Analogy/ Qiyas as Source of Law

Juristic Deduction/ Analogy/ Qiyas as Source of Law

Introduction

The three material sources for deriving rules in Islam, which are holy Quran, Sunnah and Ijma. We do not interpret, rationalize or contradict the rules found in them rather we derive the authority from them. Contrary to the material sources, these are rational sources. Rational sources are those, which are employed to discover law through legal reasoning. There are methods of extending or deducing law from the established laws found in holy Quran, Sunnah and ijma. Therefore from rational sources Qiyas in the fourth source of Islamic law.  All the four schools of jurisprudence agree that, in matters which have not been provided for by a Quranic or traditionally 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. It is systematic form of reasoning in law. It is comparison of a case not covered by the text with a case covered by the text on account of their common shariah value in order to apply the law of one to the other.

Meaning of Analogy(Qiyas)

i)      Literal Meaning

1. To Measure

2. To Compare

3. To Estimate

4. To Weight Up (making two things equal)

ii)    General Meaning

1. To Measure or Evaluate.

2. Equality, and

3. Aggregate of both (Evaluation and equation)

Definition of Analogy(Qiyas)

The root meaning of the word Qiyas is measuring, accord, equality. As a source of laws it is defined by the Hanafis as an extension of law from the original text to which the process is applied to a particular case by means of a common illat or effective cause, which cannot be ascertained merely by interpretation of the language of the text, by the Malikis as the accord of a deduction with the original text in respect of the illat or effective cause of its law and by the Shafis as the accord of a known thing with a known thing by reason of the equality of the one with the other in respect of the effective cause of its law.

According to Imam Abu Hanifa

“Qiyas is an extension of law from an original text by which the process is applied to a particular case by means of a common illat, which cannot be ascertained merely by interpreting the text”

According to Al-Ghazali

“Qiyas means to establish the law of the original case for the parallel case on the basis of their common legal case.”

According to Sir Abdul Rahim

“Qiyas is a process of deduction by which the law of a text is applied to cases which through uncovered by language, are covered by reason of the text."

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.

Origin of Analogy(Qiyas)

Imam Abu Hanifa was introduced the Qiyas. Who is also known as Imam Ahel-ul-ray.

Analogy (Qiyas) as a Source of Law

Analogy as a source of laws being subordinate and subsidiary to the Quran, the Sunnah and the Ijma, these latter in the language of Muhammadan lawyers are called its authorities (asl) or texts (nass).

Evidence Indicating the Authority of Qiyas

The evidence or Daleel indicating the authority of Qiyas stated below:-

1. Holy Quran

2. Sunnah

3. Ijam

1. In Quran

The Holy Quran encourages analytical deductions to solve problems and derive laws, in the following verses.

i.      “Consider o ye, possessors of eyes”

Consideration here means the comparison of similar things.

ii.    “Think deeply, o ye who are understandingly”

iii.  “If you have differ among you over things then resolve the matter in the light of Holy Quran and Sunnah.”

2. In Sunnah

i.      “If you do not find anything in the Holy Quran and Sunnah then use your own opinion.”

ii.    “I decide the matters with my own reason when no revelation comes to me.”

iii.  When the Prophet sent Ibn Muhdh to Yemen as Governor he said to him; how are you going to decide cases; Muadh 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 Quran 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 judgment. The Prophet there upon exclaimed “Praise be to God who has so disposed the delegate of his Prophet as to be able to satisfy him.

Arguments against Analogy/ Qiyas

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 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 send 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, God has not by his revelations made anything unlawful to man except a dead body or the flowing blood of an animal.
• Say, whatever is not found to be forbidden in the Book of God is lawful to men.
• 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

It is admitted by the Sunni Jurists with reference to the first two of above texts that the law for guidance of Muslims in every matter is to be found in the Quran but they point out that the law on some questions alone has been laid down in express terms, and as regards the rest, the Quran 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 principle underlying the text which lays down that nothing that has not been declared unlawful by God can be made lawful, is fully admitted; but it is not claimed that analogy can be used for such a purpose. 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 the quarter they had not anticipated. The inspired fear in their hearts, and they pulled down their houses with their own hands, and so did the Muslims. So ye who have judgment take warning.

Conditions for Exercising Qiyas

Following are the conditions for exercising Qiyas:-

i.      Qiyas cannot be done for rule in Quran and Sunnah i.e. primary sources.

ii.    Qiyas should be desired on the basis of Hukm found in the primary sources (Quran and Sunnah).

iii.  Qiyas should be only exercised on legal grounds.

iv.    Qiyas should be based on the cause of the rule found in the text and not only on the words.

v.      Wording or Meaning of original text should not change after Qiyas has been applied.

vi.    Qiyas should only be done by a jurist competent to Qiyas.

vii.  Qiyas must not change the law embodied in the original text or case.

viii. Law of original text or case should not contradict human reason.

ix.     The text must contain justification for the ruling i.e. we cannot apply our own intellect to assume a reason.

Limitation on the Application of Qiyas

There are some limitations on the application of Qiyas as follows:-

i.      Qiyas cannot apply to laws relating to criminal matters.

ii.    Qiyas cannot be based on an abrogated rule found in the texts.

iii.  Qiyas cannot be based on Hukm lying on exception of specification.

iv.    Qiyas cannot be drawn from another Qiyas i.e. it must be based on the primary source (Quran and Sunnah).

Examples Relating to Qiyas

i.      According to Holy Quran, all transactions of sale are forbidden after the call of Friday Prayers (Jummah) on analogy this injunction is applied to all business transactions like hiring borrowing, working etc.

ii.    The Holy Quran forbids the guardians of orphans to hand over their properties to them when they are young and intellectually still immature, and incapable of understanding interests regarding their property. It orders them to give them their properties when they reach the age of maturity. From this rule of Qiyas or Analogy has been done and all transactions of a minor are considered invalid without the consent of guardian.

Other Law Derived by Qiyas:

i.      Intoxication Drugs

ii.    Transaction of Sale

iii.  Abolition (Nail Polish)