9.6. VARIETIES OF QIYAS
From the viewpoint of the strength or weakness of the ‘illah, the Shafi’i jurists have divided qiyas into three types:
a. ‘Analogy of the Superior’ (qiyas al-awla). The effective cause in this qiyas is more evident in the new case than the original case, which is why it is called qiyas al-awla. For example, we may refer to the Qur’anic text in sura al-Isra’ (17:23) which provides regarding parents: ‘say not to them uff [i.e. a single word of contempt] nor repel them, but address them in dignified terms’. By analogy it may be deduced that the prohibition against lashing or beating them is even more obvious than verbal abuse. Similarly, the penance (kaffarah) of erroneous killing is, by way of analogy, applicable to intentional killing as the transgression which invokes the kaffarah is even more evident in the latter. This is the Shafi’i view, but the Hanafis do not consider the first example to be a variety of qiyas but a mere implication of the text (dalalah al-nass) which falls within the scope of interpretation rather than analogy. Likewise the Hanafis do not require kaffarah for deliberate killing, a ruling which has been determined on grounds of interpretation rather than qiyas.
b. ‘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. We may illustrate this by reference to the Qur’an (al-Nisa’, 4:2) which forbids ‘devouring the property of orphans’. By analogy, it is concluded that all other forms of destruction and mismanagement which lead to the loss of such property are equally forbidden. But this is once again regarded by the Hanafis to fall within the scope of interpretation rather than analogy. To give another example, according to a Hadith, a container which is licked by a dog must be washed seven times. The Shafi’is extend the same ruling by analogy to a container which is licked by swine. The Hanafis, however, do not allow this Hadith in the first place.
c. ‘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. Hence it is not quite so obvious whether the new case falls under the same ruling which applies to the original case. For example, the rules of riba prohibit the exchange of wheat and of other specified commodities unless the two amounts are equal and delivery is immediate. By analogy this rule is extended to apples, since both wheat and apples are edible (according to Shafi’i) and measurable (according to Hanafi) jurists. But the `illah of this qiyas is weaker in regard to apples which, unlike wheat, are not a staple food.
This type of qiyas is unanimously accepted as qiyas proper, but, as earlier stated, the Hanafis and some Zahiris consider the first two varieties to fall within the meaning of the text. It would appear that the Hanafis apply the term ‘qiyas’ only to that type of deduction which involves a measure of ijtihad. The first two varieties are too direct for the Hanafis to be considered as instances of qiyas.
Qiyas has been further divided into two types, namely ‘obvious analogy’ (qiyas jali) and `hidden analogy’ (qiyas khafi). This is mainly a Hanafi division. In the former, the equation between the asl and far` is obvious and the discrepancy between them is removed by clear evidence. An example of this is the equation the ulema have drawn between the male and the female slave with regard to the rules of manumission. Thus if two person, jointly own a slave and one of them sets the slave free to the extent of his own share, it is the duty of the Imam to pay the other part-owner his share and release the slave. This ruling is explicit regarding the male slave, but by an `obvious analogy’ the same rule is applied to the female slave. The discrepancy of gender in this case is of no consequence in regard to their manumission.
The ‘hidden analogy’ (qiyas khafi) differs from the ‘obvious’ variety in that the removal of discrepancy between the asl and the far` is by means of a probability (zann). Shawkani illustrates this with a reference to the two varieties of wine, namely nabidh, and khamr. The former is obtained from dates and the latter from grapes. The rule of prohibition is analogically extended to nabidh despite some discrepancy that might exist between the two. Another example of qiyas khafi is the extension, by the majority of ulema (excepting the Hanafis), of the prescribed penalty of zina to sodomy, despite a measure of discrepancy that is known to exist between the two cases. And finally, the foregoing analysis would suggest that qiyas khafi and qiyas al-adna are substantially concurrent.
by M. H. Kamali.
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