09-09-2005, 01:37 AM
Chapter Nine: Qiyas (Analogical Deduction)Reply
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'.[2. Ghazali, Mustasfa, II, 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.[4. Cf. 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 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.]
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.[7. Abu Dawud Sunan (Hasan's 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.] 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.'[9. `Ubaydullah ibn Mas'ud Sadr al-Shari'ah, al-Tawdih fi Hall Ghawamid al-Tanqih, p. 444; Aghnides, Muhammedan Theories, p. 49.] 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.[10. Amidi (Ihkam, III, 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 hukmal-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:
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 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.[15. Ghazali, Mustasfa, II, 87; Shawkani, Irshad, p 205.]
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 therefore be imposed on qiyas and on its potential contribution to the Shari'ah.[19. Since al-Zarqa's work is not 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
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 (al-bara'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 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'.[23. Ibn Hazm, Ihkam, VIII, 102; Muslim, Sahih Muslim, I, 423, Hadith no, 1599.] 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' (al-Anbiya', 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. Nor may the crime of zina be made the basis of analogy so as to apply its penalty to similar cases.[25. 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.[26. The relevant Hadith reads: 'If Khuzaymah testifies for anyone, that is sufficient as a proof.' Ghazali, Mustasfa; II, 88; Abu Dawud, Sunan, III, 1024, Hadith no.3600.] 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.[27. Muslim, Sahih Muslim, p. 247, Hadith no. 920; Sha`ban, Usul, p 130.]
III. The New Case (Far')
The far' is an incident or a case whose ruling is sought by recourse to analogy. The far` must fulfill the following three conditions.
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.[28. Shawkani, 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 (al-Nisa, 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]
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.[33. Note, for example, Shawkani, (Irshad, p. 207-208) who has listed 24 conditions for the 'illah whereas the Maliki jurist, Ibn Hajib has recorded only eleven.]
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.[34. Khallaf, `Ilm, 64; Abu Zahrah, Usul, p. 188.]
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 pre-emption 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.]
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 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.[38. 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.
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.[40. Muslim, Sahih Muslim, p. 252. Hadith no. 949; Ghazali, Mustasfa, II, 98; Khudari, Usul, p. 320; Abu Zahrah, Usul, p.190; Abdur Rahim, Jurisprudence, p. 151-2.]
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 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' (al-Hashr, 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.[44. 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.]
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. [51. 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 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 bi-ilgha' 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.]
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.[56. Muslim, Sahih Muslim, p. 41, Hadith no. 119; Ibn Hazm, Ihkam, VII, 54-55; Abu Zahrah, Usul, p.195-196. Zuhayr, Usul, IV, p. 44.]
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.[57. Muslim, Sahih Muslim, p. 41, Hadith no. 119; Ibn Hazm, Ihkam, VII, 54-55; Abu Zahrah, Usul, p.195-196. Zuhayr, Usul, IV, p. 44.]
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 weaker in regard to apples which, unlike wheat, are not a staple food. [57. Muslim, Sahih Muslim, p. 41, Hadith no. 119; Ibn Hazm, Ihkam, VII, 54-55; Abu Zahrah, Usul, p.195-196. Zuhayr, Usul, IV, p. 44.]
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.[58. Zuhayr, Usul, IV, 44-45; 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'.
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 al-Khath 'amiyyah came to him and said that her father had died without performing the hajj. Would it 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.[65. Ghazali, 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.[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.[72. Ibn Hazm, Ihkam, 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' (al-Isra', 17:36).[73. Ibn Hazm, Ihkam, VIII, 9.]
4) And lastly, Ibn Hazm holds that qiyas is clearly forbidden in the Qur'an.[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.[76. Abu Zahrah, Usul, 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 al-dalalah). 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.[77. 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. [79. For further details see Asghari, Qiyas, pp.119,139.]
Qiyas in Penalties
The ulema of the various schools have discussed the application of qiyas to juridical, theological, linguistic, rational and customary matters, but the main question which needs to be discussed here is the application of analogy in regard to prescribed penalties (hudud) and penances (kaffarat).
The majority of ulema do not draw any distinction in this respect, and maintain the view that qiyas is applicable to hudud and kaffarat in the same way as it is to other rules of the Shari'ah. This is explained by reference to the Qur'anic passages and the ahadith which are quoted in support of qiyas, which are all worded in absolute terms, none drawing any distinction in regard to penalties: and since the evidence in the sources does not impose any restriction on qiyas, it is therefore applicable in all spheres of the Shari'ah.[80. Zuhayr, Usul, IV, 51; Abu Zahrah, Usul, p. 205.] An example of qiyas in regard to the hudud is the application of the punishment of theft to the nabbash, or thief who steals the shroud of the dead, as the common `illah between them is taking away the property of another without his knowledge. A Hadith has also been quoted in support of this ruling.[81. The following Hadith is recorded in Abu Dawud (Sunan, III, 1229, Hadith no. 4395): 'The hand of one who rifles the grave should be amputated, as he has entered the house of deceased.'] Similarly the majority of ulema (excluding the Hanafis) have drawn an analogy between zina and sodomy, and apply the hadd of the former by analogy to the latter.[82. Shawkani, Irshad, p. 222.]
The Hanafis are in agreement with the majority to the extent that qiyas may validly operate in regard to ta'zir penalties, but they have disagreed as to the application of qiyas in the prescribed penalties and kaffarat. They would not, for example, approve of an analogy between abusive words (sabb) and false accusation (qadhf), nor would they extend the hadd of zina by analogy to other sexual offences. These, according to the Hanafis, may be penalised under ta'zir but not by analogy to the hudud. The main reason that the Hanafis have given is that qiyas is founded on the 'illah, whose identification in regard to the hudud, involves a measure of speculation and doubt. There is a Hadith which provides: `drop the hudud in cases of doubt as far as possible. If there is a way out, then clear the way, for in penalties, if the Imam makes an error on the side of leniency, it is better than making an error on the side of severity'.[83. Tabrizi, Mishkat, II, 1061, Hadith No 3570; Abu Yusuf, Kitab al Kharaj, p. 152; Ibn Qayyim, I'lam, I, 209.]
It is thus concluded that any level of doubt in ascertaining the `illah of hadd penalties must prevent their analogical extension to similar cases.[84. Abu Zahrah, Usul, p. 205.]
As stated above, the majority validate the application of qiyas in regard to kaffarat. Thus the analogy between the two forms of breaking the fast (iftar), namely deliberate eating during daytime in Ramadan, and breaking the fast by having sexual intercourse, would extend the kaffarah of the latter to the former. Similarly the majority have validated the analogy between deliberate killing and erroneous homicide for purposes of kaffarah. The Qur'an only prescribes a kaffarah for erroneous killing, and this is extended by analogy to deliberate homicide. The common 'illah between them is the killing of another human being. If kaffarah is required in erroneous killing, then by way of a superior analogy (qiyas al-awla) the 'illah is even more evident in the case of a deliberate killing. Both are therefore liable to the payment of kaffarah, which is releasing a slave, or two months of fasting, or feeding sixty persons. The Hanafis are once again in disagreement with the majority, as they maintain that for purposes of analogy, the kaffarah resembles the hadd. Since doubt cannot be totally eliminated in the identification of their effective causes, kaffarat may not be extended by means of analogy.[85. Zuhayr, Usul, IV, 51.]
Notwithstanding the fact that the jurists have disagreed on the application of qiyas in penalties, it will be noted that the ulema have on the whole discouraged recourse to qiyas in the field of criminal law. Consequently, there is very little actual qiyas to be found in this field. This is also the case in modern law, which discourages analogy in respect of penalties. The position is somewhat different to regard to civil transactions (mu`amalat), in which qiyas is generally permitted.[86. Abu Zahrah, Usul, p. 206.]
Conflicts between Nass and Qiyas
Since the 'illah in analogy is a general attribute which applies to all similar cases, there arises the possibility of qiyas coming into conflict with the nusus. The question to be asked is how such a conflict should be removed. Responding to this question, the ulema have held two different views, which may be summarised as follows:
1) According to Imam Shafi'i, Ahmad b. Hanbal, and one view which is attributed to Abu Hanifah, whenever there is a nass on a matter qiyas is absolutely redundant. Qiyas is only applicable when no explicit ruling could be found in the sources. Since recourse to qiyas in the presence of nass is ultra vires in the first place, the question of a conflict arising between the nass and qiyas is therefore of no relevance.[87. Abu Zahrah, Usul, p. 200.]
2) The second view, which is mainly held by the Malikis, also precludes the possibility of a conflict between qiyas and a clear text, but does not dismiss the possibility of a conflict arising between a speculative text and qiyas. Analogy could, according to this view, come into conflict with the `Amm of the Qur'an and the solitary Hadith.
The Hanafis have maintained that the 'Amm is definitive in implication (qat`i al-dalalah), whereas qiyas is speculative. As a rule, a speculative item cannot qualify a definitive one, which would mean that qiyas does not specify the 'Amm of the Qur'an. The only situation where the Hanafis envisage a conflict between qiyas and the `Amm of the Qur'an is where the `illah of qiyas stated in a clear nass. For in this case, a conflict between the 'Amm of the Qur'an and qiyas would be that of one qat'i with another. However, for the most part qiyas is a speculative evidence, and as such may not specify the 'Amm of the Qur'an. But once the 'Amm is specified, on whatever grounds, then it becomes speculative itself, at least in respect of that part which remains unspecified. After the first instance of specification (takhsis), in other words, the 'Amm becomes speculative, and is then open to further specification by means of qiyas. For example, the word bay` (sale) in the Qur'anic text stating that 'God has permitted sale and prohibited usury' (al-Baqarah, 2:275) is `Amm, but has been qualified by solitary ahadith which prohibit certain types of sale. Once the text has been so specified, it remains open to further specification by means of qiyas.[88. Abu Zahrah, Usul, pp. 201-202.]
This was the Hanafis' view of conflict between a general text and qiyas. But the Malikis who represent the majority view, consider the `Amm of the Qur'an to be speculative in the first place. The possibility is therefore not ruled out, according to the majority, of a conflict arising between the nass and qiyas. In such an event, the majority would apply the rule that one speculative principle may be specified by another. Based on this analysis, qiyas, according to most of the jurists, may specify the `Amm of the Qur'an and the Sunnah.[89. Abu Zahrah, Usul, p. 203.]
As for conflict between qiyas and a solitary Hadith, it is recorded that Imam Shafi`i, Ibn Hanbal and Abu Hanifah do not give priority to qiyas over such a Hadith. An example of this is the vitiation of ablution (wudu') by loud laughter during the performance of salah, which is the accepted rule of the Hanafi school despite its being contrary to qiyas. Since the rule here is based on the authority of a solitary Hadith, the latter has been given priority over qiyas, for qiyas would only require vitiation of salah, not the wudu'.[90. Bukhari, Sahih (Istanbul edn.), I, 51 (Kitab al-Wudu', Hadith no. 34); Khan, Athar, p. 403.]
Although the three Imams are in agreement on the principle of giving priority to solitary Hadith over qiyas, regarding this particular Hadith, only the Hanafis have upheld it. The majority, including Imam Shafi'i, consider it to be Mursal and do not act on it.
Additionally, there are other views on the subject which merit brief attention. Abu'l Husayn al-Basri, for example, divides qiyas into four types, as follows:
1 ) Qiyas which is founded in a decisive nass, that is, when the original case and the effective cause are both stated in the nass. This type of qiyas takes priority over a solitary Hadith.
2) Qiyas which is founded in speculative evidence, that is, when the asl is a speculative text and the 'illah is determined through logical deduction (istinbat). This type of qiyas is inferior to a solitary Hadith and the latter takes priority over it. Al-Basri has claimed an 'ijma on both one and two above.
3) Qiyas in which both the asl and the 'illah are founded in speculative nusus, in which case it is no more than a speculative form of evidence and, should it conflict with a solitary Hadith, the latter takes priority. On this point al-Basri quotes Imam Shafi'i in support of his own view.
4) Qiyas in which the `illah is determined through istinbat but whose asl is a clear text of the Qur'an or Mutawatir Hadith. This type of qiyas is stronger than two and three above, and the ulema have differed as to whether it should take priority over a solitary Hadith.[91. Basri, Mu`tamad, II, 162-64.]
The Malikis, and some Hanbali ulema, are of the view that in the event of a conflict between a solitary Hadith and qiyas, if the latter can be substantiated by another principle or asl of the Shari'ah, then it will take priority over a solitary Hadith. If for example the `illah of qiyas is `removal of hardship', which is substantiated by several texts, then it will add to the weight of qiyas, and the latter will take priority over a solitary Hadith. For this kind of evidence is itself an indication that the Hadith in question is weak in respect of authenticity.[92. Abu Zahrah, Usul, p. 204.] Similarly, some Hanafis have maintained that when a solitary Hadith, which is in conflict with qiyas, is supported by another qiyas, then it must be given priority over the conflicting qiyas. This is also the view which Ibn al-'Arabi has attributed to Imam Malik, who is quoted to the effect that whenever a solitary Hadith is supported by another principle, then it must take priority over qiyas. But if no such support is forthcoming, then the solitary Hadith must be abandoned. For example, the following Hadith has been found to be in conflict with another principle: `When a dog licks a container, wash it seven times, one of which should be with clean sand.[93. Ibn Hazm, Ihkam, VIII, 79; Abu Zahrah, Usul, p. 205.]
It is suggested that this solitary Hadith is in conflict with the permissibility of eating the flesh of game which has been fetched by a hunting dog. The game is still lawful for consumption notwithstanding its having come into contact with the dog's saliva. There is, on the other hand, no other principle that could be quoted in support of either of the two rulings, so qiyas takes priority over the solitary Hadith. Our second example is of a solitary Hadith which is in conflict with one principle but stands in accord with another. This is the Hadith of 'araya, which provides that `the Prophet (upon whom be peace) permitted the sale of dates on the palm tree for its equivalent in dry dates'. This is permitted despite its being in conflict with the rules of riba, However the permissibility in this case is supported by the principle of daf` al-haraj `removal of hardship' in that the transaction of araya was permitted in response to a need, and, as such, it takes priority over the qiyas which might bring it under the rules of riba.[94. Abu Dawud, Sunan (Hasan's trans.) II, 955, Hadith 3355; Ibn Hazm, Ihkam, VIII, 106; Zuhayr, Usul, IV, 50-58; Abu Zahrah, Usul, p. 205.]
Chapter Ten: Revealed Laws Preceding the Shari'ah of Islam
In principle, all divinely revealed laws emanate from one and the same source, namely, Almighty God, and as such they convey a basic message which is common to them all. The essence of belief in the oneness of God and the need for divine authority and guidance to regulate human conduct and the values of morality and justice constitute the common purpose and substance of all divine religions. This essential unity is confirmed in more than one place in the Qur'an, which proclaims in an address to the Holy Prophet: `He has established for you the same religion as that which He enjoined upon Noah, and We revealed to you that which We enjoined on Abraham, Moses and Jesus, namely, that you should remain steadfast in religion and be not divided therein' (al-Shura, 42:13). More specifically, in a reference to the Torah, the Qur'an confirms its authority as a source of inspiration and guidance: We revealed the Torah in which there is guidance (huda) and light; and prophets who submitted to God's will have judged the Jews by the standards thereof' (al-Ma'idah, 5:44). It is thus observed that Muhammad, being one of the Prophets, is bound by the guidance that is found in the Torah. Further confirmation for the basic harmony of the divinely revealed laws can be found in the Qur'anic ayah which, in a reference to the previous Prophets, directs the Prophet of Islam to follow their guidance: `Those are the ones to whom God has given guidance, so follow their guidance [hudahum]' (al-Anam 6:90). Basing themselves on these and similar proclamations in the Qur'an, the ulema are unanimous to the effect that all the revealed religions are different manifestations of an essential unity.[1. Abu Zahrah, Usul, p. 241; Qasim, Usul, p. 173.] This is, of course, not to say that there are no differences between them. Since each one of the revealed religions was addressed to different nations at different points of time, they each have their distinctive features which set them apart from the rest. In the area of halal and haram, for example, the rules that are laid down by different religions are not identical. Similarly, in the sphere of devotional practices and the rituals of worship, they differ from one another even if the essence of worship is the same. The Shari'ah of Islam has retained many of the previous laws, while it has in the meantime abrogated or suspended others. For example, the law of retaliation (qisas) and some of the hadd penalties which were prescribed in the Torah have also been prescribed in the Qur'an.[2. Abu Zahrah, Usul, p. 242; Badran, Usul, p.237.]
The general rule to be stated here is, however, that notwithstanding their validity in principle, laws that were revealed before the advent of Islam are not applicable to the Muslims. This is especially so with regard to the practical rules of Shari'ah, that is, the ahkam, in which the Shari'ah of Islam is self-contained. The jurists are also in agreement to the effect that the laws of the previous religions are not to be sought in any source other than that of the Shari'ah of Islam itself. For the rules of other religions do not constitute a binding proof as far as the Muslims are concerned. The Shari'ah, in other words, is the exclusive source of all law for the Muslims.
In view of the ambivalent character of the evidence on this subject, however, the question has arisen as to the nature of the principle that is to be upheld: whether to regard the laws preceding the Shari'ah of Islam as valid unless they are specifically abrogated by the Shari'ah, or whether to regard them as basically nullified unless they are specifically upheld. In response to this, it is said that laws that were introduced in the previous scriptures but which are not upheld by the Shari'ah, and on which no ruling is found in the Qur'an or the Sunnah are not, according to general agreement, applicable to the Muslims. The correct rule regarding the enforcement of the laws of the previous revelations is that they are not to be applied to the followers of Islam unless they are specifically upheld by the Shari'ah.[3. Badran, Usul, p.234; Isma'il, Adillah, p.320.]
Once again the question arises as to whether the foregoing statement is in harmony with the Qur'anic proclamations that were quoted above. The general response given to this is that the Prophet of Islam was ordered to follow the previous revelations as a source of guidance only in regard to the essence of the faith, that is, belief in God and monotheism. It has thus been pointed out that the word huda `guidance' in the second ayah, and hudahum 'their guidance' in the third ayah quoted above only mean tawhid, or belief in the oneness of God, which is undoubtedly the norm in the Shari'ah of Islam. Their guidance cannot be upheld in toto in the face of clear evidence that some of their laws have been abrogated. The reference is therefore to that aspect of guidance which is in common between Islam and the previous religions, namely tawhid. It has been further suggested that the reference to 'Prophets' in the second ayah above is confined, as the text itself suggests, to the Prophets of Bani Isra'il, and the holy Prophet Muhammad is not one of them.[4. Ghazali, Mustasfa, I, 134; Abu Zahrah, Usul, p. 242; Isma'il, Adillah, p.325]
The Qur'an on many occasions refers to the rules of previous revelations on specific issues, but the manner in which these references occur is not uniform. The Qur'an alludes to such laws in the following three forms:
1. The Qur'an (or the Sunnah) may refer to a ruling of the previous revelation and simultaneously make it obligatory on the Muslims, in which case there remains no doubt that the ruling so upheld becomes an integral part of the Shari'ah of Islam. An example of this is the Qur'anic text on the duty of fasting which provides: 'O believers, fasting is prescribed for you as it was prescribed for those who came before you' (al-Baqarah, 2:183). To give a similar example in the Sunnah, which confirms the ruling of a previous religion, we may refer to the Hadith which makes sacrifice by slaughtering animals lawful for Muslims. The believers are thus instructed to `Give sacrifice, for it is the tradition of your ancestor, Abraham, peace be upon him'. [5. Tabrizi, Mishkat, I, 466, Hadith no.1476; Badran, Usul, p. 235.]
2. The Qur'an or the Sunnah may refer to a ruling of the previous revelation but at the same time abrogate and suspend it, in which case the ruling in question is to be abandoned and discontinued. An example of this can be found in the Qur'an where a reference is made to the prohibition of certain varieties of food to the Jews while at the same time the prohibitions are lifted from the Muslims. The text thus provides: 'And to the Jews We forbade every animal having claws and of oxen and sheep, We forbade the fat [. . .] Say: nothing is forbidden to eat except the dead carcass, spilled blood, and pork' (al-An'am, 16:146). The second portion of this text clearly removes the prohibitions that were imposed upon the Jews. For a similar example in the Sunnah, we may refer to the Hadith concerning the legality of spoils of war where the Prophet has proclaimed: 'Taking booty has been made lawful to me, but it was not lawful to anyone before me.'[6. Muslim, Sahih, p.301, Hadith no. 1137; Badran, Usul, p.234.]
Likewise, the expiation (kaffarah) for sins was not acceptable under the Torah; and when a garment became unclean, the unclean portion had to be cut out according to the rules of Judaism. But these restrictions were lifted with the effect that the Shari'ah of Islam validated expiation for sins, and clothes can be cleaned by merely washing them with clean water.[7. Khallaf, Ilm, p.93; Isma'il, Adillah, p.320.]
3. The Qur'an or the Sunnah may refer to a ruling of the previous revelation without clarifying the position as to whether it should be abandoned or upheld. Unlike the first two eventualities, on which there is little disagreement among jurists, the present situation has given rise to wider differences of opinion. To give an example, we read in the Qur'an, in a reference to the law of retaliation which was enacted in the Torah: 'We ordained therein for them life for life, eye for eye, nose for nose, tooth for tooth and wounds equal for equal' (al-Ma'idah, 5:48). Here there is no clarification as to whether the same law has to be observed by the Muslims. In yet another passage in the same sura the Qur'an stresses the enormity of murder in the following terms: 'We ordained for the children of Israel that anyone who slew a person, unless it be for murder or mischief in the land, it would be as if he slew the whole of mankind' (al-Ma'idah, 5:35). Once again, this ayah narrates a law of the previous revelation but does not specify whether this also constitutes a part of the Shari'ah of Islam.
The majority of Hanafi, Maliki, Hanbali and some Shafi'i jurists have held the view that the foregoing is a part of the Shari'ah of Islam and the mere fact that the Qur'an refers to it is sufficient to make the law of retaliation binding on the Muslims. For the Lawgiver spoke of the law of the Torah to the Muslims and there is nothing in the Shari'ah of Islam
either to abrogate it or to warrant a departure from it. This is the law of God which He spoke of to us that He might be obeyed. It is on the basis of this conclusion that the Hanafis have validated the execution of a Muslim for murdering a non-Muslim (i.e. a dhimmi), and a man for murdering a woman, as they all fall within the meaning of the Qur'anic phrase 'life for life'.[8. Khallaf, Ilm, p.94; Shaltut, Al-Islam, p. 489; Badran, Usul, p.235.] There are some variant opinions on this, but even those who disagree with the Hanafi approach to this issue subscribe to the same principle which they find enunciated elsewhere in the Qur'an. In particular, two ayat have been quoted, one of which proclaims, 'and the punishment of an evil is an evil like it' (al-Shura, 42:40); and the other that, 'Whoever acts aggressively against you, inflict injury on him according to the injury he has inflicted on you, and keep your duty to God [...]' (al-Baqarah, 2:194). It is thus concluded that these ayat provide sufficient evidence in support of the law of retaliation even without any reference to previous revelations.
The majority of the Shafi'is, the Ash'arites, and the Mu'tazilah have maintained the view that since Islam abrogated the previous laws, they are no longer applicable to the Muslims; and hence these laws do not constitute a part of the Shari'ah of Islam unless they are specifically validated and confirmed. They maintain that the Shari'ah norm regarding the laws of the previous religions is `particularity' (khusus), which means that they are followed only when specifically upheld; whereas the norm with regard to the Shari'ah itself is generality ('umum) in that it is generally applied as it has abrogated all the previous scriptures.[9. Shawkani, Irshad, p.240; Shaltut, Al-Islam, p. 489; Badran, Usul, p. 236.] This restriction is necessitated in view of the fact that the previous religions have not been correctly transmitted to us and have undergone considerable distortion.[10. Abdur Rahim, Jurisprudence. p.70.] The proponents of this view have quoted in support the Qur'anic text which declares, in a reference to different nations and communities: 'For every one of you We have ordained a divine law and an open road' (al-Ma'idah, 5:48). Thus it is suggested that every nation has a Shari'ah of its own, and therefore the laws that were revealed before Islam are not binding on this ummah. Further evidence for this view has been sought in the Hadith of Mu`adh b. Jabal which indicates only three sources for the Shari'ah, namely the Qur'an, the Sunnah and ijtihad.[11. Abu Dawud, Sunan (Hasan's trans.), III, 1019. Hadith no.3585.] The fact that this Hadith has made no reference to previous revelations must mean that they are not a source of law for the followers of Islam. This last point has, however, been disputed in that when Mu`adh referred to the Qur'an, it was sufficient, as the Qur'an itself contains numerous references to other revealed scriptures. Further more it is well-known that the Prophet did not resort to the Torah and Injil in order to find the rulings of particular issues, especially at times when he postponed matters in anticipation of divine revelation. This would obviously imply that the Prophet did not regard the previous laws as binding on his own community.[12. Ghazali, Mustasfa, I, 133. The only exception which is cited in this connection is when the Prophet referred to the Torah on the stoning of Jews for adultery. But this was only to show, as Ghazali explains, that stoning (rajm) was not against their religion, and not because the Prophet regarded the Torah as a source of law.]
The correct view is that of the majority, which maintains that the Shari`ah of Islam only abrogates rules which were disagreeable to its teachings. The Qur'an, on the whole, confirms the Torah and the Injil, and whenever a ruling of the previous scriptures is quoted without abrogation, it becomes an integral part of the Shari'ah of Islam.[13. Khallaf, `Ilm, p. 94.] And finally, it may be added, as Abu Zahrah has pointed out, that disagreement among jurists on the authority or otherwise of the previous revelations is of little practical consequence, as the Shari'ah of Islam is generally self-contained and its laws are clearly identified. With regard to retaliation, for example, notwithstanding the differences of opinion among the jurists as to the precise import of the Qur'anic references to this subject, the issue is resolved, once and for all, by the Sunnah which contains clear instructions on retaliation and leaves no doubt that it is an integral part of the Shari'ah of Islam.[14. Abu Zahrah, Usul, p. 242.]
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