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Friday, September 01, 2006

Legal Analogy (Qiyas)

Legal analogy is a powerful tool to derive rulings for new matters. For example, drugs have been deemed impermissible, through legal analogy from the prohibition of alcohol that is established in the Qur’an. Such a ruling is based on the common underlying effective cause of intoxication.
Legal analogy and its various tools enables the jurists to understand the underlying reasons and causes for the rulings of the Qur’an and Prophetic example (sunna). This helps in dealing with the ever-changing human situations and allows for new rulings to be applied most suitably and consistently.
Analogy in Islamic fiqh denotes the connection of something without a text to its judgment by another textual matter with a judgement by virtue of a shared cause between the two. It is part of submitting to the principle of similarity between matters which obliges similarity in its judgements because sameness in the cause obliges similarity in judgement. Thus analogy is natural and logical because of the logical connection based on similarity. When the similarity is complete, then it must be connected to the same judgement.

Malik, may Allah be pleased with him, issued fatwas for more than fifty years. People came to him from the East and West to ask for fatwa. Since questions are endless and events occur every day, it is necessary for understanding of the texts to go beyond their immediate significance to recognition of their immediate and further aims and to perception of their indications and suggestions, so that the extent of their comprehensiveness may be correctly ascertained. Only then is it possible to understand what lies behind the judgements made by the Companions in cases where there was no well-known sunna and which could not be included within the meaning of the literal text, even though the text might indirectly indicate to it.

Malik used that method and used the similarity between things to arrive at a judgement. When they were similar, the legal cause existed. He employed analogy in certain questions in which he knew the decisions of the Companions. So he made an analogy about the condition of the wife of a missing man when he is deemed to be dead and she does an 'idda as a widow and then marries someone else and then the first man appears alive. He compared this with the case of someone who had divorced his wife and informed her of divorce and then took her back but did not inform her of being taken back and then she married after the end of the 'idda. That was because 'Umar gave a fatwa that this woman belonged to her second husband, whether or not the marriage had been consummated. Malik used this as an analogy for the wife of the missing man and said that she belongs to the second husband, whether or not it has been consummated. There is no doubt that the basis of this analogy is the similarity between the two cases, even if he mentions it with the agreement of the People of Madina. By this it is clear that the basis of the agreement is this analogy, and the basis of the similarity is that both of them married with a good intention on the basis of legal knowledge established by legal means, but the error became clear after that. She had no way to ascertain the error before he appeared. Thus the wife of the missing man married on the basis of the legal judgement and the divorced woman married on the basis of divorce and end of the 'idda, and the wife of the missing man had no way to ascertain whether he is alive and the divorced woman had no way to know she had been taken back. So the two cases are similar and the judgement must be the same and the same judgment is a result of this similarity.
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Questions

1. What is the definiton of Analogy/Qiyas?
2. How did Imam Malik use the analogy for the judgement of wife of the missing man?
3. What is the similar matter based on the judgement of Umar and the judgement of Imam Malik?

2 comments:

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