the
general objectives of the law.
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
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[2. Ghazali, Mustasfa, II,
[4. Cf.Kamali 180
of developing, the existing law. Although qiyas offers considerable potential for creativity and
enrichment, it is basically designed to ensure conformity with the letter and the spirit of the Qur'an and
the Sunnah. In this sense, it is perhaps less than justified to call qiyas one of the sources (masadir) of
the Shari'ah; it is rather a proof (hujjah) or an evidence (dalil) whose primary aim is to ensure
consistency between revelation and reason in the development of the Shari'ah. Qiyas a admittedly a
rationalist doctrine, but it is one in which the use of personal opinion (ra'y) is subservient to the terms
of the divine revelation. The main sphere for the operation of human judgment in qiyas is the
identification of a common 'illah between the original and the new case. Once the `illah is identified,
the rules of analogy then necessitate that the ruling of the given text be followed without any
interference or change. Qiyas cannot therefore be used as a means of altering the law of the text on
grounds of either expediency or personal preference.
The jurist who resorts to qiyas takes it for granted that the rules of Shari'ah follow certain objectives
(maqasid) which are in harmony with reason. A rational approach to the discovery and identification of
the objectives and intentions of the Lawgiver necessitates recourse to human intellect and judgment in
the evaluation of the ahkam. It is precisely on this ground, namely the propriety or otherwise of
adopting an inquisitive approach to the injunctions of the Lawgiver, referred to as ta'lil, that qiyas has
come under attack by the Mu'tazilah, the Zahiri, the Shi'i and some Hanbali ulema. Since an enquiry
into the causes and objectives of divine injunctions often involves a measure of juristic speculation, the
opponents of qiyas have questioned its essential validity. Their argument is that the law must be based
on certainty, whereas qiyas is largely speculative and superfluous. If the two cases are identical and the
law is clearly laid down in regard to one, there is no case for qiyas, as both will be covered by the same
law. If they are different but bear a similarity to one another, then it is impossible to know whether the
Lawgiver had intended the subsidiary case to be governed by the law of the original case. It is once
again in recognition of this element of uncertainty in qiyas that the ulema of all the juristic schools have
ranked qiyas as a 'speculative evidence'. With the exception, perhaps, of one variety of qiyas, namely
where the 'illah of qiyas is clearly identified in the text, qiyas in general can never be as high an
authority as the nass or a definite ijma', for these are decisive evidences (adillah qat'iyyah), whereas
qiyas in most cases only amounts to a probability. It is, in other words, merely probable, but not certain,
that the result of qiyas is in conformity with the intentions of the lawgiver. The propriety of qiyas is
thus always to be measured by the degree of its proximity and harmony with the nusus. In our
discussion of the methodology of qiyas it will at once become obvious that the whole purpose of this
methodology is to ensure that under no circumstances does analogical deduction operate independently
of the nusus. It would be useful to start by giving a few examples.
1) The Qur'an (al-Jumu'ah, 62:9) 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, since the
effective cause, that is, diversion from prayer, is common to all.
[5. Khallaf, `Ilm, p.52, Abdur Rahim, Jurisprudence, p. 138.]
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Kamali 181
2) The Prophet is reported to have said, 'The killer shall not inherit [from his victim]'
By analogy this ruling is extended to bequests, which would mean that the killer cannot benefit from the
will of his victim either.
[6. Ibn Qayyim, I'lam, II, 242; Khallaf, `Ilm, p.53.]
3) According to a Hadith, 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.
The 'illah of this rule is to obviate conflict and hostility among people. By analogy the same rule is
extended to all other transactions in which the same `illah is found to be operative.
trans. ) II, 556, Hadith no. 2075; Tabrizi, Mishkat, II, 940, Hadith no.3144; Musa, Ahkam, p. 45.]
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.
[8. Amidi, Ihkam, III, 186.]
[7. Abu Dawud Sunan (Hasan's
The Hanafi definition of qiyas is substantially the same, albeit with a
minor addition which is designed to preclude certain varieties of qiyas (such as qiyas al-awla and qiyas
al-musawi, [q.v,]) from the scope of qiyas. The Hanafi jurist, Sadr al-Shari'ah, in his Tawdih, as
translated by Aghnides, defines qiyas as `extending the (Shari'ah) value from the original case over to
the subsidiary (far`) by reason of an effective cause which is common to both cases and cannot be
understood from the expression (concerning the original case) alone.'
Tawdih fi Hall Ghawamid al-Tanqih, p. 444; Aghnides, Muhammedan Theories, p. 49.]
[9. `Ubaydullah ibn Mas'ud Sadr al-Shari'ah, al-
The essential requirements of qiyas which are
indicated in these definitions are as follows:
1) The original case, or asl, on which a ruling is given in the text and which analogy seeks to extend to
a new case.
2) The new case (far`) on which a ruling is wanting.
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.
4) The rule (hukm) governing the original case which is to be extended to the new case.
193) is however of the view that the result of qiyas, that is the ruling which is to be applied to the new case (i.e. hukm al-far`), should not be included in the
essential requirements (arkan) of qiyas. For the hukm is only arrived at the end of the process; it should therefore not be rukn. Isnawi has on the other hand
included the hukm al-far` among the essentials of qiyas. The disagreement is perhaps mainly theoretical as the hukm of the new case is, for all intents and purposes,
identical with the hukm of the original case. Cf. Zuhayr, Usul, IV, 58-59.]
To illustrate these, we might adduce 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:
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[10. Amidi (Ihkam, III,Kamali 182
asl far` `Illah hukm
wine drinking taking drugs the intoxicating effect prohibition
Each of the four essentials (arkan) of analogy must, in turn, qualify a number of other conditions which
are all designed to ensure propriety and accuracy in the application of qiyas. It is to these which we now
turn.
I. Conditions Pertaining to the Original Case (Asl)
Asl has two meanings. Firstly, it refers to the source, such as the Qur'an or the Sunnah, which reveals a
particular ruling. The second meaning of asl is the subject-matter of that ruling. In the foregoing
example of the prohibition of wine in the Qur'an, 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. However, to all intents and
purposes, the two meanings of asl are convergent. We tend to use asl to imply the source as well as the
original case, for the latter constitutes the subject-matter of the former, and the one cannot be separated
from the other.
[11. Shawkani, Irshad, pp.204-205; Abu Zahrah, Usul, p. 180.]
The ulema are in unanimous agreement that the Qur'an and the Sunnah constitute the sources, or the asl,
of qiyas. According to the majority of jurists, qiyas may also be founded on a rule that is established by
ijma` validates guardianship over the property of minors, a rule which has been extended by analogy to
authorise the compulsory guardianship (wilayah al-ijbar) of minors in marriage.
[12. Abu Zahrah, Usul, p. 181.]
There is, however, some disagreement as to whether ijma `constitutes a valid asl for qiyas. Those who
dispute the validity of ijma' as a basis of analogical deduction argue that the rules of consensus do not
require that there should be a basis (sanad) for ijma`. In other words, ijma' does not always explain its
own justification or rationale. In the absence of such information, it is difficult to construct an analogy.
In particular it would be difficult to identify the 'illah, and qiyas cannot be constructed without the
`illah.
[13. Khallaf,`Ilm, p.53, Shawkani, Irshad,p.210.]
But this view is based on the assumption that the `illah of qiyas is
always identified in the sources, which is not the case.
The `illah may at times be specified in the sources, but when this is not so, it is for the mujtahid to
identify it in the light of the objectives (maqasid) of the Lawgiver. The mujtahid, in other words, is
faced with the same task whether he derives the `illah from ijma or from the nusus. Furthermore, the
majority view which validates the founding of analogy on ijma` maintains that consensus itself is a
Principles of Islamic Jurisprudence ~
Kamali 183
basis (sanad) and that the effective cause of a ruling which is based on consensus can be identified
through ijtihad.
[14. Abu Zahrah, Usul, p.128.]
According to the majority of ulema, one qiyas may not constitute the asl of another qiyas. This is
explained in reference to 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. For instance, if it be admitted
that the quality of edibility is the effective cause which world bring an article within the scope of usury
(riba) then it would justify an analogy to be drawn between wheat and rice. But an attempt to draw a
second analogy between rice and edible oil for the purpose of extending the rules of riba to the latter
would be unnecessary, for it would be preferable to draw a direct analogy between wheat and edible oil,
which would eliminate the intermediate analogy with the rice altogether.
p 205.]
[15. Ghazali, Mustasfa, II, 87; Shawkani, Irshad,
However, according to the prominent Maliki jurist, Ibn Rushd (whose views are here representative of
the Maliki school) and some Hanbali ulema, one qiyas may constitute the asl of another: when one
qiyas is founded on another qiyas, the far' of the second becomes an independent asl from which a
different 'illah may be deduced. This process may continue ad infinitum with the only proviso being
that in cases where an analogy can be founded in the Qur'an, recourse may not be had to another
qiyas.
[16. Ibn Rushd, Bidayah, I, 4-5: Abu Zahrah, Usul, p. 183; Nour, `Qiyas', 29.]
But al-Ghazali rejects the proposition of one
qiyas forming the asl of another altogether. He compares this to the work of a person who tries to find
pebbles on the beach that look alike. Finding one that resembles the original, he then throws away the
original and tries to find one similar to the second, and so on. By the time he finds the tenth, it would
not be surprising if it turned out to be totally different from the first in the series. Thus, for al-Ghazali,
qiyas founded on another qiyas is like speculation built upon speculation, and the further it continues
along the line, the more real becomes the possibility of error.
[17. Ghazali, Mustasfa, II, 87.]
Having discussed Ibn Rushd's view at some length, however, Abu Zahrah observes that from a juristic
viewpoint, one has little choice but to agree with it. This is reflected, for example, in modern judicial
practice where court decisions are often based on the analogical extension of the effective cause (i.e.
ratio decidendi) of an existing decision to a new case. The new decision may be based on the rationale
of a previous case but may differ with it in some respect. In this event the new case is likely to
constitute an authority in its own right. When, for example, the Cassation Court (mahkamah al-naqd) in
Egypt approves a judicial ruling, it becomes a point of reference in itself, and an analogy upon it is
made whenever appropriate without further inquiry into its origin. What Abu Zahrah is saying is that
the doctrine of stare decisis, which is partially adopted in some Islamic jurisdictions, takes for granted
the validity of the idea that one qiyas may become the asl of another qiyas.
[18. Cf. Abu Zahrah, Usul, p. 184.]
According to the Syrian jurist Mustafa al-Zarqa, the formula that one qiyas may be founded on another
qiyas has in it the seeds of enrichment and resourcefulness. No unnecessary restrictions should
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Kamali 184
therefore be imposed on qiyas and on its potential contribution to the Shari'ah.
available to me, my knowledge of his views is confined to the extent that he is quoted by Nour, 'Qiyas, 29.]
II. Conditions Pertaining to the Hukm
[19. Since al-Zarqa's work is not
A hukm is a ruling, such as a command or a prohibition, which is dispensed by the Qur'an, the Sunnah
or ijma', and analogy seeks its extension to a new case. In order to constitute the valid basis of an
analogy, the hukm must fulfill the following conditions.
1) It must be a practical shar`i ruling, for qiyas is only operative in regard to practical matters inasmuch
as this is the case with fiqh as a whole. Qiyas can only be attempted when there is a hukm available in
the sources. In the event where no hukm can be found in any of the three sources regarding a case, and
its legality is determined with reference to a general maxim such as original freedom from liability (albara'ah
al-asliyyah),
no hukm
could be said to exist. Original freedom from liability is not regarded as a
hukm
shar`i
and may not therefore form the basis of qiyas.
[20. Shawkani, Irshad, p. 205; Khudari, Usul, p. 295]
2) The hukm must be operative, which means that it has not been abrogated. Similarly, the validity of
hukm which is sought to be extended by analogy must not be the subject of disagreement and
controversy.
[21. Amidi, Ihkam, III, 196-97.]
3) The hukm must be rational in the sense that the human intellect is capable of understanding the
reason or the cause of its enactment, or that the `illah is clearly given in the text itself. For example, the
effective cause of prohibitions such as those issued against gambling and misappropriating the property
of another is easily discernable. But when a hukm cannot be so understood, as in the case of the number
of prostrations in salah, or the quantity of zakah, etc., it may not form the basis of analogical deduction.
Ritual performances, or `ibadat, on the whole, are not the proper subject of qiyas simply because their
effective causes cannot be ascertained by the human intellect. Although the general purpose of `ibadat
is often understandable, this is not sufficient for the purpose of analogy. Since the specific causes (al`ilal
al-juz'iyyah)
of `ibadat
are only known to Almighty God, no analogy can be based upon them.
All the rational ahkam (al-ahkam al-ma`qulah ), that is, laws whose causes are perceivable by human
intellect, constitute the proper basis of qiyas. According to Imam Abu Hanifah, who represents the
majority opinion, all the nusus of Shari'ah are rational and their causes can be ascertained except where
it is indicated that they fall under the rubric of `ibadat. The Zahiris, and 'Uthman al-Batti, a
contemporary of Abu Hanifah have, on the other hand, held that the effective causes of the nusus
cannot be ascertained without an indication in the nusus themselves. This view clearly discourages
Principles of Islamic Jurisprudence ~
Kamali 185
enquiry into the causes of the rules of Shari'ah and advises total conformity to them without any search
for justification or rationale.
[22. Abu Zahrah, Usul, p. 185; Khallaf, 'Ilm, pp. 61-62.]
'We do not deny,' writes Ibn Hazm,
'that God has assigned certain causes to some of His laws, but we say this only when there is a nass to
confirm it.' He then goes on to quote a Hadith of the Prophet to the effect that 'the greatest wrong-doer
in Islam is one who asks about something, which is not forbidden, and it is then forbidden because of
his questioning'.
Ibn Hazm continues: we firmly deny that all the ahkam of Shari'ah can be explained and rationalised in
terms of causes. Almighty God enacts a law as He wills. The question of `how and why' does not and
must not be applied to His will. Hence it is improper for anyone to enquire, in the absence of a clear
text, into the causes of divine laws. Anyone who poses questions and searches for the causes of God's
injunctions 'defies Almighty God and commits a transgression'.
423, Hadith no, 1599.]
[23. Ibn Hazm, Ihkam, VIII, 102; Muslim, Sahih Muslim, I,
For he would be acting contrary to the purport of the Qur'an where God describes
Himself, saying, 'He cannot be questioned for His acts, but they will be questioned for theirs' (alAnbiya',
21:21). It is thus known, Ibn Hazm concludes, that causes of any kind are nullified from the
acts
and words of God. For justification and ta'lil
is the work of one who is weak and compelled
(mudtarr),
and God is above all this.
[24. Ibn Hazm, Ihkam, VIII, 103.]
The issue of causation acquires a special significance in the context of divinely-ordained laws, simply
because the revelation was discontinued with the demise of the Prophet, who is no longer present to
explain and identify the causes of the revealed laws. The Muslim jurists, like other believing Muslims,
have shown a natural reluctance to be too presumptuous in their efforts to identify the causes of the
divine laws. But the Issue does not pose itself in the same way regarding secular or man-made law. The
norm in regard to modern laws is that they all have identifiable causes which can be ascertained with
reasonable certainty. As such, analogical deduction in the context of modern law is a relatively easier
proposition. But there are certain restrictions which discourage a liberal recourse to analogy even in
modern law. For one thing, the operation of analogy in modern law is confined to civil law, as in the
area of crimes the constitutional principle of legality discourages the analogical extension of the text. It
should be further noted that owing to extensive reliance on statutory legislation, there is no crime and
no punishment in the absence of a statutory text which clearly defines the offence or the penalty in
question. Crimes and penalties are thus to be governed by the text of the law and not by the analogical
extension of the text. It will thus be noted that owing to the prevalence of statutory legislation in
modern legal systems the need for recourse to analogy has been proportionately diminished. This would
in turn explain why qiyas tends to play a more prominent role in the Shari'ah than in modern law.
But in Shari'ah law too, as we shall later elaborate, there are restrictions on the operation of qiyas in
regard to crimes and penalties. The qadi, as a result, may not draw analogies between, for example,
wine-drinking and hashish owing to the similar effects that they- might have on the human intellect.
Principles of Islamic Jurisprudence ~
Kamali 186
Nor may the crime of zina be made the basis of analogy so as to apply its penalty to similar cases.
Shawkani, Irshad, p. 222; Abu Zahrah, Usul, p. 185.]
4) The fourth requirement concerning the hukm is that it must not be confined to an exceptional
situation or to a particular state of affairs. Qiyas is essentially designed to extend the normal, not the
exceptional, rules of the law. Thus when the Prophet admitted the testimony of Khuzaymah alone to be
equivalent to that of two witnesses, he did so by way of an exception. The precedent in this case is
therefore not extendable by analogy.
Mustasfa; II, 88; Abu Dawud, Sunan, III, 1024, Hadith no.3600.]
[26. The relevant Hadith reads: 'If Khuzaymah testifies for anyone, that is sufficient as a proof.' Ghazali,
Some of the rulings of the Qur'an which relate exclusively to
the Prophet, such as polygamy beyond the maximum of four, or the prohibition in regard to marriage
for the widows of the Prophet (al-Ahzab, 33:53) are similarly not extendable by analogy. The legal
norms on these matters have elsewhere been laid down in the Qur'an which enacts the minimum
number of witnesses at two, the maximum for polygamy at four, and allow a widow to remarry after the
expiry of the `iddah waiting period.
5) And lastly, the law of the text must not represent a departure from the general rules of qiyas in the
first place. For example, traveling during Ramadan is the cause of a concession which exonerates the
traveler from the duty of fasting. The concession is an exception to the general rule which requires
everyone to observe the fast. It may therefore not form the basis of an analogy in regard to other types
of hardship. Similarly the concession granted in wudu' (ablution) in regard to wiping over boots
represents a departure from the general rule which requires washing the feet. The exception in this case
is not extendable by way of analogy to similar cases such as socks.
But according to the Shafi'is, when the 'illah of a ruling can be clearly identified, analogy may be based
on it even if the ruling was exceptional in the first place. For example, the transaction of 'araya, or the
sale of fresh dates on the tree in exchange for dry dates, is exceptionally permitted by a Hadith
notwithstanding the somewhat usurious nature of this transaction; the rules of riba forbidding exchange
of identical commodities of unequal quantity. The 'illah of this permissibility is to fulfill the need of the
owner of unripe dates for the dried variety. By way of analogy, the Shafi'is have validated the exchange
of grapes for raisins on the basis of a similar need. The Hanafis have, however, disagreed, as the riding
of 'araya is exceptional in the first place.
III. The New Case (Far')
[27. Muslim, Sahih Muslim, p. 247, Hadith no. 920; Sha`ban, Usul, p 130.]
The far' is an incident or a case whose ruling is sought by recourse to analogy. The far` must fulfill the
following three conditions.
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Kamali 187
1) The new case must not be covered by the text or ijma`. For in the presence of a ruling in these
sources, there will be no need for a recourse to qiyas. However, some Hanafi and Maliki jurists have at
times resorted to qiyas even in cases where a ruling could be found in the sources. But they have done
so only where the ruling in question was of a speculative type, such as a solitary Hadith. We shall have
occasion to elaborate on this point later.
2) The effective cause of analogy must be applicable to the new case in the same way as to the original
case. Should there be no uniformity, or substantial equality between them, the analogy is technically
called qiyas ma'al-fariq, or `qiyas with a discrepancy', which is invalid. If, for example, the `illah in the
prohibition of wine is intoxication then a beverage which only causes a lapse of memory would differ
with wine in respect of the application of 'illah, and this would render the analogy invalid.
Irshad, p. 209.]
To give another example, according to the Hanafis, a sane and adult woman is competent to conclude a
contract of marriage on her own behalf. They have inferred this by an analogy to the Qur'anic ruling (alNisa,
4:6) which entitles her to enter business transactions at her own free will. The majority of jurists,
however,
disagree, as they consider the analogy in question to be qiyas
with a discrepancy. Marriage
differs
from other transactions; business transactions are personal matters but marriage concerns the
family
and the social status of the parents and guardians. Hence an analogy between marriage and other
transactions
is unjustified.
[29. Sha`ban, Usul, p. 134.]
3) The application of qiyas to a new case must not result in altering the law of the text, for this would
mean overruling the text by means of qiyas which is ultra vires. An example of this is the case of false
accusation (qadhf) which by an express nass (sura al-Nur, 24:4) constitutes a permanent bar to the
acceptance of one's testimony. Al-Shafi`i has, however, drawn an analogy between false accusation and
other grave sins (kaba'ir): a person who is punished for a grave sin may be heard as a witness after
repentance. In the case of false accusation, too, repentance should remove the bar to the admission of
testimony. To this the Hanafis have replied that an analogy of this kind would overrule the law of the
text which forever proscribes the testimony of a false accuser.
[30. Aghnides, Muhammedan Theories, p.62.]
On a similar note, the validity of the contract of salam has been established in a Hadith which defines it
as the advance sale of an article to be delivered at a fixed date. But when the Shafi`i's hold that such a
contract is lawful even if no date is fixed for delivery, they are charged with introducing a change in the
law of the text.
[31. Bukhari, Sahih (Istanbul edn.), III, 44 (Kitab al-Salam, Hadith no. 3); Sarakhsi (Usul, p. 152) writes: The Prophet forbade the sale of
an object which does not exist at the time of sale but permitted salam as an exception. Salam is valid on condition that the time of delivery is stipulated and that the
parties are able to meet the conditions of their agreement. See also Abdur Rahim, Jurisprudence, p. 145]
Principles of Islamic Jurisprudence ~
[28. Shawkani,Kamali 188
IV. The Effective Cause ('Illah)
This is perhaps the most important of all the requirements of qiyas. `Illah has been variously defined by
the ulema of usul. According to the majority, it is an attribute of the asl which is constant and evident
and bears a proper (munasib) relationship to the law of the text (hukm). It may be a fact, a circumstance,
or a consideration which the Lawgiver has contemplated in issuing a hukm. In the works of usul, the
`illah is alternatively referred to as manat al-hukm (i.e. the cause of the hukm), the sign of the hukm
(amarah al-hukm), and sabab.
[32.Shawkani, Irshad, p. 207; Abu Zahrah, Usul, p. 188.]
Some ulema have attached
numerous conditions to the 'illah, but most of these are controversial and may be summarised in the
following five.
recorded only eleven.]
[33. Note, for example, Shawkani, (Irshad, p. 207-208) who has listed 24 conditions for the 'illah whereas the Maliki jurist, Ibn Hajib has
1) According to the majority of ulema, the `illah must be a constant attribute (mundabit) which is
applicable to all cases without being affected by differences of persons, time, place and circumstances.
The Malikis and the Hanbalis, however, do not agree to this requirement as they maintain that the `illah
need not be constant, and that it is sufficient if the 'illah bears a proper or reasonable relationship to the
hukm. The difference between the two views is that the majority distinguish the effective cause from the
objective (hikmah) of the law and preclude the latter from the scope of the `illah.
Usul, p. 188.]
[34. Khallaf, `Ilm, 64; Abu Zahrah,
The `illah is constant if it applies to all cases regardless of circumstantial changes. To give an example,
according to the rules of pre-emption (shuf`) the joint, or the neighbouring, owner of a real property has
priority in buying the property whenever his partner or his neighbour wishes to sell it. The `illah in preemption
is joint ownership itself, whereas the hikmah
of this rule is to protect the partner/neighbour
against
a possible harm that may arise from sale to a third party. Now the harm that the Lawgiver
intends
to prevent may materialise, or it may not. As such, the hikmah
is not constant and may therefore
not
constitute the `illah
of pre-emption. Hence the `illah
in pre-emption is joint ownership itself, which
unlike
the hikmah
is permanent and unchangeable, as it does not fluctuate with such changes in
circumstances.
The majority view maintains that the rules of Shari'ah are founded in their causes (`ilal), not in their
objectives (hikam). From this, it would follow that a hukm shar'i is present whenever its `illah is present
even if its hikmah is not, and a hukm shar`i is absent in the absence of its 'illah even if its hikmah is
present. The jurist and the judge must therefore enforce the law whenever its 'illah is known to exist
regardless of its hikmah. Hence it would be a mistake for the judge to entitle to the right of pre-emption
a person who is neither a partner nor a neighbouring owner on the mere assumption that he may be
harmed by the sale of the property to a certain purchaser.
[35. Shawkani, Irshad, pp. 207-208, Khallaf, Ilm, pp.88-97.]
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Kamali 189
The Malikis and the Hanbalis, on the other hand, do not draw any distinction between the 'illah and the
hikmah. In their view, the hikmah aims at attracting an evident benefit or preventing an evident harm,
and this is the ultimate objective of the law. When, for example, the law allows the sick not to observe
the fast, the hikmah is the prevention of hardship to them. Likewise the hikmah of retaliation (qisas) in
deliberate homicide, or of the hadd penalty in theft, is to protect the lives and properties of the people.
Since the realisation of benefit (maslahah) and prevention of harm (mafsadah) is the basic purpose of
all the rules of Shari'ah, it would be proper to base analogy on the hikmah.
[36. Abu Zahrah, Usul, p. 188.]
The Hanafis and the Shafi'is however maintain that the `illah must be both evident and constant. In their
view the `illah secures the hikmah most of the time but not always. Their objection to the hikmah being
the basis of analogy is that the hikmah of the law is often a hidden quality which cannot be detected by
the senses, and this would in turn render the construction of analogy upon them unfeasible. The hikmah
is also variable according to circumstances, and this adds further to the difficulty of basing analogy on
it. The hikmah, in other words, is neither constant nor well-defined, and may not be relied upon as a
basis of analogy.
To give an example, the permission granted to travelers to break the fast while traveling is to relieve
them from hardship. This is the hikmah of this ruling. But since hardship is a hidden phenomenon and
often varies according to persons and circumstances, it may not constitute the effective cause of an
analogy. The concession is therefore attached to traveling itself which is the `illah regardless of the
degree of hardship that it may cause to individual travelers.
[37. Khallaf, `Ilm, p.64.]
To give another example, the 'illah in the prohibition of passing a red traffic light is the appearance of
the red light itself. The hikmah is to prevent traffic irregularities and accidents. Anyone who passes a
red light is committing an offence even if no accident is caused as a result. The 'illah and hikmah can as
such exist independently of one another,
the latter being less easily ascertainable than the former. On a similar note, the `illah in awarding a law
degree is passing one's final examinations and obtaining the necessary marks therein. The hikmah may
be the acquisition of a certain standard of knowledge in the disciplines concerned. Now it is necessary
that university degrees are awarded on a constant and reliable basis, which is passing the exams. The
acquisition of legal knowledge often, but not always, goes hand in hand with the ability to pass exams,
but this by itself is not as readily ascertainable as are the exam results.
2) As already stated, the effective cause on which analogy is based must also be evident (zahir). Hidden
phenomena such as intention, goodwill, consent, etc., which are not clearly ascertainable may not
constitute the `illah of analogy. The general rule is that the `illah must be definite and perceptible to the
senses. For example, since the consent of parties to a contract is imperceptible in its nature, the law
proceeds upon the act of offer and acceptance. Similarly the `illah in establishing the paternity of a
Principles of Islamic Jurisprudence ~ Kamali 190
Malik as to the interpretation of the views of their Imam. Some of these disciples have observed that
Imam Malik had only meant that the ijma` of the people of Madinah is a proof 'from the viewpoint of
narration and factual reporting' (min jihah al-naql wa'l-riwayah) as they were closest to the sources of
the Shari'ah. Other Maliki jurists have held that Malik only meant the Madinese ijma' to be preferable
but not exclusive. There are still others who say that Malik had in mind the ijma' of the Companions
alone. The proponents of the Madinese
ijma` sought to substantiate their views
with ahadith which include the following: 'Madinah is sacred, and throws out its dross as fire casts out
the dross of metal,' and 'Islam will cling to Madinah as a serpent clings to its hole.'
[69. Bukhari, Sahih (Istanbul
edn.), II, 221; Muslim, Sahih, p.17, Hadith no.38; Amidi, Ihkam, I, 243. Ibn Hazm discusses ijma' ahl al-Madinah in some length, but cites none of the ahadith that
are quoted by Amidi and others. He merely points out that some of the ahadith which are quoted in support of the Maliki doctrine are authentic (sahih), while
others are mere fabrications (makdhub/ mawdu`) reported by one 'Muhammad ibn Hasan ibn Zabalah' (Ihkam IV, 154-155)]
The majority of jurists, however, maintain that these ahadith merely speak of the dignity of Madinah
and its people. Even if the ahadith are taken to rule out the presence of impurity in Madinah, they do
not mean that the rest of the ummah is impure, and even less that the Madinese ijma' alone is
authoritative. Had the sacred character of a place been a valid criterion, then one might say that the
consensus of the people of Mecca would command even greater authority, as Mecca is the most
virtuous of cities (afdal al-bilad) according to the nass of the Qur'an. Furthermore, knowledge and
competence in ijtihad are not confined to any particular place. This is the purport of the Hadith in which
the Prophet said: 'My Companions are like stars. Whomsoever of them that you follow will guide you
to the right path.'
This Hadith pays no attention whatsoever to the place where a Companion might have resided.
Ihkam, I, 243ff.]
To this analysis, Ibn Hazm adds the point that there were, as we learn from the Qur'an,
profligates and transgressors (fussaq wa'l-munafiqun) in Madinah just like other cities. The
Companions were knowledgeable in the teachings of the Prophet wherever they were, within or outside
Madinah, and staying in Madinah by itself did not necessarily enhance their standing in respect of
knowledge, or the ability to carry out ijtihad.
Basis (Sanad) of Ijma`
[71. Ibn Hazm, Ihkam, IV, 155.]
According to the majority if ulema, ijma` must be founded in a textual authority or in ijtihad. Al-Amidi
points out that it is unlikely that the ummah might reach unanimity over something that has no
foundation in the sources.
[72. Amidi, Ihkam, I, 261.]
The ulema are in agreement that ijma `may be based on the
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[70. Amidi,Kamali 173
Qur'an or the Sunnah. There is, however, disagreement as to whether ijma' can be based on a ruling in
the secondary proofs such as qiyas or maslahah.
There are three views on this point, the first of which is that ijma` may not be founded on qiyas, for the
simple reason that qiyas itself is subject to a variety of doubts. Since the authority of qiyas as a proof is
not a subject on which the ulema are in agreement, how then could ijma` be founded on it? It is further
noted that the Companions did not reach a consensus on anything without the authority of the Qur'an or
the Sunnah. In all cases in which the Companion are known to have reached a consensus, at the root of
it there has been some authority in the primary sources.
[73. Abu Zahrah, Usul, pp.165-166.]
The second view is that qiyas in all of its varieties may form the basis of consensus. For qiyas itself
consists of an analogy to the nass. Relying on qiyas is therefore equivalent to relying on the nass, and
when ijma` is based on a qiyas, it relies not on the personal views of the mujtahidun but on the nass of
the Shari'ah.
The third view on this subject is that when the effective cause (`illah) of qiyas is clearly stated in the
nass, or when the 'illah is indisputably obvious, then qiyas may validly form the bases of ijma'. But
when the 'illah of qiyas is hidden and no clear indication to it can be found in the nusus, then it cannot
form a sound foundation for ijma'. Abu Zahrah considers this to be a sound opinion: when the `illah of
qiyas is indicated in the nusus, reliance on qiyas is tantamount to relying on the nass itself.
Usul, pp.165-166.]
Instances could be cited of ijma` which is founded upon analogy. To give an example, a father is
entitled to guardianship over the person and property of his minor child. By ijma' this right is also
established for the grandfather regarding his minor grandchild. This ruling of ijma` is founded upon an
analogy between the father and grandfather. A similar example is given regarding the assignment of
punishment for wine drinking (shurb). This penalty is fixed at eighty lashes, and an ijma' has been
claimed in its support. When the Companions were deliberating the issue, `Ali b. Abi Talib drew an
analogy between shurb and slanderous accusation (qadhf). Since shurb can lead to qadhf, the prescribed
penalty for the latter was, by analogy, assigned to the former. The alleged ijma` on this point has,
however, been disputed in view of the fact that 'Umar b. al-Khattab determined the hadd of shurb at
forty lashes, a position which has been adopted by Ahmad b. Hanbal. To claim an ijma' on this point is
therefore unwarranted.
Transmission of Ijma`
[75 Abu Zahrah, Usul, pp.166, 193.]
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[74. Abu Zahrah,Kamali 174
The issue to be examined here is the nature of the evidence by which the fact that a particular question
has been determined by ijma' may be proved. From this perspective, ijma' is divided into two types,
namely 'acquired' (muhassal) and `transmitted' (manqul). The first is concluded with the direct
participation of the mujtahid without the mediation of reporters or transmitters. The mujtahid thus gains
direct knowledge of the opinions of other mujtahidun when they all reach a consensus on a ruling. But
transmuted ijma' is established by means of reports which may either be solitary (ahad) or conclusive
(mutawatir). In the case of transmission by tawatur there is no problem of proof, and ijma' which is
transmitted by tawatur is proven in the same way as acquired ijma'. But there is disagreement regarding
ijma' which is transmitted by way of solitary reports. Al-Ghazali points out that a solitary report is not
sufficient to prove ijma', although some fuqaha have held otherwise. The reason is that ijma' is a
decisive proof whereas an ahad report amounts to no more than speculative evidence; thus, it cannot
establish ijma' .
[76. Ghazali, Mustasfa, I, 127; Sadr, Ijma', pp. 97-98.]
Al-Amidi explains that a number of the ulema of the Shafi'i, Hanafi and Hanbali schools validate the
proof of ijma' by means of solitary reports whereas another group of Hanafi and Shafi'i ulema do not.
All have nevertheless agreed that anything which is proved by means of a solitary report is speculative
of proof (thubut) even if definitive in respect of content (matn).
[77. Amidi, Ihkam, I, 281.]
Proof by means of tawatur can only be claimed for the ijma` of the Companions; no other ijma' is
known to have been transmitted by tawatur. This is the main reason why the fuqaha have differed in
their views concerning any ijma` other than that of the Companions. A large number of the ulema of
usul have maintained that transmission through solitary reports amounts to speculative evidence only.
When ijma' is based on such evidence, it loses its value and the hukm for which ijma` is claimed must
be referred back to the source from which it was derived in the first place.
Reform Proposals
[78. Abu Zahrah, Usul, pp.167-68.]
The modern critics of ijma' consider that ijma' according to its classical definition fails to relate to the
search for finding solutions to the problems of the community in modern times. Ijma` is hence
retrospective and too slow a process to accommodate the problems of social change. These and other
considerations concerning the relevance of ijma` to social realities have prompted a response from
modern scholars. We have already discussed the view of `Abd al-Wahhab Khallaf in regard to the
feasibility of ijma`. Khallaf, however, was not the first to criticise ijma'.
An early- critique of ijma' was advanced by Shah Wali Allah Dihlawi (d. 1176/1762), who tried to
bring ijma` closer to reality and came out in support of `relativity' in the concept of ijma`. Dihlawi
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Kamali 175
overruled the notion of universal consensus in favour of relative ijma`. Dihlawi is also critical of the
interpretation that is given to the ahadith concerning ijma`. He argues that the Hadith, `My community
shall never agree upon an error' did not envisage ijma` at all. Hence the correct meaning of this Hadith
may be determined in the light of another Hadith which provides that `a section of my community will
continue to remain on the right path [...].' Ijma` in other words does not mean a universal agreement but
only the consensus of a limited number of mujtahidun. With regard to the other ahadith that are quoted
in support of ijma`, Dihlawi maintains that the two principal aims of these ahadith are the political unity
of the ummah, and the integrity of the Shari'ah. The same author maintains that ijma' can be justified on
the bases of all such ahadith that protect the unity and integrity of the community. But he adds that
ijma` has never been meant to consist of the universal agreement of every member of the community
(or of every learned member of the community for that matter), as this is plainly impossible to achieve.
It has neither happened in the past nor could it conceivably happen in the future. Ijma', according to
Shah Wali Allah, is the consensus of the ulema and men of authority in different towns and localities. In
this sense, ijma' can be held anywhere at any time. The ijma' of the Companions during the caliphate of
Umar b. al-Khattab, and the ijma` that was concluded in Mecca and Madinah under the pious caliphs,
are all examples of ijma` in its relative sense.
[79. Shah Wali Allah, Izalah, I, 266.]
Muhammad Iqbal is primarily concerned with the question of how to utilise the potentials of ijma` in
the process of modern statutory legislation. He considers it an important doctrine, but one which has
remained largely theoretical. `It is strange,' Iqbal writes, that this important notion 'rarely assumed the
form of a permanent institution'. He then suggests that the transfer of the power of ijtihad `from
individual representatives of schools to a Muslim legislative assembly [...] is the only possible form
ijma` can take in modern times'.
[80. Iqbal, Reconstruction, pp. 173, 174.]
In such an assembly, the ulema should play a
vital part, but it must also include in its ranks laymen who happen to possess a keen insight into affairs.
Furthermore Iqbal draws a distinction between the two functions of ijma', namely:
Discovering the law and implementing the law. The former function is related to the
question of facts and the latter relates to the question of law. In the former case, as for
instance, when the question arose whether the two small suras known as
'Mu'awwazatain' formed part of the Qur'an or not, and the Companions unanimously
decided that they did, we are bound by their decision, obviously because the
Companions alone were in a position to know the fact. In the latter case, the question is
one of interpretation only, and I venture to think, on the authority of Karkhi, that later
generations are not bound by the decisions of the Companions.
[81. Iqbal, Reconstruction, p.175.
Iqbal goes on to quote the Hanafi jurist Abu'l-Hasan al-Karkhi as saying: 'The Sunnah of the companions is binding in matters which
cannot be cleared up by qiyas, but it is not so in matters which can be established by qiyas'. (No specific reference is given to al-Karkhi's
work.)]
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It is thus clear that Iqbal retains the binding character of ijma' only insofar as it relates to points of fact,
but not with regard to ijma' that is based on juridical ijtihad. This distinction between the factual and
juridical ijma' will presumably not apply to the ijma` that Iqbal has proposed: the collective decisions of
the legislative assembly will naturally be binding on points of law.
Iqbal's proposed reform has been fairly widely supported by other scholars. It is a basically sound
proposal. But to relate this to the idea of a distinction between the factual and ijtihadi ijma` seems
questionable. Apart from the difficulty that might be involved in distinguishing a factual from a
juridical ijma' one can expect but little support for the view that the ijma` of the Companions on ijtihadi
matters is not binding.
Iqbal's views have, however, been criticised on other grounds. S. M. Yusuf has observed that Iqbal was
mistaken in trying to convert ijma` into a modern legislative institution. Yusuf argues that ijtihad and
ijma' have never been the prerogatives of a political organisation, and any attempt to institutionalise
ijma' is bound to alter the nature of ijma` and defeat its basic purpose. For ijtihad is a non-transferable
right of every competent scholar, and a mujtahid is recognised by the community by virtue of his merits
known over a period of time, not through election campaigns or awards of official certificates. The
process of arriving at ijma` is entirely different from that of legislation in a modern state assembly.
Ijma' passes through a natural process which resembles that of the 'survival of the fittest'. No attempt is
made in this process to silence the opposition or to defeat the minority opinion. Opposition is tolerated
until the truth emerges and prevails. Ijma' is a manifestation of the conscience of the community, and it
is due mainly to the natural strength of ijma' and the absence of rigid organisation 'that no one is able to
lay his hands on Islam; when anyone tries to hammer Islam, he ultimately finds to his chagrin that he
has only been beating in the air'.
[82. Yusuf, Studies, pp. 212-218.]
Ahmad Hasan finds some weaknesses In Yusuf's criticism of Iqbal, and observes that `Dr Yusuf has
probably not understood Iqbal's view correctly.' Hasan finds Iqbal's view to the effect that ijtihad should
be exercised collectively instead of being a preserve of the individual mujtahidun, to be basically sound.
`Ijtihad today cannot be exercised in isolation. Modern conditions demand that it should be exercised
collectively. A mujtahid may be expert in Islamic learnings, but he cannot claim to be perfectly
acquainted with the social conditions of a country and the diverse nature of its problems.
244.]
Ahmad Hasan goes on to point out that the legislative assembly is `the right place' for the purpose
of collective ijtihad, which would in turn provide an effective method of finding solutions to urgent
problems.
[84. Hasan, Doctrine. p. 244.]
The late Shaykh of al-Azhar, Mahmud Shaltut, observes that the conditions of a conclusive ijma`,
especially the one which requires the agreement of all the mujtahidun of the ummah, is no more than a
theoretical proposition which is never expressed in reality. Ijma', in reality, has often meant either the
absence of disagreement (`adam al-ilm bi'l-mukhalif), or the agreement of the majority only (ittifaq al-
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[83. Hasan, Doctrine. p.Kamali 177
kathrah). Both of these are acceptable propositions which may form the basis of general legislation.
Shaltut goes on to quote in support the Qur'anic ayah in sura al-Baqarah (2:286) that `God does not
assign to any soul that which falls beyond its capacity.' Shaltut is not opposed to the institutionalization
of ijma` provided that this does not violate the freedom of opinion which must in all eventualities be
granted to the constituents of ijma`. Consensus must never be subjected to a condition which subjugates
freedom of opinion to the arbitrary exercise of political power. Shaltut further adds that since the
realization of maslahah through consensus is the objective of ijma`, maslahah as bound to vary
according to circumstances of time and place. Hence the mujtahidun who participate in ijma`, and their
successors, should all be able to take into consideration a change of circumstances and it should be
possible for them to review a previous ijma` if this is deemed to be the only way to realize the
maslahah. Should they arrive at a second ijma`, this will nullify and replace the first, and constitute a
binding authority on all members of the community.
Conclusion
[85. Shaltut, Islam, pp. 558-559.]
Under their classical definitions, ijma` and ijtihad were both subject to conditions that virtually drove
them into the realm of utopia. The unreality of these formulations is reflected in modern times in the
experience of Muslim nations and their efforts to reform certain areas of the Shari'ah through the
medium of statutory legislation. The juristic basis for some of the modern reforms introduced in the
areas of marriage and divorce, for example, has been sought through novel interpretations of the
relevant passages of the Qur'an. Some of these reforms may rightly be regarded as instances of ijtihad
in modern times. Yet in none of these instances do the statutory texts or their explanatory memoranda
make an open reference to ijtihad or ijma`. The total absence of these terms in modern statutes is a sad
reflection of the unreality that is encountered in the strict definitions of these concepts. The classical
definitions of ijtihad and ijma` might, at one time, have served the purpose of discouraging excessive
diversity which was felt to be threatening the very existence and integrity of the Shari'ah. But there is
no compelling reason to justify the continued domination of a practice which was designed to bring
ijtihad to a close Ijtihad and ijma' were brought to a standstill, thanks to the extremely difficult
conditions that were imposed on them, conditions which often ran counter to the enterprising and
creative spirit that characterised the period of the pious caliphs and the early imams of jurisprudence.
Dr Yusuf's criticism of Iqbal's proposed reform is based on the dubious assumption that an elected
legislative assembly will not reflect the collective conscience of the community and will unavoidably be
used as an instrument of power politics. Although the cautious advice of this approach may be
persuasive, the assumption behind it goes counter to the spirit of maslahah and of the theory of ijma`
which endows the community with the divine trust of having the capacity and competence to make the
Principles of Islamic Jurisprudence ~
Kamali 178
right decisions. If one is to observe the basic message of the textual authority in support of the `ismah of
the community, then one must trust the community itself to elect only persons who will honour their
collective conscience and their maslahah. In addition, Dr Yusuf's critique of Iqbal merely suggests that
nothing should he done to relate ijma' to the realities of contemporary life. The critic is content with the
idea of letting ijma` and ijtihad remain beyond the reach of the individuals and societies of today. On
the contrary, the argument for taking a positive approach to ijma` is overwhelming. The gap between
the theory and practice of Shari'ah law has grown to alarming proportions, and any attempt at
prolonging it further will have to be exceedingly persuasive. While the taking of every precaution to
safeguard the authentic spirit and natural strength of ijma` is fully justified, this should not necessarily
mean total inertia. The main issue in institutionalizing ijma`, as Shaltut has rightly assessed, is that
freedom of opinion should be vouchsafed the participants of ijma`. This is the essence of the challenge
which has to be met, not through a laissez-faire attitude toward ijtihad and ijma`, but by nurturing
judicious attitudes and by evolving correct methods and procedures to protect freedom of opinion. The
consensus that is arrived at in this spirit will have kept a great deal, if not all, of the most valuable
features of ijma`.
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Kamali 179
Chapter Nine: Qiyas (Analogical Deduction)
Literally, qiyas means measuring or ascertaining the length, weight, or quality of something, which is
why scales are called miqyas. Thus the Arabic expression, qasat al-thawb bi'l-dhira' means that `the
cloth was measured by the yardstick'.
[1. Amidi, Ihkam, III, 183.]
Qiyas also means comparison, with a view to
suggesting equality or similarity between two things. Thus the expression Zayd yuqas ila Khalid fi
`aqlihi wa nasabih means that `Zayd compares with Khalid in intelligence and descent'.
54.]
Qiyas thus suggests an equality or close similarity between two things, one of which is taken as the
criterion for evaluating the other.
Technically, qiyas is the extension of a Shari'ah value from an original case, or asl, to a new case,
because the latter has the same effective cause as the former. The original case is regulated by a given
text, and qiyas seeks to extend the same textual ruling to the new case.
[3. Shawkani, Irshad, p. 198.]
It is by virtue
of the commonality of the effective cause, or 'illah, between the original case and the new case that the
application of qiyas is justified.
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`. For it would be futile to resort to qiyas if the new case could be resolved
under a ruling of the existing law. It is only in matters which are not covered by the nusus and ijma` that
the law may be deduced from any of these sources through the application of analogical reasoning.
Abdur Rahim, Jurisprudence, p.137.]
In the usage of the fuqaha', the word 'qiyas' is sometimes used to denote a general principle. Thus one
often comes across statements that this or that ruling is contrary to an established analogy, or to a
general principle of the law without any reference to analogy as such.
Analogical deduction is different from interpretation in that the former is primarily concerned with the
extension of the rationale of a given text to cases which may not fall within the terms of its language.
Qiyas is thus a step beyond the scope of interpretation. The emphasis in qiyas is clearly placed on the
identification of a common cause between two cases which is not indicated in the language of the text.
Identifying the effective cause often involves intellectual exertion on the part of the jurist, who
determines it by recourse not only to the semantics of a given text but also to his understanding of the
general objectives of the law.
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
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[2. Ghazali, Mustasfa, II,
[4. Cf.Kamali 180
of developing, the existing law. Although qiyas offers considerable potential for creativity and
enrichment, it is basically designed to ensure conformity with the letter and the spirit of the Qur'an and
the Sunnah. In this sense, it is perhaps less than justified to call qiyas one of the sources (masadir) of
the Shari'ah; it is rather a proof (hujjah) or an evidence (dalil) whose primary aim is to ensure
consistency between revelation and reason in the development of the Shari'ah. Qiyas a admittedly a
rationalist doctrine, but it is one in which the use of personal opinion (ra'y) is subservient to the terms
of the divine revelation. The main sphere for the operation of human judgment in qiyas is the
identification of a common 'illah between the original and the new case. Once the `illah is identified,
the rules of analogy then necessitate that the ruling of the given text be followed without any
interference or change. Qiyas cannot therefore be used as a means of altering the law of the text on
grounds of either expediency or personal preference.
The jurist who resorts to qiyas takes it for granted that the rules of Shari'ah follow certain objectives
(maqasid) which are in harmony with reason. A rational approach to the discovery and identification of
the objectives and intentions of the Lawgiver necessitates recourse to human intellect and judgment in
the evaluation of the ahkam. It is precisely on this ground, namely the propriety or otherwise of
adopting an inquisitive approach to the injunctions of the Lawgiver, referred to as ta'lil, that qiyas has
come under attack by the Mu'tazilah, the Zahiri, the Shi'i and some Hanbali ulema. Since an enquiry
into the causes and objectives of divine injunctions often involves a measure of juristic speculation, the
opponents of qiyas have questioned its essential validity. Their argument is that the law must be based
on certainty, whereas qiyas is largely speculative and superfluous. If the two cases are identical and the
law is clearly laid down in regard to one, there is no case for qiyas, as both will be covered by the same
law. If they are different but bear a similarity to one another, then it is impossible to know whether the
Lawgiver had intended the subsidiary case to be governed by the law of the original case. It is once
again in recognition of this element of uncertainty in qiyas that the ulema of all the juristic schools have
ranked qiyas as a 'speculative evidence'. With the exception, perhaps, of one variety of qiyas, namely
where the 'illah of qiyas is clearly identified in the text, qiyas in general can never be as high an
authority as the nass or a definite ijma', for these are decisive evidences (adillah qat'iyyah), whereas
qiyas in most cases only amounts to a probability. It is, in other words, merely probable, but not certain,
that the result of qiyas is in conformity with the intentions of the lawgiver. The propriety of qiyas is
thus always to be measured by the degree of its proximity and harmony with the nusus. In our
discussion of the methodology of qiyas it will at once become obvious that the whole purpose of this
methodology is to ensure that under no circumstances does analogical deduction operate independently
of the nusus. It would be useful to start by giving a few examples.
1) The Qur'an (al-Jumu'ah, 62:9) 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, since the
effective cause, that is, diversion from prayer, is common to all.
[5. Khallaf, `Ilm, p.52, Abdur Rahim, Jurisprudence, p. 138.]
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Kamali 181
2) The Prophet is reported to have said, 'The killer shall not inherit [from his victim]'
By analogy this ruling is extended to bequests, which would mean that the killer cannot benefit from the
will of his victim either.
[6. Ibn Qayyim, I'lam, II, 242; Khallaf, `Ilm, p.53.]
3) According to a Hadith, 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.
The 'illah of this rule is to obviate conflict and hostility among people. By analogy the same rule is
extended to all other transactions in which the same `illah is found to be operative.
trans. ) II, 556, Hadith no. 2075; Tabrizi, Mishkat, II, 940, Hadith no.3144; Musa, Ahkam, p. 45.]
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.
[8. Amidi, Ihkam, III, 186.]
[7. Abu Dawud Sunan (Hasan's
The Hanafi definition of qiyas is substantially the same, albeit with a
minor addition which is designed to preclude certain varieties of qiyas (such as qiyas al-awla and qiyas
al-musawi, [q.v,]) from the scope of qiyas. The Hanafi jurist, Sadr al-Shari'ah, in his Tawdih, as
translated by Aghnides, defines qiyas as `extending the (Shari'ah) value from the original case over to
the subsidiary (far`) by reason of an effective cause which is common to both cases and cannot be
understood from the expression (concerning the original case) alone.'
Tawdih fi Hall Ghawamid al-Tanqih, p. 444; Aghnides, Muhammedan Theories, p. 49.]
[9. `Ubaydullah ibn Mas'ud Sadr al-Shari'ah, al-
The essential requirements of qiyas which are
indicated in these definitions are as follows:
1) The original case, or asl, on which a ruling is given in the text and which analogy seeks to extend to
a new case.
2) The new case (far`) on which a ruling is wanting.
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.
4) The rule (hukm) governing the original case which is to be extended to the new case.
193) is however of the view that the result of qiyas, that is the ruling which is to be applied to the new case (i.e. hukm al-far`), should not be included in the
essential requirements (arkan) of qiyas. For the hukm is only arrived at the end of the process; it should therefore not be rukn. Isnawi has on the other hand
included the hukm al-far` among the essentials of qiyas. The disagreement is perhaps mainly theoretical as the hukm of the new case is, for all intents and purposes,
identical with the hukm of the original case. Cf. Zuhayr, Usul, IV, 58-59.]
To illustrate these, we might adduce 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:
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[10. Amidi (Ihkam, III,Kamali 182
asl far` `Illah hukm
wine drinking taking drugs the intoxicating effect prohibition
Each of the four essentials (arkan) of analogy must, in turn, qualify a number of other conditions which
are all designed to ensure propriety and accuracy in the application of qiyas. It is to these which we now
turn.
I. Conditions Pertaining to the Original Case (Asl)
Asl has two meanings. Firstly, it refers to the source, such as the Qur'an or the Sunnah, which reveals a
particular ruling. The second meaning of asl is the subject-matter of that ruling. In the foregoing
example of the prohibition of wine in the Qur'an, 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. However, to all intents and
purposes, the two meanings of asl are convergent. We tend to use asl to imply the source as well as the
original case, for the latter constitutes the subject-matter of the former, and the one cannot be separated
from the other.
[11. Shawkani, Irshad, pp.204-205; Abu Zahrah, Usul, p. 180.]
The ulema are in unanimous agreement that the Qur'an and the Sunnah constitute the sources, or the asl,
of qiyas. According to the majority of jurists, qiyas may also be founded on a rule that is established by
ijma` validates guardianship over the property of minors, a rule which has been extended by analogy to
authorise the compulsory guardianship (wilayah al-ijbar) of minors in marriage.
[12. Abu Zahrah, Usul, p. 181.]
There is, however, some disagreement as to whether ijma `constitutes a valid asl for qiyas. Those who
dispute the validity of ijma' as a basis of analogical deduction argue that the rules of consensus do not
require that there should be a basis (sanad) for ijma`. In other words, ijma' does not always explain its
own justification or rationale. In the absence of such information, it is difficult to construct an analogy.
In particular it would be difficult to identify the 'illah, and qiyas cannot be constructed without the
`illah.
[13. Khallaf,`Ilm, p.53, Shawkani, Irshad,p.210.]
But this view is based on the assumption that the `illah of qiyas is
always identified in the sources, which is not the case.
The `illah may at times be specified in the sources, but when this is not so, it is for the mujtahid to
identify it in the light of the objectives (maqasid) of the Lawgiver. The mujtahid, in other words, is
faced with the same task whether he derives the `illah from ijma or from the nusus. Furthermore, the
majority view which validates the founding of analogy on ijma` maintains that consensus itself is a
Principles of Islamic Jurisprudence ~
Kamali 183
basis (sanad) and that the effective cause of a ruling which is based on consensus can be identified
through ijtihad.
[14. Abu Zahrah, Usul, p.128.]
According to the majority of ulema, one qiyas may not constitute the asl of another qiyas. This is
explained in reference to 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. For instance, if it be admitted
that the quality of edibility is the effective cause which world bring an article within the scope of usury
(riba) then it would justify an analogy to be drawn between wheat and rice. But an attempt to draw a
second analogy between rice and edible oil for the purpose of extending the rules of riba to the latter
would be unnecessary, for it would be preferable to draw a direct analogy between wheat and edible oil,
which would eliminate the intermediate analogy with the rice altogether.
p 205.]
[15. Ghazali, Mustasfa, II, 87; Shawkani, Irshad,
However, according to the prominent Maliki jurist, Ibn Rushd (whose views are here representative of
the Maliki school) and some Hanbali ulema, one qiyas may constitute the asl of another: when one
qiyas is founded on another qiyas, the far' of the second becomes an independent asl from which a
different 'illah may be deduced. This process may continue ad infinitum with the only proviso being
that in cases where an analogy can be founded in the Qur'an, recourse may not be had to another
qiyas.
[16. Ibn Rushd, Bidayah, I, 4-5: Abu Zahrah, Usul, p. 183; Nour, `Qiyas', 29.]
But al-Ghazali rejects the proposition of one
qiyas forming the asl of another altogether. He compares this to the work of a person who tries to find
pebbles on the beach that look alike. Finding one that resembles the original, he then throws away the
original and tries to find one similar to the second, and so on. By the time he finds the tenth, it would
not be surprising if it turned out to be totally different from the first in the series. Thus, for al-Ghazali,
qiyas founded on another qiyas is like speculation built upon speculation, and the further it continues
along the line, the more real becomes the possibility of error.
[17. Ghazali, Mustasfa, II, 87.]
Having discussed Ibn Rushd's view at some length, however, Abu Zahrah observes that from a juristic
viewpoint, one has little choice but to agree with it. This is reflected, for example, in modern judicial
practice where court decisions are often based on the analogical extension of the effective cause (i.e.
ratio decidendi) of an existing decision to a new case. The new decision may be based on the rationale
of a previous case but may differ with it in some respect. In this event the new case is likely to
constitute an authority in its own right. When, for example, the Cassation Court (mahkamah al-naqd) in
Egypt approves a judicial ruling, it becomes a point of reference in itself, and an analogy upon it is
made whenever appropriate without further inquiry into its origin. What Abu Zahrah is saying is that
the doctrine of stare decisis, which is partially adopted in some Islamic jurisdictions, takes for granted
the validity of the idea that one qiyas may become the asl of another qiyas.
[18. Cf. Abu Zahrah, Usul, p. 184.]
According to the Syrian jurist Mustafa al-Zarqa, the formula that one qiyas may be founded on another
qiyas has in it the seeds of enrichment and resourcefulness. No unnecessary restrictions should
Principles of Islamic Jurisprudence ~
Kamali 184
therefore be imposed on qiyas and on its potential contribution to the Shari'ah.
available to me, my knowledge of his views is confined to the extent that he is quoted by Nour, 'Qiyas, 29.]
II. Conditions Pertaining to the Hukm
[19. Since al-Zarqa's work is not
A hukm is a ruling, such as a command or a prohibition, which is dispensed by the Qur'an, the Sunnah
or ijma', and analogy seeks its extension to a new case. In order to constitute the valid basis of an
analogy, the hukm must fulfill the following conditions.
1) It must be a practical shar`i ruling, for qiyas is only operative in regard to practical matters inasmuch
as this is the case with fiqh as a whole. Qiyas can only be attempted when there is a hukm available in
the sources. In the event where no hukm can be found in any of the three sources regarding a case, and
its legality is determined with reference to a general maxim such as original freedom from liability (albara'ah
al-asliyyah),
no hukm
could be said to exist. Original freedom from liability is not regarded as a
hukm
shar`i
and may not therefore form the basis of qiyas.
[20. Shawkani, Irshad, p. 205; Khudari, Usul, p. 295]
2) The hukm must be operative, which means that it has not been abrogated. Similarly, the validity of
hukm which is sought to be extended by analogy must not be the subject of disagreement and
controversy.
[21. Amidi, Ihkam, III, 196-97.]
3) The hukm must be rational in the sense that the human intellect is capable of understanding the
reason or the cause of its enactment, or that the `illah is clearly given in the text itself. For example, the
effective cause of prohibitions such as those issued against gambling and misappropriating the property
of another is easily discernable. But when a hukm cannot be so understood, as in the case of the number
of prostrations in salah, or the quantity of zakah, etc., it may not form the basis of analogical deduction.
Ritual performances, or `ibadat, on the whole, are not the proper subject of qiyas simply because their
effective causes cannot be ascertained by the human intellect. Although the general purpose of `ibadat
is often understandable, this is not sufficient for the purpose of analogy. Since the specific causes (al`ilal
al-juz'iyyah)
of `ibadat
are only known to Almighty God, no analogy can be based upon them.
All the rational ahkam (al-ahkam al-ma`qulah ), that is, laws whose causes are perceivable by human
intellect, constitute the proper basis of qiyas. According to Imam Abu Hanifah, who represents the
majority opinion, all the nusus of Shari'ah are rational and their causes can be ascertained except where
it is indicated that they fall under the rubric of `ibadat. The Zahiris, and 'Uthman al-Batti, a
contemporary of Abu Hanifah have, on the other hand, held that the effective causes of the nusus
cannot be ascertained without an indication in the nusus themselves. This view clearly discourages
Principles of Islamic Jurisprudence ~
Kamali 185
enquiry into the causes of the rules of Shari'ah and advises total conformity to them without any search
for justification or rationale.
[22. Abu Zahrah, Usul, p. 185; Khallaf, 'Ilm, pp. 61-62.]
'We do not deny,' writes Ibn Hazm,
'that God has assigned certain causes to some of His laws, but we say this only when there is a nass to
confirm it.' He then goes on to quote a Hadith of the Prophet to the effect that 'the greatest wrong-doer
in Islam is one who asks about something, which is not forbidden, and it is then forbidden because of
his questioning'.
Ibn Hazm continues: we firmly deny that all the ahkam of Shari'ah can be explained and rationalised in
terms of causes. Almighty God enacts a law as He wills. The question of `how and why' does not and
must not be applied to His will. Hence it is improper for anyone to enquire, in the absence of a clear
text, into the causes of divine laws. Anyone who poses questions and searches for the causes of God's
injunctions 'defies Almighty God and commits a transgression'.
423, Hadith no, 1599.]
[23. Ibn Hazm, Ihkam, VIII, 102; Muslim, Sahih Muslim, I,
For he would be acting contrary to the purport of the Qur'an where God describes
Himself, saying, 'He cannot be questioned for His acts, but they will be questioned for theirs' (alAnbiya',
21:21). It is thus known, Ibn Hazm concludes, that causes of any kind are nullified from the
acts
and words of God. For justification and ta'lil
is the work of one who is weak and compelled
(mudtarr),
and God is above all this.
[24. Ibn Hazm, Ihkam, VIII, 103.]
The issue of causation acquires a special significance in the context of divinely-ordained laws, simply
because the revelation was discontinued with the demise of the Prophet, who is no longer present to
explain and identify the causes of the revealed laws. The Muslim jurists, like other believing Muslims,
have shown a natural reluctance to be too presumptuous in their efforts to identify the causes of the
divine laws. But the Issue does not pose itself in the same way regarding secular or man-made law. The
norm in regard to modern laws is that they all have identifiable causes which can be ascertained with
reasonable certainty. As such, analogical deduction in the context of modern law is a relatively easier
proposition. But there are certain restrictions which discourage a liberal recourse to analogy even in
modern law. For one thing, the operation of analogy in modern law is confined to civil law, as in the
area of crimes the constitutional principle of legality discourages the analogical extension of the text. It
should be further noted that owing to extensive reliance on statutory legislation, there is no crime and
no punishment in the absence of a statutory text which clearly defines the offence or the penalty in
question. Crimes and penalties are thus to be governed by the text of the law and not by the analogical
extension of the text. It will thus be noted that owing to the prevalence of statutory legislation in
modern legal systems the need for recourse to analogy has been proportionately diminished. This would
in turn explain why qiyas tends to play a more prominent role in the Shari'ah than in modern law.
But in Shari'ah law too, as we shall later elaborate, there are restrictions on the operation of qiyas in
regard to crimes and penalties. The qadi, as a result, may not draw analogies between, for example,
wine-drinking and hashish owing to the similar effects that they- might have on the human intellect.
Principles of Islamic Jurisprudence ~
Kamali 186
Nor may the crime of zina be made the basis of analogy so as to apply its penalty to similar cases.
Shawkani, Irshad, p. 222; Abu Zahrah, Usul, p. 185.]
4) The fourth requirement concerning the hukm is that it must not be confined to an exceptional
situation or to a particular state of affairs. Qiyas is essentially designed to extend the normal, not the
exceptional, rules of the law. Thus when the Prophet admitted the testimony of Khuzaymah alone to be
equivalent to that of two witnesses, he did so by way of an exception. The precedent in this case is
therefore not extendable by analogy.
Mustasfa; II, 88; Abu Dawud, Sunan, III, 1024, Hadith no.3600.]
[26. The relevant Hadith reads: 'If Khuzaymah testifies for anyone, that is sufficient as a proof.' Ghazali,
Some of the rulings of the Qur'an which relate exclusively to
the Prophet, such as polygamy beyond the maximum of four, or the prohibition in regard to marriage
for the widows of the Prophet (al-Ahzab, 33:53) are similarly not extendable by analogy. The legal
norms on these matters have elsewhere been laid down in the Qur'an which enacts the minimum
number of witnesses at two, the maximum for polygamy at four, and allow a widow to remarry after the
expiry of the `iddah waiting period.
5) And lastly, the law of the text must not represent a departure from the general rules of qiyas in the
first place. For example, traveling during Ramadan is the cause of a concession which exonerates the
traveler from the duty of fasting. The concession is an exception to the general rule which requires
everyone to observe the fast. It may therefore not form the basis of an analogy in regard to other types
of hardship. Similarly the concession granted in wudu' (ablution) in regard to wiping over boots
represents a departure from the general rule which requires washing the feet. The exception in this case
is not extendable by way of analogy to similar cases such as socks.
But according to the Shafi'is, when the 'illah of a ruling can be clearly identified, analogy may be based
on it even if the ruling was exceptional in the first place. For example, the transaction of 'araya, or the
sale of fresh dates on the tree in exchange for dry dates, is exceptionally permitted by a Hadith
notwithstanding the somewhat usurious nature of this transaction; the rules of riba forbidding exchange
of identical commodities of unequal quantity. The 'illah of this permissibility is to fulfill the need of the
owner of unripe dates for the dried variety. By way of analogy, the Shafi'is have validated the exchange
of grapes for raisins on the basis of a similar need. The Hanafis have, however, disagreed, as the riding
of 'araya is exceptional in the first place.
III. The New Case (Far')
[27. Muslim, Sahih Muslim, p. 247, Hadith no. 920; Sha`ban, Usul, p 130.]
The far' is an incident or a case whose ruling is sought by recourse to analogy. The far` must fulfill the
following three conditions.
Principles of Islamic Jurisprudence ~
Kamali 187
1) The new case must not be covered by the text or ijma`. For in the presence of a ruling in these
sources, there will be no need for a recourse to qiyas. However, some Hanafi and Maliki jurists have at
times resorted to qiyas even in cases where a ruling could be found in the sources. But they have done
so only where the ruling in question was of a speculative type, such as a solitary Hadith. We shall have
occasion to elaborate on this point later.
2) The effective cause of analogy must be applicable to the new case in the same way as to the original
case. Should there be no uniformity, or substantial equality between them, the analogy is technically
called qiyas ma'al-fariq, or `qiyas with a discrepancy', which is invalid. If, for example, the `illah in the
prohibition of wine is intoxication then a beverage which only causes a lapse of memory would differ
with wine in respect of the application of 'illah, and this would render the analogy invalid.
Irshad, p. 209.]
To give another example, according to the Hanafis, a sane and adult woman is competent to conclude a
contract of marriage on her own behalf. They have inferred this by an analogy to the Qur'anic ruling (alNisa,
4:6) which entitles her to enter business transactions at her own free will. The majority of jurists,
however,
disagree, as they consider the analogy in question to be qiyas
with a discrepancy. Marriage
differs
from other transactions; business transactions are personal matters but marriage concerns the
family
and the social status of the parents and guardians. Hence an analogy between marriage and other
transactions
is unjustified.
[29. Sha`ban, Usul, p. 134.]
3) The application of qiyas to a new case must not result in altering the law of the text, for this would
mean overruling the text by means of qiyas which is ultra vires. An example of this is the case of false
accusation (qadhf) which by an express nass (sura al-Nur, 24:4) constitutes a permanent bar to the
acceptance of one's testimony. Al-Shafi`i has, however, drawn an analogy between false accusation and
other grave sins (kaba'ir): a person who is punished for a grave sin may be heard as a witness after
repentance. In the case of false accusation, too, repentance should remove the bar to the admission of
testimony. To this the Hanafis have replied that an analogy of this kind would overrule the law of the
text which forever proscribes the testimony of a false accuser.
[30. Aghnides, Muhammedan Theories, p.62.]
On a similar note, the validity of the contract of salam has been established in a Hadith which defines it
as the advance sale of an article to be delivered at a fixed date. But when the Shafi`i's hold that such a
contract is lawful even if no date is fixed for delivery, they are charged with introducing a change in the
law of the text.
[31. Bukhari, Sahih (Istanbul edn.), III, 44 (Kitab al-Salam, Hadith no. 3); Sarakhsi (Usul, p. 152) writes: The Prophet forbade the sale of
an object which does not exist at the time of sale but permitted salam as an exception. Salam is valid on condition that the time of delivery is stipulated and that the
parties are able to meet the conditions of their agreement. See also Abdur Rahim, Jurisprudence, p. 145]
Principles of Islamic Jurisprudence ~
[28. Shawkani,Kamali 188
IV. The Effective Cause ('Illah)
This is perhaps the most important of all the requirements of qiyas. `Illah has been variously defined by
the ulema of usul. According to the majority, it is an attribute of the asl which is constant and evident
and bears a proper (munasib) relationship to the law of the text (hukm). It may be a fact, a circumstance,
or a consideration which the Lawgiver has contemplated in issuing a hukm. In the works of usul, the
`illah is alternatively referred to as manat al-hukm (i.e. the cause of the hukm), the sign of the hukm
(amarah al-hukm), and sabab.
[32.Shawkani, Irshad, p. 207; Abu Zahrah, Usul, p. 188.]
Some ulema have attached
numerous conditions to the 'illah, but most of these are controversial and may be summarised in the
following five.
recorded only eleven.]
[33. Note, for example, Shawkani, (Irshad, p. 207-208) who has listed 24 conditions for the 'illah whereas the Maliki jurist, Ibn Hajib has
1) According to the majority of ulema, the `illah must be a constant attribute (mundabit) which is
applicable to all cases without being affected by differences of persons, time, place and circumstances.
The Malikis and the Hanbalis, however, do not agree to this requirement as they maintain that the `illah
need not be constant, and that it is sufficient if the 'illah bears a proper or reasonable relationship to the
hukm. The difference between the two views is that the majority distinguish the effective cause from the
objective (hikmah) of the law and preclude the latter from the scope of the `illah.
Usul, p. 188.]
[34. Khallaf, `Ilm, 64; Abu Zahrah,
The `illah is constant if it applies to all cases regardless of circumstantial changes. To give an example,
according to the rules of pre-emption (shuf`) the joint, or the neighbouring, owner of a real property has
priority in buying the property whenever his partner or his neighbour wishes to sell it. The `illah in preemption
is joint ownership itself, whereas the hikmah
of this rule is to protect the partner/neighbour
against
a possible harm that may arise from sale to a third party. Now the harm that the Lawgiver
intends
to prevent may materialise, or it may not. As such, the hikmah
is not constant and may therefore
not
constitute the `illah
of pre-emption. Hence the `illah
in pre-emption is joint ownership itself, which
unlike
the hikmah
is permanent and unchangeable, as it does not fluctuate with such changes in
circumstances.
The majority view maintains that the rules of Shari'ah are founded in their causes (`ilal), not in their
objectives (hikam). From this, it would follow that a hukm shar'i is present whenever its `illah is present
even if its hikmah is not, and a hukm shar`i is absent in the absence of its 'illah even if its hikmah is
present. The jurist and the judge must therefore enforce the law whenever its 'illah is known to exist
regardless of its hikmah. Hence it would be a mistake for the judge to entitle to the right of pre-emption
a person who is neither a partner nor a neighbouring owner on the mere assumption that he may be
harmed by the sale of the property to a certain purchaser.
[35. Shawkani, Irshad, pp. 207-208, Khallaf, Ilm, pp.88-97.]
Principles of Islamic Jurisprudence ~
Kamali 189
The Malikis and the Hanbalis, on the other hand, do not draw any distinction between the 'illah and the
hikmah. In their view, the hikmah aims at attracting an evident benefit or preventing an evident harm,
and this is the ultimate objective of the law. When, for example, the law allows the sick not to observe
the fast, the hikmah is the prevention of hardship to them. Likewise the hikmah of retaliation (qisas) in
deliberate homicide, or of the hadd penalty in theft, is to protect the lives and properties of the people.
Since the realisation of benefit (maslahah) and prevention of harm (mafsadah) is the basic purpose of
all the rules of Shari'ah, it would be proper to base analogy on the hikmah.
[36. Abu Zahrah, Usul, p. 188.]
The Hanafis and the Shafi'is however maintain that the `illah must be both evident and constant. In their
view the `illah secures the hikmah most of the time but not always. Their objection to the hikmah being
the basis of analogy is that the hikmah of the law is often a hidden quality which cannot be detected by
the senses, and this would in turn render the construction of analogy upon them unfeasible. The hikmah
is also variable according to circumstances, and this adds further to the difficulty of basing analogy on
it. The hikmah, in other words, is neither constant nor well-defined, and may not be relied upon as a
basis of analogy.
To give an example, the permission granted to travelers to break the fast while traveling is to relieve
them from hardship. This is the hikmah of this ruling. But since hardship is a hidden phenomenon and
often varies according to persons and circumstances, it may not constitute the effective cause of an
analogy. The concession is therefore attached to traveling itself which is the `illah regardless of the
degree of hardship that it may cause to individual travelers.
[37. Khallaf, `Ilm, p.64.]
To give another example, the 'illah in the prohibition of passing a red traffic light is the appearance of
the red light itself. The hikmah is to prevent traffic irregularities and accidents. Anyone who passes a
red light is committing an offence even if no accident is caused as a result. The 'illah and hikmah can as
such exist independently of one another,
the latter being less easily ascertainable than the former. On a similar note, the `illah in awarding a law
degree is passing one's final examinations and obtaining the necessary marks therein. The hikmah may
be the acquisition of a certain standard of knowledge in the disciplines concerned. Now it is necessary
that university degrees are awarded on a constant and reliable basis, which is passing the exams. The
acquisition of legal knowledge often, but not always, goes hand in hand with the ability to pass exams,
but this by itself is not as readily ascertainable as are the exam results.
2) As already stated, the effective cause on which analogy is based must also be evident (zahir). Hidden
phenomena such as intention, goodwill, consent, etc., which are not clearly ascertainable may not
constitute the `illah of analogy. The general rule is that the `illah must be definite and perceptible to the
senses. For example, since the consent of parties to a contract is imperceptible in its nature, the law
proceeds upon the act of offer and acceptance. Similarly the `illah in establishing the paternity of a
Principles of Islamic Jurisprudence ~ Kamali 190
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