9.8. THE ARGUMENT AGAINST QIYAS
This has been advanced mainly by the Zahiri school, and some Mu’tazilah, including their leader, Ibrahim al-Nazzam. The leading Zahiri jurist, Ibn Hazm, is the most outspoken against qiyas. The main points of his argument may be summarised as follows:
1. The rules of the Shari’ah are conveyed in the form of commands and prohibitions. There are also the intermediate categories of ‘recommended’ (mandub) and `rephensible’ (makruh), which are essentially two varieties of mubah (permissible). There are thus only three types of ahkam: command, prohibition, and permissibility. Should there be no clear text in respect of any matter, then it would fall under the principles of ibadah (permissibility) which is established in the Quran. Commands and prohibitions are determined by the clear authority of the Quran, the Sunnah, ijma, in whose absence nothing else can determine an obligatory or a prohibitory injunction, and the matter would automatically fall under the category of mubah. There is thus no room for analogy in the determination of the ahkam.
2. The supporters of analogy, according to Ibn Hazm, proceed on the assumption that the Shari’ah fails to provide a nass for every matter, an assumption which is contrary to the explicit provisions of the Qur’an. Ibn Hazm goes on to quote the following to this effect: ‘We have neglected nothing in the Book’ (al-An’am, 6:89); and ‘We revealed the Book as an explanation for everything’ (al-Nahl, 16:89). In yet another passage, we read in the Qur’an: ‘This day, I perfected your religion for you, and completed My favour upon you’ (al-Ma’idah, 5:4).
Since the ahkam of the Lawgiver are all-inclusive and provide complete guidance for all events, our only duty is to discover and implement them. To consider qiyas as an additional proof would be tantamount to an acknowledgement that the Qur’an fails to provide complete guidance.
3. Qiyas derives its justification from an ‘illah which is common to both the original and the new case. The ‘illah is either indicated in the text, in which case the ruling is derived from the text itself and qiyas is redundant; or alternatively, where the ‘illah is not so indicated, there is no way of knowing it for certain. Qiyas therefore rests on conjecture, which must not be allowed to form the basis of a legal ruling. This is, according to Ibn Hazm, the purport of the Qur’anic ayah (al-Najm, 53:28) which proclaims that `conjecture avails nothing against the truth.‘ Identifying the ‘illah in qiyas is an exercise in speculation, whereas the Qur’an enjoins us to ‘pursue not that of which you have no knowledge’ (al-Isra’, 17:36).
4. And lastly, Ibn Hazm holds that qiyas are clearly forbidden in the Qur’an. Thus we read in sura al-Hujurat (49:1): ‘O you believers! Do not press forward before God and His Messenger, and fear God […]’, which means that the believers must avoid legislating on matters on which the lawgiver has chosen, to remain silent. The same point is conveyed in the Hadith where the prophet ordered the believers as follows:
Ask me not about matters which I have not raised. nations before you were faced with destruction because of excessive questioning and disputation with their prophets. When I command you to do something, do it to the extent that you can, and avoid what I have forbidden. Thus in regard to matters on which the nass is silent, it is not proper for a Muslim to take the initiative in issuing a hukm, for he is ordered not to do so. Qiyas therefore violate the express terms of the Qur’an and the Sunnah.
To sum up, Ibn Hazm’s argument is based on two main points, one of which is that the nusus of the Qur’an and Sunnah provide for all events, and the other is that qiyas is an unnecessary addition to the nusus. Regarding the first point, the majority of ulema hold the view that the nusus do admittedly cover all events, either explicitly or through indirect indications. However, the Zahiris rely only on the explicit nusus and not on these indirect indications. The majority, on the other hand, go beyond the confines of literalism and validate qiyas in the light of the general objectives of the Shari’ah. For the majority, qiyas is not an addition or a superimposition on the nusus, but their logical extension. Hence the Zahiri argument that qiyas violate the integrity of the nusus is devoid of substance.
With reference to some of the Qur’anic passages that the opponents of qiyas have quoted, especially on the use of speculative evidence in law, it is contended that the ayat in question forbid recourse to speculation (zann) in matters of belief only. As for the practical rules of fiqh, most of them partake in zann, and a great deal of the nusus are themselves speculative in their purport and implication (zanni al-dalalah). But this does not necessarily mean that action upon them must be suspended. On the contrary, a measure of diversity and variation in the practical rules of Shari’ah is not only tolerated, but is considered to be a sign of the bounty of Almighty God, and the essence of flexibility in the Shari’ah.
In principle, the Shi’ah Imamiyyah do not recognise the validity of qiyas, as they maintain that qiyas is pure conjecture which must be avoided. In addition, the Qur’an, the Sunnah and the rulings of the Imams, according to the Shi’i ulema, provide sufficient guidance for conduct, and any reference to analogy is unnecessary and unwarranted. This is definitely the view of the Akhbari branch of the Twelve Shi’ah, whose refutation of qiyas closely resembles that of the Zahiris. But the Usuli branch of the Shi’ah validate action upon certain varieties of qiyas, namely qiyas whose ‘illah is explicitly stated in the text (qiyas mansus al-`illah), analogy of the superior (qiyas al-awla) and obvious analogy (qiyas jali). These varieties of qiyas, in their view, are not mere speculations; they either fall within the meaning of the text or else constitute a strong probability (al-zann al-qawi) which may be adopted as a guide for conduct. But they validate this through recourse to ijtihad and `aql rather than qiyas per se.
by M. H. Kamali.
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