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Qiyās

QIYĀS

QIYS ("analogy") is a method of reasoning that entails the extension of a precedent to an essentially similar situation. One of the four principal sources of law among Sunnī Muslims, qiyās was the last to gain explicit recognition, and then only after a fierce controversy that has left its mark on the history of Islam. The expansion of the territorial domains of Islam after the great conquests raised an increasing variety of issues not covered by the Qurʾān or the sunnah (tradition of the prophet Muammad). Islamic jurists, therefore, felt the need to have recourse to reason, logic, and opinion. Their freedom was, however, limited. In a society committed to the authority of the revelation, the use of personal opinion (raʾy) in religious and legal matters evoked opposition. In theory, the Qurʾān contained a complete revelation and, supplemented by the sunnah, was considered to respond to all eventualities. To admit any source of law other than the Qurʾān and the sunnah meant the renunciation of the ideal of founding the individual and collective life of Muslims exclusively on divine revelation. To overcome this difficulty, the theory of qiyās was elaborated with a view to restricting and setting formal limits on the use of raʾy.

The argument in favor of qiyās is based on the juristic premise that divine prescriptions follow certain objectives and have effective causes that can be ascertained and applied to similar cases. The opponents of qiyās, however, challenged this view by emphasizing that divine prescriptions have no causes except when these are specifically indicated. Besides, distinguishing the effective cause of a ruling involves doubt, and legal rules must not be based on doubt. In the view of the challengers, the proper conduct in response to the divine prescriptions is to accept them with devotion and without attempting to determine causes. It was on the strength of these arguments that the āhirīyah and the Akhbārī branch of the Twelver Shīʿ ah rejected qiyās altogether, and the anābilah permitted its use only in cases of dire necessity.

Neither the Qurʾān nor the sunnah refers directly to qiyās. The jurists have resorted to both, however, in supporting their arguments for or against qiyās. Its opponents argued that qiyās is alien to the Qurʾān, which says "We have sent to you the Book as an explanation for everything" (16:89) and "In whatever you differ, the verdict therein belongs to God" (42:10). They also contended that analogy is a conjecture and that "surely conjecture avails not aught against truth" (53:28). They concluded that qiyās is not legal evidence and that action upon it is null and void.

The defenders of qiyās argued that the Qurʾān stipulates "As for these similitudes, we cite them for mankind, but none will grasp their meaning save the wise" (29:43) and "Learn a lesson, O you who have vision to see" (59:2). They held the view that qiyās is essential to appreciate and evaluate the similitudes. Furthermore, on two occasions, when Muammad sent Muʿ ādh ibn Jabal and Abū Mūsā al-Ashʿārī as judges to the Yemen, the Prophet is reported to have sanctioned the exercise of raʾy in the absence of guidance in the Qurʾān and the sunnah.

Although qiyās as a technical formula was elaborated in the second century ah (eighth century ce), evidence suggests that the companions of the Prophet approved of it in principle. For example, the caliph ʿUmar's directive to Abū Mūsā al-Ashʿ ārī reads "Know the similitudes and weigh the cases against them." Again, when ʿUmar consulted the companions on the penalty for the wine drinker (shārib ), ʿAlī drew an analogy between the shārib and the slanderer (qādhif) and suggested the same penalty (of eighty lashes) for both. ʿAlī reasoned thus: "When a person drinks he becomes intoxicated; when he is intoxicated he raves; and when he raves he accuses falsely."

During the second and third centuries ah, raʾy and qiyās became the focus of a controversy between the party of tradition (ahl al-adīth) and the party of opinion (ahl al-raʾy ). Mālik and Ibn anbal, the leading jurists of Medina and Mecca, the original seat of Islam, laid particular emphasis on tradition, which they adopted as their standard in deciding legal issues. The situation was different in the conquered territories. Iraqi jurists, for example, who were farther removed from the birthplace of tradition, had used raʾy and qiyās extensively. The leading figure in this controversy was Abū anīfah, who openly declared qiyās to be a valid source of law. But the person credited with ending the controversy is al-Shāfiʿī, who came out squarely in favor of qiyās by including it among the four roots of law, though he was very careful to state that qiyās must be based strictly on the revealed sources and on consensus (ijmaʿ ).

In its technical sense, qiyās is the extension of the value of an original case (al) to a subsidiary case (farʿ ) by reason of an effective cause (ʿillah ) that is common to both. For example, when a legatee slays a testator, the former is precluded from the latter's will. This prohibition is based on the tradition that "the killer does not inherit" (lā yarith al-qātil). Although this ruling refers to intestate succession only, through analogy it is extended to bequests by reason of a common effective cause, namely the prohibition on hastening the realization of a right before it is due.

The cause in analogy must be intelligible to the human mind and it must be clearly identifiable. Qiyās is thus not applicable in matters of worship (ʿibādāt), such as the number of daily prayers, where the mind cannot understand the value in question (the command to pray five times a day rather than twenty times has no identifiable cause). A further restriction in the use of qiyās concerns the exercise of caution in the application of penalties. Thus, under anafī law, prescribed penalties (udūd) may not be analogically extended to similar offences. The Shāfiʿīs and some jurists from other schools are in disagreement on this point, for they consider that the basic rationale of the udūd is ascertainable with a reasonable degree of certainty in the Qurʾān and the sunnah. A total ban on the use of analogy concerning the udūd is, therefore, not warranted. But the anafī ruling, which favors caution in the enforcement of penalties, has wider support among jurists.

There are three other conditions governing the validity of qiyās :

  1. The value extended to a new case should be established in the Qurʾān, sunnah, or consensus but not in another qiyās.
  2. Qiyās should not result in the altering of a prescription (na ). For instance, the Qurʾān (24:4) renders false accusation (qadhf) a permanent bar to the acceptance of one's testimony. Al-Shāfiʿī, however, compares the false accuser to the perpetrator of other grave sins (kabāʾir ) and argues that since punishment and repentance absolve the latter and entitle him to be a witness, this exemption should also apply to the false accuser. The anafīyah have replied that this conclusion would amount to altering the divine prescription on the basis of personal judgment.
  3. The value in question should not be expressly limited to the original case. Thus, while the Prophet exceptionally accepted the testimony of Khuzaymah as legal proof (the standard being two witnesses), qiyās may not be used to justify accepting the testimony of another single individual as legal proof.

See Also

Uūl al-Fiqh.

Bibliography

Textbooks on Islamic jurisprudence (uūl al-fiqh), which are mainly in Arabic, normally devote a section to qiyās. There is a wide selection of both classical and modern works in Arabic. Among the best are Sayf al-Dīn al-midī's Al-ikām fī uūl al-akām (Cairo, 1914) and Muammad al-Khudārī's Kitab uūl al-fiqh, 3d ed. (Cairo, 1938). Comprehensive information on Shīʿī law can be found in Sayyid Muammad Asghari's Qiyās va sayr-i takvīn-i ān dar oqūq-i Islām (Tehran, 1982). The best single book in English that devotes a section to qiyās remains Nicolas P. Aghnides's Muhammadan Theories of Finance (New York, 1916). A more condensed but accurate summary of qiyās can be found in S. R. Mahmassani's The Philosophy of Jurisprudence in Islam, translated by Farhat Ziadeh (Leiden, 1961), which also contains a very useful bibliography. Interesting information on qiyās can also be found in Joseph Schacht's The Origins of Muhammadan Jurisprudence (London, 1950) and Noel J. Coulson's A History of Islamic Law (1964; reprint, Edinburgh, 1971).

M. Hashim Kamali (1987)

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