The fourth important source of Muhammadan law is the Qiyas, i.e., a collection of rules or principles by the methods of analogy and interpretation from the first three sources. All the three sources the Quran, The Sunnah, and Ijmaa could not suffice the growing needs of a community which had their ideas expanded by the great territorial strides that Islam had made in the course of the century.
The four main Sunni schools of law consider it one of the four main sources of law, the other sources being the Quran, Sunnah, and consensus (ijma). The Jafari Shii of the school of law, however, counts aql (reason) as a separate source of law instead of qiyas. The Hanafi school of thought was very strongly supported Qiyas.
Qiyas:
In the Arabic language, Qiyas means ‘measurement’. In other words, it means measuring or comparing a thing in relation to a standard, or ‘to establish an analogy’. If there was any problem before the society on which the texts (Quran, Sunna, and Ijmaa) were silent then Qiyas was applied to get the law. It was a method of comparing the problem of society with a similar problem for which solution was given in the texts. Qiyas may be defined as a process of deduction by which the law of the text is applied to cases, which though not covered by the languages are governed by reason of text. Thus, it should be noted that Qiyas does not purport to create a new law, but merely to apply old established principles to new circumstances.
The general principle behind the process of Qiyas is based on the understanding that every legal injunction guarantees a beneficial and welfare satisfying objective. Thus, if the cause of an injunction can be deduced from the primary sources, then the analogical deduction can be applied to cases with similar causes. For example, wine is prohibited in Islam because of its intoxicating property. Thus, Qiyas leads to the conclusion that all intoxicants are forbidden. It is to be noted that in this method new principles were not formulated. The law was simply discovered from the spirit or the implied meaning of the text.
Obtaining a Law Through Qiyas:
According to this method, the ruling of the Quran or Sunnah may be extended to a new problem provided that the precedent (asl) and the new problem (far) share the same operative or effective cause (illat). The Illat is the specific set of circumstances that trigger a certain law into action. For example, the operative cause for the prohibition against alcohol is that it intoxicates the mind. Therefore, anything that intoxicates the mind, such as narcotics, is also prohibited by the use of analogy
Thus, a similarity was established between the new problem (for which the law was required) and an identical problem given in the text. For establishing similarity, ‘reason’ or the sense behind a text was taken into account rather than the meaning of its apparent words. In this manner, the ‘common cause’ (Illat) of the two problems was found and the analogy was established between the given problem and a similar problem available in the text.
After establishing the analogy, the solution to the problem given in the text was applied to the new problem. Thus, the required law was directly deduced from the texts of the Quran or Sunnah or the Ijaa.
The conditions for Qiyas:
- The person who established analogy was a Mujtahid (jurist) and that,
- He deduced the law from a definite text of the Quran or Sunna or the Ijma.
- Quiyas should not change to the original. (Asl)
- Asl: It is a basic case on which analogy is being constructed. Asl is “the original” thing which can be said as the base of Islam. Example:- Quran, Sunnah, Ijma. The original source from which Qiyas is deduced must be capable of being extended, that is it should not be of any special nature.
- Hukam (Hukam-ul-asl): It means “a text of original” or a “set of facts” explained by the “Asl” Hukam is extended for the purpose of the solution of any problem. Hukam should be from Quran or Sunnah, It should not conceal original, and It should not have any exemption. The original order of the Quran or hadith to which the process of Qiyas is applied should not have been abrogated or repealed. The original order of the Quran or hadith to which the process of Qiyas is applied should not have been abrogated or repealed.
- Far: The “procedure” or distance to find out a new order for a case is called “far” a new rule can only be established by computing the distance. Qiyas should be applied to ascertain a point of law and not to determine the meanings of words used. The deduction must not be such as to involve a change in the law embodied in the text.
- Illah: “illah” is the “underlying cause” it is also called a case, for which a new order is to be established.
Examples of Legislation by Quiyas:
- Dower: 1/4th of the total property was made the maximum limit for dower.
- Wills: 1/3rd of the total property was made the maximum limit for a will.
- Silence as acceptance: Silence at the time of “Nikah” is presumed to be acceptance.
Istihsan:
Abu Hanifa developed a new source called istihsan, or juristic preference, as a form of analogical deduction (qiyas). Istihsan is defined as: (i) To seek ease and convenience, (ii) To adopt tolerance and moderation, and (iii) To over-rule analogical deduction, if necessary. Istihsan is a conclusion of law based upon the jurist’s own sense of justice without reference to any text. Qiyas on the other hand, is a conclusion of law based on a definite text of Quran, tradition or Ijmaa. This doctrine was useful in the Islamic world outside the Middle East where the Muslims encountered environments and challenges they had been unfamiliar with in Arabia.
One example of isthisan is cited as follows: If a well is contaminated it may not be used for ritual purification. Istihsan suggests that withdrawing a certain number of buckets of water from the well will remove the impurities. Analogical deduction (qiyas), however, says that despite removing some of the water, a small concentration of contaminants will always remain in the well (or the well walls) rendering the well impure. The application of analogical deduction means the public may not use the well, and therefore causes hardship. Thus the principle of istihsan is applied, and the public may use the well for ritual purification.
Istidlal:
Istidlal means infering a ‘thing’ from another ‘thing’. It is a form of ratiocination or legal reasoning not covered by Qiyas, For example, if the statement is that a particular thing is permitted then, the inference will be that the thing cannot be forbidden. The basis of such reference is generally the welfare of the public. Scholars divide istdilal into three types. The first is the expression of the connection existing between one proposition and another without any specific effective cause. Next, istidlal could mean presumption that a state of things, which is not proved to have ceased, still continues. The final type of istidlal is the authority as to the revealed laws previous to Islam. This is a rule of interpretation and, is recognised by Maliki and Shafei Schools only.
In Istidlal only inference is drawn and the analogy is not established whereas, in Qiyas the rule of law is deduced by establishing analogy. Istidlal allowed the jurists to avoid ‘strict analogy’ in a case where no clear precedent could be found. In this case, public interest was distinguished as a basis for legislation
Other Methods of Duction of Law:
Other methods of deducing the law, such as mafhm al-nass (the clear implication of the text), tamthil (similarity or likeness), or istislah (consideration of public interest), either explicitly rely on qiyas or use methods of analysis that are similar in their approach to qiyas.
Conclusion:
Qiyas may be defined as a process of deduction by which the law of the text is applied to cases, which though not covered by the languages are governed by reason of text. Thus, it should be noted that Qiyas does not purport to create a new law, but merely to apply old established principles to new circumstances. It can be said that Qiyas is weak source of law and rules analogically deduced do not rank so high as authority, as those laid down by Quran and Hadith or by consensus of opinion (ijma). the reason is that with respect to analogical deductions one cannot be certain that they are what the law giver intended. Such deduction always rests upon the application of human resources which always are liable to err.