Illa and Qiyas in Early Islamic Legal Theory

ʿIlla and Qiyās in Early Islamic Legal Theory
Author(s): Nabil Shehaby

Source: Journal of the American Oriental Society, Vol. 102, No. 1 (Jan. - Mar., 1982), pp.
27-46
Published by: American Oriental Society
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cILLA AND QIYAS IN EARLY ISLAMIC LEGAL THEORY
NABIL SHEHABY
AL-FATEH UNIVERSITY, TRIPOLI, LIBYA
One important task among several that occupied HanafT and ShaficT legal theorists was
the establishment of analogy as a method for extending the law beyond that which is stated
in the authoritative legal sources, an aim that seems to clash with the literalism of the Zahirl
school. Examination of the reports that practice obliged the founder of the ZahirT school to
use analogy shows only his advocacy of the concept of an indicant that has one meaning.
This concept differs from the kinds of analogy known in legal theory: (a) analogy by cilla and
(b) analogy by similarity. Evidence is supplied concerning a group of Zahirfs who advanced a
peculiar type of (b) later in time. Written after A.D. 952, al-Jassas's Usl al-Fiqh is one of the
earliest works providing a detailed picture of both methods as conceived since earlier times.
Its HanafT and Mu'tazilite author accepts only (a), which he presents as implying an
inferential process around which a methodology is built. He contrasts it with what he regards
as the methodology and inferential process practiced in kalam. The recommended
methodologies forfiqh and kalam are interpreted as fitting a certain Islam-oriented political
theory. Also attempted is a clarification of a division of the sciences advanced by al-Ghazali.
ALTHOUGH MODERN SCHOLARSHIP has made exten- name. Usal al-fiqh, or simply al-usil,' has five different
sive and valuable contributions to a history of Islamic but connected meanings. (1) It is sometimes used to
thought in most of its aspects, relatively little has been refer to the authoritative legal sources from which
done in the field of usu- al-fiqh (legal theory) and such judicial judgments are obtained. Thus, everywhere one
related topics as al-jadal al-fiqhT (legal debate). This finds the Qur'an being called an asl.2 Also, a compila-
may be due to the complexity of Islamic legal theory, a tion of traditions (sing. hadTth) such as Ahmad ibn
subject that concerns itself not only with the law Hanbal's (164/780-241/855) Al-Musnad is called an
proper, but also with questions of linguistics, logic, asl.3 (2) To these two, legists usually add consensus
methodology, epistemology, and theology. Another (ijmdC) and many add analogy (qiyds) calling them
possible reason is the conviction, shared by some usi7l as well. By these they mean the basic tools for
Muslim and Western scholars, that usCil al-fiqh cannot obtaining the judicial judgments in cases not treated in
be used with profit by jurists and judges who are the sources referred to in (1). Ideally, when confronted
engaged in real legal problems, and that its role in with a legal problem, the first thing a jurist does is to
shaping Islamic law is almost negligible. While it may try to find out if the legal sources can be of help. If not,
be that in some cases the applicability of usal al-fiqh is then he seeks a judicial judgment reached by consensus
not apparent, that question is of secondary impor- on the same problem or case. If that is not available, he
tance. The usefulness of usuil al-fiqh lies primarily in its
being an indispensable source for understanding the
views of a large and important segment of Muslim I The abridged term was in the main preferred by Muslim
thinkers who used the subject as a vehicle for their bio-bibliographers and historians. It is sometimes difficult to
opinions on the various topics mentioned above. For say whether it is meant to refer to usilI al-fiqh or to kalam
instance, nowhere else do we find the same kind of (theology), since the same word, al-usul, was also used to
concern for identifying the logical structure of the abbreviate usil al-dxn (the principles of religion), one of the
arguments used in the religious and rational sciences. terms designating Islamic theology.
It is necessary in this context to identify the category 2 See, for example, al-Subk! (d.771/1370), Tabaqdt al-
of works consulted in preparing the present study in Shdfi'ivya al-Kubrd (Cairo, 1324 A.H.) I, p. 262.
order not to confuse them with others bearing the same Ibid., p. 201.
27
28 Journal of the American Oriental Societyl 102.1 (1982)
can, in the opinion of the majority, resort to analogy. principle7 is the preferability of a tradition transmitted
In such a case, he may either use the method himself, by a relatively small number of transmitters (ahad) to a
or he may adopt a judicial judgment already derived valid analogy (qiyas sahTh). This was postulated or
through it by someone else if one is available. adopted as an asi by some leading HanafT jurists and
(3) Jurists also call an asl a case for which a judicial opposed by Malik ibn Anas (d. 179/795) who thought
judgment has been found in any of the sources men- a valid analogy takes precedence over such traditions.
tioned in (1), or by using such acceptable means as An example8 of the previously mentioned legal opinion
explained in (2), except analogy if the jurist dis- is the one attributed to Ibn Abi Layla (d. 148/765) and
approves of it. Such cases and their judicial judgments Abti HanTfa (ca. 81/700-150/767) that the whole con-
are called usil (basic cases or basic judicial judgments) tract ('aqd) will be annulled if part of it is not honored.
because they can be taken as bases for establishing an (5) Usal al-fiqh is also applied to an area of knowledge
analogy between them and the so-called derivative that can roughly be translated as legal theory. It is
cases (fur1C'). The latter are cases that have not been primarily concerned with establishing legal texts, and
treated in the Qur'an or the traditions, and for which with examining and justifying the different methods
no ruling had been derived by consensus or analogy or that were introduced to help jurists go beyond what is
any other means considered an asi. However, the word stated in these texts. It is not difficult to see how usC4/
furu'c sometimes refers to all the cases or judicial al-fiqh came to incorporate the kind of subjects men-
judgments that have been derived by consensus or tioned earlier, although there may be other reasons for
analogy or any other device included under (2). In this this that we need not go into now.
case, usWl denotes a limited number of cases and In his Muqaddima, Ibn Khaldfin (732/1332-808/
judicial judgments4 those found in the Qur'an and the 1406) differentiates between two kinds of writings on
traditions as well as the cases decided upon by a few usu/ al-fiqh.9 The first includes works written by
authorities. This may be the sense in which Ibn al- theologians, such as al-Juwayni's (d. 478/1085) Al-
NadTm (d. ca. 380/990) used the word when he men- Burhdn and Abui al-Husayn al-Basri's (d. 436/1004)
tions Abui Yfisuf al-Qadd's (d. 182/798) writings on Al-Mu'tarmad, while the second are written by jurists
usal al-fiqh.5 Ibn al-Nadim lists works having such (fuqahd'), such as Abui Zayd al-DabuisT. Ibn Khaldu-n'0
titles as Wills, Trusteeship, and Alms Tax. These are describes the first kind as abstract writings in which the
presumably books on special branches of the law, each rational methods typical of theologians are employed.
containing the judicial judgments extracted by the The second are closer to the subject of jurisprudence
author from the authoritative legal sources in addition (fiqh) because many examples and cases are brought
to those initiated by Abui YUsuf or authorities belong- into the discussion and the problems are based on legal
ing to his school. (4) Sometimes usyl al-fiqh indicates points (nukat). It may look as though the distinction
what I will call a postulated methodological principle Ibn Khaldtin is making is one between works like al-
or an opinion given by an authority. This, for instance, Dabiisi's Ta'sls al-Nazar that is included under (4),
is how such principles and opinions are described in and works of the type discussed in (5). That this is not
Abui Zayd al-Dabfisli's (d. 430/1038) Ta'sTs al-Nazar the distinction he is making becomes clear when he
and AbU al-Hasan al-Karkh-i's (260/873-340/952) Al- speaks of al-DabUsT's effort to explain analogy in (as
Usal. Al-Dabfisi clearly states6 that his aim is to show
he wrongly puts it) an unprecedented way within the
the places (sing. mahall or mawdic) in which differ- HanafT school. Ibn Khalduin does not mention any
ences (khildf) between jurists occur in order to aid specific book by al-DabiisT; but it is clear that Ta 'sTs al-
people who take part in legal debates (tanazur). He Nazar is not what he has in mind, for no such
does this by first giving an opinion or a methodological explanation exists there. Al-Dabiis! deliberates at
principle followed by the types of rulings that can be
extracted from them. An example of a methodological
7 Al-Dabfisl, op. cit., p. 3.
8 Ibid., pp. 10-12 and 50.
4 Ibid., pp. 243 and 277. 9 Muqaddimat Ibn Khaldin, ed. M. Quatremere (Paris,
5 Ibn al-Nadim, Al-Fihrist, ed. G. Flugel (Leipzig, 1871) 1858) I, iii, pp. 17-26. Cp. the English translation by F.
p. 203. Cp. Ibn Abi Ya'la (d.526/ 1131), Tabaqit al-
Rosenthal, Ibn Khaldiln: The Muqaddima (London, 1958)
Handtila, ed. M. H. al-Fiqi (Cairo- 1952) II, pp. 6 and 15. 111, pp. 23-34.
6 Al-Dabiisi, Ta 'sTs al-Nazar (Cairo, n.d.) p. 2. Al-Karkhi's
M? Muqaddimat Ibn Khaldan, pp. 21-25. Cp. Ibn Khaldan:
Al-Usul is published as a supplement to Ta'sis al-Nazar. The Muqaddima pp. 28-32.
SHEHABY: cIlla and Qiyds in Early Islamic Legal Theorys 29
length on analogy in Taqwim al-Adilla. Although Al- addition to the references we find in medieval sources
Burhdn and Taqwim al-Adilla differ in some ways, to his views on the subject.
they are indeed closer to each other than is Al- What we know of Dawild's views on legal theory is
Mu'tamad to Al-Burhdn. It is interesting to note that based on the lengthy list of titles assigned to his works
TaqwTm al-Adilla" classifies fiqh with hikma (wisdom) by Ibn al-NadTm,'6 as well as statements found in late
to show in a general way the necessity of using reasonwritings. One of the views attributed to him is the
and its methods in jurisprudence a tendency common rejection of independent legal opinion (ra?') and
among the authors of the other works mentioned. analogy (qiyas). The latter is the method devised by
Medieval Arabic sources consider Abii Sulayman earlier legal theorists and jurists to help them in
Dawfid ibn 'All ibn Khalaf (200/815 or 202/818- introducing judicial judgments for cases not treated in
270/ 884) as the founder of the Zahiri (the apparent or the authoritative legal sources, permitting them to use
the literal) school of law, and as the one who invented these same sources. Goldziher,'7 however, qualifies the
(aw/ada) and first used the literalist doctrine at least in statement regarding Dawuid's rejection of analogy and
the field of Islamic law." As Goldziher pointed out,13 quotes Abui al-Fida' (d. 732/1331) who says that
the term al-zdhir was used before Dawuid's time by al- "Dawuid found it necessary to accept analogy after he
Shafi'c (150/767-204/820) in the title of a work called rejected its use in law and called it an indicant" (wa
Kitdh al-Hukm bi'l-Zdhir (The Book of Judging by kdna Ddwtud ld iard al-qiyas fT albsharl'a thumma
Appearance). 14 But it seems certain that what al- udturra ilayhi fa-sammdhu dal/lan). An earlier and
Shdfi'T meant by al-zdhir there is the probable knowl- important source (not quoted by Goldziher), from
edge of a case or text. This comes out clearly in his Al- which Abf1 al-Fidd' may have derived his information
Risdla'5 where, as I will show below, the word is used regarding Ddwfid's views, puts the matter a little dif-
in that sense. In any case, as far as legal theory is ferently and possibly expresses the views of Ddwfid's
concerned, it is certainly clear that al-Shdfi'T held nonedetractors more accurately. This source says that
of the views attributed to Ddwfid and his followers. Ddwfid "found it necessary to use analogy in practice
Our evidence for this is his Al-Risdla (or the version we and called it an indicant, though he rejected its (use in
have of it) and other extant writings by him, in deriving) judicial judgments in [his] discourse" (wa
nafa al-qivds fli al-ahkdm qawlan wa udturra ilavhi
fi'lan fa-sammahu dal/Tan).'8 The above statement
" Al-Dabuisi, TaqwvTm al-Adilla, MS no. 3343, Chester conforms in part to al-Subki's'9 declaration (also not
Beatty Library, Dublin, fol. 154v. mentioned by Goldziher) that after consulting a long
12 See, for instance, al-BaghdadT (d. 463/1070), Ta'rTkhand what seemed to him an authentic treatise by
Baghddd (Cairo, 1931) VIII, pp. 369 and 374; and Ibn al- Ddwfid addressed to Abfi al-Walid Mfisd ibn al-Jdrfid
NadTm, op. cit., p. 217. From what is said in these sources it (which
is al-Subki claims was copied in the year 300/912
not clear if Dawuid's claimed priority is restricted to the field
or a little before) he found not a single word that would
of Islamic law, or whether he was the first Muslim thinker to Ddwud's acceptance of analogy. On the contrary,
show
introduce the doctrine of al-zahir in any field. This is it appears from the treatise, al-SubkT says, that he
particularly relevant in view of the fact that Ibn Sind rejected it altogether. In the same place, al-Subki also
(d.428i 1037) refers, in a discussion of logic, to a group of adds that he saw a book by Dawiad entitled Al-Usil
thinkers whom he calls al-zdhirivi i n (the literalists); see Al- consisting of a few folios in which he declares that no
NVa/dt, 2d. ed. (Cairo, 1938) p. 7. Ibn Sina's reference can ruling should be based on analogy and that legal
either be to the Stoics or their Muslim followers or both. See discretion (istihsdn) must not be allowed. The
also Ibn STna, Al-Shija': Al-Madkhal, eds. Anawati et alia Mu'tazilite and Hanafi jurist Abfi Bakr al-Jassds
(Cairo, 1953) pp. 22-23.
(305/917-370/980) enlightens us further on the sense of
1 31. Goldziher, The ZjhirTs: Their Doctrine and Their
the word "indicant" as used by DMwid, and says in a
HistorY, English translation by W. Behn (Leiden, 1971) p. 24.
14 Goldziher remarks (ibid.) that the word al-zdhir, as it
appears in the title of al-Shafi'c's book, means "the most 16Ibn al-Nadim, op. cit., pp. 216-17.
likely interpretation." He supports his view by reference to al- 17Goldziher, op. cit., p. 35. See also al-MdwardT (d. 450,
Juwayn! without mentioning al-Shafi' T's Al- Risdla (see 1058), Al-Ahkdm al-Sultjnivya, ed. M. Enger (Bonn, 1853)
below). p. 111.
15Al-ShaficT, Al-Risala, ed. A. M. Shakir (Cairo, 1940) 18A1-Baghdadd, Op. cit., VIII, p. 374.
pp. 478-79. 19 Al-Subki, op. cit., I1, p. 46.
30 Journal of the American Oriental Society 102.1 (1982)
cryptic sentence in which he addresses Dawud: "Tell us judgment should either be stated fully in the estab-
about the necessity of professing (the doctrine of) the lished legal sources or else be based on a textual
indicant which you claim takes only one meaning" indicant whose meaning is clear-cut.
(khabbirnd 'an wujib al-qawl bi'l-dalTl alladhT One problem remains. It concerns the meaning of
zaCamia annahu /a yahiamil illd macnan wdhidan).20 the word macna as reportedly used by Dawfid. In legal
In the context in which the above statement is made no theory, the word may have either the dictionary
explanation is given of the alleged doctrine. However, meaning or that of Cilla (reason or cause). Thus, one
al-Jassas clarifies it in another place and context. may argue that perhaps Ddwud used macnd in the
This is where he lists the accepted judicial judgments sense of Cilla; and therefore al-Jassas's statement could
that are not stated in the legal sources. Al-Jassas be interpreted as showing that Ddwfid advocated a
classifies these judgments according to the method strict and narrow process of analogy by 'illa in
used in obtaining them. One such category of judicial contrast with a freer one (where different reasons for
judgments includes those that we derive from the enacting the same judicial judgment could be sug-
established legal sources by extracting (istikhraj) from gested) used by al-Jassas, the HanafTs and the Shdfi'Ts
such sources an indicant (dal/T) that takes only one in general. Such a view was in fact voiced in early
meaning. An example is when Ibn cAbbas (d. 68/687 or Islamic speculations on legal theory. Al-Jassds himself
23
69/688 or 70/689) inferred from statements in the tells us that a group of jurists supporting analogy
Qur'dn that a woman can give birth to a child after no claimed that there is a definite indicant (dalrl) estab-
more than a six-month period of pregnancy. This he lished by God for each judicial judgment covering an
did by putting together two verses from different event (hdditha), since for each event there is but one
chapters in the Qur'dn that have a clear-cut meaning. textual basis that has only one single Cilla. And it is this
These are: "His (i.e., the child's) bearing and his
weaning was in thirty months" (Q. 46:15); and "His
weaning was in two years" (Q. 31:14). On the basis of are given in the authoritative legal sources. The second
these two verses he regarded it as legally valid to speak includes the judicial judgments that we derive by rational
of a six-month pregnancy. In another, not quite means without resort to the authoritative legal sources, such
parallel, example a judicial judgment is extracted from as when we use the stars to determine the direction of the
a single Qur'anic verse. The Qur'dn says: "If he [i.e., a Sacred Mosque before praying, or when we try to decide the
man] has no children, and his heirs are his parents, a best tactics to be used in a holy war. Such judgments are
third [of his inheritance goes] to his mother (Q. 4:11). determined by the nature of the situation involved and the
This indicates in a definite way, al-Jassds goes on to rational devices we develop to handle them, and not by
say, that the father receives two-thirds of his son's consulting the legal texts. The third includes the judicial
inheritance in that particular circumstance. According judgments that are indicated by the authoritative legal sources
to al-Jassas, the method used in cases as the above is (al-istidlhl 'ala al-hukm bi'l-usil). For instance, the Prophet
orders
not called ijtihdd (exercising one's own judgment with us to wash a pot seven times if a dog licks it. This
discretion).22 It seems, then, that for Dawud a judicial indicates (dalla) that such a pot is to be regarded as defiled
(najas), because the legal sources speak of cleanliness (ahjra)
in connection with pots when they are considered as defiled.
20 AbH Bakr al-Jassas, Usil al-Fiqh, MS no. 26 (Cairo, Dar The fourth type includes the judicial judgments that are
al-Kutub) II, fol. 77v. The statement mentioned is made in the derived from the legal sources through an indicant that takes
context of al-Jassis's reference to Dawuid's criticism that only one meaning. According to al-Jassas, only the processes
analogy can neither be classified as a basic (asi) nor a employed in obtaining the first three types of judgments are
derivative (far') legal device. In al-Jassas's view, this also called iltihdd. In the list no mention is made of analogy by
applies to Dawild's so-called indicant that takes only one similarity (qiyjs al-tashdbuh). Elsewhere in his book
ma cna. (fols. 93r-94r) al-Jassas refers to analogy by similarity, but
21 Ibid., fols. 47v-48v. Dawud's name is not mentioned rejects it on the ground that it makes no use of the concept of
here. Cilla that he thinks is essential to any inference by analogy. We
22 Al-Jassas (ibid.) mentions four types of judicial judgments
may conclude that the list was meant to include only the
that are not given in the authoritative legal sources, divided methods he himself approves of in obtaining judicial judg-
according to the method used in obtaining them. The first ments. If so, then the method of extracting an indicant that
includes the judgments obtained through a common cilla takes only one meaning is acceptable to him.
(reason or cause) which they share with those judgments that 23 Ibid., fol. 132r.
SHEHABY: cIlla and Qiyds in Early Islamic Legal Theory 31
cilla that we take as a basis for analogy. This seems

The toDawid's works and those of his
loss of
mean that every legal case that is not treated in the followers is to some extent compensated by the extant
legal sources can be compared with only one case that works of a prominent ZahirT, 'AlT ibn Hazm of
is so treated by bringing out the single cilla they both Cordova (384/944-456/1064), who admittedly is not
share. When such an 'illa is discovered, the judicial always in full agreement with Dawiid. At the beginning
judgment given to the second can be extended to cover of his work on legal theory, Al-Ihkdm ft UQsl al-
the first as well. Al-Jassas attributes this doctrine to Ahkdm,29 Ibn Hazm probes the question of the origin
(AbU Bakr) al-Asamm, (Ibrah-m ibn Ismad'l) ibn of language. Language is not conventional but a
'Ulayya (15 1/ 768-218/ 833, described by al-Baghdadd24
phenomenon instituted by God. A convention cannot
as a student of AbU Bakr al-Asamm), and Bishr ibn be established except among people whose intellects
Ghiyath al-MarlsT (d. 218/833 or 219/834). Dawud's have matured and whose sciences have been com-
name is not given in this list. To my knowledge, his pleted. They are people who comprehend all things
name has not been connected with theirs nor theirs which exist in the world, know their definitions, the
with any ZahirT tendencies. way they agree and disagree with each other as well as
Dawfid is also said to have rejected taql/d, the blind their natures. To reach such a developed stage it is
following and imitation of a jurist or a particular necessary that they communicate through words they
school of law. This was meant to be an inducement to understand. Ibn Hazm then turns to the theory that
ordinary Muslims, not acquainted with the law, to language is a product of (was instituted by) nature.
consult the legal sources themselves rather than turn to Against it he develops the view that nature acts in one
a religious leader (imdm) for help, particularly when way, not in different ways. If language were the
the latter relies on his opinion (raly) and employs product of nature, there would have been but one
analogy. The irony in this is that Dawfid did establish, language and not many, as is the case. It could be said,
and became the leader of, a school of law of his own he cautiously adds, that the variety in human language
which gave its own version of the law. With regard to is due to variations in the nature of the regions in
25
Dawfid's theological views we turn again to al-Jassas. which they are spoken, but this is refuted by the fact
Al-Jassas first says that Dawfid repudiated rational that several languages can exist in one and the same
proofs (huj al-'uqi!) altogether. He then adds that region.30 The most perfect language, the original
Dawfid is well-known for saying that there are no
indicants (dal/'i!) in the heavens or on earth or in
ourselves for the existence of God and His being One. 29 Ibn Hazm, Al-IhkdmfT Usil al-Ahkam, ed. A. M. Shakir
He also says that Dawud knew God through al- (Cairo, 1345 A.H.) I, pp. 28-33.
khabar, which al-Jassas understands to mean the 30 Cp. Rasd'il Ibn Hazm al-AndalusT, ed. Ihsan Abbas
prophetic tradition. These indicants seem to be the (Cairo n.d.) p. 50. Cf. The Attic Nights of Aulus Gellius,
same as the stars that some legal theorists say can be translated into English by J. C. Rolfe; reprint, Loeb Classical
used as indicants to determine the position of the Library (London and Cambridge, Mass., 1968) II, x, 4, where
Sacred Mosque, which al-Jassas says involves the use it is said: "Publius Nigidus in his Grammatical Notes shows
of ijtihad, i.e., exercising one's own judgment with
that nouns and verbs are formed, not by a chance use, but by
discretion. Another view of his alluded to in other a certain power and design of nature, a subject very popular in
sources27 concerns the question of the creation of the the discussions of the philosophers." See also Diogenes
Qur'an. When asked about it, he is reported to have Laertius, Lives of Eminent Philosophers, translated into
said that what is in the Preserved Tablet is not created, English by R. D. Hicks; reprint, Loeb Classical Library
but the book which is in people's hands is. Al- (London and Cambridge, Mass., 1965) II, x, 75-76, in which
Baghdadd2' relates that Ahmad ibn Hanbal (164/780-
Epicurus is reported to have expressed a certain view of
241/ 855), the founder of the HanbalT school of law and language similar to Ibn Hazm's. The Stoics, on their part,
theology, refused to meet Ddwud on account of his held that "the primary sounds imitate things." See J. von
view that the Qur'dn is created. Arnim, Stoicorum Veterum Fragmenta; reprint (Stuttgart,
1968) II, frag. 146; cp. also fragms. 151 and 152 in the same
24 Al-Baghdadl, op. cit., VI, p. 21. volume. Ibn Hazm's attitude toward language contrasts
25 Al-Jassas, op. cit., fol. 17v. sharply with that of other jurists such as the Hanafi Abti al-
26 See above n. 22.
HIusayn al-Basri as related in his Al-Mu'tamad, eds.
27 See, for instance, al-Baghdadd, op. cit., VIII, p. 374. M. Hamidullah et alia (Damascus, 1964) I, p. 15; and with
28 Al-BaghdadT, op. cit., VIII, pp. 373-74. the attitude of a philosopher like al-Farabl (d.339/950), who
language, is the one Adam used. It is the most attribute (sifa) means an accident that exists in sub-
complete, the clearest, the least problematic and the stance.37 In His revealed book God used neither the
most concise, containing many words to designate word sifat nor the singular sifa.38 All we find in the
different objects (i.e., the least equivocal). The Qur'an, Qur'an is the word asmd' (names), used to refer to
he declares, is God's speech (kalam). Every statement God's omnipotence (qudra) speech (kaldm), and so on,
in it should be taken in its literal sense (zdhir) without and these are not spfdt as defined by the Mu'tazila.39
any attempt at interpretation. For there is nothing in Interestingly enough, when he comes to deal with the
the Qur'dn that is symbolic (ramz), and thus no one claim of the anthropomorphists (al-mujassima) that
can claim access to any secrets in matters religious.3' the references in the Qur'an to God's hands, face, and
This view shows the close link between the literalist so on, are to be taken literally, Ibn Hazm objects on
approach in jurisprudence and the rejection of taqlTd, the ground that the references are to God Himself, not
both of which are among Ddwiid's essential teachings. to real hands or a real face.40
Ibn Hazm makes it clear that he does not adhere to the To go back to legal theory, the basic difference
theory that names are the same as, or identical with, between Ibn Hazm and the legal theorists who support
what they designate (al-ism huwa al-musammd).32 Nor, the use of independent opinion and analogy concerns
obviously, does he accept Mu'ammar's (d. 220/835) those ma'nd that we should look for in legal texts. In a
theory of macnd (idea) which is a replica of Plato's revealing passage in Al-IhkdmfJT Usu-l al-A ,hkdm4' Ibn
theory.33 In his Epitome of the Refutation of Analogy, Hazm asserts that macna to him implies no more than
Independent Opinion, Discretion, Imitation and the the dictionary meaning. For instance, if someone asks,
Search for Reasons, he declares that none of the legal "What is the ma'nd of al-haram (the forbidden)?" the
devices listed in the title are valid, since everything answer should be, "That which one is not allowed to
related to religion, and that of course includes the law, do." The same is true if you ask for the macni of al-
is clearly stated in the established texts, while these mizdn (the balance), for the answer given should be
devices are contrived to help one go beyond the texts, "The instrument by which we know the differences
as it were.34 between the quantities of bodies." This is the only
In questions related to theology, this literalist ap- macn& he admits and the only one there is. The macn&
proach prevails to a large extent. For instance, Ibn which, in his words, some people call the cilla, is
Hazm attacks the theologians who regard God as a rejected outright. All the arguments put for it, he
body (a three-dimensional object with six sides) as well continues, are characterized by sophistry and are
as the theologians who claim that He is a body wrong-headed. This distinction between two senses of
completely different from and unlike three-dimen- the word ma'na is emphasized and made use of in the
sional and six-sided bodies. Both views are wrong work of the Hanafi jurist Abti Bakr al-Jassas. Al-
because God did not describe Himself as a body; Jassas speaks42 of two kinds of macnd; one is clear and
nowhere in the Qur'an is He so described." The same (jaliyyun zdhir)4 and the other is hidden and
apparent
can be said of the thorny theological problem of unclear (khafivyun ghamid). The first we grasp with-
attributes (sifdt). The word sifdt, Ibn Hazm claims, out mental investigation and deduction (nazar wa
36
was first introduced by the Muctazila. To them an istinbat), while the second must be subject to mental
inspection (ictibdr) when we are looking for a judicial
judgment to cover a case not dealt with in the legal
follows Aristotle in regarding language as conventional. sources.
See This second macnd, as he reminds us in so
al-Fdrdb-, Sharh Kitdb al-'Ibara, eds. W. Kutsch and
S. Marrow (Beirut, 1960) pp. 27-28.
31Ibn Hazm, Al-Muhalla, ed. A. M. Shakir (Cairo, 37Ibid., p. 122.
1347 A.H.) I, pp. 13, 32 and 53. 38Ibid., p. 120.
32 Ibn Hazm, Al-Fisal fT al-Milal wa al-Ahwa' wa al-Nihal Ibid., p. 121.
(Cairo, 1320 A.H.) III, pp. 27-36. 40 Ibid., pp. 166-67.
Ibid., pp. 46-48. 4' Ibn Hazm, Al-lhkdm, II, p. 1129.
34 Ibn Hazm, Mulakhkhas Ihtdl al-Qij'as wa al-Ra 't42
wa Al-Jassds,
al- Usil al-Fiqh, II, fols. 67v-68v.
Istihsan wa al-TaqlTd wa al- Ta'IT!, ed. S. al-Afghani (Damas- 43 The phrase al-ma'nd al-;ahir (the apparent meaning) or
cus, 1960) pp. 4-6. See also his Al-Muhalld, I, pp. 56-65. simply al-;ahir (the apparent) is frequently used by al-Jassds
Ibn Hazm, Al-Fisal, II, pp. 118-19. in Usal al-Fiqh. Ibn Hazm also uses both expressions, for
36 Ibid., p. 121.
instance in Al-Muhalld, I, p. 53.
SHEHABY: cIlla and Qivds in Early Islamic Legal Theori' 33
many places,44 is the Cilla which leads us to the required Moreover, al-Shafii'48 speaks of two kinds of
judgment or ruling.45 We may conclude here that, knowledge. One embraces both the apparent and the
generally speaking, for the Zahiris the word ma'nd hidden ('ilm ihataftal-zdhir wa al-batin) and the other
implies no more than the dictionary meaning, and that only appears to be true (haqqunftal-zahir). The first is
this understanding of the word is what separates the certain knowledge, in connection with which no doubts
Zahifrs who rejected the method of analogy from other can arise, such as when we have a definite discourse
legal theorists who were favorable to the method of (nass) from God or an established tradition from the
analogy by 'illa. Prophet. The second is knowledge we acquire by
If we go further back in time to what is generally iftihad and that is where analogy (qivds) is used. In the
regarded as the first book on legal theory in Islam, last case, the judicial judgments reached are true for
namely Al-Risdla of al-Shafi'T, we find the word the person who deduced them, and there is no obliga-
ma nd being used to mean the reason for enacting a tion for all jurists to accept them. Further, he distin-
judicial judgment. But nowhere does al-Shafi'c use guishes between two kinds of analogy: (1) The analogy
cilla in that sense. To begin with, al-Shafi'T46 speaks of that is based on a ma'nd shared by two cases. God or
the judicial judgments that are explained either in a the Prophet may prohibit or allow something for a
definite discourse (nass) in the Qur'an or by the macnd, i.e., a reason. If we find the same macna in
Prophet. The Prophet may give a detailed explanation another case that is not treated in the legal sources, the
of some general rulings given in the Qur'an, or he may judicial judgment covering the first can be extended
simply initiate new rulings that are not mentioned in and applied to the second. (2) There is another kind of
God's book. He then adds that there are cases in which analogy based on resemblances (ashbah). This is
people have to look for judicial judgments by way of employed when the case that is not treated in the
iftihdd (exercising one's own judgment with discretion).
authoritative legal sources resembles other cases that
Then he says, are. In a situation of this kind, the case under examina-
tion acquires the judicial judgment of the case that is
Thus (God), glorified be His praise, indicated to most similar to it. Al-Shafi'T agrees that disagreements
(men)--should they be at a distance from the Sacred among jurists can easily arise here, presumably because
Mosque-the correct (way of) i/tihdd with regard to the concept of similarity is not sharply defined. Unfor-
these (things) which He prescribed to them, by using tunately, no examples are given for (1), which is what
the intellects [al-'uqal], which He implanted in them primarily concerns us here. But for (2) he gives the
and which discriminate between things and their following example:
opposites, and the signs which (He) erected for them
when the Sacred Mosque . . . is out of sight.47 (God), glorified be His praise, said: "Do not kill game
when you are in pilgrim sanctity; whoever of you kill it
intentionally, there shall be compensation equal to
what he has killed from (his) flocks, as two persons of
just character among you shall decide-an offering to
44 Al-Jassds, Usil al-Fiqh, II, fols. 74r-74v, 88r, 91v-94r, be delivered at the Ka'ba" [Q. 5:96]. Equal compensa-
and 96v among other places. tion in kind literally means that which has the nearest
45 Indeed, the HanafT Ab5 Zayd al-Dabusi says in TaqwTm resemblance in size to the body (of the game killed).
al-Adilla, fol. 154v, that fiqh and hikma help us in acquiring . . .We should therefore examine the game killed,
the internal meaning (al-ma'ni al-batin) of the authoritative and whatever of livestock is found to resemble it in size
legal sources. That meaning, he says, is the cilla, i.e., the should be paid in compensation.49
reason why a certain judicial judgment found in a legal source
was given. In fact, al-DabiisT considers the search for this What of the distinction between (1), the knowledge
internal meaning as the essence of fiqh. Thus, the Zdhirfs and that embraces the apparent and the hidden, and (2), the
all those who reject the concept of the internal meaning are knowledge of the apparent only? The example he gives
denied the title faqrh. Cp. al-Shafi'T, Al-Risdla, pp. 32, 78, 93, for the first is of a man who is about to perform the
and 103 where hikma is identified with the prophetic tradition.
46 Al-ShdficT, Al-Risdla, pp. 21-22.
47 Ibid., pp. 23-24. The translation is from M. Khadduri, 4 Al-Shafi'T, Al-Risdla, pp. 478-79. See also p. 40.
Islamic Jurisprudence: Shafic's Risila, (Baltimore, 1961)
49 Ibid., pp. 38-39. The translation is from M. Khadduri,
p. 69 with several alterations. op. cit., p. 78 with a few changes.
prayer and the Ka'ba, toward which he is to direct qiyas.54 There is an important difference, however,
himself, is within sight. His knowledge of the direction between the method used in theology and the one
of the Ka'ba, according to al-Shdfi'T, is of type (1). But employed in legal theory. For while the first, he claims,
when the Ka'ba is not within one's sight, then the leads to certain knowledge (Cilm), the latter can help us
person who tries to locate it with the help of the stars,reach only the most probably opinion (ghdlib al-jann).
for instance, may or may not hit upon the right It is for this reason that the method used in legal theory
location. His knowledge of the direction of the Ka'ba is described as iftihid,55 which literally means trying
is of type (2).50 In other words, perceiving an object one's best. The distinction between the methods of
directly leads to (1), certain knowledge. But conceiving theology and legal theory are further elucidated not by
it through the intellect guided by the perception of reference to the epistemological nature of their con-
some other selected object or objects leads to (2), clusions as above, but through the difference in the
probable knowledge. nature of the relationship between the Cilla and the
A further elucidation of these points raised in Al- judgment depending upon it in both sciences. For the
Risala is given in the UsW al-Fiqh of Abi Bakr al- latter distinction he refers to his teacher Abl al-Hasan
Jassas. Al-Jassas treats the above two kinds of analogyal-Karkhi. In theology, according to al-Kharkhi, the 56
in detail, giving us a relatively clear view of the cilla and the judgment depending on it are so related
complex issues debated in early Islamic legal theory up that when the first exists, the second will also exist with
to his time concerning analogy and the 'illa. Al- it; and when the first is established as non-existent, the
Jassas's starting point is the necessity in law and legal
second will also be found not to exist. In theology the
theory for mental investigation (nazar) and the Cilla can in no way be stripped of ( 'driya) the judgment
important role rational proofs (hudja al-'uqWl) play in to it. But in legal theory, he continues, the
related
them.51 For although the legal sources, that is, the
relationship concerned is different; for the judicial
Qur'an and the established tradition, are known not judgment does not necessarily follow from the 'illa.
through reason and its methods but by sam' (audition) For this reason, the Cilla in legal theory is called a sign
through the Prophet, God has erected (nasaba) in these ('alima, amara, sima). Such a brief statement on the
sources indicants by means of which we derive the structure of arguments in theology and legal theory
judicial judgments not given in such sources, thefuri7'leaves much to be desired. Let us first bring out what
(the derivative law). Thus legal theory is not wholly the statement amounts to. In both theology and legal
revealed and should be counted among the rational theory arguments rest on the discovery of an Cilla for a
52
sciences. These sciences, he goes on to say, contain certain conclusion. The difference between them is that
things that are hidden and unclear (khafiyyun ghimid1) a true judgment in theological arguments can only
and others that are clear and apparent (jaliyyun zahir). follow from a true cilla because the judgment and the
It is by means of the clear and apparent that we come cilla imply one another. In legal theory, a true judicial
to know the hidden and unclear. This is done by means judgment need not follow necessarily only from a true
of mental investigation (nazar).53 The process of mental cilla. This interpretation may sound unwarranted. But
investigation so defined is labelled istidlWl (inference) it could easily be defended once the terms "existence"
or istinbdt (deduction). The particular method of and "non-existence" are replaced by "true" and "false"
deduction used in both theology and legal theory is respectively. Such a translation from the language of
ontology to that of logic is no distortion. The double
function of the cilla at both levels, the existential and
the logical, is suggested by al-Jassds himself (see
50 Al-ShdficT, Al-Risdla, p. 497. Cp. Sextus Empiricus,
below).57 Thus, al-Karkhi's view of the relationship
Against the Logicians, translated into English by R. G. Bury;
reprint, Loeb Classical Library (London and Cambridge,
Mass., 1967) II, 145-55; and Against the Professors, trans- 5 Ibid., fols. 46r-47r.
lated into English by R. G. Bury; reprint, Loeb Classical I5 Ibid., fol. 46v.
Library (London and Cambridge, Mass., 1961) III, 40-42.
56 Ibid., fol. 97r. See also fols. 92v, 46r-47v, and 125r,
Al-Jassds, Usul al-Fiqh, II, fols. 35v-45v. The book was among other places.
possibly written after 341/952.
57 What I regard as a double function of the cilla (which is
52 Ibid., fol. 41v. used in legal theory to mean both "cause" and "reason') may
53 Ibid., fol. 36r-36v.
become more apparent when we see that the concept com-
SHEHABY: 'ilia and Qiyas in Early Islamic Legal Theory 35
between the Cilla and the judgment depending upon it legal theory and jurisprudence and the judicial judg-
in theology can be expressed in the following table: ment depending upon it in the following matrix:
If the statement and the judgment the statement If the statement and the judicial the statement
expressing the depending upon expressing their expressing the judgment de- expressing their
cilla is it is relationship Cilla is pending upon relationship
will be
it is will be
True True True
True True True
True False False
True False False
False True False
False True True
False False True
False False True
This same relationship was expressed and analyzed

To a person acquainted with modern logic the above
in terms of truth and falsity by Ibn Sina who seems to
table will be familiar. It is the same as the truth-table of
me to be the first to have done so in the history of logic.
an "If-then" proposition. This similarity is in no way
Ibn Sina calls it complete implication (luzam tdmm) or
accidental. To begin with, a correct analysis of "If-
complete connection (ittisdl tdmm).8 Unfortunately no
then" propositions is discussed at length by Ibn Sina
examples are given by al-Jasas of such theological
and is called by him incomplete implication (luzuim
arguments.59 But what about the other relationship
ndqis or luzuim ghayr tdmm) or incomplete connection
claimed to exist in legal arguments? Here we have no
clear statement to guide us. There is however a clear
(ittisdl ndqis or ittisdl ghayr tdmm).61 What is more
important in this context is what we find in Ibn Hazm's
indication as to its nature in later works. According to
Al-TaqrTb li-IHadd al-Mantiq where it is said that in
the Hanafi jurist Abi Zayd al-DabiisT, there is
jurisprudence it is not true to say that when the cilla
unanimous agreement among legal theorists that when
exists the judgment related to it must also exist; and
an cilla does not exist, the judicial judgment related to
when it does not, the judgment will be non-existent.
it will not necessarily be non-existent.60 Again, the
For, he goes on, when we say "If a body is lifeless, then
much later Shafici, the Imam al-Haramayn al-Juwayni,
it is necessary that it should not be a man," it does not
reports that according to the majority of legal theorists,
follow that "If life is found in a body, then it should be
it is not a condition of the cilla that is used in matters
a man."63 I should promptly add that Ibn Hazm's
revealed that when it does not exist, the judgment
criticism is directed against some jurists who thought
related to it will be necessarily non-existent. The
condition stated for such an cilla is that when it exists, that such is the relationship between the cilla (or waJf,
"description," as he sometimes calls the cilla) and the
the judgment in question will necessarily exist.6' Thus,
judicial judgment related to it. What is important,
we can express the relationship between the cilla of
62 Ibn Sina, op. cit., pp. 232-41 and 395-96. See Nabil
bines certain Stoic ideas on logic and physics. As I will show Shehaby, op. cit., pp. 40-43 and 183-92. Cf. al-Ash'ari
later, the Stoics have something to say about both "signal" (d. 324/935), Maqdldt al-Isldmiyy n, 2d edition, ed. H. Ritter
and "cause." The first appears in their logic, and is regarded as (Wiesbaden, 1963) p. 204, where the theologian Abui 'All al-
the antecedent of an "If-then" proposition. The second is Jubbd'T (d. 303/915-16) is reported to have said that if what
treated in their physics in a way that suggests close similarities is decreed (maqdir) is connected (wusila) with what is
between their physical "cause" and the cilla of legal theory. impossible (mustahTl) the discourse will be impossible. But if
58 Ibn Sina, Al-Shifa`: Al-Qiyds, ed. S. Zayed (Cairo, 1964)
an impossible is connected with an impossible, the discourse
pp. 232, 390-91, and 396-97. See Nabil Shehaby, The will be correct. For the second case he gives the following
Propositional Logic of Avicenna (Dordrecht-Boston, 1973) example: "If (law) at a certain state the body were moving and
pp. 36 and 183-92. at rest, then it would be possible that in (this) state the body
59 An attempted explanation of this omission is given, would be alive and dead." The reader should notice here that
below. mustahTl, for instance, is used in the same place as an
60 Al-DabiisT, TaqwTm al-Adilla, fols. 121v, 59r, and 59v. ontological as well as a logical concept.
61 Al-Juwayni, Al-Burhdn, MS no. 18 Usuil, Institute of 63 Ibn Hazm, Al- Taqrlb li-Ijadd al-Mantiq wa al-Madkhal
Arabic Manuscripts, Arab League, Cairo, 236. I/ayh, ed. I. Abbas (Beirut, n.d.) pp. 169-71.
though, is the example given in which the cilla is (the ritual ablution before prayer); for according to the
formulated as the antecedent of an "If-then" proposi- law, performing such a ritual would not be necessary if
tion. The point Ibn Hazm is making is that it is wrong she were menstruating. The Prophet told her that the
to treat the antecedent of an "If-then" proposition as blood was the result of a cut in the vein (dam cirq) and
though it were the antecedent of an equivalence, that asked her to perform the mentioned ritual. Al-Jassas
is, as though it were the same as the cilla of a says that what we have here is a definite statement
theological argument. One example al-Jassas gives for from the Prophet that the cilla for performing the
the cilia as found in jurisprudence and legal theory is ritual ablution before prayer is the fact that the blood
the much-debated reason for a father's legal guardian- was the result of a cut in the vein.
ship (wildya) over his daughter when she is about to be According to al-Jassas, the existence of a definite
married. According to al-JassdS64 the HanafTs claimed statement of the 'ilia for a judicial judgment in the
that the reason for such guardianship is the girl's legal sources created a problem for the jurists who
immature age, while the Shdfi'Ts thought it to be the rejected analogy.67 Can an cilla so stated be generalized
girl's virginity. Those who held the first opinion and made to cover cases other than the one given in a
supported it by the fact that the girl who is not a virgin legal source? Ibrdh-m ibn Sayyar al-Nazzam (d. 221/
(say, a widow or a divorcee) and who has reached her 835 or 231/845), who was the first to reject the use of
majority (al-thayvib al-kabTra) does not need such analogy in law, thought that it should. He said:
guardianship when she is about to be married. Also,
when the girl is a virgin and in her minority (al-bikr al- If God, exalted be He, said: you are forbidden to eat
saghTra), it is necessary to have her father as legal goat's meat because (the goat) is a four-footed animal,
guardian before she prepares herself for marriage. But then from this utterance we conceive that the meat of
as al-Jassas himself points out, the same arguments can all four-footed (animals) is forbidden.68
be used to support the second conjecture, namely that
the reason for the mentioned guardianship is virginity. Other jurists disagreed with him. What they do when-
The debate over the real reason for such a guardian- ever they come across a definite statement of the Cilia
ship becomes relevant when the question is raised as to in a legal source, al-Jassas continues, is to disregard it
whether a virgin who has reached her majority needs to and attend only to the judicial judgment given. The
have her father as a legal guardian, since such a case is question that may be raised with regard to al-Nazzam's
not treated in the legal sources. view is whether he would be ready to accept analogy,
The above example should make it clear that the and the concept of the reason for a judicial judgment
'ilia used in legal arguments is conjectural. But this that is central to it, when such a reason is definitely
does not mean that we can never reach true judicial stated in the legal sources. Although his view may be
judgments. For we may hit upon the true judicial said to imply such an acceptance, true to his widely-
judgment in a certain case, although the cilla we found reported principle that analogy must be rejected, he
for it is false. Of course, that does not rule out the explained away such an implication by insisting that
possibility of both being false. If, however, we come the text in which an 'ilia is explicitly given for a certain
across the true 'ilia for a certain case, the judicial judicial judgment must be read as though it states all
judgment that is related to it will also be true. It seems the cases that are covered by that cilla. This comes out
that this obtains when the 'ilia of a given judicial clearly in the example cited above in which it is
judgment is definitely stated in the authoritative legal specifically said that goat's meat is forbidden because
sources. The example cited is when Fatima bint the goat is four-footed, but which al-Nazzam reads as
Hubaysh66 told the Prophet that she was bleeding thoughand it said that the meat of all four-footed animals
was not sure if bleeding was caused by menstruation. is forbidden. Al-Jassas disagrees with him.69 Only
She then asked him if she should perform the wu~dI'when the text cites all the cases to which the given 'ilia
applies, can we treat the judicial judgment stated in it
as a general one applying to all the cited cases. If not,
64 Al-Jassas, Usal al-Fiqh, II, fols. 96v-97v.
as was the case in the example given by al-Nazzam,
65 In some cases even though we have a definite statement of
the cilla for a certain judicial judgment in an authoritative
legal source, we may not be sure whether the same cilla exists 67 Ibid., fol. 95v.
68 Ibid.
in the case for which a judicial judgment is sought.
66 Ibid., fol. 95r.
69 Ibid., fols. 95v-96r.
SHEHABY: cIlia and Qiyds in Early Islamic Legal Theory 37
then our generalization must be said to have been must be seen as the cause (sabab) that brings the effect
concluded through the use of analogy by means of the into existence. The word 'ilia in its original usage
stated cilia. means sickness, he says. Sickness changes the state of
Al-Jassas admits in the same place that only in very the creature who has it. The same can be said of the
few cases can we find an explicit statement of the 'ilia used in the rational sciences in general and
reason why a certain judicial judgment was adopted in theology in particular. When the latter 'ilia exists
a particular case. In the large majority of cases, it is left somewhere, it produces certain characteristics or de-
to us to determine what it might be. Thus, the next scriptions (awsaj) that could not have existed without
question tackled by al-Jassds is, "What criteria or it. Thus, he continues, we can say that every Cilia is a
methods are we to use to support a certain conjectured
dalTi but not vice versa. Al-Jassds then adds" that a
'ilia not stated in the authoritative sources?" It should real Cilia, such as we find in the purely rational
be made clear at the outset that on the whole, Muslim sciences, must be connected with its effect in such a
legal theorists were not basically interested in analyz- way that it will be impossible to strip the one of the
ing the ways for discovering the reason why a certain other. This, however, cannot be said of the cilia that is
judicial judgment was stated. Rather they were looking the cornerstone of the arguments employed in the
for some methodological rules that would help them in religious sciences such as jurisprudence and legal
deciding whether to accept or reject a given cilia. theory. It is possible to strip such an cilia of the judicial
The most important rule or criterion mentioned by judgment related to it, even though we managed to
al-Jassds is the cil/a's efficacy (ta thTr), that is, its prove its effect in some cases.
power to produce judicial judgments. This, as al-Jassds Al-Jassds has more to say on the nature of the legal
tells us, was also the view of AbN al-Hasan al-Karkhi, cil/a's effect. He identifies two kinds of effects, depend-
his teacher.70 To illustrate the concept of the 'ilia's ing on the nature of the relationship between the legal
efficacy, al-Jassds refers to the example given above cilia and the judicial judgment.74 This relationship is
concerning the girl's need to have her father as legal sometimes based on people's customs (cadat al-nds), in
guardian before she marries. The Hanafis, as said which case the effect will endure as long as the social
earlier, require such guardianship when the girl is convention does. This is true, for instance, of the cilia
underage. The Shdfi'cs, on the other hand, require it proposed by the HanafTs for certain types of riba or
only when the girl is a virgin. For support, both cite unlawful gain. Wheat and barley are among the com-
certain rulings given in the legal sources. But as al- modities in which unlawful gain (as defined by Islamic
Jassas points out, the arguments quoted by both law) is prohibited when they are exchanged. The
opposing groups cut both ways. However, the HanafTs Hanafis say that wheat and barley were only given as
can still claim that their 'ilia is better-supported or examples for a certain class of commodities, namely
better-confirmed than their opponents' by showing those in which the dry measure (kayl) is used. Thus,
that theirs is an effective 'ilia while their opponents' is they take the dry measure as the cilia for prohibiting
not. This they do by pointing out that it is their cilia riba in wheat and barley and extend the prohibition to
that produces some of the rulings regulating the selling all commodities in which the dry measure is used. The
and buying of goods and property. For it is the girl's dry measure, al-Jassds declares, is but a device that
age that determines whether she needs a legal guardian people are accustomed to use when dealing with
or not when she sells or buys goods or property. certain commodities. But it is not unusual for people to
Virginity, they say, is irrelevant (ld yata callaq bihN al- their customs; and therefore one can imagine
abandon
hukm).i Al-Jassds further elucidates the meaning of a time in which the dry measure is no longer used for
the cilla's efficacy when contrasting the concept of ciliathe commodities concerned. For this reason the 'ilia in
with that of dal/l (indicant or proof). A dalTi, he says, such cases is called a separable description (wasf Id
has no effect on the existence (wu/id) of what is yakan ldzim). He contrasts it with another kind of cilia
indicated or proved by it (al-mad/al). When contem- that he calls an inseparable description (wasf la yufariq
plated, a dalTi can only lead us to know what is or waif ldzim). For example, when a woman bleeds as
indicated or proved by it. On the other hand, the cilia a result of a cut in her vein, the law requires her to
perform the ritual ablution before praying. The reason
70 Ibid., fol. 96v.

7' Ibid., fols. 96v-97r. 73Ibid., fol. 46r-46v.
72 Ibid., fols. 45r-46v.
74 Ibid., fols. 90r-90v and 103r.
for performing the ritual ablution is the cut in the vein professed to be an example of the case where the two
since such a cut makes the body impure. Al-Jassds says proclaimed illas exist with the judicial judgment. The
that the effect of the blood on the body in this case is law also states, he continues, that no such guardianship
something that is established by resorting to facts, not is required when the daughter is not virgin and has
conventions. He promptly adds that this does not reached her majority. This, on the other hand, pur-
establish the 'ilia beyond doubt. ports to show that the two illas and the judicial
Unfortunately, the characteristics of an inseparable judgment are non-existent.
description are not defined. But it is possible to explain Al-Jassds agrees with the way his teacher puts the
it in the light of what Muslim philosophers say about matter. But at the same time he says" that although he
inseparable accidents. Ibn STnd,75 for instance, distin- is not prepared to accept the mentioned criterion as
guishes between an inseparable accident and an essence necessary in matters legal, he will be ready to resort to
in the following way. Being a creature-that-laughs is it in some cases where a situation as the above does not
necessary to man and therefore enables us to distin- arise; that is to say, he accepts it only when one 'ilia
guish him from other creatures; but it is not part of can be shown to have the required relationship to the
man's essence. For we can think of a man without judicial judgment. What al-Jassas does not tell us is
thinking at the same time of his being a creature-that- whether the 'ilia in this last case will lead to certainty
laughs. However, being rational is something that is as happens with the Cil/a of the rational sciences. Even
necessary to man both in existence and thought. It is if he did think so, such a case could be seen as an
necessary for man in existence, because there is no man exception that does not properly describe the kind of
in the world that is not rational. And it is necessary to arguments prevailing in the religious sciences.
man in thought, because we cannot think of man In any case, al-Jassds has scruples about the pro-
without thinking of him as being rational. posed criterion when applied in the field of juris-
Some (unnamed) jurists suggest another criterion for prudence and legal theory. Its acceptance in legal
confirming a legal 'ilia.76 They say that a legal Cilia matters, he says,79 clashes with another view he
should be related to the judicial judgment in such a supports without qualification, namely that it is pos-
way that when the first exists, the second must exist, sible for a legal cilia to be particularized. Those who
and when the first does not exist, the second must be hold this view say that it is possible to limit the range of
non-existent. Al-Karkhi rejects this criterion on the application of a legal il/a. But a particularization of
now familiar ground that it applies only to the 'ilia of this kind clashes with the required unconditional
the rational sciences; indeed, it is what distinguishes recurrence of the Cil/a and the judgment implicit in the
the latter from the religious sciences. In law, he says in criterion that the judgment exists whenever the Cilia
this context,77 it is possible to find in the same legal exists and does not exist when the Cil/a also does not
situation two opposing Cillas that satisfy the above exist. Al-Jassas gives80 the following as an example of
criterion. Since we cannot accept both at the same what particularization means in this context. There is a
time, the criterion will not do. In other words, general ruling that forbids Muslims to consume the
although we may be able to apply the criterion in some meat of an animal that was not slaughtered in accor-
legal cases, its application will not result in conclu- dance with ritual requirements (ma'ta). However, a
sively demonstrating that the Cilia is the real one, as Muslim is allowed to eat such meat under certain
happens in theology for example. He illustrates his circumstances, when certain reasons necessitating it
point with reference to the case given above regarding materialize.
the legal requirement that the girl needs to have her Al-Jassds contends that only in the religious sciences
father as legal guardian before she marries. Both the can an illa be so particularized, while in the rational
Cilla proposed by the Hanafis and the one proposed by sciences no such particularization can be entertained.
the Shdfi'Ts satisfy the suggested criterion, he claims. That is to say, it is the ability of the rational sciences to
For the law demands that the father act as legal generalize without exceptions that renders them totally
guardian in the marriage of a daughter, both in the demonstrative; while the need for making exceptions in
case of her being a virgin and underage. The above is legal questions hinders law from achieving the status of
75 See Nabil Shehaby, op. cit., p. 227. 78 Ibid., fols. 97v-98r.

76 Al-Jassds, Usal al-Fiqh, II, fol. 97r. 79 Ibid., fols. 97v and 122r-123v.
77 Ibid., fols. 97r-98v. 80 Ibid., fols. 122r-127v.
SHEHABY: cIlla and Qiyds in Early Islamic Legal Theory 39
a rational science. On the other hand, al-Jassds does An important feature of a proper cilla is its being
not hesitate to use the aforementioned criterion as a transitive (mutacaddiya), meaning its being applicable
strong guiding principle (wajh qawiyy) whenever pos- in a case or cases other than the one treated in an
sible. Interestingly enough, he claims" that al-KarkhT authoritative legal source.85 As we said, the method of
himelf used it on several occasions. In any case, both analogy by 'ilia consists in trying to find the reason
al-Jassds and al-Karkhi agreed that the idea of the why a particular judicial judgment was adopted in a
cilia's efficacy ranks higher than the criterion under certain case that exists in an authoritative legal source.
discussion. It is important to note here that not all legal The same judicial judgment can be extended to cover
theorists were ready to endorse the idea that a legal another case that is not treated in the legal sources if
Cilia can and should be particularized. Bishr ibn the same reason is present in the latter case. What is
Ghiydth al-MarfsT and al-ShdficT were against it; while taken for granted here is that the same reason or 'ilia
the majority of the HanafTs, excepting some who were can occur without change or modification in more than
living in Baghdad during al-Jassds's time, and Malik one case or occasion. To understand the motive behind
ibn Anas commended it.82 al-Jassds's concern with this issue we must see that this
A third way suggested for confirming a legal cilia feature of the 'ilia surfaced in the context of his
criticism of certain Shdfi'Ts who thought some illas to
say p, is to try to determine all its possible rivals (let us
assume there are two, q and r) and show these to be be intransitive (ghayr mutacaddiya or qdsira).86 In
wrong. Al-Jassas gives" as an example an actualanswering case them, he declares that the sole inducement
that was referred to some jurists. A slave girl who was for deriving an 'ilia is to help us extend the range of
owned by two men got pregnant. Both men claimed the application of a given judicial judgment beyond the
child. The jurists who examined the case decided that original case it was intended to cover, and allow for its
an arbitrary choice would not do in deciding parent- application in a case or cases not mentioned in the legal
hood. They were also against suspending the case. sources. Thus, a so-called intransitive 'ilia would be
Their third and acceptable option was to regard both useless, and we need not bother to look for it.87 What is
men as the child's legal fathers. The example, I am not made clear is why these unnamed Shafi'Ts intro-
afraid, is not a happy one. For one, it does not tell us in duced the concept of an intransitive 'ilia in the first
which sense are the mentioned possibilities to be called place, and what exactly was their position.
cillas. It also does not show why the options were Immediately after al-Jassds answered his Shdfi'T
restricted to three in this example. In any case, the adversaries he says:
method as such deserves attention. For it appears
similar to one used by Euclid and other Greek and Someone may say that the difference between a sage
Muslim mathematicians. It also is a familiar method in (wakTm) and a fool (saifh) is that the sage's actions
philosophy. It is more likely that it is a direct have commendable aims (aghrad hamTda). Thus, the
application of the Stoic schema whose first premise is judgments and actions of God, may He be exalted,
an exclusive type of a disjunctive or "Either-or" must have commendable aims; since He is a Sage it is
proposition consisting of three parts ("either the first not possible to think that He could do things aimlessly
or the second or the third'). When two of the parts are ('abath). These (commendable) aims are the intran-
one by one denied, the confirmation of the third will sitive cillas that cannot be applied in cases other than
84
necessarily be concluded . those mentioned in the (legal) sources.88
8' Ibid., fol. 97v. I have two comments on this passage. First of all, the
Ibid., fol. 122r. opening sentence suggests that the passage is not a
83Ibid., fol. 96r-96v. quotation or even a reformulation of what the un-
named ShdficTs said. Rather it is a sample of the
84 Cp. Sextus Empiricus, Outlines Of Pyrrhonism, trans-
lated into English by R. G. Bury; reprint, Loeb Classical method al-Jassds uses throughout when defending or
Library (London and Cambridge, Mass. 1961) I, 69. See criticizing some viewpoint. The method, borrowed
Nabil Shehaby, op. cit., pp. 196-97. Al-Ghazali (d. 505/1111) perhaps from theologians and traceable to Aristotle,
says that the theologians (mutakalliman) call this method al-
sabr wa al-taqsTm (probing and dividing), while logicians treat Al-Jassas, Usal al-Fiqh, II, fol. 91r.
86 Ibid.
it under separative conditional propositions (shartiyy mun-
87 Ibid.
fasil). See his Al-Musta~sJ min 'l/m al-Ustl(Cairo, 1322 A.H.)
I, p. 42. Ibid., fol. 91v.
consists in putting forward a certain viewpoint (real

purity, and nearer or
in tenderness. As for the wall, it
imagined), then refuting it. Sometimes belonged
the refutation
to two orphan lads is
in the city, and under it
countered by the real or imagined adversary, after was a treasure belonging to them. Their father was a
which follows a reply, and so on. I am inclined, righteous man; and thy Lord desired that they should
though, toward taking the above passage as portraying come of age and then bring forth their treasure as a
(perhaps only partly) his opponents' position. The mercy from the Lord.92
second comment I have concerns the key phrase
"commendable aims." What exactly are they? A few Such reasons as given here are not the concern of the
lines after the passage," it is made clear that al-Jassdsjurist, al-Jassds declares.93 A jurist's task should be the
understands them to be the same as people's interests study of judicial judgments as they are found in the
(masdlih, sing. maslaha, i.e., interest). His adversary, authoritative legal sources. And these do not carry
al-Jassds claims, does not realize that their differences with them their own justification, except in such few
stem from different conceptions of the 'ilia. His cases as the above. When we worship God and follow
adversary's position is that the "reason" for enactingHis orders, we may do so believing that it will be in our
judicial judgments must be determined by whatever interest to obey His rulings. Such notions as one may
interest the judgment is meant to serve. Such illas are entertain exist only in the mind of the worshipper but
labelled Cl/al al-masdlih (the illas of interest). On the not in the judicial judgments themselves. For in-
other hand, the kind of cilia al-Jassds had been stance,94 gold is one of the commodities to which the
discussing can be defined as that from which the rules of riba apply. Both the Hanafis and the Shdfi'Ts
judicial judgment follows. These cillas are called ci/al agree that gold is given only as an example for a class
al-ahkdm (the illas of judgments).9 For him, human of commodities all of which must be dealt with in the
interests are of no concern to jurists. He even goes same way. But they disagree on what this class could
further and says" that jurists are in no position to tell be. The Shaficis say it is the class of objects which have
what interest a certain judicial judgment could serve. Ita value, while the Hanaf Ts think it is the class of objects
is, of course, another matter if an authoritative source as the cillas for prohibiting ribd in such commodities.
spells it out. As an example of the latter case, he refersIn defense of their cilla, the Shdfi'cs point to the fact
to the story told in the Qur'an (18:71-82) about Moses that values given to commodities are meant to serve
whose page behaved on several occasions in what people's interests. Oddly enough, al-Jassas objects to
appeared to Moses to be a criminal manner. Only this on the ground that values are conventions; and
when the page explained the "reasons" behind his conventions in his way of thinking are not meant to
behavior did Moses realize that they were in fact serve any interests. In any case, what the Shdfi'Ts'
intended to promote particular human interests. At position further implies is that some interests are
first Moses and his page, so the story goes, embarked conditioned by peculiar circumstances (social, phys-
upon a ship and the page made a hole in it. Then they ical, etc.) which may be unique. An Cilia based on such
met a lad and the page slew him. Lastly, they reached a an interest is called intransitive. In al-Jassds's opinion,
city and asked for food, but the people refused to the question a jurist should put to himself is not for
receive them hospitably. In that city, they found a wall what purpose a certain judicial judgment treated in a
about to tumble down, and the page set it up. In legal source was adopted, but from what acceptable
explaining his behavior, the page said: legal principle does it follow. Unless an cilia is
definitely particularized, there is no reason, from al-
As for the ship, it belonged to certain poor men, who Jassas's point of view, why a certain 'ilia cannot be
toiled upon the sea, and I desired to damage it, for applied to as many cases as one can find.
behind them there was a king who was seizing every However, at one point in his Usal al-Fiqh he does
ship by brutal force. As for the lad, his parents were identify cillas with interests, masalih. Earlier in his
believers, and we were afraid he would impose on them book al-Jassas arranges judicial judgments in three
insolence and unbelief; so we desired that their Lord
should give to them in exchange one better than he in
89 Ibid. 92 Q.18:79-82. The translation is from A. J. Arberry, The

Koran Interpreted (London, 1955) I, pp. 325-26.
90 Ibid.
93 Al-jbassds, U9l al-Fiqh, II, fol. 91v.
9' Ibid. 94Ibid., fol. 92r.
SHEHABY: cIlla and Qipds in Early Islamic Legal Theorey 41
groups:95 (1) The judicial judgments that treat as duties tency depends on how we understand al-Jassds's use of
(sing. wdjib) the same things that the intellect itself the word i/tihdd, that is, exercising one's own judgment
considers as such. To be just, to believe in the with discretion, as I have been translating it. As used
Prophet's truthfulness, and to be grateful to a bene- by al-Jassds and others (like al-Juwayni), the word
factor are examples of such duties. What the law does ijtihdd refers not only to the process of analogy based
in such cases, according to al-Jassas, is to affirm what on the illa, but also to the process of deciding the right
has already been known through the intellect. (2) Some judicial judgment without resort to the authoritative
judicial judgments prohibit (mahzir) us from doing or legal sources, such as when we decide on the direction
believing in the same things that the intellect itself of the Sacred Mosque before prayer through the stars,
prohibits us from doing or believing in. For instance, or when we decide on the best tactical maneuvers in a
to be unjust, not to believe in God, or to lie. As in (1), holy war. It is obvious that the search for what he
the divine law affirms what has been learned through termed 'ilal al-ahkdm (the 'illas of judgments) have no
the intellect. The judicial judgments that conform to place in such an exercise. What counts in these and
the dictates of the intellect, such as we encountered in similar cases is our knowledge of the situation at hand,
(I) and (2), can be neither abrogated nor changed. (3) our experience, and so forth. But it is important to
There are things, however, that the intellect may regard note that where al-Jassds alluded to iftihdd as an
as a duty in certain circumstances while in others it exercise in balancing benefits against harms, he was
may dictate that they should be prohibited. These are trying to develop an argument in defense of iftihdd in
things that are neither good (hasan) nor bad (qabTh) in general, and not any particular type of it. However, as
themselves. Some of the divine rulings regard them as an example of iftihdd he refers here to the process
duties, and some prohibit them. God allowed us to involved in reaching decisions on the best tactics to be
exercise our own judgment with discretion (iftihdd) in used in battle. The opponents of iltihid agree, he
determining the right judicial judgments to be applied says,97 that in cases like war there can be no escape
in such matters as come under (3). The legal judgments from exercising our own judgment. If they accept such
of type (3) cover a variety of subjects such as com- an exercise in war, he retorts, why not in other
merce, agriculture, food, medical treatment, and the circumstances? It is likely that the balancing of benefits
like. Only in these and similar areas can we exercise against harms was introduced as a guiding rule in one
our minds in searching for the right legal judgment to kind of iitihdd where it is pointless to resort to legal
apply to the right case. What we do in cases like these is texts, since in some cases they are of no avail. Al-
to look for the legal judgment that will bring us, or is Jassas may have thought that he could better defend
thought to bring us, benefit (manfiaca) and help us iftihdd in general by showing how necessary it is to
avoid harm (darar). God left such matters to us to exercise one's own judgment in particular circum-
decide upon because He knows that this will better stances.
serve our interests (maslaha).96 Al-Jassas then goes on Sometimes an cilla operates only in the presence of
to say that before the law was revealed, God left it to us certain specified conditions (sing. shart). Adultery is
to decide which of the matters that come under (3) punishable for a certain reason, but the presence of
must be prohibited and which are to be regarded as that reason does not necessitate the punishment re-
duties that must be obeyed. He did so because He knew quired by Islamic law unless certain conditions are
that in such matters the same legal judgment can present, namely that the adulterer be an adult, a
sometimes bring us benefit; while in other circum- Muslim, and previously married.98 In some cases it is
stances and at different times it may bring harm to us. necessary that more than one cilla combine to produce
Thus, He left it to us to balance the benefits against the the judicial judgment. For instance, a Muslim is
harms and to decide, accordingly, where our interests forbidden to eat or drink what remains of a dog's food
lie. This we do by i/tihdd. or beverage (su'r). Two reasons are given. The first is
At first sight it appears that al-Jassds is inconsistent that men are forbidden to eat the meat of a dog, and
on the issue of whether law should or should not be the second is that the dog is considered unclean (najas).
subservient to people's interests. Nevertheless, it seems Al-Jassds says that the first reason given is not enough
to me that much of what we may regard as inconsis- in itself to justify the judicial judgment because al-
95 Ibid., fols. 66r-67v. 97 Ibid., fol. 67r.

96 Ibid., fols. 3r-3v and 47r-47v. Ibid., fol. 102v.
though we are forbidden to eat a man's flesh, one is left fasting (sawm) which, though not in itself a qurbd,
free to help himself with the leftovers from his meals.99 becomes one when a person declares his intention
From an epistemological point of view, the most (niyya) to fast. Al-Jassas says that when al-Karkhi was
important feature of the judgments concluded through asked about it, he declared that i'tikdf should be
analogy by 'illa is their being disputable. This results treated like the stationing in Mount 'Arafat since they
not only from the fact that the illa, by means of which
are of the same genus, namely both are labth (sojourn).
these judgments are arrived at, can never be fully (e) If the analogy based on p is supported by a
established or shown to be true, therefore giving rise to statement from one of the Prophet's Companions or
different conceptions as to what constitutes a proper or the first four Caliphs, while the analogy based on q has
acceptable cilla. But another reason is that we may no such support. However, he adds that such a
differ as to which cases in the authoritative legal supporting statement will be acceptable only if it is not
sources we should use as prototypes for our analogy. '??
contradicted by another statement attributed to an-
Thus, al-Jassds, like almost all legal theorists in Islam, other Companion of the Prophet or another of the first
provides us with guiding rules to help us choose four Caliphs. (f) If p is supported by a weak prophetic
between rival or competing 'illas.101 Such rules are tradition (which otherwise can be of no legal signifi-
designed to meet in one way or another both problems. cance) while no such support can be given for q. (g) If
Let us assume we have in a particular situation only p is found to have support from more than one
two cillas, p and q. We can say that p is preponderant legal source, while only one such source is found to
(arjah) or preferable (awid) to q if any of the following support q.
conditions is satisfied: (a) If p is definitely stated in any It seems that the support required in (c) through (g)
of the authoritative legal sources while q is deduced by is to be searched for when p and q are established by
rational means. (b) If p is established by means of the the same means, for instance, when both can be shown
effect (ta'thTr) it has on the judicial judgment (in the to have an effect (in the technical sense) on the judicial
sense explained above), while q is shown to satisfy the judgment. It is not impossible to think of situations
criterion given for theological arguments, namely that where no such support can be found for a particular
the judicial judgment exists when q exists and it is non- 'ilia. In cases such as these al-Jassds leaves the jurist
existent when q in non-existent. (c) If p is supported by free to choose the Cilla he wishes.
a general statement in an authoritative legal source Earlier, when discussing al-Shdfi'T's views, we found
while q is supported by a particular statement in such a the term analogy (qiyds) applied to two methods for
source. (d) If the judicial judgment is of the same genus solving legal problems: one is the analogy by Cilla
(fins) as p while this cannot be said of q. No example is (which al-Shdfici calls macnd), and the other is the
given of such a rule. Elsewhere' he refers to the analogy by similarity. Al-Jassds is critical of the second
situation where two prototype cases in the authori- and would like to restrict the use of the term analogy to
tative sources are thought to be relevant to a certain the first. At the same time, he offers us a better and
legal case at hand. In such a situation, we choose the more detailed picture of the different opinions that
prototype case that is of the same genus as the one were voiced at earlier times on the analogy by simi-
under examination. For example, we may wonder larity. He tells us'03 that the supporters of this analogy
whether to treat Vtikdf (being in seclusion for prayer, were split over the question of what is to be considered
meditation, and fasting) the same way as the stationing as a basis for similarity. Some, like al-Asamm, said
in Mount 'Arafat, since each is in itself a qurbi, that is, that similarity must be based on the form (si ra) as well
it aims at coming close to God. Or we may treat it as as the essence (dhit) of the things involved. For
instance, there is universal agreement among jurists
that the omission of the first prostration (sada) in the
99 Ibid., fol. 105v. He does not show how the second reason
prayer does not make it invalid. On the basis of this, al-
may suffer from the same limitation.
Asamm inferred that the omission of the second
100 Elsewhere in his book (fols. 73v-74v) al-Jassas mentions
prostration will not invalidate the prayer either, "for
as prototype cases those that are definitely stated in the
there is nothing more similar to a prostration in a
Qur'an and sunna (tradition) as well as the judicial judgments
prayer than another in the same prayer.'04 Al-Jassas
reached through consensus or analogy, even if the analogy is
not acceptable to all jurists (fol. 87r).
101 Ibid., fols. I lOr-l1lIv. 103 Ibid., fols. 93r-94r.
102 Ibid., fol. 88r-88v.
104 Ibid., fol. 93r.
SHEHABY: Cilia and Qiyds in Early Islamic Legal Theory 43
claims that al-Shafi'T and other jurists regard two examples of the commodities subject to the rules for
things as similar if the law treats them as such, that is, prohibition of ribd. This grouping is based on the fact
if on certain legal questions similar rulings apply to that they share a common cilla which is thought to be
both (al-tashdbuh min jihat al-ahkdm). For example, the dry measure used to determine their quantities. Al-
except in case of murder, a felony when committed Jassas adds that neither the similarity in form (suira)
against a slave is treated by al-Shafi'c in the same way nor in name (ism) is to be counted in analogy. What he
as when committed against a free man or an animal, seems to be saying, too, is that the cilla is something we
because both the slave and the free man are obliged by initially uncover or come to know through an intellec-
the dictates of Islamic law to perform the prayer. On tual process (that he sometimes terms nazar [mental
the other hand, both the slave and the animal are investigation] or i'tibdr [mental inspection]), and not
considered by the law as commodities that can be through the senses. Otherwise his adversaries could
bought or sold, and thus in case of their harm or have easily replied that analogy by similarity itself can
destruction a compensation equivalent to the inflicted be seen as analogy by illa, and that all they are saying
harm or destruction would be due. Al-Jassas also is that the Cilla should be the physical characteristics
mentions'05 a group of jurists who base their analogy that are initially perceived in things. It is likely that
on the number of similarities they find between things. such a view emerged during al-Jassas's time or before.
If x resembles y in, say, three characteristics, and According to a report in al-Dabiusi's TaqwTm al-
resembles z in two, then the ruling applied to x should Adilla,'08 among the literalists the hashwiyya (a term
be the same as that applied to y, not z. Al-Jassas has no that usually refers to the extreme anthropomorphists
objection to using the word "similar" in describing the and may be rendered here as "sensationalists") fa-
prototype case given in the legal sources and the case voured the use of analogy in law. These literalists were
for which a ruling is sought when they share a common opposed to the theory that a jurist's task is to discover
cilla. However, he demands that the basis for calling a ma Cnd that lies behind what is apparent. The analogy
them similar must be this shared cilla or ma'nC which they were spporting is of a peculiar kind called by
is the reason the ruling for the first case came about. them qiyds al-shabah (analogy by similarity). They
He says: explain it in the following way: What we should look
for in a prototype or basic case that is found in an
What is to be mentally inspected (ictibdr) when a case
authoritative legal source is a description or an attri-
not treated in the (legal) sources is grouped together bute (waAs], which they also call cilla, that is related to
with a case that is so treated, is the similarity between the judicial judgment given to that case in such a way
them in the macna that is the sign for the judicial that when the description or attribute exists, the
judgment. It is this sign that the investigator (al-ndzir) judicial judgment must also be found to exist. But
should demand and pursue.'06 when the description or attribute is found to be non-
existent, the judicial judgment need not also be non-
existent. If a similar description or attribute is found in
He also underlines this point when replying to another case that is not treated in any of the authori-
certain unnamed critics of analogy by similarity.107 tative legal sources, then the judicial judgment given
These critics allegedly say that God does not neces- the first should be extended to cover the second as well.
sarily and exclusively give one and the same judicial The two key terms here are "similar" and "descrip-
judgment to similar cases. In some instances we find tion." The first is nowhere explained. But the second,
Him giving different judicial judgments to similar as al-Dabilsi tells us, should be distinguished from the
cases, while in others, He gives the same judicial macna in that the latter is something we conceive or
judgment to cases lacking similarity. Al-Jassds's answer understand through the intellect, while the wasf is
is that the basis of analogy is not similarity as such, but something we perceive through the senses. This char-
the cilla that is shared by the cases under examination. acteristic way of knowing the cilla is also mentioned by
For instance, gypsum differs in many ways from wheat al-Jassds'09 in his reply to a group of unnamed jurists
and barley; but it is grouped together with them as who regarded the following process as an example of
analogy. God says in the Qur'dn "And don't say uff to
105 Ibid., fol. 93v.

106 Ibid., fol. 94r. 108 Al-DabusTi, TaqwTm al-Adilla, fol. 132r.
107 Ibid., fols. lllr-112v; see also fol. 73r. 109 Al-Jassas, UsiXl al-Fiqh, II, fols. 77v-78r.
them (your parents)" (Q. 17:23). From this we can infer Fardb!,"' each religion has its own law and theology.
that one is forbidden to shout at or beat one's parents. Since fiqh and kalam are in particular the product of
According to al-Jassas these jurists call the above Islam, they can be of significance exclusively to Islamic
inference "analogy" because they claim that there is a peoples and countries. If we interpret al-FdrdbT as
common macnd between the case given in the Qur'an, taking fiqh and kaldm to be ancillary or comple-
namely saying uff to one's parents, and the other cases, mentary "arts" necessary in an Islam-oriented political
that is, shouting at and beating one's father and science, we can give a wider interpretation of the
mother. Although this common macni is not iden- objective behind the distinction alleged to exist be-
tified, I presume it is the disrespectful treatment of tween arguments in fiqh and kaldm. What some
one's parents, whatever that may be. To this group of Muslim thinkers were trying to promote was an
jurists, al-Jassds continues, the macna on which the intellectual scheme reflecting their approach toward
above analogy is based is known through what is stated certain fundamental social questions. On the one hand,
in the discourse (fahwd al-khitdb). They call this they were trying to leave the door open for Muslim
apparent analogy (qivys jaliv>y) to distinguish it from jurists to introduce and develop new laws at different
hidden analogy (qilyjs khafiv>y) in which the common places and times, thus allowing in particular for
ma cnd is reached through the intellectual process of regional differences in the Muslim world. At the same
mental investigation (nazar). Al-Jassds comments on time, they believed that some general rational para-
this, saying: digm that does not and cannot change was socially
necessary to keep the Muslim world from drifting
To establish a Judicial judgment through analogy, apart. For some reason, kaldm was thought to be one
what is required is some kind of mental investigation important (and possibly the most important) means of
(nazar), mental inspection of (ictihdr) and meditation bringing real differences among Muslim nations into
over (ta'ammuf) the state of the derivative case (al- harmony. In my opinion, the claim that all arguments
far') [whose judgment is not given in the legal sources] in kaldm have a certain form that shows them to be
and the basic case (al-asl) in addition to combining (al- totally demonstrable bears no relation to reality. It is
jam ') the two (cases) by the judicial judgment after we no accident, I think, that no examples were provided
have inferred the macnd that necessitates it. This for such arguments.
requirement is absent from what they call apparent Al-Jassds says that few judicial judgments can be
analogy. For in the latter, the macna that we find in the found in the authoritative legal sources, and that,
cases not treated in a legal source is reached through comparatively speaking, a large portion of them were
(what is stated in) the source without any mental extracted through reason and the senses. 1 Thus, /iqh
investigation or inference"0 depends partly on religion and partly on reason and
the senses. This he claims is true of all the religious
To bring this article to a close, I want to say a few sciences (al-shar' Cpyjt),113 although he reminds us that
words on the place of law and theology in two different this view of the religious sciences is not acceptable to
Islamic classifications of the sciences. My intention is those who reject analogy.'"4 In any case, the difference
to try to clarify, even if partially, some points made in between the religious and the rational sciences from his
them, and to give at the same time a general interpre- point of view is that the latter depend entirely on
tation of the sciences of fiqh and kaldm. reason and the senses.115 In the light of this, we can
The first classification I have in mind is AbO Nasr al- understand better one of the classifications of the
FdrdbT's, found in his widely-known Ihsd' al-/cU/im sciences given by al-GhazdlT.
(The Enumeration of the Sciences). What strikes the Al-GhazdlTl divides the sciences into three groups.
reader of the book is not so much the extent to which The first includes the purely rational sciences such as
the author is indebted to Aristotle's classification and
the additions to it by philosophers like Ammonius and
Olympiodorus, but his departures from them. What Al-Farabl, Ihsa' al-'U/am, ed. Osman Amine, 3d ed.
had been of interest to many is the inclusion in al- (Cairo 1968) p. 131; see also pp. 124-38.
Fdrdbi's list of fiqh and kaldm under one heading 112 Al-Jassas, U/sal al-Fiqh, II, fols. 72r and 41v.
together with political science. According to al- 113 Ibid., fol. 72r.
1 14 Ibid.
110 Ibid. Cp. al-Jassas, UCsulal-Fiqh, MS no. 191 (Cairo, Dar1 5 Ibid.
al-Kutub) I, fol. 39v. 116 Al-Ghazall, Al-Mustasfd min 'Ilm al- Usal, I, p. 3.
SHEHABY: cIlla and Qivds in Early Islamic Legal TheorY 45
mathematics and astronomy. The second includes thetheory, is not just a natural outcome of a
work on legal
purely traditional sciences (al-naqliv Va) such as the certain intellectual temperament. Nor is it merely the
science of hadth and the interpretation of the Qur'dn. result of some doctrinal commitment or other. It is
The third embraces the sciences that combine reason primarily motivated by the practical aim of showing
with tradition like fiqh and usid al-fiqh. He describes that the constantly emerging legal problems could be
the third group as being more excellent (ashraf) solved without violating the basic Islamic tenets that
because of this peculiar combination in them of both are at the root of Muslim society. In other words, one
reason and tradition. This classification divides the of the things al-Jassds aimed at achieving was to build
sciences according to the sources of knowledge re- a theoretical system that justified the already existing
sorted to in them, and not from the standpoint of theHanafT effort to expand the inherited law, as conveyed
role they play in society or the degree of certainty inin the authoritative legal sources, and to show that
their propositions, for instance. Thus, fiqh is, from the such an effort remained faithful to that heritage at the
above point of view, more excellent than mathematics same time. An important outcome of this intellectually-
because it combines the two sources of knowledge achieved harmony is the proposition, repeatedly
acceptable to al-Ghazali in this context, while mathe- alluded to in al-Jassds's book, that the link between the
matics relies on one only. There is no contradiction, newly introduced judicial judgments and those stated
therefore, between al-GhazdlT's view here and that of in the authoritative legal sources is different from the
al-Jassds and most legal theorists that their science is link relating respectively the conclusion and the prem-
not as reliable and praiseworthy as kaldm. For the ise(s) of a demonstrative inference. All a jurist can
criterion al-Jassds and others are using in this context hope to achieve is to show that the new legislation
is the degree of certainty in the conclusions reached in comes as near as possible to the inherited one. This
any of them. Also, the division of the sciences accord- proclaimed link between the new and the inherited
ing to the sources of knowledge in them justifies the judicial judgments has the advantage of allowing the
dependence of fiqh and usal al-fiqh on sciences like jurist enough room to innovate and meet the chal-
arithmetic and hadTth. For fiqh is not a completely lenges of different times and places. But the alleged
traditional science and therefore there is nothing that weakness of that link has some important drawbacks.
could limit a jurist in his use of arithmetic, which is a One is that the jurist's deductions cannot be said to
purely rational science. At the same time fiqh does not meet the criteria for a "demonstrative inference"-that
depend totally on reason, for the starting point in its model for rational deduction inherited from the Greeks.
arguments are the Qur'dn and the traditions. A second drawback, related to the first, is that the
A final word. There are, I think, good reasons to newly deduced judicial judgments can never be
believe that Stoic philosophy in one form or another "proved" to be within the limits of what is permissibly
was made use of by such diverse Muslim schools of law regarded as Islamic. That is to say, it cannot be proved
as the Zdhiri, the Shdfi'T, and the Hanafi. However, that by applying the new laws, the community will
there are also sufficient differences between the three remain Muslim and therefore united.
schools to show how each selected from that common These two problems or defects are thought not to
source some basic philosophical structure to aid it in exist in kalam. On the contrary, al-Jassds regards
putting together the ingredients of a separate legal kal/m as a demonstrative science. He seems to think of
system. What makes these schools members of the it as a higher intellectual system that supplements usil
same family is not so much the common source that al-fiqh in the drive toward the mentioned intellectual
helped erect their systems, but the common social and harmony. What troubles the reader of al-Jassas's book
cultural problems that these systems were built to is the absence of any evidence to support the thesis that
meet. One noticeable feature found in early Hanafi kalam is a demonstrative science. It is likely that the
legal theory is its ability to harmonize (successfully, I claim was made by the theologians, and that al-Jassas,
think) between, on the one hand, an adherence to the like al-Karkhi, took it for granted and used it to serve
teachings of the established religious texts that form some intellectual and political purposes. But is there no
the basis of Islam, and, on the other, their respect for basis whatsoever for the claim? It seems to me that the
the human endeavor to solve man's social and cultural claim is not totally baseless. It did not result from a
problems through reason, in addition to their accep- careful analysis of the particular arguments employed
tance without illusions of the never-diminishing need in kalam, but from a general view of what kalam is
for such an endeavor. about. One can see kaldm as a system involving
This striving for harmony, as mirrored in al-Jassds's (a) some general Islamic doctrines, and (b) a certain
philosophical paradigm in which (a) and (b) are related be said that the truth of (a) leads to or "implies" the
by a two-way implication. The starting point in kallm truth of (b). But this philosophical paradigm is used by
is the acceptance on faith of the truth of some basic the mutakallim to argue for the truth of these same
Islamic doctrines as found for instance in the Qur'an. Islamic doctrines that were accepted first on faith, thus
Since the Qur'an itself induces one to use her or his implying the truth of (a) from the truth of (b). It is
mind (an inducement that some theologians include perhaps some such understanding of kaldm that led
among the basic Islamic doctines), and since the use of some Muslim thinkers to describe it, almost in these
one's mind (in this case the mutakallim's) leads to a terms, as an activity in which we prove rationally what
commitment regarding the truth of some basic rational was first accepted on faith.
propositions or a philosophical paradigm, then it can

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ʿIlla and Qiyās in Early Islamic Legal Theory

Author(s): Nabil Shehaby

AL-FATEH UNIVERSITY, TRIPOLI, LIBYA

cilla that we take as a basis for analogy. This seems

This same relationship was expressed and analyzed

70 Ibid., fol. 96v.

75 See Nabil Shehaby, op. cit., p. 227. 78 Ibid., fols. 97v-98r.

consists in putting forward a certain viewpoint (real

89 Ibid. 92 Q.18:79-82. The translation is from A. J. Arberry, The

95 Ibid., fols. 66r-67v. 97 Ibid., fol. 67r.

105 Ibid., fol. 93v.

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