QIYAS AS A METHODOLOGY IN FORMULATION OF RULES

By Owoicho Abbah

MAY 2013
PREAMBLE

Effective functioning and the healthy progress of any civilization is expedited through the

acquisition and application of knowledge. The applications of this acquired knowledge are as

diverse as its source are varied. Knowledge acquisition is channeled into scenarios of interest by

effective reasoning through various conduits in a problem-specific manner. The concept of Al-

Qiyas involves that which is applied by a jurist in relating a new and unknown rule to an already

existing one. According to Ibn Al-Qayyim, as reported by Imam Al-Muzani (Al-Salami, 1999),

Qiyas is based on similitude and resemblance. It is therefore a credible legitimate perception

relating what looks true to the truth and also, what looks false to untruth, based however, on the

recognition of the mujtahid of the existence of a homologous effective cause.

Specifically, the concept of Al-Qiyas has been defined variously by different scholars including

Abul Husayn Al-Basri who in his book, Al-Mu’tamad, defined analogy as establishing a law

concerning an incident based on a clear injunction passed on another previous incident, so long

as they share the same effective cause (Al-Salami, 1999). In other words, when it is known why

an action is obligatory, preferred, permitted, disliked, or forbidden in Islamic Law, then

something else can be given the same legal ruling if it shares the same reason.

Juridical Analogy and Logical Analogy, what gives?

Juridical analogy as distinct from mere logical analogy, is reasoning applied to the deduction of

juridical principles from the Qurʾān and the Sunnah (the normative practice of the community).

With the addition of ijmāʿ (scholarly consensus) to these sources, it constitutes the fourth source

of Islamic jurisprudence or uṣūl al-fiqh. This is essentially a fusion of sharia and opinion (Al-
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Salami, 1999). The limited nature of the divine texts in dealing with issues in human life, which

are relatively dynamic, accentuates the role of Qiyas in the achievement of the universality of the

Shari’a. The need for Qiyas developed soon after the death of Muhammad, when the expanding

Islamic state came in contact with societies and situations beyond the scope of the Qurʾān and

the Sunnah. Muslim scholars consider Qiyas a specific variant of the general concept of ijtihād,

which is original interpretation and thought. It is also related to raʾy, personal thought and

opinion, a precursor of Qiyas criticized by traditional authorities as too arbitrary (Enclyclopaedia

Britannica, n.d.).

Procedures for Al-Qiyas

Doi (1990) expands the analogical deduction of Al-Qiyas in terms of a legal principle that was

introduced for the ascertainment of logical conclusions in relation to certain laws on certain

issues that bordered on the welfare of Muslims and, was therefore, based on the Quran, Sunnah

and Ijma. The application of Qiyas in jurisprudence is hence, reserved as a last resort whose

credibility is crowned in the event that the jurist does not find a clear injunction pertaining the

case of interest in the Quran or hadith. Only here does the jurist exercises his ijtihâd. Therefore,

where injunctions are explicitly spelt out in the Quran or hadith, the application of Qiyas

becomes impractical.

The adoption of Qiyas is based on four essential prerequisites called pillars. These are as follows:

I. The Original Case or asl

II. The Parallel Case or far’

III. Hukm al asl - the Injunction or rule of the original case.

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IV. Illah or the Effective Cause.

Thus, in the case of drug use for instance, the application of Qiyas is broken down as –

Original case – wine drinking

Parallel case – drug usage

Injunction (judgment rule) - prohibition

Effective Cause – Intoxication

Another example is found in Surah al-Jum’ah where the Quran prohibits sale transactions after

the last call to Jumah prayer. This rule is extended by Qiyas to other kinds of transactions and

engagements which distract Muslims from attending the Jum’ah prayer.

Specifically, in addition, as presented in Doi (1990), jurists have presented conditions on which

Al-Qiyas can be accepted. These include the following:

i. The application of Qiyas only holds when there is no solution to the matter in question in

the Quran or in the Hadith.

ii. Its application must not go against the principles of Islam.

iii. The person who engages in deriving a ruling through Qiyâs must have the qualifications

to engage in independent juristic reasoning (ijtihâd).

iv. It must not be in anyway in contradiction to the contents of the Quran or be in conflict

with the traditions of the prophet.

v. It must be a strict Qiyas based on either the Qur’an, the Hadith of the Ijma.

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Arguments on the validity of Qiyas

Ibrâhîm (2011) recognized two major categories of Qiyâs with respect to its strength as

evidence: overt and obscure. The former involves an obvious comparison (Qiyâs Jaliyy). Here,

the new situation being investigated is clearly more or less the same with a previous decided

matter of which Islamic Law has a clear and established ruling for. This is especially the case

where the sacred texts clearly spell out the reason for the original ruling or where there is

unanimous agreement among Muslims as to what that reason is. In such cases, substitutability of

injunctions into current matters is fluid, and therefore, deductions in this case is clear and up-

front. Take the ruling on the event of the guardian of an orphan’s estate burning all the orphan’s

property as a case in point. Though there is no direct textual evidence that discusses burning the

orphan’s property, the ruling is the same as when the guardian squanders the orphan’s wealth on

himself, which is prohibited. The reason for this ruling is obvious – it brings loss to the orphan’s

property. This is precisely what would happen if the guardian burns the orphan’s property. Both

cases are therefore the same in effect, in that the orphan will suffer the loss. There is no material

difference between the two cases and since the two cases share the reason for the ruling, they

share the same ruling. It is hence, unquestionably prohibited for the guardian to burn or

otherwise vandalize the orphan’s property.

The source of contention however, seems to be with the application of the second type of Qiyas -

Qiyâs khafiyy in matters of Islamic Law (Ibrâhîm , 2011). All of the leading scholars from

among the Prophet’s Companions, as well as the Islamic legal scholars from all the major

schools of thought agree that Qiyâs is a source of Islamic legislation. The application of the legal

principle of Qiyas in Islamic jurisprudence was introduced by Imam Abu Hanifah d.767 A.D.,

the founder of the Hanafi School in Iraq. This school (which has the most followers), prevalent
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in Turkey; Central Asia; Balkan; Syria; Lebanon; Jordan; Afghanistan; Pakistan; India;

Bangladesh and Egypt, lay a lot of emphasis on human reason. This is supported by other pro-

Qiyas camps, such as the Maliki School, prevalent in North Africa, Mauritania, Kuwait and

Bahrain. Its pioneer, Imam Malik Ibn Anas d. 795 A.D., was recorded as giving a verdict through

the application of Qiyas in the case of remarriage by the wife of a missing person after the court

had issued a decree determining him as dead. The original case is that of the remarriage of a

divorced wife who has been recalled back by her husband into the initial matrimony, but

remarried nonetheless because the recall was not communicated to her. In the former case the

wives were to observe a waiting period (‘Iddah of death) like in the latter (‘Iddah of Talaq),

afterwards going into the remarriages in good faith. Both wives become the legal wives of the

new husbands.

The acceptability of Qiyas was also portrayed by the Shafi’i School, prevalent in Sudan;

Ethiopia; Somalia; Indonesia; Malaysia, although, its founder, Muhammed ibn Idris al-Shafii, d.

819 A.D. (creator of the usul al-fiqh) initially antagonized it (Doi, 1990). His acceptance was

however based on the condition that it be strict Qiyas, a term he used to denote that it be based

on the Quran, the Sunnah and the consensus of opinions of the jurists – Ijma.

The pragmatism of Qiyas notwithstanding, camps of anti-Qiyas scholars and jurists exist. To

them, a Muslim must look for solutions to his problems in the Quran as has been said by God

therein and supported by the traditions of the prophet. Such camps include some legal theorists

of the Mu`tazilî persuasion including Ibrahim bin Sayyar, and the scholars of the Zahiri School

including Ibn Hazm of Andalusia and such scholars as Al-Nazzâm, who was followed by Ja`far

b. Harb, Ka`far b. Mubashshir, and Muhammad b. `Abd Allah al-Iskâfî (see Doi, 1990; Ibrâhîm ,

2011). However, these antagonists differed among themselves regarding the reasons why they
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failed to recognize the validity of Qiyâs. Some of them argued that Qiyâs is contrary to reason,

other arguments were that the sacred law came only from revelation. Still, other scholars argue

that though Qiyâs is not contrary to reason, it is prohibited by the sacred law itself.

As portrayed by Ibrâhîm (2011), the Hanafi jurist Abû Zayd al-Dâbûsi summarizes the opinions

of those who reject Qiyâs into four groups:

• Those who reject all rational evidence, and reject Qiyâs because it is based on reason.

• Those who hold that the only valid source of knowledge is that which is founded in

rational necessity, and they argue that Qiyâs is not founded on rational necessity.

• Those who do not regard Qiyâs as a valid source of evidence for matters of Islamic Law.

• Those who argue that Qiyâs would only suffice as a valid source of evidence for matters

of Islamic Law in cases of necessity. There is never a need to resort to Qiyâs however

because in the absence of direct textual evidence, the default legal ruling is one of

permissibility.

CODA

There is more accord in favour of Qiyas as credible and applicable reasoning in any given juristic

ruling as there are only so many instances that the established writings of the Quran and Sunnah

can effectively cover. Essentially, the dynamisms inherent in human societies, accentuated by

situational specifics, has made the application of judicial analogy crucial in Islamic

jurisprudence. Though applied in varying degrees across varying ideologies and orientations, the

legal principle of Al-Qiyas holds sway in the functionality of Islamic jurisprudence. Remaining

true to form and fixed in principle, Qiyas becomes invaluable in the assessment of situations in

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which the primary sources of Sharia are not explicit on. Its applicability is legitimate, as long as

it does not go against the injunctions of the Quran or the Sunnah of the prophet. Furthermore, the

validity of Qiyas as a source of Islamic Law has been emphasized by Ibrâhîm (2011). The

disagreements over the question of its validity came about after the Companions agreed

unanimously that it is a valid approach, and after the Successors – the students of the

Companions – applied Qiyâs and endorsed it without hesitation, so that the disagreements came

about after it had been a matter of consensus (ijmâ`).

REFERENCES

Al-Salami, M. A.-M. (1999). Al-Qiyas (Analogy) and Its Modern Applications. Jedda: Islamic

Research and Training Institute.

Doi, A. R. (1990). Shari'ah The Islamic Law. London: Ta'ha Publishers.

Enclyclopaedia Britannica. (n.d.). Qiyas. Retrieved May 20, 2013, from Enclyclopaedia

Britannica Website: http://www.britannica.com/EBchecked/topic/485794/qiyas

Ibrâhîm , W. B. (2011, April 29). Qiyas in Islamic Law – A Brief Introduction. Retrieved May

20, 2013, from Alfalah Consulting Website:

http://www.alfalahconsulting.com/2011/04/qiyas-in-islamic-law-brief-introduction.html