Following notes on Qiyas have been taken from Principles of Mahomedan law By D.F Mulla.
Customs and Usages
Those customs and usages of the people of Arabia, which were not expressly repealed during the life-time of the Prophet, are held to have been sanctioned by the Lawgiver by His silence.
Customs generally as a source of laws are spoken of as having the force of Ijma’, and their validity is based on the same texts as the validity of the latter.
It must not, however, be opposed to a clear text of the Qur’an or of an authentic tradition.
The Hanafi writers on jurisprudence include custom as a source of law, under the principle of Istihsan or juristic preference.
Custom properly so called should be distinguished from the usage of a particular trade or business. The latter from its very nature need not be prevalent among the people generally.
Custom which is recognized as having the force of law must be generally prevalent in a country. The practice of a few individuals or of a limited class of men will not, however, be recognized.
Nor would a usage have the force of law, so long as it is confined to a particular locality, such as a village, or a town, and has not found general vogue in the country in which the question arises.
Analogy: its definition
All the four Schools of Jurisprudence agree that, in matters which have not been provided for by a Qur’anic or traditionary text, nor determined by consensus of opinion, the law may be deduced from what has been laid down by any of these three authorities, by the use of Qiyas, which is generally translated as analogy.
The root meaning of the word Qiyas is ‘ measuring ‘, ‘ accord ‘, equality ‘.
In plain language Qiyas is a process of deduction by which the law of a text is applied to cases which, though not covered by the language, are governed by the reason of the text. The reason of the text, which is technically called ‘illat or effective cause, is the rukn i.e. constituent of analogy and the extension of the law of the text to which the process is applied is its legal effect (hukm).
Scope of Analogy:
By means of interpretation properly so-called a text is applied to cases covered by its language, while the function “of analogy is to extend the law of the text, to cases not falling within the purview of its terms.
The writers on jurisprudence do not admit that extension of law by process of analogy amounts to establishing a new rule of law. On the other hand, their theory is that analogy merely helps us to discover the law and not to establish a new law.
The nature of its authority as Source of Law
Rules of law analogically deduced do not rank so high as authority, as those laid down by a text of the Qur’an, or Hadith, or by consensus of opinion.
The reason is that with respect to analogical deductions one cannot be certain that they are what the Lawgiver intended, such deductions resting as they do upon the application of human reason which is always liable to err.
In fact it is a maxim of the Sunni jurisprudence that a jurist may be right or may be wrong.
Arguments against Analogy
The Zahiris, some Hanbalis and Ibn Hazm deny the authority of analogy as a valid source of laws, except in matters which are the rights of men (e.g. appraising the value of property destroyed by a trespasser), and are ascertainable by the exercise of our senses and reason.
They contend that any other view of analogy would virtually amount to making laws which is the sole privilege of God.
In support of their contention they rely upon the following texts:
‘We (that is, God speaking through the Prophet) have sent down the Book as authority for you.’
‘There is nothing fresh nor dry, but is to be found (that is, the rule in every matter is laid down) in the revealed book.’
‘Say, “Whatever is not found to be forbidden in the Book of God is lawful to men “.’
Say, (God asks the Prophet to say to his audience), ” God has not by his revelations made anything unlawful to man except a dead body or the flowing blood of an animal “.’
“The affairs of the Israelites were in proper order, until those born of slave girls increased in numbers, and began to deduce from what had been laid down things which had never been laid down, and thus they themselves went astray and led others astray.’
Arguments in support of Analogy
The arguments based on the above texts are thus met.
It is admitted by the Sunni jurists with reference to the first two texts that the law for the guidance of Muslims in every matter is to be found in the Qur’an, but they point out that the law on some questions alone has been laid down in express terms, and, as regards the rest, the Qur’an merely affords indications from which inferences have to be drawn.
As to the warning contained in the last mentioned text against the example of the Israelites, that was called for by the ignorance and prejudice of those addressed but no such charge can be made against Muhammadan jurists as a body.
The Sunnis, on the other hand, rely upon the authority of the following texts in support of analogy:
“Did you think they would get away ? They thought that their forts would protect them, but His punishment reached them from a quarter they had not anticipated. He inspired fear in their hearts, and they pulled down their houses with their own hands, and so did the Muslims. So ye who have judgement take warning.’
The first text which is of the Qur’an is interpreted as showing that the Muslims are asked by God to infer analogically from the example of the Israelites that disobedience of God through insolent pride would not escape punishment.
When the Prophet sent Mu’adh to Yemen (as Governor), he said to him : ‘ how are you going to (decide cases) ‘; Mu’adh answered : ‘ by (the light of) what is in the Book of God ‘. The Prophet next asked : ‘ And if you do not find anything in the Qur’an to guide you?’ ‘I will decide in the way the Prophet has been doing.’ But inquired the Prophet : ‘ If you do not find any precedent from me, what then ? ‘ ‘I will do my best by exercising my judgement.’ The Prophet thereupon exclaimed ‘ Praise be to God who has so disposed the delegate of His Prophet as to be able to satisfy him.’
The second is a well-known tradition and furnishes a general authority for the use of human reason and experience in developing and applying the law of the Qur’an. It is especially relied on as a justification for analogical deduction as a source of laws.
Furthermore, it is urged that the Prophet himself relied on analogy in determining questions of law. For instance, he was once asked by a man whose father, though possessed of means, had died without performing the pilgrimage, if it was necessary that it should be performed on behalf of the deceased for the benefit of his soul. The Prophet replied : ‘ What do you think you would do if your father died owing a debt ? ‘ Here, the argument is that the Prophet used the analogy of a debt to show that an undischarged religious obligation of the nature of pilgrimage should be discharged by the heirs of a deceased person.
Conditions of Analogical Deductions:
The law enunciated in the text to which analogy is sought to be applied must not have been intended to be confined to a particular state of facts.
For example, the tradition, in which the Prophet says :’ If Khuzaima testifies for any one that is sufficient for him ‘, does not lay down a rule of general applicability to the effect that testimony of a single witness is sufficient in law to support a claim. On the other hand, the injunction had reference to Khuzaima personally.
Those verses of the Qur’an which relate exclusively to the Prophet are other instances where analogy is inapplicable.
The law of the text must not be such that its raison d’etre cannot be understood by human intelligence nor must it be in the nature of an exception to some general rule.
Examples: The reason why a certain proportion of a man’s property is fixed for the poor-rate (zakat) or why certain classes of heirs are allotted particular portions in the inheritance, such as one-fourth to the husband, one-eighth to the wife and the like, is incapable of ascertainment, and hence no argument can be built upon such cases for extension of the law in similar instances.
An analogical deduction may be founded according to the Hanafis and the Malikis on the law established either by a text of the Qur’an or Hadith, which has not been repealed, or by a unanimous decision of the learned, and according to some Shafi’is and the Hanbalis it may also be based on another analogical deduction.
The reason why the Hanafis and the Malikis do not allow an analogical deduction to be made from another such deduction is thus stated, either the effective cause on which the second deduction is sought to be based is the same as of the original text in which case it becomes superfluous to refer to the intermediate proposition, or it is not. If the latter, then the first deduction would itself be bad. The following is an illustration. The Shafi’is hold that the quality of edibility is sufficient to bring an article of which it is predicable within the doctrine of riba, which forbids excess in favour of one of the parties to a sale of similars for similars. He argues that quinces being edible come within the principle like apples, which fall within the analogy’ of wheat which is expressly mentioned in the text. Such reasoning, it is urged, is superfluous, for it would have been sufficient to say that a quince is an article of food in order to bring it within the principle without relying on the analogy of apples.
As an example of violation of the rule that analogy must not be applied to the vocabulary of the text, but to the cause on which the law is based, the Hanafis cite the deduction made by the Shafi’is from the text which forbids drinking of khamr, an intoxicating drink prepared by fermenting the juice of grapes. The Shafi’is say that the root meaning of khamr is something which clouds the senses and hence the word applies to all intoxicants. The Hanafis object, saying that this is applying analogy merely to the language of the text.
The deduction must not be such as to involve a change in the law embodied in the text.
Example: A contract, in the nature of Salam by which a man buys an article to be delivered by the vendor subsequently and pays the price in advance, would not be a valid transaction according to the general rule of law by which a contract of sale is only valid if the thing sold be in existence at the time of the contract. The validity of a Salam contract has, however, been established by a tradition which says that the sale of an article to be delivered at a fixed date is lawful. When the Shafi’is hold that such a contract is lawful even if no date is fixed, they are charged with introducing a change in the law of the text.
Illat or Effective cause: Its general characteristic
In plain words ‘illat may be defined as the fact, circumstance, or consideration which the Lawgiver has had in regard in laying down the law embodied in a text.
When the effective cause of a text has been determined the jurist is in a position by ta’lil, or reasoning based on that cause, to apply the law of the text in a case in which the same cause is present.
The accepted Sunni doctrine is that the Lawgiver in enacting laws has in regard a certain policy (hikmat, maslahat).
Deductions based merely on the general policy of the law not allowed
Generally speaking, it is not allowable to a jurist to make deductions merely from the broad policy of the law. The effective cause must have a particular reference to the subject to which the text relates.
For instance, the preservation of human life is one of the general objects in view of the law, and if it were open to a jurist to base deductions thereon without anything more, the waging of religious wars would be unlawful. He should, therefore, on such a question look to the policy of the law on the subject of religious warfare, which declares such wars to be lawful, inasmuch as they tend to the preservation of religion.
For complete Muslim Law notes click here.