CHAPTER IX Qiyas (ANALOGICAL DEDUCTION)

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Qiyas:
Literal meaning:
-a device used to measure or ascertain the length, weight, or quality of an object. : exampleqassat al-thaub bil-dhira means the cloth was measured by the yard stick. -a comparison with a view of suggesting equality or similarity between two things, one of which is taken as the criterion for evaluating the other. : exampleZayd yuqas ila Khalid fi aqlihi wa nasabih means Zayd compares with Khalid in intelligence and descent. Technical meaning: -extension of Shariah value from the original case (asl) to a new case because the latter has similar effective cause as the former. Qiyas is a means of discovering, and perhaps of developing, the existing law. It is basically designed to ensure conformity with the letter and the spirit of the Quran and the Sunnah.

because it would be useless to use qiyas if the new case can be resolved under a ruling of an existing law. Thus, only in cases not covered by ijma & nusus that the law may be deducted from any of the sources by applying the analogical reasoning. -can also means a general principle if it is used within the fugala. So, it is common to see that one ruling is different from an established analogy or to a general principle of law without any reference to analogy. ANALOGICAL DEDUCTION is DIFFERENT from INTERPRETATION in the FOLLOWING CONCEPTS:

1. Analogical deduction is concerned with the

extension of the rationale of a given text to cases which may not fall within the terms of its language.

2. The emphasis in Qiyas is placed on the

identification of a common cause between two cases which is not indicated in the language of the text. THEORIES of the JURISTS

Qiyas is admittedly a rationalist doctrine but one in which the use of personal opinion (ray) is subservient to the terms of the divine revelation. Qiyas can not be used as a means of altering the law of the text on grounds of either expediency of personal preference. The majority of the ulema have define Qiyas as the application to a new case (far), on which the law is silent, the ruling (hukm) of an original case (asl) because of the effective cause (illah) which is common to both.

1. Jurists do not admit that extending the law

through analogy is tantamount to creating a new law because Qiyas is only an extension of an existing law. Thus, Qiyas is a means of discovering and developing the existing law.

2. Basically designed to ensure conformity with the

letter and the spirit of the Quran and the Sunnah, although Qiyas offers considerable potential for enrichment & creativity. Thus, Qiyas is more justified to be called as a proof (hujjah) or evidence (dalil) which aims to ensure consistency between revelation & reason in the development of Shariah.

Notes:

1. The original case regulated by a given text &

qiyas aims to extend the same textual ruling to the new case.
2. The application of qiyas is justified by virtue of the commonality of the effective cause (illah) between the original & the new case.

3. Qiyas is a rationalistic doctrine but which the

use of personal opinion (ray) is submissive to the term of the divine revelation.

3. If the solution to a new case cannot be found in

the Quran, the Sunnah, or the definite ijma, then recourse to analogy is necessary. This is so

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

One variety of Qiyas is where illah of qiyas is identified in the text, qiyas in general can never rank as high an authority as the nass or a definite ijma.

c. One qiyas may be founded on

another qiyas (based on the belief that it the qiyas has in it the seeds of enrichment and resourcefulness.)

EXAMPLES of METHODOLOGY of QIYAS

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

d. Ijma does not always explain its

own justification or rationale because in the absence of information, it is difficult to construct an analogy.

e. The illah may at times be specified

in the sources but when it is otherwise, it is for the mujtahid to identify it in light of the objectives of the lawgiver.

2. The prophet reported to have said that the

killer shall not inherit (from his victim). By analogy, this ruling extends to bequests, which means the killer cannot benefit from the will of his victim either.

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

Faran incident in which ruling is sought to be deduced by recourse to analogy. To fulfill, the following conditions must be met: a. The new case must not be covered by the text or ijma.

3. It is forbidden for a man to make an offer of

betrothal to a woman who is already betrothed to another man unless the latter permits it or has totally abandoned his offer. Note: The illah is to avoid conflict and hostility among people. By analogy, the rule extends to all other transactions in which the same illah is found to be operative.

b. The effective cause of analogy must

be applicable to the new case in the same way as to the original case.

ESSENTIAL REQUIREMENTS of QIYAS

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

c. The application of qiyas to a new

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

Conditions pertainig to the original case (asl):

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

3. The effective cause (illah) which is an

attribute (wasf) of the asl and is found to be in common between the original and the new case. (This is also the most important requirement.)
Conditions:

b. One qiyas may not constitute the asl

of the another qiyas. (this is in reference to the effective cause on which the second analogy is founded.)

a. The illah must be a consistent

attribute which is applicable to all cases without being affected by the differences of persons, time, place, and circumstances.

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

IDENTIFICATION of ILLAH
A. The illah may be identified in the text
Example: The text in al-Nisa 4:43 which says: O, you believers! Do not approach salah while you are drunk. B. The illah may be a manifest nass Example: The text in al-Maidah 5:38 which says: as to the thieves, male and female so you cut of their hands. C. The text of a Hadith may allude to the illah of its ruling. D. The illah may be identified in ijtihad. Example: The hadith concerning the penance of conjugal relations during daytime in Ramadan is not precisely known whether the illah of the penance is the breaking of the fast or sexual intercourse.

c. It must be proper attribute in that

it bears a proper and reasonable relationship to the law of the text. d. The illah must be transient, ie, an objective quality which is transferrable to other cases. e. The effective cause must not be an attribute which runs counter to, or seeks to alter, the law of the text.

4. The rule (hukm) governing the original case

which extends to the new case.
Example: The Quran prohibits wine drinking. By analogy, this prohibition extends to narcotic drugs and there shall be four pillars of analogy on this: a. Aslwine drinking b. Fartaking drugs c. Illahthe intoxicating effects

VARIETIES of QIYAS
The Shafii jurists divided qiyas into three types:

1. Analogy of superior the effective cause is

more evident in the new case than the original case. Example: as-Isra 17:23say not to them uff nor repel them but address them in dignified terms.

d. Hukmprohibition

Conditions: (hukm: ruling)

a. It must be a practical shari ah ruling.

b. The Hukm is operative

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

2. Analogy of equals the illah in this qiyas is

equally effective in both the new and the original case, and so is the ruling which is deduced by analogy. Example: al-Nisa 4:2forbids devouring the property of the orphans. By analogy, it is concluded that all other forms of destruction and mismanagement which lead to the loss of such property are equally forbidden.

d. The Hukm must not be confined to

an exceptional situation or to a particular state of facts. e. The law of the text must not represent a departure from the general rules of qiyas in the first place.

3. Analogy of the inferior. the effective cause is

less clearly effective in the new case than the original case. Example: The rules of riba prohibit the exchange of wheat and of other specified commodities unless the two amounts are equal

and delivery is immediate. By analogy this rule extends to apples since both wheat and apples are edible and measurable jurists. QUIYAS IS further DIVIDED INTO TWO MORE TYPES (Hanafi division):

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

5. The permissibility of tayammum (ablution with

sand in the absence of water) that God does not intend to impose hardship on you (alMaidah 5:6)

A. OBVIOUS ANALOGY (qiyas jalli) the

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

6. Al-Hashr 592consider, O you possesors of

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

1. Qiyas is a form of ijtihad which is expressly

validated in the Hadith of Muadh b. Jabal

2. The Sunnah provides evidence that the

prophet resorted to analogical reasoning on occasions when he did not receive a revelation on a particular matter .
Example: A woman came to the prophet to ask whether her own hajj will benefit her father who died without performing the same. The prophet replied with a question asking whether debt paid on behalf of her father would benefit him. The woman answered yes, to which the prophet affirmed saying : The debt owed to God merits even greater consideration.

B. HIDDEN ANALOGY (qiyas khafi) the

removal of discrepancy between the asl and the far is through probability (zann). Example: in reference to the two varieties of wine namely, nabidh and khamr. Nabidh is derived from dates, while khamr is obtained from grapes. The rule of prohibition extends to nabidh despite some discrepancy that might exist between the two.

ARGUMENTS against QIYAS

-Four Arguments by the Zahiri School

1. The rules of Shariah are conveyed in the form of commands and prohibitions.

PROOF (Hujjiyyah) of QIYAS

The proofs of qiyas are found on Quranic passages: 1. Al-Nisa 4:59should you dispute over something, refer it to God and to the messenger, if you do believe in God. 2. Al-Nisa 4:105we have sent to you the Book with the Truth so tht you may judge among people by means of what God has shown you. 3. The rationale of retaliation, ie, to protect life (alBaqarah 2:79)

Varieties of mubah: a. recommended (mandub) b. permissible (mubah) Three types of ahkam: a. Command b. Prohibition c. Permissibility Notes: a and b are determined by clear authority of Quran, the

Sunnah or ijma. There is no room for analogy in the determination of the ahkam.

sexual intercourse and eating during daytime in Ramadanextends the kaffarah of the latter to the former.

2. The supporters of analogy proceed on the assumption that the Shariah fails to provide a nass for every matter, an assumption which is contrary to the explicit provisions of the Quran. 3. Qiyas derives its justification from an illah which is common to both the original case and the new case.

3. Validated analogy between deliberate killing and

erroneous homicide for purposes of kaffarah. (The Quran prescribes only a kaffarah for erroneous killing and such is extended by analogy to deliberate homicide. Note: Although the jurists disagreed on the application of qiyas in penalties, it shall be noted that the ulema have on the whole discouraged recourse of qiyas in the field of criminal law.

4. Qiyas is forbidden in the Quran (al-Hujarat

49:1O you believers! Do not press forward before God and His Messenger, and fear God
Note: The argument is based on two pointsone is that the nusus of Quran and Sunnah provide for all events, and two is that qiyas is an unnecessary addition to nusus.

CONFLICT between NASS and QIYAS

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

1. According to Imam Shafii, Ahmad b. Hanbal,

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

QIYAS in PENALTIES
Qiyas is applicable to hudud and kaffarat in the same way as it is to other rules of Shariah.
Example: 1. (hudud) the application of the punishment of theft to the nabbash, or who steals the shroud of the deas, as the common illah between them is taking away the property of another without his knowledge. Note: The Hanafis agree that qiyas may validly operate in regards to ta zir penalties, but disagreed to the application of qiyas in the prescribed penalties and kaffarat. Example: The Hanafis do not approve the analogy between abusive words and false accusation, nor would they extend the hadd of zina by analogy to other sexual offences, because these crimes may be penalized under ta zir but not by analogy to the hudud.

2. (Malikis) Analogy could come into conflict with

the Amm of the Quran and the solitary Hadith. It precludes the possibility of a conflict between qiyas and a clear text, but does not dismiss the possibility of a conflict arising between a speculative text and qiyas.

Other views which deserves attention:

Four types of qiyas:

1. Qiyas founded on a decisive nass, ie, when the

original case and the effective cause are both stated in the nass. (This takes priority over the solitary Hadith.)

2. Qiyas founded on speculative evidence, ie, the

asl is a speculative text and the illah is determined through logical education (istinbat). (This qiyas is inferior to solitary hadith and the latter takes priority over it.) 3. Qiyas in which both the asl and illah are founded on speculative nusus. In such a case, it is no

2. (kaffarat) the application of

qiyas in regards to kaffarat: the analogy between the two forms of breaking the fastwhich are by having a

more than a speculative form of evidence and should it conflict with a solitary hadith, the latter takes priority.

4. Qiyas in which the illah is determined through

istinbat but whose asl is a clear text of the Quran or Mutawatir Hadith.