Islamic Law – Sunnah and Quran – Part 3

“Qiyas” (analogical deduction)

With the conquests and the expansion of the Islamic State, and as centuries went by, new cases were provided for in the Quran, the Sunnah or the Ijma. The jurists found themselves compelled, in seeking solutions, to have recourse to reason, logic and opinion. Analogy thus

became the fourth source of Islamic Law.

Qiyas or Analogy is a process of deduction by which the law of a text is applied to cases which the law of a text is applied to cases which, though not covered by the language, are governed by the reason of the text. Hanafis define it as, “An extension of law from the original text to which the process is applied to a particular case, by a common illat or effective cause, which cannot be ascertained merely by interpretation of the language of the text.”

The following example would make the above rule clear:

Strong drink, for example, is prohibited by explicit provisions. The cause for the prohibition is the intoxicating effect. If we assume that wine had not been explicitly prohibited, we are all still able to equate it by analogy to strong drinks in general, since the cause for the prohibition is the effect of intoxication, to which both give rise. Similarly, if there is no intoxication, there is no prohibition.

All the four schools of the Muslim Jurisprudence accept the authority of Qiyas as a source of Law. But it was one of the causes of conflict between the schools. The Imamiyah Shia rejected it, Daud-al-Zahiri and his followers did likewise; however the majority of jurists and the Zaidiyyah Shia accept it. In fact, the main point of difference was the extent to which analogy could be relied upon.

As Qiyas is based on strict logical deduction, it cannot be equated and confused with opinions based on mere whims, or fancies of an individual person.

Equity And Absolute Good

The following come under this:

  • “Istihaan (juristic preference) – Qiyas has been accepted as a definite source of law, and it cannot be easily overridden. But in the presence of a basis stronger than Qiyas, such as a text of Quran, Hadith or Ijma, the Qiyas would be set aside and the “stronger basis” would be adopted through juristic preference or Istihaan. The following example shall make the principle clear:

The sale of a non-existent thing, namely, a thing which is not in existence at the time of the signing of the contract, is void. Since benefits and services according to the Hanafi School, are not considered in the existence at the time of contract, the contract of hire was considered as the sale of a thing which is not in existence and therefore, by analogy, void. However, the contract of hire was sanctioned by the Quran, the Sunnah and Ijma. All these are basis which are more substantial than an analogy. Thus, the analogy was set aside, and transactions of hire were considered permissible through “preference”.

This sort of deduction, namely, the setting aside of analogy in the presence of a stronger source, is called Istihan or preference.

Istihan provides elasticity and adaptability to Shariah and makes it humane. In fact, if Qiyas (analogical deduction) is the common law of Islam, then Istihan is its equity.

  • “Al-masalih al-mursalah” (public-interest) – Imam Malik, the founder of this rule. According to him, public good and public interest may validly be made the basis of a law which finds no support from an existing source or text of the Shariah. This is why it is called Mursulah (different or distinct from existing sources).

Following examples will make it clear:

  • The imposition of taxes on the rich in order to meet the cost of the army to the protect the State, or to finance social welfare.
  • If the infidels in war shield themselves by Muslim prisoners of war, public interest permits the killing of the Muslim prisoners of war in the course of fighting the infidels, if such action is found essential to contain and ward off the foe and to protect the interests of the Muslims people as a whole. But the war should not be a personal war of the King to save his family or friends. It must be to uphold Islam.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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2 comments

  1. Hindi English Tamil Telugu Malayalam Kannada Bengali Punjabi Marathi Bhojpuri Gujarati Oriya Urdu Tulu Assamese Dharmendra: Dharmendra (born as Dharam Singh Deol) is one of the most charismatic actors that Indian cinema has ever had. The dashing actor had reportedly converted to Islam in 1979. The actor was married to Prakash Kaur when he fell in love with actress Hema Malini. He didn’t want to divorce his wife but could not marry again as per the Hindu Marriage Act. So he converted to Islam and married Hema. Since then he has maintained two separate families. It is said that since there were many protests during his second marriage, the actor had no other option than to change his religion to legitimise his union with Hema Malini.

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