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THE PRINCIPLE OF QIYAS IN ISLAMIC LAW AN HISTORICAL PERSPECTIVE

Author(s): Ahmad Hasan


Source: Islamic Studies, Vol. 15, No. 3 (AUTUMN 1976), pp. 201-210
Published by: Islamic Research Institute, International Islamic University, Islamabad
Stable URL: http://www.jstor.org/stable/20847007
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THE PRINCIPLE OF QIYAS IN ISLAMIC LAW
?AN HISTORICAL PERSPECTIVE
Ahmad Hasan

Qiyds is a systematic form of reasoning in law. Before it developed


into a sophisticated doctrine in the post-Shall*! period, it was simply
used to show a resemblance between two parallel cases or institutions.
It started with the use of personal opinion (ra'y) in cases not covered by
an explicit text (nass). The employment of sound personal opinion (ra'y)
to settle important matters was not uncommon in pre-Islamic Arabia.
Men of opinion (dhu'Ura'y) and men weak in mind (mufannad) were two
distinct categories of people in respect of reasoning. The exercise of ra'y
was therefore not something novel in Islam. The Qur'an of course alludes
to its use by the Prophet,1 and points to its significance in ancient history.2
The Qur'an lays great stress on the use of rational faculty. Its recurrent
insistence upon 'thinking' and 'reflection', and its sporadic mention of
ratio ('illah), and purpose of injunctions made for the exercise of ra'y
and ultimately qiyds in Islamic jurisprudence.

The Prophet himself acted as a judicial authority in Medina, and


also reportedly appointed a number of persons as judges in various parts
of Arabia. The settlement of disputes naturally requires exercise of reason
and personal opinion. The interpretation of a textual injunction and its
application to a particular case obviously pre-supposes the use of reason
and intelligence. The Prophet, we are told, consulted his Companions
in doubtful situations when he was not guided by revelation.3 The em
phasis of the Qur'an on mutual consultation in matters of social policy and
its special directive to the Prophet to consult the Companions signify the
importance of the role of individual reasoning and judgement in Muslim
society. The well-known tradition of Mu'adh ibn Jabal, though much
disputed,4 more or less points to this general phenomenon.

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202 AHMAD HASAN

It seems that ra'y was a generic term representing overall reasoning


frequently employed by the early schools of law before al-Shafi'I (d. 204/
819-20). During its various phases of development, it emerged under diffe
rent names, viz. qiyds (analogy), istihsan (approbation), Istislab (public
interest) and istishab (to take a decision on the basis of accompanying cir
cumstances), etc. In the later period, great emphasis was laid on reason
ing based on the text (naff). This movement, though initiated a little
earlier, was launched vigorously by al-Shafi'I, culminating in the emergence
of the literalist schools of Dawud and Ibn rTazm. Ra'y was debunked
either by trenchant criticism of the traditionists, or by the stereotyped
reasoning of the classical jurists. The principle of qiyds was consequently
substituted for ra'y and became a recognized mode of reasoning.

We find contradictory statements about ra'y in the post-Shafi'I


period. Al-Sha'bl has been portrayed as an enemy, and Rabrah as a
great exponent of ra'y. But the general trend of individual reasoning and
free thinking in the early schools contradict the historical accounts of the
classical period. Further, the traditional reports of the later period
seek to show that the 'Iraqis were the protagonists of ra'y and the Medi
nese were the advocates of traditions. This is also not true. A closer
study of the early schools of law will show that the exercise of ra'y was
not peculiar to the 'Iraqis. The Medinese and the Syrians equally shared
this characteristic. Al-Shafi'I, despite his own discountenance of ra'y,
could not escape its influence on his own reasoning.

With the development of traditions in the third century after the


Hijrah, reports ascribed to the Prophet about the condemnation of ra'y
and qiyds permeated the Ifadith literature.5 A tradition, for instance,
goes: "My Community will split up into more than seventy sects; the
most perversive of them will be people who weigh up religion with their
individual opinion, whereby making lawful what Allah made unlawful
and unlawful what Allah made lawful."6 The use of ra'y by the Prophet
was justified on the plea that he was always correct in his opinion because
God guided him. But the exercise of ra'y by the people other than him
is a sheer speculation (zann) and artifice (takalluf).7 The hostility on the
part of the traditionists towards the use of ra'y led them to the extreme.
They stigmatized their opponents (people of opinion) as the enemies of
Sunnah.*

Adherence to the tradition (athar) was identified with the right path.

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PRINCIPLE OF QIYAS 203

Originality which is essentially based on the use of reason and intelligence


was denounced as an innovation in religion (bid'ah). Hence allegiance
(ittibd6) and originality (ibtida*) became two conflicting strands of me
dieval legal thought? This literal-radical attitude in legal reasoning paved
the way for the close of the door of ijtihdd.

Curiously enough, the interpretation of the Qur'anic verses could


not escape this bias. Al-Zamakhshari tells us that the verse ["if we had only
heard, or had understood, we would not have been the inhabitants of the
blaze" (67:10)] has been construed as the followers of the people of tradi
tion (nasma'u?we hear) or the adherents of the people of opinion
(na'qilu?v/e understand). Oddly, he remarks ,it appears from the inter
pretation as if the verse in question was revealed after the genesis of these
schools.11 Tradition (sant) and reason Qaqi) represented these two trends
in legal thought in the later period. Tradition and reason are complemen
tary and interdependent: one cannot be separated from the other. The
conflict between these two began at the time when they were thought
exclusive to each other in an absolute sense under the influence of the
traditionists. A text, whether of the Qur'an or of the Sunnah, cannot be
applied to a situation without reasoning. A lawyer applies a text to a given
situation in the light of overall teaching, spirit and wisdom of the Qur'an,
or of the Sunnah, and not exclusively on the basis of a particular report.
A traditionist, on the contrary solely depends on the explicit text. Hence
the conflict between these two approaches was natural. The literalist
attitude however dominated in the wake of compilation of liadith in
the classical period. Al-Shafi'i earlier brought in the method of synthesis
to stem the tide of free thinking in law. But this could not go a long way
owing to the contradictory traditions. But his attempts tended to arrest
the free use of individual reasoning in law in the later ages.

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

is an apprehension of suspending all the Sunnahs resulting in the negligence


and renunciation of necessary knowledge through frequent personal
opinion.14

In the early period al-Shafi'I condemned' it as pleasing oneself


(taladhdhudh).15 These later invectives against ra'y were the upshot of
al-Shafi'I's movement against free thinking in law. Alongside of its dis
paragement in the later period we notice a number of reports about con
demnation of ra'y attributed to the Prophet, to his Companions and to the
Successors. 16 Al-Zuhri observes: "What a fine minister of knowledge is
sound opinion (al-ra'y al-fyasari)".17 This points to the fact that attempts
were made in the later centuries at reconciliation between the two radical
attitudes. Ra'y was ultimately defined as 'a decision which the mind arrives
at after thinking, contemplation and genuine search for truth in a case
where indications are conflicting.'18 A statement ascribed to al-Shaybanl
who belongs to the early legal schools has been cited in favour of the use
of ra'y in the classical literature. It goes: Whoever is conversant with the
Book and the Sunnah, and the opinions of the Companions, and what
has been approved of by the (early) Muslim jurists, is allowed to exercise
his opinion on legal matters. He may take a decision by his opinion,
and follow it in his prayer, fasting and pilgrimage, and in all commands and
prohibitions. If he exerts his best effort, deeply reflects and exercises
analogy with parallels, showing no slackness, he is permitted to act upon
it (his personal opinion), although he misses the right judgement.19

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

We find examples of analogy drawn with a rule already based on


analogy in the 'Iraqi school. Abu Yusuf validates muzdra'a (share
cropping) on the basis of mudaraba (sleeping partnership) where sharing
of future profit is not clearly fixed. And muzara'a itself is an analogical
deduction from the contract of musdqdh (lease of a plantation of fruit
trees) concluded with the Jews of Khaybar by the Prophet. Thus, muzara'a
is based on double analogy, or analogy with the result of analogy.29 This
sort of reasoning by the 'Iraqis reflects the liberal use of rdy in a systematic
manner.

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

Sunnah, but Rabl'ah expresses his astonishment, as the doctrine goes


against qiyas, i.e., reason.

To understand the nature of Medinese qiyas we may consider one


more example, ffajj by proxy in the lifetime of a person is permissible
according to the 'Iraqis. The doctrine is based on a tradition from the
Prophet. The Medinese do not allow it in the lifetime of a man but after
his death or when he leaves a will to that effect. They reject this doctrine
on the basis of qiyas. The performance of prayers and keeping fast on
behalf of another person in his lifetime or after his death is unlawful. This
is a generally accepted doctrine based on the tradition of Ibn 'Umar. The
Medinese disallow Hajj by proxy by drawing the analogy with prayer and
fasting.32 Al-ShafM and others criticize them for improper qiyas because
this is an exceptional case allowed by the Prophet. From the various
examples of qiyas which we have considered earlier it is manifest that
the doctrine in the early schools of law was nebulous. It carried the
sense of parallel, precedent, reason and established rule. Minor
resemblance was sufficient to employ qiyas by the early authorities.
There were no hard and fast rules for its employment. By degrees
it was substituted by logical qiyas in later times. Al-Shafi'I theorized it
in the early period.

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.

He does not allow any person to exercise qiyds unless he is well


qualified. He stipulates that one should have adequate knowledge of
Arabic, be conversant with the teaching of the Qur'an, its ethical principles,
its abrogating and abrogated verses, its rules in general. He should also
possess the knowledge of the established Sunnah, the opinions of his pre
decessors, and the consensus and disagreement of people on all legal
questions. One must have sound mind and good memory to apply qiyds.
Lack of such qualities as suggested by him disqualify a person for the
exercise of qiyds.40

From the foregoing discussion we may conclude that with the

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PRINCIPLE OF QIYAS 209

introduction of systematic analogical reasoning (qiyas) in law, the scope of


exercising individual opinion was narrowed down to a great extent. Since
qiyas requires a basis (i.e., an authority) for reasoning, it eventually led
to rigidity in legal thinking. Qiyas sought to systematize arbitrary indi
vidual reasoning in law. It also tended to arrest the creative and original
thinking. Ultimately a tendency among the medieval jurists emerged to
seek authority in their reasoning. The trait of legal conformism in the
classical jurisprudence was, in a sense, due to the recurrent use of deductive
analogical reasoning. The use of qiyas in its early stages was although
creative enough to solve the problems in a logical or analogical way, yet
its development into an intricate mechanism at later stages marred its
efficacy as a liberal principle of jurisprudence.

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

14. Ibn'Abd al-Barr, JamV BaydnaVllm.il, 139.


15. Al-Shafi'i, al-Risdlah, Cairo: BQlaq, 1321 A.H., p. 70.
16. AbO D&wQd, Sunan, al-Taiaq-17, and Sunnah-12; Malik, al-Muwaffa', Cairo: Dftr
Ibyr al-Kutub al-'Arabiyyah, 1937, II, 860.
17. Al-DarimI, Sunan, Damascus; Matba'ah al-I'tidai, 1349 A.H., I. 93.
19. Ibn Qayyim, Vlam al-MuwaqqVin, Delhi: Ashraf al-Matabi\1313 A.H. I, 23.
19. Ibid.
20. Ibid.
21. Ibid.
22. Ibid., pp. 46-48.
23. Malik, al-Muwaffa', II, 187.
24. Schacht, The Origins, p. 106.
25. Qur'an, 24:4.
26. Al-Shafi'i, Kitab al-Umm, Cairo: BQlaq, 1325 A.H., VII, 138, 169; Aba YQsuf,
Kitab al-Kharaj, Cairo: BQlaq, 1302 A.H.; p. 102.
27. Al-Shaybani, al-Muwaffa\ Deoband, n.d., p. 304; al-Shafi'i, Kitab al-Umm, VII, 138,
139, 207.
28. Al-Shaybani, al-Asl, Cairo: Matba'ah Jami'at al-Qahirah, 1954,1, 181.
29. AbO YQsuf, Kitab al-Kharaj, pp. 50-51; al-Shafi'i, Kitab al-Umm, VII, 101-102.
30. AbQ YQsuf, al-Radd 'aid siyar al-Awza'i, Cairo: Lajnah Ihya'ma'arif al-Nu'mani
yah, n.d., pp. 23, 43, 51 passim.
31. Malik, al-Muwafta', II, 5.
32. Al-Shafi'i, Kitab al-Umm, VII, 196-97.
33. Ibid, p. 272; al-Risdlah, p. 66.
34. Al-Shafi'i, Ikhtilaf al-ffadlth, on the margin of Kitab al-Umm, VII, 148.
35. Idem, al-Risdlah, p. 82.
36. Idem, Ikhtilaf al-ffadlth, p. 148.
37. Idem, al-Risdlah, p. 76.
38. Ibid., pp. 8, 31, 76,
39. Ibid., pp. 73-76. Kitab al-Umm, VII, 101-102.
40. Idem, al-Risdlah, p. 70.

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