Lecture Notes 6_usul Fiqh
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GT20302
USUL FIQH/ISLAMIC JURISPRUDENCE The Fourth Source of Shariah: Qiyas (Analogical Deduction) 11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
1
CONTENTS 1) 2) 3) 4) 5)
DEFINITION ARKAN OF QIYAS CONDITIONS PERTAINING TO THE HUKM CONDITIONS PERTAINING TO THE NEW CASE (FURU’) CONDITIONS: THE EFFECTIVE CAUSE (‘ILLAH)
6) VARIETIES OF QIYAS
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
2
DEFINITION • Literally, qiyas means measuring or ascertaining the length, weight, or quality of something. Qiyas also means comparison, with a view to suggesting equality or similarity between two things.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
3
DEFINITION • Technically, qiyas is the extension of a Shari'ah value from an original case, or asl, to a new case, because the latter has the same effective cause as the former. The original case is regulated by a given text, and qiyas seeks to extend the same textual ruling to the new case.It is by virtue of the commonality of the effective cause, or 'illah, between the original case and the new case that the application of qiyas is justified.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
4
DEFINITION • A recourse to analogy is only warranted if the solution of a new case cannot be found in the Qur'an, the Sunnah or a definite ijma`.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
5
ARKAN OF QIYAS • The essential requirements (Arkan) of Qiyas are as follows: 1) The original case (asl), on which a ruling is given in the text and which analogy seeks to extend to a new case. 2) The new case (furu’) on which a ruling is wanting.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
6
ARKAN OF QIYAS 3) The effective cause (‘illah) which is an attribute (wasf) of the asl and is found to be in common between the original and the new case. 4) The rule (hukm) governing the original case which is to be extended to the new case. 11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
7
CONDITIONS PERTAINING TO THE HUKM • Conditions pertaining to the Hukm: 1) it must be a practical shari’ ruling, for qiyas is only operative in regard to practical matters inasmuch as this is the case with fiqh as a whole. 2) the hukm must be operative, which means that it has not been abrogated. 11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
8
CONDITIONS PERTAINING TO THE HUKM • 3) the hukm must be rational in the sense that the human intellect is capable of understanding the reason or the cause of its enactment, or that the ‘illah is clearly given in the text itself.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
9
CONDITIONS PERTAINING TO THE HUKM 4) it must not be confined to an exceptional situation or to a particular state of affairs. 5) the law of the text must not represent a departure from the general rules of qiyas in the first place.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
10
CONDITIONS PERTAINING TO THE NEW CASE (FURU’) • Conditions pertaining to the new case (furu’): 1) The new case must not be covered by the text or ijma`. For in the presence of a ruling in these sources, there will be no need for a recourse to qiyas. 2) The effective cause of analogy must be applicable to the new case in the same way as to the original case.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
11
CONDITIONS PERTAINING TO THE NEW CASE (FURU’) 3) The application of qiyas to a new case must not result in altering the law of the text, for this would mean overruling the text by means of qiyas which is ultra vires.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
12
CONDITIONS: THE EFFECTIVE CAUSE (‘ILLAH) • Conditions pertaining to the effective cause (‘illah): 1) According to the majority of ulema, the `illah must be a constant attribute (mundabit) which is applicable to all cases without being affected by differences of persons, time, place and circumstances. 2) the effective cause on which analogy is based must also be evident (zahir). Hidden phenomena such as intention, goodwill, consent, etc., which are not clearly ascertainable may not constitute the `illah of analogy. 11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
13
CONDITIONS: THE EFFECTIVE CAUSE (‘ILLAH) 3) it must be a proper attribute (al-wasf almunasib) in that it bears a proper and reasonable relationship to the law of the text (hukm). 4) The `illah must be 'transient' (muta'addi), that is, an objective quality which is transferable to other cases. 11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
14
VARIETIES OF QIYAS • Varieties of Qiyas: • From the viewpoint of the strength or weakness of the 'illah, the Shafi'i jurists have divided qiyas into three types: 1) 'Analogy of the Superior' (qiyas alawla). The effective cause in this qiyas is more evident in the new case than the original case. 11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
15
VARIETIES OF QIYAS 2) 'Analogy of Equals' (qiyas al-musawi). The 'illah in this type of qiyas is equally effective in both the new and the original cases, as is the ruling which is deduced by analogy. 3) 'Analogy of the Inferior' (qiyas al-adna). The effective cause in this form of qiyas is less clearly effective in the new case than the original case.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
16
EXAMPLES OF QIYAS 1) The Quran forbids selling or buying of goods after the last call for Friday prayers until the end of the prayer. – extended to other activities (agriculture, industrialization, administration and other commercial transaction). 11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
17
EXAMPLES OF QIYAS 2) The Prophet (saw) is reported to have said in a Hadith, “The killer shall not inherit (from his victim)”. – extended to bequests (wasiyyah), the killer cannot benefit from the will of his victim
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
18
EXAMPLES OF QIYAS 3) The Quran clearly forbids the consumption of liquor. – extended to drug and other substances that can cause damage to mind.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
19
EXAMPLES OF QIYAS 4) According to a Hadith, it is forbidden for a man to make an offer of betrothal to a woman who is already engaged to another man unless the latter discontinues the relationship or has totally abandoned his offer. – extended to all other transaction. 11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
20
TWO TYPES OF QIYAS • Two types of Qiyas: 1) ‘Obvious analogy' (qiyas jali): the equation between the asl and furu’ is obvious and the discrepancy between them is removed by clear evidence.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
21
TWO TYPES OF QIYAS 2) `Hidden analogy' (qiyas khafi): The 'hidden analogy' (qiyas khafi) differs from the 'obvious' variety in that the removal of discrepancy between the asl and the furu’ is by means of a probability (zann).
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
22
Thank you very much for your attention
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
23
USUL FIQH/ISLAMIC JURISPRUDENCE The Fourth Source of Shariah: Qiyas (Analogical Deduction) 11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
1
CONTENTS 1) 2) 3) 4) 5)
DEFINITION ARKAN OF QIYAS CONDITIONS PERTAINING TO THE HUKM CONDITIONS PERTAINING TO THE NEW CASE (FURU’) CONDITIONS: THE EFFECTIVE CAUSE (‘ILLAH)
6) VARIETIES OF QIYAS
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
2
DEFINITION • Literally, qiyas means measuring or ascertaining the length, weight, or quality of something. Qiyas also means comparison, with a view to suggesting equality or similarity between two things.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
3
DEFINITION • Technically, qiyas is the extension of a Shari'ah value from an original case, or asl, to a new case, because the latter has the same effective cause as the former. The original case is regulated by a given text, and qiyas seeks to extend the same textual ruling to the new case.It is by virtue of the commonality of the effective cause, or 'illah, between the original case and the new case that the application of qiyas is justified.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
4
DEFINITION • A recourse to analogy is only warranted if the solution of a new case cannot be found in the Qur'an, the Sunnah or a definite ijma`.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
5
ARKAN OF QIYAS • The essential requirements (Arkan) of Qiyas are as follows: 1) The original case (asl), on which a ruling is given in the text and which analogy seeks to extend to a new case. 2) The new case (furu’) on which a ruling is wanting.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
6
ARKAN OF QIYAS 3) The effective cause (‘illah) which is an attribute (wasf) of the asl and is found to be in common between the original and the new case. 4) The rule (hukm) governing the original case which is to be extended to the new case. 11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
7
CONDITIONS PERTAINING TO THE HUKM • Conditions pertaining to the Hukm: 1) it must be a practical shari’ ruling, for qiyas is only operative in regard to practical matters inasmuch as this is the case with fiqh as a whole. 2) the hukm must be operative, which means that it has not been abrogated. 11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
8
CONDITIONS PERTAINING TO THE HUKM • 3) the hukm must be rational in the sense that the human intellect is capable of understanding the reason or the cause of its enactment, or that the ‘illah is clearly given in the text itself.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
9
CONDITIONS PERTAINING TO THE HUKM 4) it must not be confined to an exceptional situation or to a particular state of affairs. 5) the law of the text must not represent a departure from the general rules of qiyas in the first place.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
10
CONDITIONS PERTAINING TO THE NEW CASE (FURU’) • Conditions pertaining to the new case (furu’): 1) The new case must not be covered by the text or ijma`. For in the presence of a ruling in these sources, there will be no need for a recourse to qiyas. 2) The effective cause of analogy must be applicable to the new case in the same way as to the original case.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
11
CONDITIONS PERTAINING TO THE NEW CASE (FURU’) 3) The application of qiyas to a new case must not result in altering the law of the text, for this would mean overruling the text by means of qiyas which is ultra vires.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
12
CONDITIONS: THE EFFECTIVE CAUSE (‘ILLAH) • Conditions pertaining to the effective cause (‘illah): 1) According to the majority of ulema, the `illah must be a constant attribute (mundabit) which is applicable to all cases without being affected by differences of persons, time, place and circumstances. 2) the effective cause on which analogy is based must also be evident (zahir). Hidden phenomena such as intention, goodwill, consent, etc., which are not clearly ascertainable may not constitute the `illah of analogy. 11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
13
CONDITIONS: THE EFFECTIVE CAUSE (‘ILLAH) 3) it must be a proper attribute (al-wasf almunasib) in that it bears a proper and reasonable relationship to the law of the text (hukm). 4) The `illah must be 'transient' (muta'addi), that is, an objective quality which is transferable to other cases. 11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
14
VARIETIES OF QIYAS • Varieties of Qiyas: • From the viewpoint of the strength or weakness of the 'illah, the Shafi'i jurists have divided qiyas into three types: 1) 'Analogy of the Superior' (qiyas alawla). The effective cause in this qiyas is more evident in the new case than the original case. 11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
15
VARIETIES OF QIYAS 2) 'Analogy of Equals' (qiyas al-musawi). The 'illah in this type of qiyas is equally effective in both the new and the original cases, as is the ruling which is deduced by analogy. 3) 'Analogy of the Inferior' (qiyas al-adna). The effective cause in this form of qiyas is less clearly effective in the new case than the original case.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
16
EXAMPLES OF QIYAS 1) The Quran forbids selling or buying of goods after the last call for Friday prayers until the end of the prayer. – extended to other activities (agriculture, industrialization, administration and other commercial transaction). 11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
17
EXAMPLES OF QIYAS 2) The Prophet (saw) is reported to have said in a Hadith, “The killer shall not inherit (from his victim)”. – extended to bequests (wasiyyah), the killer cannot benefit from the will of his victim
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
18
EXAMPLES OF QIYAS 3) The Quran clearly forbids the consumption of liquor. – extended to drug and other substances that can cause damage to mind.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
19
EXAMPLES OF QIYAS 4) According to a Hadith, it is forbidden for a man to make an offer of betrothal to a woman who is already engaged to another man unless the latter discontinues the relationship or has totally abandoned his offer. – extended to all other transaction. 11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
20
TWO TYPES OF QIYAS • Two types of Qiyas: 1) ‘Obvious analogy' (qiyas jali): the equation between the asl and furu’ is obvious and the discrepancy between them is removed by clear evidence.
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
21
TWO TYPES OF QIYAS 2) `Hidden analogy' (qiyas khafi): The 'hidden analogy' (qiyas khafi) differs from the 'obvious' variety in that the removal of discrepancy between the asl and the furu’ is by means of a probability (zann).
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
22
Thank you very much for your attention
11/21/09
Copyright Reserved@Mohd Zulkifli Muhammad
23
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