child is matrimonial cohabitation (qiyam firash al-zawjiyyah), or acknowledgement of paternity (iqrar),
both of which are external phenomena and are susceptible to evidence and proof. Since conception
through conjugal relations between the spouses is not an obvious phenomenon, it may not form the
'illah of paternity. On a similar note, the law adopts as the 'illah of legal majority, not the attainment of
intellectual maturity, but the completion of a certain age, which is evident and susceptible to proof.
Shawkani, Irshad, p. 207, Abdur Rahim, Jurisprudence, p.149; Abu Zahrah, Usul, p. I89; Khallaf, `Ilm, p. 69.]
3) The third condition of 'illah is that it must be a proper attribute (al-wasf al-munasib) in that it bears a
proper and reasonable relationship to the law of the text (hukm). This relationship is munasib when it
serves to achieve the objective (hikmah) of the Lawgiver, which is to benefit the people and to protect
them against harm. For example, killing is a proper ground on which to exclude an heir from
inheritance. For the basis of succession is the tie of kinship which relates the heir to the deceased, and is
severed and nullified by killing. Similarly, the intoxicating effect of wine is the proper cause of its
prohibition. An attribute which does not bear a proper relationship to the hukm does not qualify as an
'illah. To give an example, murder must be retaliated for, not because the perpetrator happens to be a
Negro or an Arab, but because he has deliberately killed another. Similarly, wine is prohibited not
because of its colour or taste but because it is an intoxicant.
[39. Abu Zahrah, Usul, p. 189; Khallaf, `Ilm, pp. 69-70.]
4) The `illah must be 'transient' (muta'addi), that is, an objective quality which is transferable to other
cases. For analogy cannot be constructed on a 'illah which is confined to the original case only. As the
Hanafis explain, the very essence of 'illah, as much as that of qiyas in general, is its capability of
extension to new cases, which means that the 'illah must be a transferable attribute. Traveling, for
example, is the `illah of a concession in connection with fasting. As such, it is an 'illah which is
confined to the asl and cannot be applied in the same way to other devotional acts (ibadat). Similarly, if
we were to confine the `illah in the prohibition of wine to that variety which is derived from grapes, we
would be precluding all the other varieties of wine from the scope of the prohibition.
Transferability (ta'diyah) of the effective cause is not, however, required by the Shafi'is, who have
validated qiyas on the basis of an `illah which is confined to the original case (i.e. 'illah qasirah). The
Shafi'is (and the Hanafi jurist, Ibn al-Humam) have argued that ta'diyah is not a requirement of the
'illah: when the 'illah is confined to the original case, it is probable that the Lawgiver had intended it as
such. The probability may not be ignored merely for lack of ta'diyah. It is a requirement which is
intellectually conceived without due regard for the precise terms of the law itself. The Shafi'is have
further argued that the utility of the `illah is not to be sought solely in its transferability. There is thus
no inherent objection to the possibility of an 'illah being confined to the original case. The ulema are,
however, in agreement that the textually prescribed causes must be accepted as they are regardless as to
whether they are inherently transient or not.
Principles of Islamic Jurisprudence ~
[38.Kamali 191
The requirement of ta`diyah would imply that the `illah of analogy must be an abstract quality and not a
concrete activity or object. To illustrate this, we may again refer to the foregoing examples. Traveling,
which is a concession in connection with fasting, is a concrete activity, whereas intoxication is an
abstract quality which is not confined in its application. Similarly in the Hadith, regarding usury (riba),
the `illah of its ruling which prohibits quantitative excess in the sale of the six specified articles is the
quality of such articles being saleable by the measurement of weight or capacity and not their particular
species. The Hadith thus provides that 'gold for gold, silver for silver, wheat for wheat, barley for
barley, dates for dates and salt for salt must be equal for equal, hand to hand [...]' Transaction in these
commodities must, in other words, be without excess on either side and delivery shall be immediate,
otherwise the transaction would amount to usury, which is forbidden. The 'illah of this prohibition is
none of the concrete objects that are specified but an attribute or a concept which applies to all, namely
their sale ability by capacity or weight.
Abu Zahrah, Usul, p.190; Abdur Rahim, Jurisprudence, p. 151-2.]
[40. Muslim, Sahih Muslim, p. 252. Hadith no. 949; Ghazali, Mustasfa, II, 98; Khudari, Usul, p. 320;
5) And finally, the effective cause must not be an attribute which runs counter to, or seeks to alter, the
law of the text. To illustrate this we may refer to the story of a judge, Imam Yahya of al-Andalus, who
was asked by an Abbasid ruler as to the penance (kaffarah) of having conjugal relations during daytime
in Ramadan. The judge responded that the kaffarah in this case was sixty days of fasting. This answer
was incorrect as it sought to introduce a change in the text of the Hadith which enacted the kaffarah to
be freeing a slave, or sixty days of fasting, or feeding sixty poor persons. The fatwa given by the judge
sought to change this order of priority on the dubious assumption that freeing a slave (or feeding sixty
persons) was an easy matter for a ruler and he should therefore be required to observe the fasting only.
The `illah of the penance in this case is held to be the breaking of the fast itself and not any disrespect
to the sanctity of Ramadan, nor having sexual intercourse with one's wife, which might have occurred
to the judge while formulating his fatwa.
[41. Abu Zahrah, Usul, pp. 187, 190, 194.]
Our next discussion concerning the `illah relates to the question of how the 'illah can be identified. Are
there any methods which the jurist may utilise in his search for the correct cause/rationale of a given
law?
Identification of the 'Illah
The effective cause of a ruling may be clearly stated, or suggested by indications in the nass, or it may
be determined by consensus. When the 'illah is expressly identified in the text, there remains no room
for disagreement. Differences of opinion arise only in cases where the 'illah is not identified in the
Principles of Islamic Jurisprudence ~
Kamali 192
sources. An example of the 'illah which is expressly stated in the text occurs in sura al-Nisa (4:43): 'O
you believers! Do not approach salah while you are drunk.' This ayah was revealed prior to the general
prohibition of wine-drinking in sura al-Ma'idah (5:93), but it provides, nevertheless, a clear reference to
intoxication, which is also confirmed by the Hadith 'every intoxicant is khamr [wine] and every khamr
is forbidden'.
[42. Abu Dawud, Sunan, III, 1043, Hadith no. 3672.]
In another place, the Qur'an explains the effective cause of its ruling on the distribution of one-fifth of
war booty to the poor and the needy 'so that wealth does not accumulate in the hands of the rich' (alHashr,
59:7).
Instances are also found in the Hadith where the text itself identifies the rationale of its ruling. Thus the
effective cause of asking for permission when entering a private dwelling is stated in the Hadith which
provides that 'permission is required because of viewing'.
The 'illah of asking for permission is thus to protect the privacy of the home against unsolicited
viewing.
[43. Muslim, Sahih, p. 375, Hadith no. 1424; Ghazali, Mustasfa, II, 74; Ibn Hazm, Ihkam, VIII, 91; Abu Zahrah, Usul, p. 193. There are also passages
in the Qur'an on the subject of isti'shan, or asking permission before entering a private home. Note, for example, sura al-Nur (24:27) which enjoins: 'O you
believers, do not enter houses other than your own unless you act politely and greet their occupants.']
In these examples, the occurrence of
certain Arabic expressions such as kay-la (so as not to), li-ajli (because of), etc., are associated with the
concept of ratiocination (ta`lil) and provide definite indications as to the `illah of a given ruling.
Shawkani lists a number of other expressions such as li-alla, min ajli, la'allahu kadha, bi-sahab kadha, etc. all of which are associated with the idea of explaining
the causes (Irshad, p. 211).]
Alternatively, the text which indicates the `illah may be a manifest nass (al-nass al-zahir) which is in
the nature of a probability or an allusion (al-ima' wa'l-isharah). Indications of this type are also
understood from the language of the text and the use of certain Arabic particles such as li, fa, bi, anna
and inna, which are known to be associated with ta'lil. For example, in the Qur'anic text (al-Ma'idah,
5:38): `as to the thieves, male and female, cut off [fa'qta'u] their hands,' theft itself is the cause of the
punishment. Instances of this type are also found in sura al-Nur (24:2 and 4) regarding the punishment
of adultery and false accusation respectively. In sura al-Nisa' (4:34) we find another example, as
follows: `As for women whose rebellion [nushuz] you fear, admonish them (fa-`izzuhunna) and leave
them alone in their beds, and physically punish them.' In this text, nushuz is the effective cause of the
punishment.
[45. Imam Malik has by analogy extended the same penalties to a husband who ill-treats his wife. He must first be admonished; if he continues,
he must continue paying the wife her maintenance but she is not required to obey him; finally he may be subjected to physical punishment. See Abu Zahrah, Usul,
p.193.]
The writers on usul give numerous examples of instances where the Qur'an provides an indication,
however indirect, as to the `illah of its rulings.
[46. Note, for example, sura al-Baqarah (2:222) concerning conjugal relations with ones
wife during her menstruation, which are to be avoided. The text indicates menstruation to be the 'illah of its ruling. Shawkani, (Irshad, pp. 212-213) provides an
exhaustive list of the particles of ta'lil with their illustrations from the Qur'an and the Hadith.]
Principles of Islamic Jurisprudence ~ Kamali 193
The text of a Hadith may allude to the `illah of its ruling, There is, for example, a Hadith which
provides that the saliva of cats is clean 'for they are usually around you in the homes'.
Their domesticity, in other words, is the effective cause of the concession. Thus by way of analogy, all
domestic animals would be considered clean, unless it is indicated otherwise And lastly, in the Hadith
which provides that `the judge who is in a state of anger may not adjudicate,' anger itself is the `illah of
the prohibition.
[47. Abu Dawud, Sunan, III, 1018, Hadith no 3582; Ghazali, Mustasfa, II, 75; Shawkani, Irshad, pp. 210, 212.]
By analogy, the
Companions have extended the ruling of this Hadith to anything which resembles anger in its effect
such as extreme hunger and depression.
[48. Sha`ban, Usul, p. 151.]
Sometimes the word sabab is used as a substitute for 'illah. Although sabab is synonymous with `illah
and many writers have used them as such, nevertheless, sabab is normally reserved for devotional acts
(ibadat) whose rationale is not perceptible to the human intellect. The text may sometimes provide an
indication as to its sabab. Thus we find in sura al-Isra' (17:78) which enjoins, `Perform the salah from
the decline of the sun [li-duluk al-shams] until twilight at night,' the sabab (cause) of salah is the time
when the salah is due. Since the cause of the ruling in this text is not discernable to human intellect, it is
referred to as a sabab but not as an 'illah. From this distinction, it would appear that every 'illah is
concurrently a sabab, but not every sabab is necessarily an 'illah.
[49 . Khallaf, `Ilm, pp. 67-68.]
Next, the effective cause of a ruling may be established by consensus. An example of this is the priority
of germane over consanguine brothers in inheritance, the 'illah for which is held to be the former's
superior tie with the mother. This ruling of ijma' has subsequently formed the basis of an analogy
according to which the germane brother is also given priority over the consanguine brother in respect of
guardianship (wilayah). Ijma' has also determined the 'illah of the father's right of guardianship over the
property of his minor child to be the minority of the child. Once again this right has, by analogy, been
acknowledged for the grandfather.
[50. Shawkani, Irshad, p.210.]
No ijma' can, however, be claimed to exist in
regard to 'illah of the father's right of guardianship over the property of his minor daughter. While the
majority of ulema consider the 'illah in this case to be minority, for the Shafi'is, the 'illah in ijbar is
virginity. The right of ijbar thus terminates upon loss of virginity even if the girl is still a minor.
Nawawi, Minhaj (Howard's trans.), p. 284.]
When the 'illah is neither stated nor alluded to in the text, then the only way to identify it is through
ijtihad. The jurist thus takes into consideration the attributes of the original case, and only that attribute
which is considered to be proper (munasib) is identified as the 'illah. For example, in the Hadith
referred to above concerning the penance of conjugal relations during daytime in Ramadan, it is not
precisely known whether the 'illah of the penance is the breaking of the fast (iftar), or sexual
intercourse. Although intercourse with one's wife is lawful, it may be that in this context it is regarded
as a form of contempt for the sanctity of Ramadan. But it is equally reasonable to say that intercourse in
this context is no different to other forms of iftar, in which case it is the iftar itself that is the 'illah of
Principles of Islamic Jurisprudence ~ Kamali 194
penance.
[52. Ghazali, Mustasfa, II, 54; Abu Zahrah, Usul, p. 194; Khallaf, `Ilm, p. 78.]
The method of reasoning which the
mujtahid employs in such cases is called tanqih al-manat, or isolating the 'illah, which is to be
distinguished from two other methods referred to as takhrij al-manat (extracting the 'illah) and tahqiq
al-manat (ascertaining the 'illah) respectively. This process of enquiry is roughly equivalent to what is
referred to by some ulema of usul as al-sidr wa'l-taqsim, or elimination of the improper and assignment
of the proper 'illah to the hukm.
Tanqih al-manat implies that a ruling may have more than one cause, and the mujtahid has to identify
the one that is proper (munasib), as was the case in the foregoing examples. Literally, tanqih, means
'purifying', whereas manat is another word for 'illah. Technically, tanqih al-manat means 'connecting
the new case to the original case by eliminating the discrepancy between them' (ilhaq al-far' bi'l-asl biilgha'
al-fariq).
[53. Shawkani, Irshad, pp. 221-22; Abu Zahrah, Usul, p. 194]
Extracting the `illah, or takhrij al-manat, is in fact the starting point to the enquiry concerning the
identification of 'illah, and often precedes tanqih al-manat In all areas where the text or ijma' does not
identify the effective cause, the jurist extracts it by looking at the relevant causes via the process of
ijtihad. He may identify more than one cause, in which case he has completed the step involved in
takhrij al-manat and must move on to the next stage, which is to isolate the proper cause. To illustrate
this, the prohibition of usury (riba) in wheat and five other articles is laid down in the Hadith. When the
jurist seeks to draw an analogy between wheat and raisins-to determine for example whether one should
apply the tax of one tenth by analogy to raisins-the 'illah may be any of the following: that both of them
sustain life, that they are edible, that they are both grown in the soil, or that they are sold by measure.
Thus far the jurist has completed the first step, namely extracting the `illah. But then he proceeds to
eliminate some of these by recourse to tanqih al-manat. The first `illah is eliminated because salt,
which is one of the six articles, does not sustain life; the second is also eliminated because gold and
silver are not edible; and so is the third as neither salt nor precious metals are grown in the soil. The
`illah is therefore the last attribute, which comprises all the specified items in the Hadith of riba. The
difference between the two stages of reasoning is that in takhrij al-manat the jurist is dealing with a
situation where the `illah is not identified, whereas in tanqih al-manat, more than one cause has been
identified and his task is to select the proper 'illah.
[54. Ghazali, Mustasfa, II, 55; Khallaf, Ilm, p. 77.]
Ascertaining the `illah, or tahqiq al-manat, follows the two preceding stages of investigation in that it
consists of ascertaining the presence of an `illah in individual cases. For purposes of drawing an
analogy between wine and a herbal drink, for example, the investigation which leads to the conclusion
that the substance in question has the intoxicating quality in common with wine is in the nature of
tahqiq al-manat. Similarly, in the case of drawing an analogy between a thief and a pickpocket, the
investigation as to whether or not the latter falls under the definition of theft is in the nature of tahqiq
al-manat.
[55. Abu Zahrah, Usul, p.195; Khallaf, 'Ilm, p. 78. For other examples see Shawkani, Irshad, p. 222.]
Principles of Islamic Jurisprudence ~
Kamali 195
Varieties of Qiyas
From the viewpoint of the strength or weakness of the 'illah, the Shafi'i jurists have divided qiyas into
three types:
a) 'Analogy of the Superior' (qiyas al-awla). The effective cause in this qiyas is more evident in the new
case than the original case, which is why it is called qiyas al-awla. For example, we may refer to the
Qur'anic text in sura al-Isra' (17:23) which provides regarding parents: 'say not to them uff [i.e. a single
word of contempt] nor repel them, but address them in dignified terms'. By analogy it may be deduced
that the prohibition against lashing or beating them is even more obvious than verbal abuse. Similarly,
the, penance (kaffarah) of erroneous killing is, by way of analogy, applicable to intentional killing as
the transgression which invokes the kaffarah is even more evident in the latter. This is the Shafi'i view,
but the Hanafis do not consider the first example to be a variety of qiyas but a mere implication of the
text (dalalah al-nass) which falls within the scope of interpretation rather than analogy. Likewise the
Hanafis do not require kaffarah for deliberate killing, a ruling which has been determined on grounds of
interpretation rather than qiyas.
Zuhayr, Usul, IV, p. 44.]
[56. Muslim, Sahih Muslim, p. 41, Hadith no. 119; Ibn Hazm, Ihkam, VII, 54-55; Abu Zahrah, Usul, p.195-196.
b) 'Analogy of Equals' (qiyas al-musawi). The 'illah in this type of qiyas is equally effective in both the
new and the original cases, as is the ruling which is deduced by analogy. We may illustrate this by
reference to the Qur'an (al-Nisa', 4:2) which forbids 'devouring the property of orphans'. By analogy, it
is concluded that all other forms of destruction and mismanagement which lead to the loss of such
property are equally forbidden. But this is once again regarded by the Hanafis to fall within the scope of
interpretation rather than analogy. To give another example, according to a Hadith, a container which is
licked by a dog must be washed seven times.
The Shafi'is extend the same ruling by analogy to a container which is licked by swine. The Hanafis,
however, do not allow this Hadith in the first place.
Abu Zahrah, Usul, p.195-196. Zuhayr, Usul, IV, p. 44.]
[57. Muslim, Sahih Muslim, p. 41, Hadith no. 119; Ibn Hazm, Ihkam, VII, 54-55;
c) 'Analogy of the Inferior' (qiyas al-adna). The effective cause in this form of qiyas is less clearly
effective in the new case than the original case. Hence it is not quite so obvious whether the new case
falls under the same ruling which applies to the original case. For example, the rules of riba, prohibit
the exchange of wheat and of other specified commodities unless the two amounts are equal and
delivery is immediate. By analogy this rule is extended to apples, since both wheat and apples are
edible (according to Shafi'i) and measurable (according to Hanafi) jurists. But the `illah of this qiyas is
Principles of Islamic Jurisprudence ~
Kamali 196
weaker in regard to apples which, unlike wheat, are not a staple food.
Ibn Hazm, Ihkam, VII, 54-55; Abu Zahrah, Usul, p.195-196. Zuhayr, Usul, IV, p. 44.]
[57. Muslim, Sahih Muslim, p. 41, Hadith no. 119;
This type of qiyas is unanimously accepted as qiyas proper, but, as earlier stated, the Hanafis and some
Zahiris consider the first two varieties to fall within the meaning of the text. It would appear that the
Hanafis apply the term 'qiyas' only to that type of deduction which involves a measure of ijtihad. The
first two varieties are too direct for the Hanafis to be considered as instances of qiyas.
45; Nour, 'Qiyas', 24-45.]
Qiyas has been further divided into two types, namely 'obvious analogy' (qiyas jali) and `hidden
analogy' (qiyas khafi). This is mainly a Hanafi division. In the former, the equation between the asl and
far` is obvious and the discrepancy between them is removed by clear evidence. An example of this is
the equation the ulema have drawn between the male and the female slave with regard to the rules of
manumission. Thus if two person, jointly own a slave and one of them sets the slave free to the extent
of his own share, it is the duty of the Imam to pay the other part-owner his share and release the slave.
This ruling is explicit regarding the male slave, but by an `obvious analogy' the same rule is applied to
the female slave. The discrepancy of gender in this case is of no consequence in regard to their
manumission.
[59. Shawkani, Irshad, 222; Ibn Qayyim, I'lam, I, 178; Zuhayr, Usul, IV, 45.]
The 'hidden analogy' (qiyas khafi) differs from the 'obvious' variety in that the removal of discrepancy
between the asl and the far` is by means of a probability (zann). Shawkani illustrates this with a
reference to the two varieties of wine, namely nabidh, and khamr. The former is obtained from dates
and the latter from grapes. The rule of prohibition is analogically extended to nabidh despite some
discrepancy that might exist between the two.
[60. Shawkani, Irshad, 222; Ibn Qayyim, I'lam, I, 178; Zuhayr, Usul, IV, 45.]
Another
example of qiyas khafi is the extension, by the majority of ulema (excepting the Hanafis), of the
prescribed penalty of zina to sodomy, despite a measure of discrepancy that is known to exist between
the two cases. And finally, the foregoing analysis would suggest that qiyas khafi and qiyas al-adna are
substantially concurrent.
Proof (Hujjiyyah) of Qiyas
Notwithstanding the absence of a clear authority for qiyas in the Qur'an, the ulema of the four Sunni
schools and the Zaydi Shi'ah have validated qiyas and have quoted several Qur'anic passages in support
of their views. Thus, a reference is made to sura al-Nisa' (4:59) which reads, in an address to the
believers: `should you dispute over something, refer it to God and to the Messenger, if you do believe in
God'.
Principles of Islamic Jurisprudence ~ Kamali 197
[58. Zuhayr, Usul, IV, 44-The proponents of qiyas have reasoned that a dispute can only be referred to God and to the Prophet by
following the signs and indications that we find in the Qur'an and Sunnah. One way of achieving this is
to identify the rationale of the ahkam and apply them to disputed matters, and this is precisely what
qiyas is all about
[61. Ibn Qayyim, I'lam, I, 197; Abu Zahrah, Usul, p.175; Khallaf, 'Ilm, p.54.]
The same line of reasoning has been
advanced with regard to a text in sura al-Nisa' (4:105) which proclaims: `We have sent to you the Book
with the Truth so that you may judge among people by means of what God has shown you.' A judgment
may thus be based on the guidance that God has clearly given or on that which bears close similarity to
it.
[62. Ghazali, Mustasfa, II, 64; Shatibi, Muwafaqat, III, 217; Ibn Qayyim, I'lam, I. 198.]
The Qur'an often indicates the rationale of its
laws either explicitly or by reference to its objectives. The rationale of retaliation, for example, is to
protect life, and this is clearly stated in the text (al-Baqarah. 2:79). Likewise, the rationale of zakah is to
prevent the concentration of wealth in a few hands, which is clearly stated in the Qur'an (al-Hashr,
59:7). Elsewhere in the Qur'an, we read in a reference to the permissibility of tayammum (ablution with
sand in the absence of water) that `God does not intend to impose hardship on you' (al-Ma'idah, 5:6).
In all these instances, the Qur'an provides clear indications which call for recourse to qiyas. In the
absence of a clear ruling in the text, qiyas must still be utilised as a means of achieving the general
objectives of the Lawgiver. It is thus concluded that the indication of causes and objectives, similitudes
and contrasts, would be meaningless if they were not observed and followed as a guide for conduct in
the determination of the ahkam.
[63. Abu Zahrah, Usul, p. 176.]
The proponents of qiyas have further quoted, in support of their views, a verse in sura al-Hashr (59:2)
which enjoins: `Consider, O you possessors of eyes!' `Consideration' in this context means attention to
similitudes and comparison between similar things. Two other ayat which are variously quoted by the
ulema occur in sura al-Nazi`at, that `there is a lesson in this for one who fears' (79:26); and in Al-Imran
(3:13) which provides: 'in their narratives there was a lesson for those who possessed vision'.
There are two types of indication in the Sunnah to which the proponents of qiyas have referred:
1) Qiyas is a form of ijtihad, which is expressly validated in the Hadith of Mu`adh b. Jabal. It is
reported that the Prophet asked Mu`adh upon the latter's departure as judge to the Yemen, questions in
answer to which Mu`adh told the Prophet that he would resort to his own ijtihad in the event that he
failed to find guidance in the Qur'an and the Sunnah, and the Prophet was pleased with this reply. Since
the Hadith does not specify any form of reasoning in particular, analogical reasoning falls within the
meaning of this Hadith.
[64. Abu Dawud, Sunan (Hasan's trans.) III, 109 (Hadith 1038), Khallaf, `Ilm, p.56.]
2) The Sunnah provides evidence that the Prophet resorted to analogical reasoning on occasions when
he did not receive a revelation on a particular matter. On one such occasion, a woman known as alKhath
'amiyyah came to him and said that her father had died without performing the hajj.
Would it
Principles of Islamic Jurisprudence ~
Kamali 198
benefit him if she performed the hajj on her father's behalf? The Prophet asked her: 'Supposing your
father had a debt to pay and you paid it on his behalf, would this benefit him?' To this her reply was in
the affirmative, and the Prophet said, `The debt owed to God merits even greater consideration.
Mustasfa, II, 64; Shawkani, Irshad, p. 212; Ibn Qayyim, I`lam, I, 200.]
It is also reported that Umar b. al-Khattab asked the Prophet whether kissing vitiates the fast during
Ramadan. The Prophet asked him in return: `What if you gargle with water while fasting?' `Umar
replied that this did not matter. The Prophet then told him that `the answer to your first question is the
same'.
[66. Ibn Hazm, Ihkam, VII, 100; Ibn Qayyim, I'lam, I, 200; Khallaf, `Ilm, p. 57.]
The Companions are said to have reached a consensus on the validity of qiyas. We find, for example,
that the first Caliph, Abu Bakr, drew an analogy between father and grandfather in respect of their
entitlements in inheritance. Similarly, `Umar ibn al-Khattab is on record as having ordered Abu Musa
al-Ash'ari `to ascertain the similitudes for purposes of analogy'.
[67. Ibn Hazm, Ihkam, VII, 147; Abu Zahrah, Usul, p. 177.]
Furthermore, the Companions pledged their fealty (bay`ah) to Abu Bakr on the strength of the analogy
that `Umar drew between two forms of leadership: 'Umar had asked the Companions, `Will you not be
satisfied, as regards worldly affairs, with the man with whom the Prophet was satisfied as regards
religious affairs?' And they agreed with 'Umar, notwithstanding the fact that the issue of succession was
one of the utmost importance.
[68. Ibn Hazm, Ihkam, VII, 160; Ibn Qayyim, I'lam, I. 182.]
Again, when the Companions held
a council to determine the punishment of wine-drinking, `Ali b. Abi Talib suggested that the penalty of
false accusation should be applied to the wine drinker, reasoning by way of analogy, 'When a person
gets drunk, he raves and when he raves, he accuses falsely.'
[69. Shawkani, Irshad, p. 223; Abu Zahrah, Usul, p.177]
It is
thus concluded that qiyas is validated by the Qur'an, the Sunnah, and the ijma' of the Companions.
The Argument Against Qiyas
This has been advanced mainly by the Zahiri school, and some Mu'tazilah, including their leader,
Ibrahim al-Nazzam. The leading Zahiri jurist, Ibn Hazm, is the most outspoken against qiyas. The main
points of his argument may be summarised as follows:
1) The rules of the Shari'ah are conveyed in the form of commands and prohibitions. There are also the
intermediate categories of 'recommended' (mandub) and `reprehensible' (makruh), which are essentially
two varieties of mubah (permissible). There are thus only three types of ahkam: command, prohibition,
and permissibility. Should there be no clear text in respect of any matter, then it would fall under the
principle of ibadah (permissibility) winch is established to the Qur'an.
Principles of Islamic Jurisprudence ~ Kamali 199
[65. Ghazali,
[70. Two of the Qur'anic ayat which validate ibahah
are as follows: It is He who has created for you all things that are on earth' (al-Baqarah, 2:29); and `O you believers! Make not unlawful the good things which God has made lawful to you' (al-Ma'idah, 5:90).]
Commands and prohibitions are determined by the clear authority of the
Qur'an, the Sunnah, or ijma', in whose absence
nothing else can determine an obligatory or a prohibitory injunction, and the matter would
automatically fall under the category of mubah. There is thus no room for analogy in the determination
of the ahkam.
[71. Ibn Hazm, Ihkam, VIII, 3.]
2) The supporters of analogy, according to Ibn Hazm, proceed on the assumption that the Shari'ah fails
to provide a nass for every matter, an assumption which is contrary to the explicit provisions of the
Qur'an. Ibn Hazm goes on to quote the following to this effect: 'We have neglected nothing in the Book'
(al-An'am, 6:89); and 'We revealed the Book as an explanation for everything' (al-Nahl, 16:89). In yet
another passage, we read in the Qur'an: 'This day, I perfected year religion for you, and completed My
favour upon you' (al-Ma'idah, 5:4).
Since the ahkam of the Lawgiver are all-inclusive and provide complete guidance for all events, our
only duty is to discover and implement them. To consider qiyas as an additional proof would be
tantamount to an acknowledgement that the Qur'an fails to provide complete guidance.
VIII, 18.]
3) Qiyas derives its justification from an 'illah which is common to both the original and the new case.
The 'illah is either indicated in the text, in which case the ruling is derived from the text itself and qiyas
is redundant; or alternatively, where the 'illah is not so indicated, there is no way of knowing it for
certain. Qiyas therefore rests on conjecture, which must not be allowed to form the basis of a legal
ruling. This is, according to Ibn Hazm, the purport of the Qur'anic ayah (al-Najm, 53:28) which
proclaims that `conjecture avails nothing against the truth.' Identifying the 'illah in qiyas is an exercise
in speculation, whereas the Qur'an enjoins us to 'pursue not that of which you have no knowledge' (alIsra',
17:36).
[73. Ibn Hazm, Ihkam, VIII, 9.]
4) And lastly, Ibn Hazm holds that qiyas is clearly forbidden in the Qur'an.
Principles of Islamic Jurisprudence ~ Kamali 200
[72. Ibn Hazm, Ihkam,
[74. Ibn Hazm, Ihkam, VIII, 9]
Thus we
read in sura al-Hujurat (49:1): 'O you believers! Do not press forward before God and His Messenger,
and fear God [...]', which means that the believers must avoid legislating on matters on which the
lawgiver has chose, to remain silent. The same point is conveyed in the Hadith where the prophet
ordered the believers as follows:
Ask me not about matters which I have not raised. nations before you were faced with destruction
because of excessive questioning and disputation with their prophets. When I command you to do
something, do it to the extent that you can, and avoid what I have forbidden.
[75. Ibn Hazm, Ihkam, VIII, 15.]Thus in regard to matters on which the nass is silent, it is not proper for a Muslim to take the initiative
in issuing a hukm, for he is ordered not to do so. Qiyas therefore violates the express terms of the Qur'an
and the Sunnah.
To sum up, Ibn Hazm's argument is based on two main points, one of which is that the nusus of the
Qur'an and Sunnah provide for all event, and the other is that qiyas is an unnecessary addition to the
nusus. Regarding the first point, the majority of ulema hold the view that the nusus do admittedly cover
all events, either explicitly or through indirect indications. However, the Zahiris rely only on the
explicit nusus and not on these indirect indications. The majority, on the other hand, go beyond the
confines of literalism and validate qiyas in the light of the general objectives of the Shari'ah. For the
majority, qiyas is not an addition or a superimposition on the nusus, but their logical extension. Hence
the Zahiri argument that qiyas violates the integrity of the nusus is devoid of substance.
pp. 179-80.]
With reference to some of the Qur'anic passages that the opponents of qiyas have quoted, especially on
the use of speculative evidence in law, it is contended that the ayat in question forbid recourse to
speculation (zann) in matters of belief only. As for the practical rules of fiqh, most of them partake in
zann, and a great deal of the nusus are themselves speculative in their purport and implication (zanni aldalalah).
But this does not necessarily mean that action upon them must be suspended. On the contrary,
a
measure of diversity and variation in the practical rules of Shari'ah
is not only tolerated, but is
considered
to be a sign of the bounty of Almighty God, and the essence of flexibility in the Shari'ah.
Khallaf, `Ilm, p 79.]
In principle, the Shi'ah Imamiyyah do not recognise the validity of qiyas, as they maintain that qiyas is
pure conjecture which must be avoided. In addition, the Qur'an, the Sunnah and the rulings of the
Imams, according to the Shi'i ulema, provide sufficient guidance for conduct, and any reference to
analogy is unnecessary and unwarranted.
[78. Mutahhari, Jurisprudence, p. 21.]
This is definitely the view of the
Akhbari branch of the Twelve Shi'ah, whose refutation of qiyas closely resembles that of the Zahiris.
But the Usuli branch of the Shi'ah validate action upon certain varieties of qiyas, namely qiyas whose
'illah is explicitly stated in the text (qiyas mansus al-`illah), analogy of the superior (qiyas al-awla) and
obvious analogy (qiyas jali). These varieties of qiyas, in their view, are not mere speculations; they
either fall within the meaning of the text or else constitute a strong probability (al-zann al-qawi) which
may be adopted as a guide for conduct. But they validate this through recourse to ijtihad and `aql rather
than qiyas per se.
Qiyas in Penalties
[79. For further details see Asghari, Qiyas, pp.119,139.]
Principles of Islamic Jurisprudence ~ Kamali 201
[76. Abu Zahrah, Usul,
[77.
both of which are external phenomena and are susceptible to evidence and proof. Since conception
through conjugal relations between the spouses is not an obvious phenomenon, it may not form the
'illah of paternity. On a similar note, the law adopts as the 'illah of legal majority, not the attainment of
intellectual maturity, but the completion of a certain age, which is evident and susceptible to proof.
Shawkani, Irshad, p. 207, Abdur Rahim, Jurisprudence, p.149; Abu Zahrah, Usul, p. I89; Khallaf, `Ilm, p. 69.]
3) The third condition of 'illah is that it must be a proper attribute (al-wasf al-munasib) in that it bears a
proper and reasonable relationship to the law of the text (hukm). This relationship is munasib when it
serves to achieve the objective (hikmah) of the Lawgiver, which is to benefit the people and to protect
them against harm. For example, killing is a proper ground on which to exclude an heir from
inheritance. For the basis of succession is the tie of kinship which relates the heir to the deceased, and is
severed and nullified by killing. Similarly, the intoxicating effect of wine is the proper cause of its
prohibition. An attribute which does not bear a proper relationship to the hukm does not qualify as an
'illah. To give an example, murder must be retaliated for, not because the perpetrator happens to be a
Negro or an Arab, but because he has deliberately killed another. Similarly, wine is prohibited not
because of its colour or taste but because it is an intoxicant.
[39. Abu Zahrah, Usul, p. 189; Khallaf, `Ilm, pp. 69-70.]
4) The `illah must be 'transient' (muta'addi), that is, an objective quality which is transferable to other
cases. For analogy cannot be constructed on a 'illah which is confined to the original case only. As the
Hanafis explain, the very essence of 'illah, as much as that of qiyas in general, is its capability of
extension to new cases, which means that the 'illah must be a transferable attribute. Traveling, for
example, is the `illah of a concession in connection with fasting. As such, it is an 'illah which is
confined to the asl and cannot be applied in the same way to other devotional acts (ibadat). Similarly, if
we were to confine the `illah in the prohibition of wine to that variety which is derived from grapes, we
would be precluding all the other varieties of wine from the scope of the prohibition.
Transferability (ta'diyah) of the effective cause is not, however, required by the Shafi'is, who have
validated qiyas on the basis of an `illah which is confined to the original case (i.e. 'illah qasirah). The
Shafi'is (and the Hanafi jurist, Ibn al-Humam) have argued that ta'diyah is not a requirement of the
'illah: when the 'illah is confined to the original case, it is probable that the Lawgiver had intended it as
such. The probability may not be ignored merely for lack of ta'diyah. It is a requirement which is
intellectually conceived without due regard for the precise terms of the law itself. The Shafi'is have
further argued that the utility of the `illah is not to be sought solely in its transferability. There is thus
no inherent objection to the possibility of an 'illah being confined to the original case. The ulema are,
however, in agreement that the textually prescribed causes must be accepted as they are regardless as to
whether they are inherently transient or not.
Principles of Islamic Jurisprudence ~
[38.Kamali 191
The requirement of ta`diyah would imply that the `illah of analogy must be an abstract quality and not a
concrete activity or object. To illustrate this, we may again refer to the foregoing examples. Traveling,
which is a concession in connection with fasting, is a concrete activity, whereas intoxication is an
abstract quality which is not confined in its application. Similarly in the Hadith, regarding usury (riba),
the `illah of its ruling which prohibits quantitative excess in the sale of the six specified articles is the
quality of such articles being saleable by the measurement of weight or capacity and not their particular
species. The Hadith thus provides that 'gold for gold, silver for silver, wheat for wheat, barley for
barley, dates for dates and salt for salt must be equal for equal, hand to hand [...]' Transaction in these
commodities must, in other words, be without excess on either side and delivery shall be immediate,
otherwise the transaction would amount to usury, which is forbidden. The 'illah of this prohibition is
none of the concrete objects that are specified but an attribute or a concept which applies to all, namely
their sale ability by capacity or weight.
Abu Zahrah, Usul, p.190; Abdur Rahim, Jurisprudence, p. 151-2.]
[40. Muslim, Sahih Muslim, p. 252. Hadith no. 949; Ghazali, Mustasfa, II, 98; Khudari, Usul, p. 320;
5) And finally, the effective cause must not be an attribute which runs counter to, or seeks to alter, the
law of the text. To illustrate this we may refer to the story of a judge, Imam Yahya of al-Andalus, who
was asked by an Abbasid ruler as to the penance (kaffarah) of having conjugal relations during daytime
in Ramadan. The judge responded that the kaffarah in this case was sixty days of fasting. This answer
was incorrect as it sought to introduce a change in the text of the Hadith which enacted the kaffarah to
be freeing a slave, or sixty days of fasting, or feeding sixty poor persons. The fatwa given by the judge
sought to change this order of priority on the dubious assumption that freeing a slave (or feeding sixty
persons) was an easy matter for a ruler and he should therefore be required to observe the fasting only.
The `illah of the penance in this case is held to be the breaking of the fast itself and not any disrespect
to the sanctity of Ramadan, nor having sexual intercourse with one's wife, which might have occurred
to the judge while formulating his fatwa.
[41. Abu Zahrah, Usul, pp. 187, 190, 194.]
Our next discussion concerning the `illah relates to the question of how the 'illah can be identified. Are
there any methods which the jurist may utilise in his search for the correct cause/rationale of a given
law?
Identification of the 'Illah
The effective cause of a ruling may be clearly stated, or suggested by indications in the nass, or it may
be determined by consensus. When the 'illah is expressly identified in the text, there remains no room
for disagreement. Differences of opinion arise only in cases where the 'illah is not identified in the
Principles of Islamic Jurisprudence ~
Kamali 192
sources. An example of the 'illah which is expressly stated in the text occurs in sura al-Nisa (4:43): 'O
you believers! Do not approach salah while you are drunk.' This ayah was revealed prior to the general
prohibition of wine-drinking in sura al-Ma'idah (5:93), but it provides, nevertheless, a clear reference to
intoxication, which is also confirmed by the Hadith 'every intoxicant is khamr [wine] and every khamr
is forbidden'.
[42. Abu Dawud, Sunan, III, 1043, Hadith no. 3672.]
In another place, the Qur'an explains the effective cause of its ruling on the distribution of one-fifth of
war booty to the poor and the needy 'so that wealth does not accumulate in the hands of the rich' (alHashr,
59:7).
Instances are also found in the Hadith where the text itself identifies the rationale of its ruling. Thus the
effective cause of asking for permission when entering a private dwelling is stated in the Hadith which
provides that 'permission is required because of viewing'.
The 'illah of asking for permission is thus to protect the privacy of the home against unsolicited
viewing.
[43. Muslim, Sahih, p. 375, Hadith no. 1424; Ghazali, Mustasfa, II, 74; Ibn Hazm, Ihkam, VIII, 91; Abu Zahrah, Usul, p. 193. There are also passages
in the Qur'an on the subject of isti'shan, or asking permission before entering a private home. Note, for example, sura al-Nur (24:27) which enjoins: 'O you
believers, do not enter houses other than your own unless you act politely and greet their occupants.']
In these examples, the occurrence of
certain Arabic expressions such as kay-la (so as not to), li-ajli (because of), etc., are associated with the
concept of ratiocination (ta`lil) and provide definite indications as to the `illah of a given ruling.
Shawkani lists a number of other expressions such as li-alla, min ajli, la'allahu kadha, bi-sahab kadha, etc. all of which are associated with the idea of explaining
the causes (Irshad, p. 211).]
Alternatively, the text which indicates the `illah may be a manifest nass (al-nass al-zahir) which is in
the nature of a probability or an allusion (al-ima' wa'l-isharah). Indications of this type are also
understood from the language of the text and the use of certain Arabic particles such as li, fa, bi, anna
and inna, which are known to be associated with ta'lil. For example, in the Qur'anic text (al-Ma'idah,
5:38): `as to the thieves, male and female, cut off [fa'qta'u] their hands,' theft itself is the cause of the
punishment. Instances of this type are also found in sura al-Nur (24:2 and 4) regarding the punishment
of adultery and false accusation respectively. In sura al-Nisa' (4:34) we find another example, as
follows: `As for women whose rebellion [nushuz] you fear, admonish them (fa-`izzuhunna) and leave
them alone in their beds, and physically punish them.' In this text, nushuz is the effective cause of the
punishment.
[45. Imam Malik has by analogy extended the same penalties to a husband who ill-treats his wife. He must first be admonished; if he continues,
he must continue paying the wife her maintenance but she is not required to obey him; finally he may be subjected to physical punishment. See Abu Zahrah, Usul,
p.193.]
The writers on usul give numerous examples of instances where the Qur'an provides an indication,
however indirect, as to the `illah of its rulings.
[46. Note, for example, sura al-Baqarah (2:222) concerning conjugal relations with ones
wife during her menstruation, which are to be avoided. The text indicates menstruation to be the 'illah of its ruling. Shawkani, (Irshad, pp. 212-213) provides an
exhaustive list of the particles of ta'lil with their illustrations from the Qur'an and the Hadith.]
Principles of Islamic Jurisprudence ~ Kamali 193
The text of a Hadith may allude to the `illah of its ruling, There is, for example, a Hadith which
provides that the saliva of cats is clean 'for they are usually around you in the homes'.
Their domesticity, in other words, is the effective cause of the concession. Thus by way of analogy, all
domestic animals would be considered clean, unless it is indicated otherwise And lastly, in the Hadith
which provides that `the judge who is in a state of anger may not adjudicate,' anger itself is the `illah of
the prohibition.
[47. Abu Dawud, Sunan, III, 1018, Hadith no 3582; Ghazali, Mustasfa, II, 75; Shawkani, Irshad, pp. 210, 212.]
By analogy, the
Companions have extended the ruling of this Hadith to anything which resembles anger in its effect
such as extreme hunger and depression.
[48. Sha`ban, Usul, p. 151.]
Sometimes the word sabab is used as a substitute for 'illah. Although sabab is synonymous with `illah
and many writers have used them as such, nevertheless, sabab is normally reserved for devotional acts
(ibadat) whose rationale is not perceptible to the human intellect. The text may sometimes provide an
indication as to its sabab. Thus we find in sura al-Isra' (17:78) which enjoins, `Perform the salah from
the decline of the sun [li-duluk al-shams] until twilight at night,' the sabab (cause) of salah is the time
when the salah is due. Since the cause of the ruling in this text is not discernable to human intellect, it is
referred to as a sabab but not as an 'illah. From this distinction, it would appear that every 'illah is
concurrently a sabab, but not every sabab is necessarily an 'illah.
[49 . Khallaf, `Ilm, pp. 67-68.]
Next, the effective cause of a ruling may be established by consensus. An example of this is the priority
of germane over consanguine brothers in inheritance, the 'illah for which is held to be the former's
superior tie with the mother. This ruling of ijma' has subsequently formed the basis of an analogy
according to which the germane brother is also given priority over the consanguine brother in respect of
guardianship (wilayah). Ijma' has also determined the 'illah of the father's right of guardianship over the
property of his minor child to be the minority of the child. Once again this right has, by analogy, been
acknowledged for the grandfather.
[50. Shawkani, Irshad, p.210.]
No ijma' can, however, be claimed to exist in
regard to 'illah of the father's right of guardianship over the property of his minor daughter. While the
majority of ulema consider the 'illah in this case to be minority, for the Shafi'is, the 'illah in ijbar is
virginity. The right of ijbar thus terminates upon loss of virginity even if the girl is still a minor.
Nawawi, Minhaj (Howard's trans.), p. 284.]
When the 'illah is neither stated nor alluded to in the text, then the only way to identify it is through
ijtihad. The jurist thus takes into consideration the attributes of the original case, and only that attribute
which is considered to be proper (munasib) is identified as the 'illah. For example, in the Hadith
referred to above concerning the penance of conjugal relations during daytime in Ramadan, it is not
precisely known whether the 'illah of the penance is the breaking of the fast (iftar), or sexual
intercourse. Although intercourse with one's wife is lawful, it may be that in this context it is regarded
as a form of contempt for the sanctity of Ramadan. But it is equally reasonable to say that intercourse in
this context is no different to other forms of iftar, in which case it is the iftar itself that is the 'illah of
Principles of Islamic Jurisprudence ~ Kamali 194
penance.
[52. Ghazali, Mustasfa, II, 54; Abu Zahrah, Usul, p. 194; Khallaf, `Ilm, p. 78.]
The method of reasoning which the
mujtahid employs in such cases is called tanqih al-manat, or isolating the 'illah, which is to be
distinguished from two other methods referred to as takhrij al-manat (extracting the 'illah) and tahqiq
al-manat (ascertaining the 'illah) respectively. This process of enquiry is roughly equivalent to what is
referred to by some ulema of usul as al-sidr wa'l-taqsim, or elimination of the improper and assignment
of the proper 'illah to the hukm.
Tanqih al-manat implies that a ruling may have more than one cause, and the mujtahid has to identify
the one that is proper (munasib), as was the case in the foregoing examples. Literally, tanqih, means
'purifying', whereas manat is another word for 'illah. Technically, tanqih al-manat means 'connecting
the new case to the original case by eliminating the discrepancy between them' (ilhaq al-far' bi'l-asl biilgha'
al-fariq).
[53. Shawkani, Irshad, pp. 221-22; Abu Zahrah, Usul, p. 194]
Extracting the `illah, or takhrij al-manat, is in fact the starting point to the enquiry concerning the
identification of 'illah, and often precedes tanqih al-manat In all areas where the text or ijma' does not
identify the effective cause, the jurist extracts it by looking at the relevant causes via the process of
ijtihad. He may identify more than one cause, in which case he has completed the step involved in
takhrij al-manat and must move on to the next stage, which is to isolate the proper cause. To illustrate
this, the prohibition of usury (riba) in wheat and five other articles is laid down in the Hadith. When the
jurist seeks to draw an analogy between wheat and raisins-to determine for example whether one should
apply the tax of one tenth by analogy to raisins-the 'illah may be any of the following: that both of them
sustain life, that they are edible, that they are both grown in the soil, or that they are sold by measure.
Thus far the jurist has completed the first step, namely extracting the `illah. But then he proceeds to
eliminate some of these by recourse to tanqih al-manat. The first `illah is eliminated because salt,
which is one of the six articles, does not sustain life; the second is also eliminated because gold and
silver are not edible; and so is the third as neither salt nor precious metals are grown in the soil. The
`illah is therefore the last attribute, which comprises all the specified items in the Hadith of riba. The
difference between the two stages of reasoning is that in takhrij al-manat the jurist is dealing with a
situation where the `illah is not identified, whereas in tanqih al-manat, more than one cause has been
identified and his task is to select the proper 'illah.
[54. Ghazali, Mustasfa, II, 55; Khallaf, Ilm, p. 77.]
Ascertaining the `illah, or tahqiq al-manat, follows the two preceding stages of investigation in that it
consists of ascertaining the presence of an `illah in individual cases. For purposes of drawing an
analogy between wine and a herbal drink, for example, the investigation which leads to the conclusion
that the substance in question has the intoxicating quality in common with wine is in the nature of
tahqiq al-manat. Similarly, in the case of drawing an analogy between a thief and a pickpocket, the
investigation as to whether or not the latter falls under the definition of theft is in the nature of tahqiq
al-manat.
[55. Abu Zahrah, Usul, p.195; Khallaf, 'Ilm, p. 78. For other examples see Shawkani, Irshad, p. 222.]
Principles of Islamic Jurisprudence ~
Kamali 195
Varieties of Qiyas
From the viewpoint of the strength or weakness of the 'illah, the Shafi'i jurists have divided qiyas into
three types:
a) 'Analogy of the Superior' (qiyas al-awla). The effective cause in this qiyas is more evident in the new
case than the original case, which is why it is called qiyas al-awla. For example, we may refer to the
Qur'anic text in sura al-Isra' (17:23) which provides regarding parents: 'say not to them uff [i.e. a single
word of contempt] nor repel them, but address them in dignified terms'. By analogy it may be deduced
that the prohibition against lashing or beating them is even more obvious than verbal abuse. Similarly,
the, penance (kaffarah) of erroneous killing is, by way of analogy, applicable to intentional killing as
the transgression which invokes the kaffarah is even more evident in the latter. This is the Shafi'i view,
but the Hanafis do not consider the first example to be a variety of qiyas but a mere implication of the
text (dalalah al-nass) which falls within the scope of interpretation rather than analogy. Likewise the
Hanafis do not require kaffarah for deliberate killing, a ruling which has been determined on grounds of
interpretation rather than qiyas.
Zuhayr, Usul, IV, p. 44.]
[56. Muslim, Sahih Muslim, p. 41, Hadith no. 119; Ibn Hazm, Ihkam, VII, 54-55; Abu Zahrah, Usul, p.195-196.
b) 'Analogy of Equals' (qiyas al-musawi). The 'illah in this type of qiyas is equally effective in both the
new and the original cases, as is the ruling which is deduced by analogy. We may illustrate this by
reference to the Qur'an (al-Nisa', 4:2) which forbids 'devouring the property of orphans'. By analogy, it
is concluded that all other forms of destruction and mismanagement which lead to the loss of such
property are equally forbidden. But this is once again regarded by the Hanafis to fall within the scope of
interpretation rather than analogy. To give another example, according to a Hadith, a container which is
licked by a dog must be washed seven times.
The Shafi'is extend the same ruling by analogy to a container which is licked by swine. The Hanafis,
however, do not allow this Hadith in the first place.
Abu Zahrah, Usul, p.195-196. Zuhayr, Usul, IV, p. 44.]
[57. Muslim, Sahih Muslim, p. 41, Hadith no. 119; Ibn Hazm, Ihkam, VII, 54-55;
c) 'Analogy of the Inferior' (qiyas al-adna). The effective cause in this form of qiyas is less clearly
effective in the new case than the original case. Hence it is not quite so obvious whether the new case
falls under the same ruling which applies to the original case. For example, the rules of riba, prohibit
the exchange of wheat and of other specified commodities unless the two amounts are equal and
delivery is immediate. By analogy this rule is extended to apples, since both wheat and apples are
edible (according to Shafi'i) and measurable (according to Hanafi) jurists. But the `illah of this qiyas is
Principles of Islamic Jurisprudence ~
Kamali 196
weaker in regard to apples which, unlike wheat, are not a staple food.
Ibn Hazm, Ihkam, VII, 54-55; Abu Zahrah, Usul, p.195-196. Zuhayr, Usul, IV, p. 44.]
[57. Muslim, Sahih Muslim, p. 41, Hadith no. 119;
This type of qiyas is unanimously accepted as qiyas proper, but, as earlier stated, the Hanafis and some
Zahiris consider the first two varieties to fall within the meaning of the text. It would appear that the
Hanafis apply the term 'qiyas' only to that type of deduction which involves a measure of ijtihad. The
first two varieties are too direct for the Hanafis to be considered as instances of qiyas.
45; Nour, 'Qiyas', 24-45.]
Qiyas has been further divided into two types, namely 'obvious analogy' (qiyas jali) and `hidden
analogy' (qiyas khafi). This is mainly a Hanafi division. In the former, the equation between the asl and
far` is obvious and the discrepancy between them is removed by clear evidence. An example of this is
the equation the ulema have drawn between the male and the female slave with regard to the rules of
manumission. Thus if two person, jointly own a slave and one of them sets the slave free to the extent
of his own share, it is the duty of the Imam to pay the other part-owner his share and release the slave.
This ruling is explicit regarding the male slave, but by an `obvious analogy' the same rule is applied to
the female slave. The discrepancy of gender in this case is of no consequence in regard to their
manumission.
[59. Shawkani, Irshad, 222; Ibn Qayyim, I'lam, I, 178; Zuhayr, Usul, IV, 45.]
The 'hidden analogy' (qiyas khafi) differs from the 'obvious' variety in that the removal of discrepancy
between the asl and the far` is by means of a probability (zann). Shawkani illustrates this with a
reference to the two varieties of wine, namely nabidh, and khamr. The former is obtained from dates
and the latter from grapes. The rule of prohibition is analogically extended to nabidh despite some
discrepancy that might exist between the two.
[60. Shawkani, Irshad, 222; Ibn Qayyim, I'lam, I, 178; Zuhayr, Usul, IV, 45.]
Another
example of qiyas khafi is the extension, by the majority of ulema (excepting the Hanafis), of the
prescribed penalty of zina to sodomy, despite a measure of discrepancy that is known to exist between
the two cases. And finally, the foregoing analysis would suggest that qiyas khafi and qiyas al-adna are
substantially concurrent.
Proof (Hujjiyyah) of Qiyas
Notwithstanding the absence of a clear authority for qiyas in the Qur'an, the ulema of the four Sunni
schools and the Zaydi Shi'ah have validated qiyas and have quoted several Qur'anic passages in support
of their views. Thus, a reference is made to sura al-Nisa' (4:59) which reads, in an address to the
believers: `should you dispute over something, refer it to God and to the Messenger, if you do believe in
God'.
Principles of Islamic Jurisprudence ~ Kamali 197
[58. Zuhayr, Usul, IV, 44-The proponents of qiyas have reasoned that a dispute can only be referred to God and to the Prophet by
following the signs and indications that we find in the Qur'an and Sunnah. One way of achieving this is
to identify the rationale of the ahkam and apply them to disputed matters, and this is precisely what
qiyas is all about
[61. Ibn Qayyim, I'lam, I, 197; Abu Zahrah, Usul, p.175; Khallaf, 'Ilm, p.54.]
The same line of reasoning has been
advanced with regard to a text in sura al-Nisa' (4:105) which proclaims: `We have sent to you the Book
with the Truth so that you may judge among people by means of what God has shown you.' A judgment
may thus be based on the guidance that God has clearly given or on that which bears close similarity to
it.
[62. Ghazali, Mustasfa, II, 64; Shatibi, Muwafaqat, III, 217; Ibn Qayyim, I'lam, I. 198.]
The Qur'an often indicates the rationale of its
laws either explicitly or by reference to its objectives. The rationale of retaliation, for example, is to
protect life, and this is clearly stated in the text (al-Baqarah. 2:79). Likewise, the rationale of zakah is to
prevent the concentration of wealth in a few hands, which is clearly stated in the Qur'an (al-Hashr,
59:7). Elsewhere in the Qur'an, we read in a reference to the permissibility of tayammum (ablution with
sand in the absence of water) that `God does not intend to impose hardship on you' (al-Ma'idah, 5:6).
In all these instances, the Qur'an provides clear indications which call for recourse to qiyas. In the
absence of a clear ruling in the text, qiyas must still be utilised as a means of achieving the general
objectives of the Lawgiver. It is thus concluded that the indication of causes and objectives, similitudes
and contrasts, would be meaningless if they were not observed and followed as a guide for conduct in
the determination of the ahkam.
[63. Abu Zahrah, Usul, p. 176.]
The proponents of qiyas have further quoted, in support of their views, a verse in sura al-Hashr (59:2)
which enjoins: `Consider, O you possessors of eyes!' `Consideration' in this context means attention to
similitudes and comparison between similar things. Two other ayat which are variously quoted by the
ulema occur in sura al-Nazi`at, that `there is a lesson in this for one who fears' (79:26); and in Al-Imran
(3:13) which provides: 'in their narratives there was a lesson for those who possessed vision'.
There are two types of indication in the Sunnah to which the proponents of qiyas have referred:
1) Qiyas is a form of ijtihad, which is expressly validated in the Hadith of Mu`adh b. Jabal. It is
reported that the Prophet asked Mu`adh upon the latter's departure as judge to the Yemen, questions in
answer to which Mu`adh told the Prophet that he would resort to his own ijtihad in the event that he
failed to find guidance in the Qur'an and the Sunnah, and the Prophet was pleased with this reply. Since
the Hadith does not specify any form of reasoning in particular, analogical reasoning falls within the
meaning of this Hadith.
[64. Abu Dawud, Sunan (Hasan's trans.) III, 109 (Hadith 1038), Khallaf, `Ilm, p.56.]
2) The Sunnah provides evidence that the Prophet resorted to analogical reasoning on occasions when
he did not receive a revelation on a particular matter. On one such occasion, a woman known as alKhath
'amiyyah came to him and said that her father had died without performing the hajj.
Would it
Principles of Islamic Jurisprudence ~
Kamali 198
benefit him if she performed the hajj on her father's behalf? The Prophet asked her: 'Supposing your
father had a debt to pay and you paid it on his behalf, would this benefit him?' To this her reply was in
the affirmative, and the Prophet said, `The debt owed to God merits even greater consideration.
Mustasfa, II, 64; Shawkani, Irshad, p. 212; Ibn Qayyim, I`lam, I, 200.]
It is also reported that Umar b. al-Khattab asked the Prophet whether kissing vitiates the fast during
Ramadan. The Prophet asked him in return: `What if you gargle with water while fasting?' `Umar
replied that this did not matter. The Prophet then told him that `the answer to your first question is the
same'.
[66. Ibn Hazm, Ihkam, VII, 100; Ibn Qayyim, I'lam, I, 200; Khallaf, `Ilm, p. 57.]
The Companions are said to have reached a consensus on the validity of qiyas. We find, for example,
that the first Caliph, Abu Bakr, drew an analogy between father and grandfather in respect of their
entitlements in inheritance. Similarly, `Umar ibn al-Khattab is on record as having ordered Abu Musa
al-Ash'ari `to ascertain the similitudes for purposes of analogy'.
[67. Ibn Hazm, Ihkam, VII, 147; Abu Zahrah, Usul, p. 177.]
Furthermore, the Companions pledged their fealty (bay`ah) to Abu Bakr on the strength of the analogy
that `Umar drew between two forms of leadership: 'Umar had asked the Companions, `Will you not be
satisfied, as regards worldly affairs, with the man with whom the Prophet was satisfied as regards
religious affairs?' And they agreed with 'Umar, notwithstanding the fact that the issue of succession was
one of the utmost importance.
[68. Ibn Hazm, Ihkam, VII, 160; Ibn Qayyim, I'lam, I. 182.]
Again, when the Companions held
a council to determine the punishment of wine-drinking, `Ali b. Abi Talib suggested that the penalty of
false accusation should be applied to the wine drinker, reasoning by way of analogy, 'When a person
gets drunk, he raves and when he raves, he accuses falsely.'
[69. Shawkani, Irshad, p. 223; Abu Zahrah, Usul, p.177]
It is
thus concluded that qiyas is validated by the Qur'an, the Sunnah, and the ijma' of the Companions.
The Argument Against Qiyas
This has been advanced mainly by the Zahiri school, and some Mu'tazilah, including their leader,
Ibrahim al-Nazzam. The leading Zahiri jurist, Ibn Hazm, is the most outspoken against qiyas. The main
points of his argument may be summarised as follows:
1) The rules of the Shari'ah are conveyed in the form of commands and prohibitions. There are also the
intermediate categories of 'recommended' (mandub) and `reprehensible' (makruh), which are essentially
two varieties of mubah (permissible). There are thus only three types of ahkam: command, prohibition,
and permissibility. Should there be no clear text in respect of any matter, then it would fall under the
principle of ibadah (permissibility) winch is established to the Qur'an.
Principles of Islamic Jurisprudence ~ Kamali 199
[65. Ghazali,
[70. Two of the Qur'anic ayat which validate ibahah
are as follows: It is He who has created for you all things that are on earth' (al-Baqarah, 2:29); and `O you believers! Make not unlawful the good things which God has made lawful to you' (al-Ma'idah, 5:90).]
Commands and prohibitions are determined by the clear authority of the
Qur'an, the Sunnah, or ijma', in whose absence
nothing else can determine an obligatory or a prohibitory injunction, and the matter would
automatically fall under the category of mubah. There is thus no room for analogy in the determination
of the ahkam.
[71. Ibn Hazm, Ihkam, VIII, 3.]
2) The supporters of analogy, according to Ibn Hazm, proceed on the assumption that the Shari'ah fails
to provide a nass for every matter, an assumption which is contrary to the explicit provisions of the
Qur'an. Ibn Hazm goes on to quote the following to this effect: 'We have neglected nothing in the Book'
(al-An'am, 6:89); and 'We revealed the Book as an explanation for everything' (al-Nahl, 16:89). In yet
another passage, we read in the Qur'an: 'This day, I perfected year religion for you, and completed My
favour upon you' (al-Ma'idah, 5:4).
Since the ahkam of the Lawgiver are all-inclusive and provide complete guidance for all events, our
only duty is to discover and implement them. To consider qiyas as an additional proof would be
tantamount to an acknowledgement that the Qur'an fails to provide complete guidance.
VIII, 18.]
3) Qiyas derives its justification from an 'illah which is common to both the original and the new case.
The 'illah is either indicated in the text, in which case the ruling is derived from the text itself and qiyas
is redundant; or alternatively, where the 'illah is not so indicated, there is no way of knowing it for
certain. Qiyas therefore rests on conjecture, which must not be allowed to form the basis of a legal
ruling. This is, according to Ibn Hazm, the purport of the Qur'anic ayah (al-Najm, 53:28) which
proclaims that `conjecture avails nothing against the truth.' Identifying the 'illah in qiyas is an exercise
in speculation, whereas the Qur'an enjoins us to 'pursue not that of which you have no knowledge' (alIsra',
17:36).
[73. Ibn Hazm, Ihkam, VIII, 9.]
4) And lastly, Ibn Hazm holds that qiyas is clearly forbidden in the Qur'an.
Principles of Islamic Jurisprudence ~ Kamali 200
[72. Ibn Hazm, Ihkam,
[74. Ibn Hazm, Ihkam, VIII, 9]
Thus we
read in sura al-Hujurat (49:1): 'O you believers! Do not press forward before God and His Messenger,
and fear God [...]', which means that the believers must avoid legislating on matters on which the
lawgiver has chose, to remain silent. The same point is conveyed in the Hadith where the prophet
ordered the believers as follows:
Ask me not about matters which I have not raised. nations before you were faced with destruction
because of excessive questioning and disputation with their prophets. When I command you to do
something, do it to the extent that you can, and avoid what I have forbidden.
[75. Ibn Hazm, Ihkam, VIII, 15.]Thus in regard to matters on which the nass is silent, it is not proper for a Muslim to take the initiative
in issuing a hukm, for he is ordered not to do so. Qiyas therefore violates the express terms of the Qur'an
and the Sunnah.
To sum up, Ibn Hazm's argument is based on two main points, one of which is that the nusus of the
Qur'an and Sunnah provide for all event, and the other is that qiyas is an unnecessary addition to the
nusus. Regarding the first point, the majority of ulema hold the view that the nusus do admittedly cover
all events, either explicitly or through indirect indications. However, the Zahiris rely only on the
explicit nusus and not on these indirect indications. The majority, on the other hand, go beyond the
confines of literalism and validate qiyas in the light of the general objectives of the Shari'ah. For the
majority, qiyas is not an addition or a superimposition on the nusus, but their logical extension. Hence
the Zahiri argument that qiyas violates the integrity of the nusus is devoid of substance.
pp. 179-80.]
With reference to some of the Qur'anic passages that the opponents of qiyas have quoted, especially on
the use of speculative evidence in law, it is contended that the ayat in question forbid recourse to
speculation (zann) in matters of belief only. As for the practical rules of fiqh, most of them partake in
zann, and a great deal of the nusus are themselves speculative in their purport and implication (zanni aldalalah).
But this does not necessarily mean that action upon them must be suspended. On the contrary,
a
measure of diversity and variation in the practical rules of Shari'ah
is not only tolerated, but is
considered
to be a sign of the bounty of Almighty God, and the essence of flexibility in the Shari'ah.
Khallaf, `Ilm, p 79.]
In principle, the Shi'ah Imamiyyah do not recognise the validity of qiyas, as they maintain that qiyas is
pure conjecture which must be avoided. In addition, the Qur'an, the Sunnah and the rulings of the
Imams, according to the Shi'i ulema, provide sufficient guidance for conduct, and any reference to
analogy is unnecessary and unwarranted.
[78. Mutahhari, Jurisprudence, p. 21.]
This is definitely the view of the
Akhbari branch of the Twelve Shi'ah, whose refutation of qiyas closely resembles that of the Zahiris.
But the Usuli branch of the Shi'ah validate action upon certain varieties of qiyas, namely qiyas whose
'illah is explicitly stated in the text (qiyas mansus al-`illah), analogy of the superior (qiyas al-awla) and
obvious analogy (qiyas jali). These varieties of qiyas, in their view, are not mere speculations; they
either fall within the meaning of the text or else constitute a strong probability (al-zann al-qawi) which
may be adopted as a guide for conduct. But they validate this through recourse to ijtihad and `aql rather
than qiyas per se.
Qiyas in Penalties
[79. For further details see Asghari, Qiyas, pp.119,139.]
Principles of Islamic Jurisprudence ~ Kamali 201
[76. Abu Zahrah, Usul,
[77.
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