The Relevance of Qiyas (Analogical Deduction) as a Source of Islamic Law in Contemporary Time
CHAPTER ONE
Objective of Study
The legal or practical rules of the Qur’an (Al-Ahkam al-amaliyyah) constitute the basis of what is known as Fiqh al-Qur’an or the Jurist Corpus of the Qur’an. There are many legal verses in the Qur’an most of which were revealed in response to problems that were actually encountered. Some were revealed against bad customs such as infanticide, usury, gambling and unlimited polygamy 15.
There are verses on devotional matters 16. Some devoted to marriage, divorce, the waiting period of Iddah, revocation (rij’ah), dower, and maintenance of the wife, custody of children, fosterage, paternity, inheritance and bequest. Others are on rules concerning commercial transactions such as sale, lease, loan and mortgage. Some verses are on crimes and penalties, such as murder, highway robbery, adultery and false accusation. Others speak on justice, equality, evidence, consultation and rights and obligations of citizens. Some are related to economic matters regulating relations between the poor and the rich.
CHAPTER TWO
THE DEVELOPMENT OF QIYAS, AND ITS VARIOUS TYPES
This chapter deals with the various definitions of Qiyas, in accordance with the various views of the Muslim jurists; and how the Muslim jurists, from various perspectives, have classified it.
The chapter also examines how Qiyas developed to become one of the most essential sources of Islamic Law.
The Meaning of Qiyas
The verbal noun Qiyas has been derived from its root Qiyas, meaning to measure1 .The expression “Qistu ash-shi’a bi gairihi” means, “I measured the things by another thing.” Similarity between two things (in quantity) is an idea that underlines measurement. Qa’is is the one who measure thing or things, while Qayyas is the one who measure much. Literally, the meaning of Qiyas can be summed up as measurement, comparison, equality, ratiocination and analogy. The word Qiyas as such has not been directly mentioned in the Qur’an. The Qur’anic expression “Qaba Qawsain” 2 (meaning two bows length away or measure of two bows) may reflect the idea that Qiyas is from another root word, qaws meaning bow. In any case, it is difficult to say precisely whether the noun qaws (bow) has been derived from Qiyas, because bow was used for measurement in Arabia.
From this entomological analysis, Al-Amidi infers that Qiyas demand two things, each of which is connected with the other by equation. They are affinity (Nisbah) and connection (Idafah)
Hence the idiom goes: So – and – so is measured by so – and – so or So – and – so is not measured by so – and so, meaning respectively that one thing is equal to another or not equal to another .
Dr. Scratch is of the opinion that the term Qiyas and its concept and method, have been derived from the Jewish exegetical term (hiqqish) taken from Aramaic root, naqsh, meaning to beat together. 4. He further asserts the existence of an original concrete meaning in Aramaic not in Arabic (where Qiyas belongs to the root Qa’is) makes the foreign provenance certain. He also infers from the similarity in the technique of discussion of As-Shafi’i and his Christian contemporary. Theodore Abu- Qurra, that the doctrine of Qiyas in Islamic Jurispudence has been influenced by the Greek logic and the Roman law.
Dr. Scratch might be correct in his conjecture. But he has not proferred any positive evidence which shows that Muslim Jurists have actually borrowed this doctrine, its concept and method from the Jews, or they were influenced in this doctrine by the Roman or Greek rhetorics. In this research thesis, a number of examples will be cited from the Qur’an where the rules are based on analogy clearly. Sufficient evidence will also be given to show that the exercise of personal opinion, deriving rules on the basis of analogy and discursive arguments, constituted an important part of legal reasoning of the companions and early jurists. Also, examples of Qiyas in the Qur’an and the Sunnah will be discussed in this chapter. For a good deal of evidence can be produced to prove that the Prophet himself, in his teachings, employed Qiyas, though not in its pure technical sense. The above discussion may convince Dr. Scratch (if he were alive) and his followers that the concept of Qiyas was not new to the Muslim Ummah before, and today.
CHAPTER THREE
THE PILLARS OF QIYAS
Qiyas means accord of a known (Case) with a known (Case) in respect of establishing a rule for them, or negating it from them on the basis of a common link between them by establishing the rule or its attribute or negating them. 1.
From the above definition, as well as from other similar definitions, it is evident that Qiyas has four pillars, namely: the original case, the new or subsequent case, the effective cause and the ruling of the original case.
This chapter will be devoted to an extensive exposition of these pillars.
The Original Case (Al-Asl)
Al-Asl is an Arabic word which literally means the original.
A-Qadi Abdul-Jabbar has given four meanings of asl as follows: (1) A way or channel to something; like the Qur’an which is the original source of all injunctions (asl-al-ahkam). (2) A law (hukum) by which a new case is covered (Maqis alaihi) and this is the original case for drawing an analogy (Asl-Qiyas). (3) A thing on whose knowledge depends the knowledge of another thing. (4) A thing which stands independently and nothing depends on it by way of analogy.
There are differences of opinion among the jurists about the technical meaning of the original case. Thus, according to the theologians (Mutakalli mun), the asl means the text (nass). For example, the Qur’anic verse which prohibits wine or the hadith which prohibits barter of wheat with unequal weight is the original case. As-Shawkani defines it as rule of law (thubut al-hukum). This opinion is held by Al-Qadi Abubakar Al- Baqillani and the Mu’tazilah. 3 The reason is that text (nass) and a thing on which another thing depends is called asl (original), therefore, the text (nass) is the original case (asl).
On the contrary, some other jurists believe that if the text is regarded as asl because it is a way through which a rule of law is known, then the statement of a narrator (qawlar-rawi) should be considered an asl for drawing an analogy because it is also a medium to know the text.
Al-Amidi is of the opinion that, the dispute over this point is mere logomachy. Actually, this depends on the meaning of asl. Asl means a thing on which another thing depends. Hence the rule of law can be asl for the law (hukum) in the parallel case (far’u). If the law (hukum) is asl in the case of prohibition of wine, then the text (nass) by which the law is known is the original for the original, (aslul-asil ).
CHAPTER FOUR
THE VALIDITY OF QIYAS AS A SOURCE OF ISLAMIC LAW
This chapter will dwell deeply into the divergent opinions of jurists on the validity of qiyas as a source of Islamic law – elucidating on the views of the advocates and opponents of qiyas, and their justifications from the Qur’an, Sunnah, and practices of the Sahabas, and from rational approach.
THE JUSTIFICATION OF QIYAS AS A SOURCE OF ISLAMIC LAW
The use of qiyas in cases not covered by text (nass) started during the lifetime of the Holy prophet (SAW). The same was the case during the period of the Sahabas (companions) of the Prophet (P.B.U.H).
Despite this solid foundation however, some later jurists began to reject qiyas as a valid source of Islamic law. According to Dr. Umar Sulayman Al-Ashqar, the first person to reject qiyas as a source of Islamic law was Ibrahim bin Sayyar Al-Nayyam, followed by some group of Shi’ah and the literalists (Ahl-al-Zahir). 1.
AUTHORITIES RELIED UPON BY THE SUPPORTERS OF QIYAS
Majority of the companions of the Holy Prophet (SAW), the jurists of the four Sunni schools and the Mu’tazilites consider qiyas as a valid source of Islamic law. In holding this view, they rely upon some Qur’anic verses, Ahadiths, decisions of the companions (of the Prophet – SAW), and rational reasoning.
CHAPTER FIVE
SUMMARY, OBSERVATION AND RECOMMENDATIONS
SUMMARY ON QIYAS
The word Qiyas simply means measurement. It means the comparison with a view to suggesting equality or similarity between two more things. Technically, it means the extension of the law from the original case (asl) to the new case (far’u) because the latter has the same effective cause (illah) as the former.
Muslim jurists unanimously agree that the Qur’an and Sunnah are the fundamental sources of Islamic Law, followed by Ijma (Consensus of opinion). Other sources include Qiyas (analogical deduction), Istihsan (equity in Islamic law), Maslaha–Mursalah (consideration of public interest), Sadd al-Zara’i (blocking the means), Urf (Custom), Fatwa Sahabi (the verdict of a companion), Shar’u man qablana (revealed laws preceding the laws before our generation), and Istishab (presumption of continuity).
In this research thesis, emphasis was placed on Qiyas as the 4th source of Islamic Law.
Qiyas has four fundamental pillars, namely:
- Asl (the original case)
- Far’u (the new case)
- Hukum (the law); and
- Illah (the effective cause).
These pillars can be illustrated clearly with an example of wine and other intoxicants (such as cocaine, heroine, marijuana or Indian hemp). Wine is asl (the original case) while cocaine or heroine or Indian hemp is the far’u (the new case). The Hukum (law) prohibits the two (both asl and far’) because of illah (the common effective cause) which is intoxication.
REFERENCES
- Abdul Wahhab Khalaf (1942): Ilmu Usulil Fiqh,
- Abu Dawud, Sulaiman (1959): Sunan Abi Dawud=
- Al-Aamidi, Aliyu ibn Muhammad (1987): Al-Ahkam Fi Usulil Ahkaam {Riyadh: Islamic Library}.
- Al-Bukhari, Muhammad Isma’il (N.D): Sahihul Bukhari,
- Al-Asqalaani, Ibn Hajar (1407 H): Fathul Baarii Fi Sharhi Sahiihil Imamil Bukhari {Cairo: Darrus- salafiyyah}.
- Ali Hasballahi (1971): Usulul Tashri’il Islami {Fourth Edition}, {Cairo: Darrul ‘ilm}
- Al-Zirkashi, Badrudeen Muhammad bin Bihawar (1988) : Al-Bahrul Muhit Fil Usulil Fiqh {Cairo: Darus Safwa}.
