Qiyas, Istihsan,

Istislah, Istishab
and Istidlal
Jashim A. AbdulRahman,
Sh.L.
What is Qiyas?
 

In its literal meaning, the word Qiyas means measuring

or estimating one thing in terms of another. It also
applies to making two things equal, that is, comparing.
Thus Qiyas refers to analogical deduction.
 
In the technical sense, as defined by the jurists, it
applies to “the assignment of the shari’ah value (hukm)
of an existing case found in the texts of the Qur’an, the
Sunnah, or Ijma’ to a new case whose hukm is not found
in these sources on the basis of a common underlying
attribute called the ‘illah of the hukm” (Nyazee, Islamic
Jurisprudence, p.214)
The essential elements of Qiyas are the following:

 
 The origin or the foundation (Asl). This is the original case
on which a ruling is given in the text and which analogy
seeks to extend to a new case;
 The branch to which the ruling is to be extended. This is
the new case (Far’) on which a ruling is wanting;
 The Rule (Hukm). This is the Shari’ah value of the original
case which is to be extended to the new case; and
 The effective cause (‘Illah). This is an attribute of the Asl
and it is found to be in common between the original and
the new case (AbdulRazak, p.50; Nyazee, p.215; Alauya,
p.77, Kamali, p.252).
What are the essential conditions to exercise valid
Qiyas?

  The essential conditions before Qiyas may be applied are:

 The law enunciated in the text which analogy is attempted to be

applied must not have been indicated to be restricted to a particular
state of facts.
 Example: The Prophet said that if Khuzaima testifies for any one it is
more than enough for him. Since tradition is personified it does not lay
down a general rule of testimony only by one witness, in as much as for
a testimony two witness are necessary.
 
 An analogical deduction, according to the Hanafis and Malikis, may be
based on the law laid down in the text either of the Qur’an or hadith,
provided such texts are not repealed. But there are some Shafi’is and
Hanbalis who maintain that an analogy can be based on an existing
analogical deduction. 
 The analogy must not be applied to the vocabulary of the
text but to the effective cause on which the law is based.
 Example: Zina (fornication) is an offense for which Hadd
is the punishment in the Qur’an. The dictionary meaning
of Zina is sexual intercourse between two persons of
opposite sex when unmarried. Now the root meaning of
Zina is discharging semen into the female’s organ. Imam
Shafi’i relying on the root meaning, extended the law of
the Qur’anic text to the offense of sodomy and declared
the punishment of Hadd for it. This according to the
Hanafis is not valid analogical deduction, but it is just
interpretation.
 The law of the text must not be such as its
raison detre cannot be understood by
human intelligence.
 Example: The reason why particular
inheritance shares are fixed by the Qur’an
only for particular persons is not known to
anyone. Thus there could be no analogy on
the text regarding inheritance rights, the
share of inheritance allotted to particular
persons.
 The deduction contemplated must not eventually lead to change in the law of
the text itself.
 Example: A contract of Salam, i.e. by which a man buys an article subject to
the delivery thereof by the vendor at a later date, and for which the price is
paid in advance would not be a valid transaction. The general rule of law, for
the sale of an article, according to the Islamic notion is that in order that the
sale or contract of sale is valid, the subject matter of the sale should be in
existence at the time of the contract. The validity of a contract of Salam has
been acknowledged on the basis of a tradition that the sale of an article to be
delivered later is valid. But when the Shafi’i maintain that such a contract is
valid regardless of the fixation of the delivery time, according to other jurists
such a move tends to bring about a fundamental change in the law itself,
hence analogy in this respect is not permissible.

 The rule of analogy must not be opposed to the text of the Qur’an or the
hadith (see, AbdulRazak, Introduction to Islamic Law and Juriprudence, pp.
50-52).
What is the basis of Qiyas in Qur’an and Sunnah?


The following bases are the agruments of the proponents of Qiyas:


1. Allah said: “Think deeply, O ye who are understanding”

‫﴿صفاَبعتصبرأروُا صياَ أأوُرليِ ابلصبب ص‬

2:‫صاَرر﴾ِ سورة الحشر‬ 
 in another translation of meaning “Consider, then, O ye with eyes (to see). Surah
Al-Hashr 59:2. This verse asks those with eyes (intellect) to consider things,
compare them, and ponder over them. The word I’tibar implies moving from one
thing or place to another. In the present context it means moving one’s thoughts
between things in an effort to compare them. As Qiyas is a method of legal
reasoning that requires comparison between two things and moving the hukm from
on to the other, it falls within the implications of this verse (Nyazee, Islamic
Jurisprudence, p.228).

Qiyas is a form of ijtihad, which is expressly validated in the
Hadith of Mu`adh b. Jabal. It is reported that the Messenger
asked Mu`adh upon the latter's departure as judge to the Yemen,
questions in Suggested Answer to which Mu`adh told the
Messenger that he would resort to his own Ijtihad in the event
that he failed to find guidance in the Qur'an and the Sunnah, and
the Messenger was pleased with this reply. Since the Hadith
does not specify any form of reasoning in particular, analogical
reasoning falls within the meaning of this Hadith.


 The Sunnah provides evidence that the Messenger
resorted to analogical reasoning on occasions when he did
not receive a revelation on a particular matter. On one
such occasion, a woman known as al- Khath 'amiyyah
came to him and said that her father had died without
performing the hajj. Would it benefit him if she performed
the hajj on her father's behalf? The Messenger asked her:
'Supposing your father had a debt to pay and you paid it on
his behalf, would this benefit him?' To this her reply was in
the affirmative, and the Messenger said, `The debt owed to
God merits even greater consideration (Kamali).
Give an example of how to formulate a rule based on Qiyas?

The glorious Qur’an explicitly prohibits Liquor (Khamr) drinking when it stated:



‫س ممبن‬ ْ‫ب صوُابلصبزصلأم رربج س‬ ‫صاَ أ‬‫﴿صياَ أصيَيصهاَ النرذيصن آصمأنوا إرنَأْنصماَ ابلصخبمأر صوُابلصمبيرس أر صوُابلصنَأْ ص‬ 
‫طاَأنَ صأنَ أيوقرصع بصبينصأكأم‬
‫طاَرنَ صفاَبجتصنرأبوهأ لصصعلنأكبم تأبفلرأحوصنَ * إرنَأْنصماَ يأرريأد النشبي ص‬
‫صعصمرل النشبي ص‬
‫صصلرة‬ ‫ار صوُصعرن ال ن‬ ‫صندأكبم صعن رذبكرر ن‬ ‫ضاَصء رفيِ ابلصخبمرر صوُابلصمبيرسرر صوُيص أ‬ ‫ابلصعصداصوُةص صوُابلبصبغ ص‬
91-90:‫فصهصبل أصنَأْأتم يَمنتصأهوصنَ﴾ِ سورة الماَئدة‬

“ Oh you who believe! Intoxicants and gambling, (dedication) of stones, and (divination by)
arrows, are abomination of Satan’s handiwork: eschew such (abomination), that you may
prosper. Satan’s plan is but to excite enmity and hatred between you, with intoxicants and
gambling, and hinder you from remembrance of Allah, and from prayer; will you not abstain?
Surah al-Ma’idah 5:90-91
 The aforequoted Qur’anic verses prohibit liquor (khamr) and state the reasons
for its prohibition, i.e. exciting enmity and hatred among the people. This liquor is
an intoxicant and Tanduay is another intoxicant, which is not, mentioned in the
verse, but prohibited by reason of Qiyas. Now that this prohibition is extended by
analogy to Tanduay, the four elements of analogy in this example would be:

Asl: Khamr drinking
Far’: Tanduay drinking
‘Illah: the intoxicant effect, i.e. exciting enmity and hatred among the people.
Original Hukm: Prohibition of Khamr
Branch Hukm: Prohibition of Tanduay

With regard to the modern application of Qiyas, one example is that of DNA
testing as compared with the skill of examining the features of fathers and
children to detect similarities and family resemblance, and confirm parenthood.
The Islamic Medical Science Organization, it its eleventh session, in Kuwait,
October 1998, was of the view that : DNA testing, from a scientific point of
view, is almost fool proof means of establishing biological paternity and
determining the identity of an individual, especially in the field of forensics. This
view was supported by the Islamic Fiqh Council belonging to the Muslim World
League, on condition that all its conditions are completely fulfilled, as it says it
its recommendations that “If DNA testing completely fulfils all its conditions,
and human error is avoided, then its results are virtually definitive in proving or
disproving paternity of children” (see islamqa.info, Shaykh Munajjid).
 The Messenger said:
 “If you are three (in a group) two of you should not whisper
to each other to the exclusion of your companion because it
will mourn the latter.”
 
 The reason for the prohibition is that the whispering of the
two to each other without involving the third will sadden the
third, break his heart, make him conclude that he is not
party to the secret, or make him suspect that the two are
conversing against him. This attitude will lessen the
brotherhood and cut the cord of friendship.
 

/
 There is another situation which is not categorically reflected in the
aforequoted Matn (Text) of the Prophetic tradition, but it shares the reason for
the prohibition above mentioned like the conversation of the two in language
which the third cannot understand when the two are able to communicate
with language that can be understood by the third. It is found in this kind of
situation the reason for the prohibition of the two from whispering to each
other to the exclusion of their companion. Therefore, it is also prohibited by
way of Qiyas.
 
 Asl: Whispering of two excluding the third in a group
 Far’: Conversation of two which the third cannot understand
 ‘Illah: Sadden the third, break his heart, or make him suspect that the two
are conversing against him
 Hukm: Prohibition of Whispering of Two
 Branch Hukm: Prohibition of using language in conversation which other
cannot understand.
What are types of Qiyas?

The majority of the jurists classify Qiyas into two

broad types:
 
 Obvious/ Manifest Analogy (Qiyas Jali). In this
Qiyas, the equation between the Asl and Far’ is
obvious and the discrepancy between them is
removed by clear evidence (Alauya, p.91). It
means the underlying cause (‘illah) is more or less
apparent or can be discovered with relative ease
(Nyazee, p.227).
 
 Hidden/ Concealed Analogy (Qiyas Khafi). The
equation between the asl and far is hidden and
the removal of discrepancy between the asl
and far’ is by means of a probability (Alauya,
p.92). The real ‘illah in this type of Qiyas is less
apparent and the jurist has to expend
considerable effort to discover it. In reality this
is not analogy at all. In Islamic jurisprudence,
according to the Hanafis, concealed analogy is
called Istihsan (Nyazee, p.228).
What are the classifications of Qiyas according to the
strength of the hukm established in the far’?

 The three types of Qiyas are as follows:

 Analogy of Superior (Qiyas Al Awla), that effective cause in this

Qiyas is more evident in the new case (Far’) than the original case
(Asl). For Example: The Surah Al-Isra (17:23) provides regarding
parents: say not to them a word of contempt (Uff), nor repel them
but address them in terms of honor. By analogy, it may be deduced
that the prohibition of lashing or beating them is even more
obvious than a verbal abuse. This is also known as Qiyas al-ma’na.
 

 Another example is the prohibition of Shabu and Khamr, it may be

found that the effect of Shabu is more obvious and grave than
Khamr.
 Analogy of Equals (Qiyas Al Musawi), the illa in this type of
Qiyas is equally effective in both the new and the original
cases, and so is the ruling, which is deduced by analogy.
As an illustration, the Qur’an (4:2) forbids devouring the
property of the orphan. By analogy, it is concluded that all
other forms of destruction and mismanagement which
lead to the loss of such property are equally forbidden. It
is called by other Ulama as Qiyas al-‘illah or Qiyas Jali.

 Another example is the prohibition of Tanduay and Khamr,

their effective cause are equals as it can intoxicate.
 Analogy of Inferior (Qiyas Al Adna), the effective cause in this form is
less clearly effective in the new case than the original case.
Therefore, it is not obvious that the new case falls under the same
ruling, which applies, to the original case. For example, the rules of
Riba prohibit exchange of wheat and of other specified commodities
unless the two amounts are equal and delivery is immediate. By
analogy, this rule extended to apples because both wheat and apples
are edible and measurable. But the illa of this qiyas is weaker
concerning apples which, unlike wheats, are not stable food (Alauya,
Fundamentals of Islamic Jurisprudence, pp. 90-91). It is also known as
Qiyas Adwan or Qiyas Khafi.

 Another example. Ulama prohibits the drinking of San Mig Light (less
alcoholic drink) because according to them it can intoxicates but the
effective cause is weaker than Khamr, which really intoxicates.
What is Istihsan?

  
 Istihsan is rendered in English as Juristic preference. The
literal meaning of Istihsan is “preferring” or “considering a
thing to be good or equitable”. It is also applied to mean
something towards which one is inclined or which one
prefers; even it is not approved by others.
 
 Technically, it has been defined in several ways. Al-Bazdawi
defines it as “moving away from the implications of analogy
to an analogy that is stronger than it, or it is the restriction
of analogy to an evidence that is stronger than it (Nyazee,
p.231 citing Al-Bazdawi, Usul al-Bazdawi in ‘Abd al-‘Aziz al-
Bukhari, Kashf al-Asrar, vol.4, 7-8).
 Itmeans it is the preference of Qiyas
khafi over Qiyas jali. This may involve
the preference of a Hadith which is
specific over a general one, or it may
involve the preference of a more
suitable law over the one deduced by
Qiyas (Philips, Evolution of Fiqh, pdf
p.74).
 It is a method of exercising personal opinion
in order to avoid rigidity and unfairness that
might result from the literal (meaning)
enforcement of the existing law. It means
the Mujtahid will exercise his private
judgment, not on the basis of analogy, but
on that of public good or in the interest of
justice (Ajijola, p. 81). This method of
interpretation may be employed for various
reasons including hardship.
Istihsan has been mentioned indirectly in the Qur’an in the following
verse:


‫ ﴿النرذيصن يصبس تصرمأعوصنَ ابلقصبوصل فصيصتنبرأعوصنَ أصبحصس نصهأ أأوُ للصئر ص‬
‫ك النرذيصن‬
18:‫ب﴾ِ سورة الزمر‬ ‫ر‬ َ‫با‬
‫ص‬ ‫ب‬
‫ل‬ ‫ص‬ ‫ل‬‫ب‬ ‫ا‬ ‫أ‬
‫لو‬ ‫أ‬
ُ‫أو‬ ‫م‬
‫ب‬ ‫أ‬ ‫ه‬ ‫ك‬
‫ص‬ ‫ئ‬‫ص‬ ‫ل‬
‫اأ صوُأأوُ ر‬
‫ل‬ ‫هصصداهأأم ن‬

“Those who listen to the word and follow the best of it: Those are the
ones Allah has guided, and those are people of understanding”.
Surah Az-Zumar 39:18
Furthermore, other verses connotes that Allah wants
ease and not hardship:


‫اأسس برأكأمسس ابليأبسسسصر صوُصل يأرريأد برأكأم‬

‫ ﴿يأرريأد ن‬
185 : ‫ابلأعبسصر﴾ِ سورة البقرة‬

“Allahintends for you ease and does not intend for
you hardship…” Surah al-Baqarah 2:185
 The following ahadith have been quoted
in support of Istihsan:

 “Thebest of your religion is that which

brings ease to the people.”

 “Harm is neither inflicted nor tolerated

in Islam”
Examples of Istihsan:

A contract of the nature of sale, according to the

Islamic Law, in order to be valid, requires that
the subject matter must be in existence at the
time of the deal. Proceeding analogically, a
contract with an artist to supply a scenic picture
at an agreed price to be delivered later would be
invalid. But according to the principles of istihsan
such as deal has been validated as it is on the
basis of necessity and the general practice of
transactions.
 Islamattaches a great importance to
the proper dress of a woman (satral-
awrah). No man except her husband can
see certain parts of her body. But, on
account of necessity, a physician may
be allowed to medically examine and
diagnose a woman in the interest of
saving her life (Doi, Shari’ah, p.82).
 
Explain the principles Maslaha al Mursala as a source
of Islamic law?

 Maslaha Al Mursala is consideration of public interest or

welfare. The Arabic word mursal literally means to set
loose from the texts and masalih means welfare. It is a
method of deduction of law based on general consideration
of the public good. More technically, it is defined as
consideration which is proper and harmonious to the
objectives of the Lawgiver; it secures a benefit or prevents
harm; and the Shari’ah provides no indication as to its
validity or otherwise (Alauya, p.118; Badran, Usul, p.210; Al
Sabuni, Al Madhkal, p.131). It was first used by Imam Malik,
the founder of the Maliki School. It is synonymous to
Istislah of Hanbali School.
 
 The authority of Maslaha al Mursala or
Istislah is derived from the norm that the
basic objective of legislation in Islam is to
secure the welfare of the people by
promoting benefits in their favor or by
preventing harm. After all, Allah’s purpose
in revealing the Shari’ah is to promote
man’s welfare and to prevent corruption in
the earth (Alauya, Fundamentals of Islamic
Jurisprudence, p.119).
 Istislah means a deduction of the law based on
consideration of public good and welfare such
as the maintenance of religion, life, property,
etc (Ajijola, pp 81). As distinguished from the
broader principle of maslahah, it is a principle
that permits a more flexible type of analogy as
compared to Qiyas. The term Istislah is used by
Imam Ahmad ibn Hanbal which has the same
implications with the principle of Istihsan of
Imam Abu Hanifah and Maslahah al Mursala of
Imam Malik.
The following conditions must be fulfilled to validate reliance
on Maslaha al Mursala:

 
 The maslaha must be genuine (haqiqiya), as
opposed to a plausible maslaha ( maslaha
wahmiyya), which is not a proper ground for
legislation;
 The second condition is that the maslaha must be
general (kulliyya) in the sense that it secures
benefit, or prevents harm to the people as a whole
and not to a particular person or group of persons
only;
 
 The maslaha is not violative of principle or
value which is laid down by the nass or
ijma’;
 The maslaha must be rational (ma’qula) and
acceptable to the people of sound intellect;
and
 It must prevent or remove difficulty from the
people. The last two conditions are in
accordance with the Maliki school (ibid,
pp.124-126).
Allah describes His purpose in the revelation of religion in that it is
not within His intention to make religion as a means of imposing
hardship as expressed in this Qur’anic ayah:


‫ ﴿صوُصم اَ صجصعصل صعلصبيأكبم فر يِ المديرن رمبن صحصر ج‬

‫ج ﴾ِ سورة‬
78:‫الحج‬

“(Allah) has not placed upon you in the religion any difficulty.” Surah
al-Hajj 22:78

It is further confirmed by another Ayah:

ِ﴾‫ج‬
‫ج‬ ‫ر‬
‫ص‬ ‫ح‬
‫ص‬ ‫ب‬
‫ن‬ ‫م‬
‫ر‬ ‫م‬
‫ب‬ ‫أ‬
‫ك‬ ‫ب‬
‫ي‬ ‫ص‬ ‫ل‬ ‫ع‬
‫ص‬ ‫ل‬
‫ص‬ ‫ع‬
‫ص‬ ‫ب‬
‫ج‬ ‫ص‬ ‫ي‬‫ر‬ ‫ل‬ ‫أ‬ ‫ا‬ ‫أ‬
‫د‬ ‫ب‬
‫ي‬ ‫ر‬‫أ‬
‫ص ر‬‫ي‬ َ‫ما‬ ﴿ 
6:‫سورة الماَئدة‬


Allah never intends to impose hardship upon

“

you.” Surah al-Ma’idah 5:7

 Aisha is reported to have narrated:

 “The Prophet did not choose but the easier of the two
alternatives so long as it did not amount to a sin.”
(Muslim, Sahih Muslim, Hadith no.1546)
 
 Furthermore, Prophet Muhammad ‫ ﷺ‬is reported to have
said:
 
 “The Muslims are bound by their stipulations unless it be
a condition which makes a haram as halal or a halal as
haram.” (Abu Daud, Sunan, Hadith no.3587)
Examples of Masalih Al Mursala (Istislah):

 The imposition of Taxes on the rich in order to

meet the costs of the army and to protect the
realm.
 If the infidels in a war should shield themselves in
their advance by Muslim prisoners of war, public
interest permits killing of the Muslim prisoners of
war in the course of fighting the infidels, if such
action should be found essential to contain and
ward off the foe and to protect the interests of
the Muslim people as a whole.
A Caliph or a ruler does not have to be
the most meritorious claimant,
otherwise strife will be inevitable.
 The eating of meat which has not been
slaughtered according to the Islamic
ritual (dhabihah) permissible where no
other lawful food is available.
Istishab
 Istishab or deduction by presumption of
continuity is a rational source which may be
resorted to in the absence of any other source.
Literally it means association, escorting,
companionship or permanency. Technically, it
is used to denote that things whose existence
or non-existence had been proven in the past
should be presumed to have remained as such
for lack of establishing any change
(AbdulRazak, p.61; Alauya, p.142).
 It is a principle within the Shafi’i system,
which in general terms means: the
status quo shall be maintained. It means
that the original rule governing an issue
shall remain operative. The previous
rule is accepted, unless a new rule is
found that goes against it (Nyazee,
Islamic Jurisprudence, p.236).
 As an example of Istishab is the case of
man who had been absent and whose
whereabouts are unknown. The Shafi’i
would treat such a man as living for all
purposes of the law until his death is
proven, so his estate cannot be distributed
among his heirs, and he will be allotted his
share in the estate of a person from whom
he can inherit who happen to die during his
absence.
 Istishab can be divided into four forms according to
the nature of the conditions which are presumed to
continue:
 
 Presumption of original absence (istishab al’adam al
asli) which means that a fact or a rule of law which
had not existed in the past is presumed to be non-
existent until the contrary is proved. This includes the
“presumption of original freedom from liability” or the
“presumption of innocence”. If “A” demands a debt
from “B”, “A” has to prove it, otherwise “B” is
presumed to be free from such obligation.
 Presumption of original presence
(Istishab al wujud al asli), this kind takes
for granted the presence or existence of
that which is indicated by law or reason.
An example of this is the obligation of
the buyer to pay the price by virtue of
the existence of the contract of sale
until it is proved that he has paid it.
 The presumption of law (Istishab al hukm)
which presumes the continuity of the
general rule and the principles. This may
include the “presumption of generality until
limitation is placed thereon” and “continuity
regarding a text until it is repealed”. The
provisions of Shari’ah regarding
permissibility (ibaha) and prohibition of
certain acts or omission are presumed to be
continued unless the contrary is proved.
 The presumption of continuity of
attributes (Istishab al wasf) such as
presuming the clean water (purity being
an attribute) to remain so until the
contrary is proved or established, like
when its color or taste is changed (see
Alauya, Fundamentals of Islamic
Jurisprudence, pp.143-145; Kamali,
Principles of Islamic Jurisprudence,
pp.380-384).
 Istidlal(Inference) is derived from the
word istidal which means to infer.
Literally it means inference. It is a
method of juristic deduction by means
of inferring of one thing from another in
order to arrive at a rule. It is a form of
ratiocination or legal reasoning not
covered by Qiyas.
 The Hanafi uses the doctrine of Istidlal as a
method of interpretation; while the Shafi’i
and the Maliki regard it as a separate way
of reasoning, which is neither Qiyas nor
interpretation, it is, according to them,
more or less a method of deducing certain
legal conclusions; it is a form of juristic
ratiocination, i.e. a form of reasoning
(Arabani, p.193 ; Abdur Rahim, Muhammad
Jurisprudence, p.166).
 Istidlal is of three kinds:
 
 1. The expression of the connection existing
between one proposition and another without any
specific effective cause. Istidlal of this kinds is
classified into four categories:

 a. When the connection is between two affirmative

propositions. For example, the proposition that
everyone who is competent to give a valid talaq
can also make a valid zihar.
 b. When the connection is between two negative
propositions. For example, the statement that if a regular
ablution (wudu’) are valid without specific intension, then
the subsidiary ablution (tayammum) would also be valid.
Hence, if a substitury ablution without intention is not valid,
a regular ablution cannot also be valid without such
intention.
 
 c. When the (comparison) connection is between an
affirmative and negative proposition, for example the
proposition that what is permissible cannot be haram or
forbidden.
 
 d.When the connection (comparison) is
between a negative proposition and an
affirmative proposition, for example, the
statement that what is not valid is
forbidden and cannot be halal.
 2. Istishab ul hal or presumption that a state of
things, which is proved to have ceased, still
continues, or that a rule is accepted. Other
authority however treat Istishab ul hal as another
source of Islamic law.
 
 3. The authority of revealed laws previous to
Islam. For example, it is recognized that customs
and usages which prevailed in Arabia at the
advent of Islam which were not abrogated by
Islam, have the force of law (ibid, pp.193-194).