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z FARHAN ABDUL MALIK

CORPORATE MUHAMMAD ALI

BUSINESS LAW FAIZAN MUHAMMAD ABBASI

MUHAMMAD KAMRAN

MUHAMMAD IBAD ULLAH


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QIYAS
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DEFINITION

 In Islamic jurisprudence, qiyās (Arabic: ‫) قياس‬is the process of


deductive analogy in which the teachings of the Hadith are
compared and contrasted with those of the Qur'an, in order to
apply a known injunction (nass) to a new circumstance and
create a new injunction.
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QIYAS IS NOT A PERSONAL OPINION

 Qiyas provided classical Muslim jurists with a method of


deducing laws on matters not explicitly covered by the Quran or
Sunnah without relying on unsystematic opinion (ray or hawa).
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WHAT IS QIYAS IN ACTUAL ?

 In the language of Usul, Qiyas is the extension of a Shari'ah


ruling from an original case (Asl) to a new case (Far') because
the new case has the same effective cause (Illah) as the original
case. The original case is regulated by a text of the Qur'an or the
Sunnah and Qiyas seeks to extend the original ruling to the new
case. The emphasis of Qiyas is identification of a common
cause between the original and new case. However, for all
practical purposes, Qiyas leads to new ruling on a different
matter.
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So,

 Qiyas is a methodology developed by jurists through which


rulings in new areas are kept close to the Qur'an and Sunah
because new rulings are based on the Illah (causes) discovered
in the legislation of the Qur'an and Sunnah. Rulings on new
areas could diverge a lot, if Qiyas was not applied.
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The Basis of Qiyas

 No clear authorities of qiyas in the Quran. However, the


Scholars quoted several proofs from the Quran and Sunnah as
well as the practice of the Companions as an indirect evidence
to support the utilization of qiyas.
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Surah al-Nisa’ 4:105

 “We have sent to you the book with the Truth so that you may
judge among people by means of what Allah has shown you”.

 Based on the above verse, a judgment may be based on the


guidance that Allah has clearly given or on that which bears
close similarity to it. Thus, exercising qiyas is considered as
following the guidance of the Quran.
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The Pillars of Qiyas

 The original case (asl), on which a ruling is given in the text and
analogy seeks to extend it to a new case.

 The new case )far’), on which a ruling is needed.

 The effective cause )‘illah), which is an attribute (wasf) of the


original case and it is found to be in common between the
original and the new case.

 The rule (hukm), governing the original case which is to be


extended to the new case.
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EXAMPLES

Example No 1: Example No 2

 Smoking in mosque  Criminal misappropriation of


property
 Asl – eating onion in mosque
 Asl – theft
 Far’ – smoking in mosque
 Far’ – criminal
 ‘Illah – causing bad smell to misappropriation of property
the mouth  ‘Illah – take unlawful
possession of one’s property
 Hukm - prohibition/haram
 Hukm - prohibition/haram.
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Condition pertaining Asl

 One condition of Asl (the subject matter of original ruling) is that


the Quran and sunnah are the sources of Asl (many scholars do
not consider Ijma to be basis of Asl). According to majority, one
Qiyas cannot form Asl of another Qiyas. However, Maliki jurist
Ibn Rushd thinks a Qiyas can be basis for another Qiyas.
Modern Jurists Abu Zahrah and Muhammad Al Zarka agree.
Minority seems to be right as long as it does not contradict
Nusus (clear texts or rulings) of the Qurran and Sunnah.
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Conditions pertaining to Hukm (a ruling
in the original case) are:
 a. It must be a practical Sharii ruling (Qiyas does not operate in the
area of belief).

 b. Sharii ruling must not be an abrogated one,

 c. The Hukm must be amenable to understanding through human


intellect.

 d. Hukm must not be limited to exceptional situations (in that case it


cannot be basis of Qiyas, such as the prohibition of marriage of
widows of the Prophet (with others).

 Qiyas is operative or extendable in Hudud (prescribed penalties),


according to majority.
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The New Case (Far)

 There are three conditions regarding the new case before establishing a qiyas. The first is
the far which must not be covered by any text or ijma’. If the text and the ijma’ have already
covered the matter, qiyas is no longer required. According to Hanafi and Maliki, if there are
any speculative questions regarding the text such as from a solitary Hadith, therefore the
qiyas can be established.

 Secondly, the new case must be applicable in the same way as to the original case (asl).
There must not be equality between both of the new and the original case or otherwise the
qiyas will be invalid. For example, a beverage that only caused a lapse of memory is not the
same as drinking wine that will cause intoxication to the drinker. Therefore, analogy for the
case is not valid.

 Thirdly, the new case must not result in altering the law of text. Any form of analogy that
alters the law of text is invalid. For example, the salam contact has been stated in a Hadith
where the transaction item must be delivered at a fixed date. Therefore, if we do not comply
with the text, we can be considered as changing the law of the text.
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The Effective Cause ( Illah )

 Illah is known as probably the most important aspect of all the


requirements of Qiyas. It is an attribute of the ‘Asl which is
always constant, evident and has proper Munasib ( relationship )
to the Hukm. Illah is something that the Lawgiver has fixed in
issuing a Hukm. Also known as manat al-hukm ( the cause of
the Hukm ), amarah al-hukm ( the sign of the Hukm ) and sabab
( only reserved for devotional acts which is ibadah ).
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The Conditions of Illah


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A. Illah must be constant

 Regardless of the differences of persons, time, place and


circumstances

 However, Malikis and Hanbalis disagree as they Illah need not


be constant and that it is sufficient if the Illah has the proper
relationship to the law of the text ( Hukm )

 They do not draw any distinction between Illah and Hikmah.


Since realization of benefit and prevention or harm is the basic
purpose of all the rules of Shariah, therefore it is proper to base
analogy from hikmah.
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B. Illah must be evident

 Hidden phenomena such as intention and good-will which are not clearly
ascertainable cannot constitute the Illah of analogy.

 To make things easier, anything that cannot be ascertain with our five senses
would be considered as hidden phenomenon

 Example : An acknowledgement of paternity. A couple who committed zina and


got a child cannot name the child after the name of the male adulterer. The child
can only be named after the legal husband of the female through ijab Kabul

 Example : Same goes for the contracts of muamalat, the good intentions and
purposes are unknown. Therefore there is the act of offer and acceptance.


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C. Illah must bear the proper and
reasonable relationship to the Hukm

 The relationship is Munasib when it reaches the objectives of


Shariah which is to benefit people and protect them from harm

 Example : Murder must be retaliated for, not because the


murderer is a negro or an arab, or has a mean look, but because
he has deliberately killed someone.

 Example : Wine is prohibited not because of the taste and


colour, but because of the intoxicating effect.
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D. Illah must be transient

 Transient can be defined as an objective quality that can be transferred to


other cases.

 As Hanafis explain, the essence of Qiyas lies within the capability of


extension to new cases and not just pertaining to the original case.

 Example : Travelling is the illah of concession in related with fasting

 Example : If we were to confine the Illah in the prohibition of wine from


grapes, we would be excluding all the other varieties of wine.

 However the Shafiis disagree as they have validated Qiyas on the basis
that Illah is confined to the original case.

 Because it is probable that the Lawgiver had intended as it is.


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E. Illah must not be an attribute which
seeks to alter to or counter to the law of the
text ( Hukm )
 Refer to the story of a judge, Imam Yahya of al-Andalus. He was
asked by an Abasid ruler as to the penance ( kaffarah ) of having
intercourse during daytime in Ramadhan.

 And he answered that the kaffarah is to fast for sixty days

 However that is wrong as there are 3 options of freeing a slave,


feeding 60 poor people or fasting for 60 days.

 He just thought that freeing a slave and feeding 60 poor people is


too easy for the ruler therefore he answered with the fasting for 60
days kaffarah.
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Varieties of Qiyas

 Shafii jurists have divided qiyas into three type based on their
illah.
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THE FIRST TYPE

 The first type is ‘Analogy of the Superior’ )qiyas al-awla). The


effective cause of this analogy is stronger in the hukm furu’
rather than in the original hukm. We can refer this qiyas in Sura
al-Isra (17:23) where this ayah forbids us to verbally abuse your
parents. From an analogical point of view it is deduced as it is
haram to beat our parent physically as beating is much worse
than talking in profanity in front of our parents.
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THE SECOND TYPE

 The second type of qiyas is the ‘Analogy of the Equal’ )Qiyas al-
Musawi). This analogy means the illah in the new case and
original case is fairly equal, as this ruling is deduced by analogy.
This qiyas can be referred in Sura al-Nisa (4:2) where this Sura
forbids us to devour the properties of the orphan. So,
analogically, every form of manipulating the orphan’s properties
is forbidden such as burning, mismanaging, destroying, etc. as
the properties are in state of loss.
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THE THIRD TYPE

 The third analogy that shafii jurist have incurred is the ‘Analogy
of the Superior’ )Qiyas al-Adna). This means illah in the new
case is weaker than in the original case. An example of this
analogy is in the prohibition of riba. The exchange of wheat with
other commodities is prohibited unless it is of the same value
and exchanged at the same time.
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OTHER TYPES

 Qiyas is then further broken down into two types.

 The first type is the ‘obvious qiyas’ )qiyas jail). This is


predominantly in the Hanafis partition.

 The second qiyas is the ‘hidden analogy’ )qiyas khafi).


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Arguments against Qiyas


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Application in Islamic Finance

 We can examine the application of Qiyas in the development of the


Istisna model. Istisna is a contract of manufacture with progressive
financing, or a contract of acquisition of goods by specification or
order where the price is paid progressively in accordance with the
progress of a job. Payments are made as the building or
manufacturing of the object comes closer to completion.

 An istisna contract concerns goods that do not yet exist, and would
consequently imply gharar. However, an exception has been made
by fuqaha on the basis of qiyas (analogy) and equity. The analogy
is with bai’salam. A major reason for banning gharar is that one
party should not take advantage of asymmetric information, that is,
a lack of knowledge on the part of the other party.
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Conclusion

 Qiyas is another method in deducting a law. But there are


certain conditions that must be followed before qiyas can be
considered as valid.