analogical deduction

168 Pages·2011·0.51 MB·English

THE RELEVANCE OF QIYAS (ANALOGICAL DEDUCTION)
AS A SOURCE OF ISLAMIC LAW IN
CONTEMPORARY TIME

BY

TAJUDEEN MUHAMMED B. ADIGUN
{LL. M/LAW/47568/04-05}

A THESIS SUBMITTED TO THE FACULTY OF LAW,
INSTITUTE OF ADMINISTRATION, AHMADU BELLO
UNIVERSITY, ZARIA, IN PARTIAL FULFILMENT OF THE
REQUIREMENT FOR THE AWARD OF MASTERS OF LAW IN
ISLAMIC SHARI'AH LAW.

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DECLARATION

I, Tajudeen Muhammad B. Adigun, hereby declare that this
project has been produced by me and is a record of my own research
work. It has not been presented in any previous application for a
higher degree by any body. All quotations and references are
indicated in the footnotes and sources of information are
acknowledged by means of a list of references.

Tajudeen Muhammed B. Adigun
{LL. M/Law/47568/04-05}
Department of Islamic Law
Faculty of Law,
A .B. U., Zaria.

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CERTIFICATION

This thesis is entitled: THE RELEVANCE OF QIYAS
(ANALOGICAL DEDUCTION) AS A SOURCE OF ISLAMIC
LAW IN CONTEMPORARY TIME by Tajudeen Muhammad B.
Adigun meets the regulation governing the award of Masters of Law of
the Ahmadu Bello University, Zaria and is approved for its contribution
to knowledge and literary presentation.

Dr. Ibrahim Ahmad Aliyu _____________________
Chairman, Supervisory Committee Date

Dr, Yahaya Yunusa Bambale _____________________
Second Supervisor and member, Date
Supervisory Committee

Dr. Sani Idris ____________________
Head of Islamic Law Department Date

Dr. Sani Idris ____________________
Dean, Faculty of Law Date
____________________ _____________________
Dean, School of Postgraduate Studies, Date
Ahmadu Bello University, Zaria.

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DEDICATION

This study is dedicated to my parents, wife, children and the Muslim
ummah particularly the Mujahidun.

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ACKNOWLEDGEMENT
All Praise is due to Almighty Allah, the Creator of all creatures,
the Beneficent, the Merciful. May the peace and blessings of Allah be
upon His chosen prophet Muhammad (SAW) His family and His
companions.
Many people have immensely helped me in the course of writing
this thesis. I must express my heart-felt appreciation and gratitude. As I
cannot list all of them, I will mention few of them with the hope that
those whom I do not mention will not feel offended.
I am grateful to my supervisor in person of Dr. I.A. Aliyu whose
door remains open, day and night, in guiding me till the end of the
project. Also, my gratitude goes to my second supervisor and my Head of
Department, Dr. Y. Y. Bambale, whose advice and encouragement is
unquantifiable.
I am also indebted to Dr. M. A. Gurin, the Dean of Faculty of
Law, Dr. Sani Idris, Dr. M. B. Uthman, Dr. Ibrahim N. Sada, Dr. Suraj
Abdulkareem, Sheikh Uthman Danladi, Mallam Babaji, Mallam Sadiq
Al-Kafawi, Mallam Arsalan Mohammad, late Alhaji Abdullahi Iliyas
(MABOH), and his brother Alhaji Abdurrazaq Iliyas, Ustaz Binyamin
Yusuf, Ustaz Sharafadeen Sallahudeen.
My thanks go to Imam Idris Shua'ib, Imam Umar Yanda, of
Usman Bin Affan Mosque, Mallam Ya'qub Suleiman, Mallam Tawfiq
Sadiq, Ashiru Ilyas and Barrister Garba Ibrahim Malumfashi.
I am also intellectually indebted to my colleagues Barrister Dikko
Barrister Luqman, Brother Abdul Malik Abdul Ghaniy who has positive
impact towards the success of this work.
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I must also express my profound gratitude to my wife, Qudrat
Salahudeen, who always encouraged me to be more dedicated to the
project. Equally, the entire staffs of the Centre for Islamic Legal Studies
(CILS) Library, who have assisted me with materials, deserve special
gratitude.
Finally, my profound gratitude goes to Mallam Abdul-Karim
Okene for his patience in typing this thesis.
1st July, 2004.

Tajudeen M.B. Adigun
Gwarinpa Islamic Nursery and Primary School,
Life Camp,
Abuja.

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ABSTRACT
Islamic Law covers every sphere of human endeavor. It comprises
of the primary and the secondary sources of Law. The former consists of
the Qur’an and the sunnah, to which all the jurists are at ad-idem. Qiyas
is the second secondary source. However, there are divergent opinions
amongst the jurists as to whether it can stand as a source or not.
It is in view of this that the choice of the topic of this thesis namely
The Relevance of Qiyas (Analogical Deduction) As a Source Of
Islamic Law In Contemporary Time.
Scholars of earlier times and the contemporary ones differ as
regards to Qiyas been a source of Islamic law or not. The question
however is: are the opinions different in essence? It is this fundamental
question and others that this thesis will examine.
The aim of the research is to analyze the different opinions of the
scholars. Also to clarify some fundamental controversial issues as relates
to our present day world. Also, to show that Islamic law is not rigid and
barbaric as misconceived by some people. Hence, it can be applied to
solve modern day needs brought about by rapid development achieved
due to break -through in technology. Observation in this research work
shows that Qiyas is a correctly accepted source of Islamic law and the
opponent of the above view are indirectly using Qiyas as a source of
Islamic law. It has been observed that Muslims abandoned Qiyas and
believed that they were solving their legislative problems. However, all
they succeeded in doing was crippling their own intellectual powers.
Even so, there has never been a time when the call for Qiyas was entirely
silenced, only that such calls were never enough to extricate the ummah
from the intellectual crisis in which it was, become ensnared, and as a
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result, Qiyas was left mainly to heretics, deceivers and the orientalists. If
jurists were to articulate ideas to which people were unaccustomed to or
to announce their readiness to practice ijtihad, Muslims could have
advanced better. The ummah must understand that Qiyas provides it with
the fundamental means to recover its identity to re-establish its place in
the world. The express textual injunction in the Qur’an and the sunnah
are limited in number, while the incidents and problems of life are
unlimited and unending. Hence, it would be illogical to assert that all the
problems and exigencies of life will be covered by the textual injunctions.
Reason demands that rules of law should be derived from the
fundamental sources by means of exercising reasons and individual
opinion. Qiyas therefore is a mode of reasoning to legislate for novel
questions, to reveal the divine rule of law and to harmonize between
divine legislation and human interests. No one among the Companions is
reported to have injected correct qiyas, nor had any of them ever
hesitated to exercise it in legal matters. They were all at one on the
validity of this doctrine. From this, one must conclude that the
companions must have been familiar with the permissibility of this
doctrine, and of exercising correct personal opinion and independent
legal reasoning by the instruction of the Prophet (SAW).
Public benefit and general interest are the aims and objectives of
divine legislation. If two incidents are similar, and one of them is covered
by clear legal rule, but not the other, it would be illogical not to apply the
rule of the one to the other on the basis of the common link. If the
purpose of the prohibition of wine is the preservation of human sense and
reason, then all intoxicants should logically be prohibited on account of
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intoxication hence the importance of this which most jurists wrote about
in Arabic.
The study comprises of five chapters. Chapter one centers on
general survey of the sources of Islamic law.
Chapter two deals with the various definitions of qiyas in
accordance with the various views of the jurists.
Chapter three discusses the four pillars of qiyas namely: original
case, new case, effective cause and the ruling.
Chapter four discusses the validity of qiyas as a source of Islamic
Law and Chapter five, being the last of all the chapters, consist of
summary, conclusion and recommendations.

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TABLE OF CONTENT
Title page … … … … i
Declaration … … … …. ii
Certification … … … …. iii
Dedication … … … …. iv
Acknowledgement … … … … v
Abstract … … … …. vii
Table of Contents … … … …. x
Abbreviations … … … …. xiii
Glossaries … … … …. xiv

CHAPTER ONE
1.0 Introduction 1
1.1 General Survey on sources of Islamic law 1
1.1.1 The Qur’an 1
1.1.2 Characteristics of Qur’anic legislation 5
1.2 The Sunnah 10
1.2.1 Hujjiyah of Sunnah 11
1.2.2 Sunnah as an independent source 12
1.2.3 Hadith Sahih, Hassan and Da’if 15
1.3. The Ijma' 16
1.3.1 Proof Hujjiyah of Ijma’ 17
1.3.2 Feasibility of Ijma’ 19
1.4 Qiyas (Analogical Deductions) 20
1.5 Al-Istihsan (Equity) 20
1.6 Al-Masalih, Al-Mursalah 22
1.7 Sadd Al-Zara’i (Blocking the means) 24
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