(Series of Answers by the Eminent Scholar Ata bin Khalil Abu al-Rashtah, Amir of Hizb ut Tahrir, to the Questions of the Visitors of his Facebook Page "Fiqhi")
Answer to Question: Qiyas (Analogical Reasoning) To: Hamzeh Shihadeh
Question:
Assalamu Alaikum Wa Rahmatullah Wa Barakatuh,
It was mentioned in the book The Islamic Personality (Ash-Shakhsiyya), Volume 3, under the topic of Qiyas, regarding the conditions of the Asl (Original Case), the third point: "That the evidence indicating the ruling of the Asl does not encompass the Far’ (Branch Case)..." As for the sixth point: "That the evidence indicating the establishment of the ruling of the Asl does not indicate the establishment of the ruling of the Far’..." What is the jurisprudential difference between these two points? May Allah reward you well on our behalf.
Answer:
In order for the question and then the answer to be clear, we clarify the following:
Qiyas is the establishment of a similar ruling of a known matter for another matter due to their shared effective cause (‘Illah) according to the one establishing it. In other words, it is the extension of the ruling from the Asl (Original Case) to the Far’ (Branch Case) because of the shared ‘Illah between them. An example of this is:
The prohibition of leasing (Ijarah) during the Friday (Jumu'ah) prayer call, by analogy (Qiyas) to the prohibition of selling (Bai') during the Friday prayer call; due to the existence of the ‘Illah, which is distraction from the Friday prayer. Allah (swt) says:
إِذَا نُودِيَ لِلصَّلَاةِ مِنْ يَوْمِ الْجُمُعَةِ فَاسْعَوْا إِلَى ذِكْرِ اللَّهِ وَذَرُوا الْبَيْعَ
"When the call is made for prayer on the day of Jumu'ah, then hasten to the remembrance of Allah and leave off trade." (QS Al-Jumu'ah [62]: 9)
This verse indicates the prohibition of trade at the time of the Jumu'ah call due to the ‘Illah of distraction from the remembrance of Allah, i.e., from the prayer. This ‘Illah is derived through deduction (istinbat). The verse does not mention the ruling of leasing (Ijarah) at the time of the call. However, because the ‘Illah of distracting from the remembrance of Allah exists in leasing at the time of the Jumu'ah call just as it exists in selling at the time of the Jumu'ah call, the ruling of selling—which is prohibition—is extended to leasing. That is, leasing is measured against selling at the time of the Jumu'ah call; thus, leasing at the time of the Jumu'ah call becomes Haram (prohibited).
In this example, the Far’ (Branch) is leasing, the Asl (Original) is selling, the Hukm Shar’i (legal ruling) specific to the Asl is the prohibition found in selling at the time of the Jumu'ah call, and the ‘Illah is the distraction from the Friday prayer. These are called the pillars of Qiyas. The fruit and result of Qiyas is the ruling of the Far’, which is the prohibition of leasing during the Jumu'ah call in this example. The evidence explicitly stated the ruling for selling: "and leave off trade," and did not mention leasing. However, leasing was joined to selling because of the shared ‘Illah, which is distraction during the call for Friday prayer, which exists in both selling and leasing.
Therefore, for there to be a Qiyas, the evidence for the ruling of the Asl ("selling" in the previous example) must not encompass the Far’ ("leasing" in the previous example), but there must be a Shari'ah ‘Illah ("distraction" in the previous example) that causes the ruling of the Far’ (leasing) to be joined to the ruling of the Asl (selling).
If the evidence indicating the ruling of the Asl encompasses the Far’... then there is no Qiyas, because the ruling of the Far’ would be based on the evidence itself and not on Qiyas. This is the third condition: (That the evidence indicating the ruling of the Asl does not encompass the Far’...).
If there is no evidence that explicitly states the ruling of the Asl nor the ruling of the Far’, but there is evidence that does not explicitly state either of them but establishes the ruling of the Asl and at the same time establishes the ruling of the Far’... then there is no Qiyas. This is because what was thought to be an Asl and a Far’ are equal in terms of the evidence: first, there is no evidence explicitly stating either of them, and second, the evidence for establishing the ruling in each of them is the same evidence. This is the sixth condition: (That the evidence indicating the establishment of the ruling of the Asl does not indicate the establishment of the ruling of the Far’...).
To clarify this, we mention an example for each condition:
1- Example of the third condition: The prohibition of saying "uff" to parents and the prohibition of harming parents. If someone says that the prohibition of "uff" is the Asl because it has evidence, which is the saying of Allah (swt):
فَلَا تَقُلْ لَهُمَا أُفٍّ
"Say not to them [so much as], 'uff'." (QS Al-Isra [17]: 23)
And that harming parents is the Far’ and is measured against the prohibition of saying "uff" due to the ‘Illah of not making parents angry or annoying them... this statement is not sound as a Qiyas. The reason is that the evidence for what was considered an Asl—which is His (swt) saying "Say not to them 'uff'"—this evidence encompasses the Far’ through the implied meaning (Mafhum). The literal text (Mantuq) is the prohibition of saying "uff," and the congruent implication (Mafhum al-Muwafaqah) here is the prohibition of anything more than "uff" by greater reason (min bab al-awla). Therefore, there is no Qiyas because the evidence for the prohibition of "uff" encompasses the prohibition of "harming" through Mafhum al-Muwafaqah.
Accordingly, as stated in the third condition, there is no Qiyas if: (The evidence indicating the ruling of the Asl encompasses the Far’; because if it encompassed it, the establishment of the ruling in the Far’ would be by that evidence and not by Qiyas, and in such a case, Qiyas is lost.) To further clarify, the Qiyas in the prohibition of leasing compared to selling at the time of the Jumu'ah call, which we explained at the beginning of the answer, was because the evidence for the prohibition of selling is what is mentioned in the text. This evidence does not encompass leasing in its literal (Mantuq) or implied (Mafhum) meaning; rather, leasing was joined to selling due to the existence of the ‘Illah of distraction. That is, it is not because the evidence for the prohibition of selling encompasses the prohibition of leasing by the same evidence. However, if the evidence for the ruling of the Asl encompasses the Far’ according to linguistic methods, then there is no Qiyas; rather, the ruling of the Far’ in this case is by the evidence and not by Qiyas.
2- Example of the sixth condition: If there are two matters and there is no evidence that explicitly states either of them, but rather the ruling of both is established by evidence that does not mention either of them explicitly... in this case, neither of them is an Asl or a Far’. In other words, neither of the two matters is joined to the other by Qiyas. For example, if there are two types of intoxicants: (A) and (B), and there is no evidence explicitly stating the prohibition of either type, but the prohibition was established by evidence that does not explicitly state either of them... in this case, one of them is not considered an Asl and the other a Far’ because the two are at the same level, as the ruling of prohibition in both was established by a single piece of evidence that does not explicitly state either of them; thus, they are equal in terms of evidence. An example of this is honey wine (nabidh al-'asal) and barley wine (nabidh al-sha'ir). If there is no evidence stating that honey wine is Haram or stating that barley wine is Haram, but there is evidence indicating the establishment of the prohibition ruling for honey wine, and the same evidence indicates the establishment of the prohibition of barley wine, and this evidence is the saying of the Prophet (saw):
كُلُّ مُسْكِرٍ خَمْرٌ، وَكُلُّ مُسْكِرٍ حَرَامٌ
"Every intoxicant is khamr (wine), and every intoxicant is haram (forbidden)." (Narrated by Muslim from Ibn Umar)
Based on this evidence, which makes every intoxicant khamr and that it is haram, the prohibition is established for honey wine and similarly the prohibition is established for barley wine as long as they are intoxicants. That is, the evidence for establishing the prohibition of honey wine and the evidence for establishing the prohibition of barley wine is the same evidence... in this case, it is not Qiyas; rather, each of these intoxicants are individual instances (afrad) whose ruling is established by the same evidence: "Every intoxicant is khamr..." Accordingly, the sixth condition is that there is no Qiyas if: (The evidence indicating the establishment of the ruling of the Asl indicates the establishment of the ruling of the Far’, otherwise making one of them an Asl for the other is no more appropriate than the reverse...).
Thus, the difference between the two conditions becomes clear:
The third condition examines whether the evidence for the ruling of the Asl encompasses the Far’...
The sixth condition examines whether the evidence for establishing the ruling of the Asl is the same evidence for establishing the ruling of the Far’...
Your brother, Ata bin Khalil Abu al-Rashtah
23 Dhu al-Qi'dah 1437 AH Corresponding to 26 August 2016 CE
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