Qiyas---analogy----1120 words

The fourth source of Islamic law is this Qiyas. This source differs from others

because it relies on human judgment and makes oblique references to the

primary source i.e. quran and sunnah. Analytical deduction known as qiyas is

used to infer a rule when neither the Quran nor the Sunnah directly address the

issue at hand. The Quran and Sunnah must be considered in their entirety in

order to arrive at a decision that is consistent with Islamic law; the use of

analogy cannot be restricted to a single legal provision.

Qiyas is defined as "establishing a law concerning an incident based on a clear

injunction passed on another previous incident, so long as they share the same

effective cause," by Abul-Husayn Al-Basri in his book Al-Mu'tamad.

Brief History

Qiyas became more well-known after the Holy Prophet passed away because it

was the main way to practice ijtihad. The Muslim realized that the revelation

had ended, that Prophet Muhammad was no longer available to provide

guidance on novel matters, and that because the Quran is the source of law, laws

had to be extrapolated from it. It's debatable whether or not Qiyas was used

after the Holy Prophet passed away, but jurists later worked out the specifics of

the procedure. The following prerequisites must be satisfied for Qiyas .i.e.

firstly, an original rule should be there which is prescribe in Quran or Sunnah

(asl), secondly, the case should be novel (far) requiring a legal ruling, thirdly, a

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logical element needs to be identified which establishes the link between novel

situation/case and the original rule, fourth, the (Hukum) original ruling should

be extended to the new case. For instance, Q5:90 which states about the

prohibition of wine due to its intoxicating effect. The Asl in the given case is

wine, far- is taking drugs and illah is the intoxicating effect. Analogy is drawn

with that of prohibition of narcotics as it too has an intoxicating effect. For Qiya

the asal needs to be referred from Quran and Sunnah to determine the subject

matter of the ruling. The illah needs to be established objectively in order to

determine a ruling. Q3:13- “certainly, there is a lesson for those who possess

vision” is stated to as an authority for Qiyas and Sunnah also support answering

through analogy, for example, once Hazart umar came to the prophet and asked

if kissing his wife vitiated his fast. The Prophet said does rinsing with water

breaks ones fast. Hazrat umar replied, ‘no’. thus the prophet used an analogical

approach.

So, Qiya is looking at the similarity between two things where one is taken as

the criteria for evaluating or drawing on of new law. where the ruling given in

the primary sources are extentend to the new case due to the existence of

similarity between the effective cause between two due to which the application

of qiyas could be justified. The rule given through Qiyas should be in

conformity with the spirit of primary sources. Even though analogies are made

to fit the demands of the modern world, they must not be used in a way that

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modifies the law to suit individual preferences. When determining the

objectives and intent of the lawgiver and assessing the ahkam using human

reason and discretion, a rational approach must be used. Due to the inherent

uncertainty and the fact that Qiyas is only a probability, rules derived from it

cannot be guaranteed to be in accordance with the intent of the lawgiver. For

this reason, jurists ranked Qiyas as speculative evidence. According to majority

of ulem Qiyas should not be used as an asl for another qiyas. Ibn Rushd Maliki

jurisit and Hanbali are of the view that it could be taken as asl.

An example of Qiyas according to the modern world is the analogical

interpretation of surah Al-Jummah 62:9 in which the Quran forbade buying and

selling of goods after the call of Friday prayer till the time the prayer ends.

Through analogy this prohibition was extended to all types of business

transactions, due to the reason that it could cause divergence from Friday

prayer.

According to Imam Al-Shafi, Qiyas is reserved for those jurists who have in

depth knowledge of Quran and Sunnah. He wanted to limit the use of Qiys'

access to free rationality (ra'y) without any textual restrictions. Given that qiya

is an analytical deduction technique, some jurists realized its applicability in

other situations, which sparked a discussion about various types of qiyas among

jurists. The Shia school replaces the concept of Qiyas with Aql, or intellect,

because they believe it to be more conclusive than Qiyas. Only Sunni schools

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accept Qiyas. Hanafi and Maliki are in favor of qiyas, whereas Shafis accept

this whenever but are watchful about using it, and Hanbalis try to avoid using

Qiyas when possible. Thus the sunni school of thought differs on the use and

scope of qiyas.

Modern day application of Qiyas:

Malaysia seems to be one of the countries who have applied Qiyas for deducing

hukum, although neither law exclusively permits nor forbade the use of Qiyas.

However, it could be inferred that Qiyas is allowed from Art 3 (1) of state list of

the ninth schedule of the federal constitution. for instance S 376 Penal code,

states about Rape, the asal in this case the commiting of rape could be zina, far

is the act, illaj is the effect it has on the lineage and that on dignity, Hukum is it

being haram/prohibited.

In reality, by way of inference, the principle of qiyas has already been

widely accepted and applicable in enacting or deducing some laws, hukm,

offences. An interesting example could also be divorce received through sms

and its restriction or it being allowed in some countries. another example could

be, evidencial requirement in cases. Quran state it to 2 witnesses where as now

in the legal system other types of evidences are also allow for example video

evidences, voice reading, phone records, medical records, etc.

CONCLUSION

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qiyas is recognized as one of the source of Islamic law by many jurists. In order

to apply qiyas the pre-requiste requirement should be fulfilled which are ast, far,

illah and hukum. Qiyas is relevant to the modern world could be seem and with

the passage of time, new issues could not be stopped from arising. Qiyas could

be said to make logical sense only when it is based on Quran and Sunnah or

consensus.

Only when based on the two primary sources (Al-Qur'an and Hadith), as well as

the consensus-approved substantive law, can qiyas make logical sense. For me

Qiyas seen to be the most method for deducing hukam according to the

requirement of the new era.

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