Why do some legal scholars reject the use of analogy (qiyas)?

[4]
Analogy (qiyas) is the fourth source of Islamic law that is used when the
primary sources are silent about a newly appeared issue. However some
scholars reject its use on the following basis.
1. There is detailed description of everything in the Quran so there is no
need to follow another source. "...And We have sent down to you the Book
(the Qur'an) as an exposition of everything..." (Nahl: 89).
2. Resolution of issues through Qiyas takes precedence over Allah and His
Messenger which is forbidden in the Quran. "O you who believe! Do not put
(yourselves) forward before Allah and His Messenger..." (Hujuraat: 1)
3. Qiyas is conjecture which gives no benefit against the truth. "And most of
them follow nothing but conjecture. Certainly, conjecture can be of no avail
against the truth..." (Yunus: 36)
4. We are bound to decide among the people with what Allah has revealed
and solutions through qiyas are not revealed by Allah. "And so judge (you
O Muhammad ) between them by what Allah has revealed and follow not
their vain desires..." (Ma'idah: 49).

4 (a) Briefly describe the four main sources of legal thinking in Islam. [12]
[O/N/05]
Describe the 4 main sources of the legal thinking in Islam? [10]

Answer: The divine revelation (the Holy Quran) is the first basic primary
source in Islamic law. It is the most authentic, comprehensive book
contains laws of all spheres regarding to Islam. In the holy Quran Allah
says “This is the book in it is guidance without doubt to those who
fear” (2:2) it is the direct word of Allah hence its purity is doubtless. It’s
clear teachings in Islamic legal thinking are followed without questions as
Quran exist in its original form as Allah says in the Holy Quran “We have
without doubt revealed the reminder and we will guard it” (15:9) The
Holy Quran is a primary source containing all the fundamental directives
and instructions of Allah including the principals relating to all the aspects
of social and cultural life of human being individually and in whole
community. The Quran is the last and complete edition of divine guidance
and this is the only book of Allah which is not been distorted.
The second primary source of legal thinking in Islam is Sunnah. It comes
next to the Quran. Sunnah literally means the sayings and actions of
Prophet (S.A.W) or approval of actions of others by him. Sunnah is used
when teachings of the Quran is not in the detail form but is summarized or
when Quran is silent. Than the legislation may solely be derived from the
Sunnah as Allah says in the Holy Quran “Nor does he speak of his own
desire and he follows whatever been inspired to him and revealed to
him” (Al-Najum). For example Muslims are commanded to pray Salat and
pay Zakat but it is not mentioned in the Holy Quran that how to pry and how
much to offer Zakat, it’s the Sunnah of the Prophet (S.A.W) that gave a
clear description of such laws pertaining to Zakat and Prayer as Holy
Prophet (S.A.W) himself said “Pray as you see me offering prayers”
(Sahih Bukhari).
Ijma is the third source of Islamic legal thinking. In the terminology of
religion Ijma means consensus of the companions of the Prophet (S.A.W)
or Muslim jurists of a particular age, on a question of law. The Holy Prophet
(S.A.W) said “Gather together the righteous from among my
community and decide the matter with their council and do not decide
it by any man’s opinion” (Abu Daud). Ijma of the scholars signifies the
importance of the legislation in the Muslim community. Ijma is considered
as sufficient evidence for the implementation of the Islamic law because
Prophet (S.A.W) himself said “My community will not agree
unanimously on an error” (Tirmizi). The best example of Ijma is that
when Holy Prophet (S.A.W) consulted his companions about matters that
were not concerned with religion like Ijma for the battle of Uhad, because
Allah commanded him to do that. “Take council with them in the
conduct of affairs.” (3:139).

Qiyas is the fourth source of Islamic legal thinking. Qiyas is an analogical

deduction from the above three sources of law. It basically resorted in
respect of problems about which there is no specific provision in the Holy
Quran or Sunnah of the Holy Prophet (S.A.W). In case when something
needs a legal ruling but has not been clearly addressed in other Islamic
sources, judges may use (Islamic Scholars) analogy, reasoning and legal
precedent to decide new case when a general principal can be applied to
new situation e.g. the scholars have developed detailed principals of
analogical deduction or Qiyas in the book of Islamic laws. The Prophet
(S.A.W) reported to have encouraged Qiyas in his lifetime. When Holy
Prophet (S.A.W) was sending Mauz bin Jabal (R.A) as the governor of
Syria/Yemen. The Holy Prophet (S.A.W) asked him “How will you decide
when a matter comes to you for decision?” He replied “I shall decide
according to the book of Allah.” The Prophet (S.A.W) again said that
“If you did not find it in the book of Allah?” Mauz (R.A) replied “Than I
will decide according to the Sunnah of the Prophet (S.A.W).” If you
find nothing in there? Holy Prophet (S.A.W) asked. Hazrat Mauz (R.A)
replied “Than I will exert myself for my own judgment.” (Tirmizi & Abu
Daud)

(b) Give one example each to show how the third and fourth of these legal
sources are used. [4]
Write about how the Quran is used with the other three sources in
Islamic law

The holy Quran is believed by all Muslims as the basis of thinking how
they should govern their lives. The Quran says:

“Those who do not judge by the law which Allah has sent down,
are indeed the disbelievers” (Al Maida 44).

When Quran declares something unlawful, no authority can challenge it,

therefore no other source of law can go against Quran. For example since
the Quran prohibits gambling, any form of gambling is unlawful. All other
three sources will agree with this principle and there is no conflict between
them.

The Sunnah is the second primary source of Islamic law. It is next to

Quran in authority. It is important because Allah Himself gave authority to
the Prophet Mohammad (saw) to make laws. The Quran says:
“So take what the messenger gives you, and refrain from what
he prohibits you.” (Al Hashr 59:7).

It is also important because without Sunnah we can never understand

Quran. For example, the Quran does not tell us how to perform Salat. The
method is given by the Prophet (saw). The Quran and the Sunnah never
contradict each other. Sunnah is only an extension and explanation of the
Quran. Sunnah is an authority where the Qran is silent. The Quran says:
“---He makes pure things lawful for them and impure things unlawful”
(Al Aaraaf 157)
Therefore without Sunnah, there is no possibility of understanding and
following the holy Quran.
Ijma or the consensus of the Muslim community is an agreement of the
Muslim community on a point of Faith or action. It is used when the Quran
and the Sunnah are silent. It is authorized by the Quran and the Sunnah:
“My nation will not agree unanimously on error” (Hadith)

Ijma of the companions of the Prophet (saw) is obligatory for the Muslims to
follow. The examples of such Ijam are Travih prayers, two Azaans on
Friday prayers and agreement of Muslims on the Quran compiled by Abu
Bakr (ra). Ijma of the renowned scholars of Islam like Imam Abu Hanifa,
Imam Malik, Imam Hanbal and Imam Shafai is also important to follow
because these Imams set down rules of Islamic law. It is also important that
Ijma never disagrees with the Quran and Sunnah. Ijma is based on the
principles set down by Quran and Sunnah. For example, the Prophet (sw)
asked thecompanions to bring the Quran in writing and the entire quran
was in writing at the time of the Prophet (sw). Abu Bakr (ra) brought this
scattered Quran in the book form. The famous Hadith of the Prophet (sw) is
also a proof of ijma when the Prophet (sw) permitted Muaz bin Jabal to use
his discretion when a direct solution is not found in Quran and Sunnah.

Qiyas or Analogy is the decision of an expert of Islamic law on the basis

of comparison with the known law given by the Quran and Sunnah and a
problem which did not exist during the time of the Prophet (sw). It means
that the roots of every Qiyas are definitely there in the Quran and the
Sunnah.

It is permitted by the Quran and Sunnah because Quran asks Muslims to

use common sense in many places. The legal expert compares the logic of
an existing problem for which no direct solution is given in the Quran
Sunnah and Ijma. He forms his opinion and comes to his conclusion using
common points between the two problems.

For example, Quran and Sunnah do not talk about using narcotics and
antoxicating drugs but they declare drinking wine unlawful. Since wine
creates loss of senses, and narcotics also create the same effect, taking
narcotics is also unlawful or Haraam.

The famous Hadith of the Prophet (sw) is also a proof of Qiyas when the
Prophet (sw) permitted Muaz bin Jabal to use his discretion when a direct
solution is not found in Quran and Sunnah.
• [In each case allow 1 mark for an attempt at an example, and 2 marks
for a well worked explanation of Consensus and Analogy. In order to
gain the full 2 marks, candidates should be able to show how the
source is used and what the result will be.]