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THE PRINCIPLE OF QIYAS IN ISLAMIC LAW
?AN HISTORICAL PERSPECTIVE
Ahmad Hasan
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202 AHMAD HASAN
Adherence to the tradition (athar) was identified with the right path.
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PRINCIPLE OF QIYAS 203
After studying ra'y and qiyds carefully one concludes that the scope
of the former is much wider than that of the latter, for ra'y stands on the
legal acumen of a lawyer, while qiyds is based on some authority, i.e., a
text of the Qur'an, or of a tradition or ijma'.12 Macdonald has defined
ra'y as an opinion that is thoughtful, weighed and reasonable as opposed
to a hasty dictate of ill-regulated passion.13 When it is disparaged in
medieval literature it means pronouncement of legal verdicts on religious
questions by the exercise of approbation (istihsdn), speculations (zunun)
and by indulging in hypothetical questions. Here ra'y stands for sheer
conjecture. It is also contended in favour of condemning ra'y that there
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204 AHMAD HASAN
Ra'y in the later ages was divided into three categories, namely
void, sound, and doubtful. To follow the doubtful opinion is allowed only
in the case of exigency. Just as the eating of forbidden food is permitted
in pressing necessity, so resort to doubtful opinion is permitted in a similar
situation.20 Further, a sound opinion, according to the classical jurists,
stands for the opinion of the Companions, that which explains the text,
that which is agreed upon by the Community and handed down from the
past to the present generation, and that which is based on the Qur'an, or
on the Sunnah, or on the opinions of the rightly-guided Caliphs, or on the
verdicts of the Companions, and finally that which is based on individual
opinion. Such a type of opinion is termed al-ra'y al-mahmud (approved
opinion).21 Although the classical jurists seem to have systematized
the use of ra'y, yet the reports show that its use was never allowed in the
presence of an authority, i.e., a text or agreement of the Community.
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PRINCIPLE OF QIYAS 205
So much about ra'y. We may now discuss the principle of qiyas.
It must be noted that qiyas in classical times became Aristotelian syllogism.
It comprised the major and minor premisses, the middle term, and the
result. The classical juristic literature portrays it as a complex doctrine,
full of controversies on details, a principle that could not be prima facie
digested by the jurists themselves. Qiyas came into being as a systema
tizing legal principle of individual reasoning because the use of arbitrary
personal opinion (ra'y) resulted in divergence and chaos. But unfortuna
tely qiyas itself fell a victim to capricious theorization on the part of the
common run of the jurists. One fails to understand clearly the complex
system it involves, especially the difficult question of ratio legis (7//a/i),
the common factor between two similar institutions.
In its early stages the concept of qiyas was simple and used
in its rudimentary form. Literally, it means 'to measure*, 'to
compare' and 'to weigh up'. It might have been derived from the word qaws
(bow) used for measurement in Arabia. The Qur'an uses many similitudes
employing the words 'mathal', 'mithl',ka" (like) to denote similarity
between various cases. These similes cannot be called qiyas in strict sense
of the term. It seems however plausible that such Qur'anic expressions
might have contributed to the emergence of the notion of qiyas.22 Reason
ing based on similarity of parallel cases is also noticed in IJadlth literature,
which shows the frequent use of qiyas in the early phase of Islam. We
find its semi-technical use in 'Umar's well-known letter addressed to Abu
Musa al-Ash'ari. The Companions are also reported to have employed
it in their reasoning. Ibn 'Abbas, for example, reportedly fixed the same
compensation for the injury of all types of teeth by analogy with the com
pensation of fingers. He uses the word Vtibar (comparison) which points
to its technical usage in the early stages.23 The four-fold confession of
Ma'iz before the Prophet, apart from the variety of its versions and cri
ticism upon it, indicates the non-technical use of qiyas in its early stages.24
The principle of four-fold confession of the accused in the absence of four
witnesses as required by the Qur'an25 is followed by the 'Iraqis basing
themselves on the tradition of Ma'iz. The same doctrine is applied to the
hadd punishment for theft as reported by 'Ali, though not recognized by
the 'Iraqis in general.26 The examples of the use of qiyas in its rudi
mentary form by the 'Iraqis can be cited endlessly. The starting point
seems to be, as Dr. Schacht opines, the fixing of the minimum value of
dower by drawing an analogy with the minimum value of stolen goods for
iiadd punishment. This is based on the traditions reported from the
Prophet, 'Umar, 'Uthman, 'Ali and Ibn Mas'ud.27
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206 AHMAD HASAN
The 'Iraqis sometimes use the term qiyds in the sense of a general
rule and not in its purely technical meaning. Al-ShaybanI, for example,
holds that if an article or a slave-girl is mortgaged or given in donation by
the purchaser, or he had sexual intercourse with her or kissed her, all such
acts, according to qiyds (rule) indicate the purchaser's assent. Hence the
article or the slave-girl cannot be returned to the seller on the grounds of
any defect.28
The 'Iraqis use frequently phrases like 'aid tara (don't you think?)
and ara'yta (do you think?) in their reasoning. These phrases in fact
refer to the border line cases?an exercise of qiyds and reason in general and
in wider sense.30 For their frequent use of such phrases they were nick
named as ara'ytiyun (people who use ara'yta) in the later period.
Like the 'Iraqis, the Medinese use of qiyds is of general nature and
more akin to ra'y than to technical qiyds. Words like mathal, ka and
bimanzilah have been frequently used in the Muwatta' of Malik to indicate
similarity between paralell cases. They are at times accused of inconsis
tency in qiyds by al-Shafi'I for their inclination towards ra'y. It appears
that the use of qiyds was a part of their individual reasoning (ra'y).
Let us give a few examples of Medinese qiyds. The Medinese fixed the
minimum amount of dower of a woman at one-fourth of a dinar by ana
logy with the minimum value of the stolen goods for applying badd punish
ment. Malik says that the dower of a woman should not be less than
one-fourth of a dinar, the minimum value for which a hand is mutilated for
theft.31 Further, they fixed the compensation of the fingers of a woman
at ten camels each despite the variety of their size and number. Malik
does not follow the doctrine narrated by Ibn al-Musayyib where the com
pensation is fixed at ten camels for one finger. Twenty for two, and thirty
for three, but twenty for four. Ibn al-Musayyib calls this doctrine
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PRINCIPLE OF QIYAS 207
Over against the arbitrary use of ra'y by the early schools al-ShafiT
recognized qiyas as the only valid doctrine of reasoning. He is the
first jurist to have justified it on the basis of the Qur'anic verse 2:150. He
contends that as a man depends on indications to face the Ka'bah for
saying prayers when he is away from it, so he should depend on the in
dications (dala'il) to reach a certain conclusion in the absence of the text
and consensus. From this verse he also infers that reasoning by anajogy
is obligatory on Muslims.33 This illustration of the legitimacy of qiya
adduced by al-Shafi'I provides a beacon light to a jurist for exercising
ijtihad on questions not covered by the Qur'an and Sunnah. A
man who wants to offer his prayers but does not know the right
direction of the Ka'bah makes strenuous efforts to search it by means
of signs and indications. Likewise, a jurist who is confronted with
a legal problem but does not know its answer tries to find con
firmatory evidence. This example given by al-Shafi'i underlines a
methodology for legal reasoning. A jurist, as researcher tries to find
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208 AHMAD HASAN
the relevant material on a given subject; thinks over the problem, and in
terprets his evidence to prove his proposition. The conclusion thus reached
may vary from person to person. This also justifies disagreement and
divergence of opinion on a disputed question.
Al-Shafi'I thinks that one should follow the Qur'an in the first in
stance, then the Sunnah and finally the consensus of opinion of the ancient
authorities. This he terms ittiba' (adherence). If one fails to argue on
the basis of these sources, he may have resort to analogy.34 But he regards
it as a secondary source, ancillary to, and weaker than, these three sources.
He allows its use only in the case of necessity. Just as tayammum is lawful
in the absence of water during a journey, so qiyds can be employed in the
absence of tradition (Khobar). He seeks to avoid it as much as possible.35
Qiyds in his opinion should be based on the Qur'an, Sunnah, or Ijma\
and these sources cannot be superseded by it.36 In case of conflict bet
ween analogy and a tradition, the latter will be followed by all means,
whether it agrees with the analogy or not.37
It appears that the term Hllah (effective cause) did not come into use
in juristic reasoning upto the time of al-Shafi4I. It is also not traceable in
the writings of the early schools of law. Al-Shafi'I terms the common
factor between two parallel cases sometimes ma'na (idea) and at other
times asl (basis).38 The term Hllah must have been employed in the
post-Shafi'I period. Al-Shafi'I disallowed the analogical extension of an
exceptional case, and a rule based on the result of qiyds.39 He followed
this measure to narrow down the scope of qiyds and to remove the
inconsistency which arose from its liberal use in the early schools.
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PRINCIPLE OF QIYAS 209
NOTES
1. Qur'fin, 4:105.
2. Qur'Sn, 11:27.
3. Ibn Hisham, Strat al-Nabl, Cairo: Matba'ah JJijazi, n.d., II, 259.
4. Schacht, Joseph, The Origins of Muhammadan Jurisprudence, Oxford, 1
105-6.
5. Al-Bukhan, al-JdmV al-$ahtb> BSb ma Yadhkaru min dhamm al-ra'y wa takalluf
al-qiyds; al-Darimi, Sunan, Babfi Karahiyatiakhdh al-qiyds.
6. Ibn 'Abd al-Barr, JamV Bayan al-llm wa Fadlihl, Cairo: Idarat al-Tiba'at al-Muni
riyyah, n.d., II, 134.
7. Ibid, p. 134.
8. Ibid., p. 135.
9. Ibid., pp. 135, 137.
10. We find in Arabic literature condemnation of ra'y. For instance:
1. The religion of the Prophet Muhammad is a select one. What an excellent mount
the traditions are for a man!
2. Do not detest the tradition and its people; opinion is night while tradition is
day. (Ibn *Abd al-Barr, JamV Bayan al-'llm, II, 35).
Also see I. Goldziher, Die Zahiriten, Leipzig: Otto Schulze, 1884, pp. 228-29.
11. Al-Zamakhshari, al-Kashshaf, Cairo: Matba'ah Mustafa Muhammad, 1354 A.H.
IV, pp. 122-23.
12. Ahmad #asan, The Early Development of Islamic Jurisprudence, Lahore: Islamic
Research Institute, 1970, p. 136.
13. Development of Muslim Theology, Jurisprudence and Constitutional Theory, Lahore:
Sh. Muhammad Ashraf, 1960,p. 86.
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210 AHMAD HASAN
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