9.9. QIYAS IN PENALTIES
The ulema of the various schools have discussed the application of qiyas to juridical, theological, linguistic, rational and customary matters, but the main question which needs to be discussed here is the application of analogy in regard to prescribed penalties (hudud) and penances (kaffarat).
The majority of ulema do not draw any distinction in this respect, and maintain the view that qiyas is applicable to hudud and kaffarat in the same way as it is to other rules of the Shari’ah. This is explained by reference to the Qur’anic passages and the ahadith which are quoted in support of qiyas, which are all worded in absolute terms, none drawing any distinction in regard to penalties: and since the evidence in the sources does not impose any restriction on qiyas, it is therefore applicable in all spheres of the Shari’ah. An example of qiyas in regard to the hudud is the application of the punishment of theft to the nabbash, or theft who steals the shroud of the dead, as the common illah between them is taking away the property of another without his knowledge. Hadith has also been quoted in support of this ruling. Similarly the majority of ulema (excluding the Hanafis) have drawn an analogy between zina and sodomy, and apply the hadd of the former by analogy to the latter.
The Hanafis are in agreement with the majority to the extent that qiyas may validly operate in regard to ta’zir penalties, but they have disagreed as to the application of qiyas in the prescribed penalties and kaffarat. They would not, for example, approve of an analogy between abusive words (sabb) and false accusation (qadhf), nor would they extend the hadd of zina by analogy to other sexual offences. These, according to the Hanafis, may be penalised under ta’zir but not by analogy to the hudud. The main reason that the Hanafis have given is that qiyas is founded on the ‘illah, whose identification in regard to the hudud, involves a measure of speculation and doubt. There is a Hadith which provides: `drop the hudud in cases of doubt as far as possible. If there is a way out, then clear the way, for in penalties, if the Imam makes an error on the side of leniency, it is better than making an error on the side of severity.
It is thus concluded that any level of doubt in ascertaining the illah of hadd penalties must prevent their analogical extension to similar cases. As stated above, the majority validate the application of qiyas in regard to kaffarat. Thus the analogy between the two forms of breaking the fast (iftar), namely deliberate eating during daytime in Ramadan, and breaking the fast by having sexual intercourse, would extend the kaffarah of the latter to the former. Similarly the majority have validated the analogy between deliberate killing and erroneous homicide for purposes of kaffarah. The Qur’an only prescribes a kaffarah for erroneous killing, and this is extended by analogy to deliberate homicide. The common ‘illah between them is the killing of another human being. If kaffarah is required in erroneous killing, then by way of a superior analogy (qiyas al-awla) the ‘illah is even more evident in the case of a deliberate killing. Both are therefore liable to the payment of kaffarah, which is releasing a slave, or two months of fasting, or feeding sixty persons. The Hanafis are once again in disagreement with the majority, as they maintain that for purposes of analogy, the kaffarah resembles the hadd. Since doubt cannot be totally eliminated in the identification of their effective causes, kaffarant may not be extended by means of analogy.
Notwithstanding the fact that the jurists have disagreed on the application of qiyas in penalties, it will be noted that the ulema have on the who;e discouraged recourse to qiyas in the field of criminal law.
Consequently, there are very few actual qiyas to be found in this field. This is also the case in modern law, which discourages analogy in respect of penalties. The position is somewhat different with regard to civil transactions (mu`amalat), in which qiyas are generally permitted.
by M. H. Kamali.
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