9.10. CONFLICTS BETWEEN NASS AND QIYAS
Since the ‘illah in analogy is a general attribute which applies to all similar cases, there arises the possibility of qiyas coming into conflict with the nusus. The question to be asked is how such a conflict should be removed. Responding to this question, the ulema have held two different views, which may be summarised as follows:
1. According to Imam Shafi’i, Ahmad b. Hanbal, and one view which is attributed to Abu Hanifah, whenever there is a nass on a matter qiyas is absolutely redundant. Qiyas is only applicable when no explicit ruling could be found in the sources. Since recourse to qiyas in the presence of nass is ultra vires in the first place, the question of a conflict arising between the nass and qiyas is therefore of no relevance.
2.The second view, which is mainly held by the Malikis, also precludes the possibility of a conflict between qiyas and a clear text, but does not dismiss the possibility of a conflict arising between a speculative text and qiyas. Analogy could, according to this view, come into conflict with the `Amm of the Qur’an and the solitary Hadith.
The Hanafis have maintained that the ‘Amm is definitive in implication (qat`i al-dalalah), whereas qiyas is speculative. As a rule, a speculative item cannot qualify a definitive one, which would mean that qiyas does not specify the ‘Amm of the Qur’an. The only situation where the Hanafis envisage a conflict between qiyas and the `Amm of the Qur’an is where the `illah of qiyas stated in a clear nass. For in this case, a conflict between the ‘Amm of the Qur’an and qiyas would be that of one qat’i with another. However, for the most part qiyas is a speculative evidence, and as such may not specify the ‘Amm of the Qur’an. But once the ‘Amm is specified, on whatever grounds, then it becomes speculative itself, at least in respect of that part which remains unspecified. After the first instance of specification (takhsis), in other words, the ‘Amm becomes speculative, and is then open to further specification by means of qiyas. For example, the word bay` (sale) in the Qur’anic text stating that ‘God has permitted sale and prohibited usury’ (al-Baqarah, 2:275) is `Amm, but has been qualified by solitary ahadith which prohibit certain types of sale. Once the text has been so specified, it remains open to further specification by means of qiyas.
This was the Hanafis’ view of conflict between a general text and qiyas. But the Malikis who represent the majority view, consider the `Amm of the Qur’an to be speculative in the first place. The possibility is therefore not ruled out, according to the majority, of a conflict arising between the nass and qiyas. In such an event, the majority would apply the rule that one speculative principle may be specified by another. Based on this analysis, qiyas, according to most of the jurists, may specify the `Amm of the Quran and the Sunnah.
As for conflict between qiyas and a solitary Hadith, it is recorded that Imam Shafi`i, Ibn Hanbal and Abu Hanifah do not give priority to qiyas over such a Hadith. An example of this is the vitiation of ablution (wudu’) by loud laughter during the performance of salah, which is the accepted rule of the Hanafi school despite its being contrary to qiyas. Since the rule here is based on the authority of a solitary Hadith, the latter has been given priority over qiyas, for qiyas would only require vitiation of salah, not the wadu.
Although the three Imams are in agreement on the principle of giving priority to solitary Hadith over qiyas, regarding this particular Hadith, only the Hanafis have upheld it. The majority, including Imam Shafi’i, consider it to be Mursal and do not act on it.
Additionally, there are other views on the subject which merit brief attention. Abu’l Husayn al-Basri, for example, divides qiyas into four types, as follows:
1. Qiyas which is founded in a decisive nass, that is, when the original case and the effective cause are both stated in the nass. This type of qiyas takes priority over a solitary Hadith.
2. Qiyas which is founded in speculative evidence, that is, when the asl is a speculative text and the ‘illah is determined through logical deduction (istinbat). This type of qiyas is inferior to a solitary Hadith and the latter takes priority over it. Al-Basri has claimed an ‘ijma on both one and two above.
3. Qiyas in which both the asl and the ‘illah are founded in speculative nusus, in which case it is no more than a speculative form of evidence and, should it conflict with a solitary Hadith, the latter takes priority. On this point al-Basri quotes Imam Shafi’i in support of his own view.
4. Qiyas in which the `illah is determined through istinbat but whose asl is a clear text of the Qur’an or Mutawatir Hadith. This type of qiyas is stronger than two and three above, and the ulema have differed as to whether it should take priority over a solitary Hadith.
The Malikis, and some Hanbali ulema, are of the view that in the event of a conflict between a solitary Hadith and qiyas, if the latter can be substantiated by another principle or asl of the Shari’ah, then it will take priority over a solitary Hadith. If for example the `illah of qiyas is `removal of hardship’, which is substantiated by several texts, then it will add to the weight of qiyas, and the latter will take priority over a solitary Hadith. For this kind of evidence is itself an indication that the Hadith in question is weak in respect of authenticity. Similarly, some Hanafis have maintained that when a solitary Hadith, which is in conflict with qiyas, is supported by another qiyas, then it must be given priority over the conflicting qiyas. This is also the view which Ibn al-‘Arabi has attributed to Imam Malik, who is quoted to the effect that whenever a solitary Hadith is supported by another principle, then it must take priority over qiyas. But if no such support is forthcoming, then the solitary Hadith must be abandoned. For example, the following Hadith has been found to be in conflict with another principle: `When a dog licks a container, wash it seven times, one of which should be with clean sand.
It is suggested that this solitary Hadith is in conflict with the permissibility of eating the flesh of the game which has been fetched by a hunting dog. The game is still lawful for consumption notwithstanding its having come into contact with the dogs saliva. There is , on the other hand, no other principle that could be quoted in support of either of the two rulings. There is, on the other hand, no other principle that could be quoted in support of either of the two rulings, so qiyas takes priority over the solitary Hadith. Our second example is of a solitary Hadith which is in conflict with one principle but stands in accord with another. This is the Hadith of ‘araya, which provides that `the Prophet (upon whom be peace) permitted the sale of dates on the palm tree for its equivalent in dry dates’. This is permitted despite its being in conflict with the rules of riba, However the permissibility in this case is supported by the principle of daf` al-haraj `removal of hardship’ in that the transaction of araya was permitted in response to a need, and, as such, it takes priority over the qiyas which might bring it under the rules of riba.
by M. H. Kamali.
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