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130 Pages·2005·0.5 MB·English

ISLAMIC DEVELOPMENT BANK
ISLAMIC RESEARCH AND TRAINING INSTITUTE

MUHAMMAD AL-MUKHTAR AL-SALAMI
GRAND MUFTI OF THE REPUBLIC OF TUNISIA

Translated from Arabic by :
Prof. Dr. Mohammad Hashim Kamali

Eminent Scholars Lecture Series
No. 15

ﻢﻴﺣﺮﻟﺍ ﻦﲪﺮﻟﺍ ﺍ ﻢﺴﺑ
In the Name of God Most Compassionate, Most Merciful

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TABLE OF CONTENTS

PREFACE 7
INTRODUCTION 9

Compatibility of Reason and Revelation 9
Universality and Pervasiveness of Shari’a 11
Qiyas as a Pillar of the Universality and Pervasiveness 12
of Shari’a

DEFINITION AND MEANING OF QIYAS 17

Juristic Attitudes Towards Qiyas 18
Qiyas according to the Sunni Schools 19
Theory and Practice of Qiyas in the Sunni Schools 21
Effects of Extensive use of Qiyas on Juristic 28
Development

THE PILLARS (ARKAN) OF QIYAS 31

The Original Case(al-Asl) 31
The Parallel Case (al-Far’) 33
The Effective Cause (‘Illah) 33
Conditions of the Effective Cause 35
Methods of Identification of the Effective Cause 42
( Masalik Al – ‘Illah )
The First Method: Textually Identified ‘Illah 44
1. The Explicit Text (Sarih) 44
2. Allusion (al-Ima’) 48
The Second Method: Consensus Ijma’ 51
The Third Method: Inference (al-Istinbat) 56
1. Probing and Classification al-Sabr wa’l-Taqsim 56
2. Suitability al-Munasabah 58
3. Resemblance (al-Shabah) 61
- The First Cause of Confusion 62
- Argument of the Opponents of Resemblance 68
- The Second Cause of Confusion 69
Inference from the Manifest Test, Not from the 74
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Meaning
1 . Rotation (al-Dawran) 74
2 . Coextensiveness (al-Tard) 78
Unrestricted Interests ( Al-Masalih Al-Mursalah ) 79
The Ulema Definition of Maslahah 80
Maslahah and its Reference to Sound Nature (al-Fitra) 85
Maslahah and Human Reason 85
The Criterion of Public Interest (Dabit al-Maslahah) 89
Ranks of Maslahah 90
Methods of Determining the Unrestricted and Restricted 99
Public Interest
Unrestricted Interests and Qiyas 110

CONTEMPORARY APPLICATIONS OF QIYAS 114

The Current Problems 114
- Banknotes
Securing a Pledge (Rahn) from a Partner 121
Credibility of Al-Masalih Al-Mursala 121

REFERENCES 129

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PREFACE

It is one of the principal objectives of the Islamic Development
Bank (IDB) to promote research in Islamic economics and to explore
both the theoretical and practical dimensions of the question as to how
this discipline can relate to, and utilise the resources of the Shari’a
sciences, especially those of the fiqh, usul al-fiqh and the goals, or
maqasid, of the Shari’a. This is in fact the subject of the original charter
which laid down the basic concept and framework of the IDB. The Bank
is thus enjoined, in Article (2) of that charter, to assist and facilitate the
advancement of studies and research in economics, fiscal and banking
activities in accordance with the principles of the Shari’a of Islam.

It was in pursuance of this purpose that the Islamic Research and
Training Institute (IRTI) was established and the Institute has, ever since
its inception, been active in the enhancement of Islamic literature and
research in general, and in carrying out theoretical and applied economic
research in particular areas that help to introduce and solidify information
on Islamic economics.

The holy Ramadan lecture series programme is yet another step in
the direction of fulfilling the noble mission that IRTI has undertaken.
The Ramadan lectures of the year 1415H was blessed with a series of
important discussions that included a lecture by His Eminence Shaykh
Muhammad Mukhtar al-Salami, the Grand Mufti of the Tunisian
Republic, bearing the title “Qiyas and its Modern Applications”. The
eminent presenter is an accomplished jurist of reputation and credentials
in Islamic law and jurisprudence. In the present essay, the author has
addressed one of the well-known proofs of Shari’a and a familiar theme
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of usul al-fiqh, namely analogical reasoning or Qiyas, which is an
accepted basis of legislation and judgment in all the Sunni schools. We
read to this effect in a statement of Ibn al-Qayyim who has in turn quoted
Imam al-Muzani to say that “Muslim jurists, ever since the days of the
Prophet (s.a.w) down to our own times have resorted to analogical
reasoning in all areas of religion and have reached consensus to the effect
that what resembles the truth is truth and what resembles falsehood is
falsehood. No one may therefore deny the validity of Qiyas, for it is
based on nothing other than credible similitude and resemblance”.1

The eminent writer of the present work has presented the juridical
theory of Qiyas in which he has also included some instances of the
application of Qiyas to contemporary issues. The product of his work
shall remain like a benevolent tree with strong roots and bountiful fruit.

May Allah (s.w.t) shower His blessings on the author and make
this benevolent act a firm foundation for the burgeoning of Islamic
economics so as to bring benefit to the Muslim community the world
over.

God knows the true intentions of His servants and He is our guide
to the straight path.

Dr. Omar Zuhair Hafiz
Deputy Director, IRTI

1 Ibn Qayyim, I’lam al-Muwaqqi’in (Dar al-jil edn), Vol. 1, p. 205.
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INTRODUCTION

COMPATIBILITY OF REASON AND REVELATION

Man's eagerness to acquire knowledge is a divine endowment in
him, which is testified by a reference in the Torah to the story of Adam
and Eve and how they ate from the tree of knowledge. The Qur’an has
on the other hand tied up knowledge to the best use man can make of the
faculties God has endowed in him. Starting from Adam, the father of
mankind, God taught Adam what he learnt; and then made him the
audience of the revelation and he accepted the revelation and proclaimed
it.

Human knowledge was then split into two branches, both
reflecting man’s interest in the quest for knowledge. The first branch of
this knowledge is characterised by research in pure human knowledge, as
in mathematics and its related fields, where man attempts to understand
the laws of the universe, discover its secrets, and utilise them for his own
welfare. This also includes the domains of art, its principles and laws,
together with man's efforts at the sublimation and refinement of taste.
These are the proper fields for man's independent activity, and the
responsibility that goes hand in hand with his vicegerency on earth.
Research in these areas also manifest the fruits of man’s efforts; for he
can determine the limits of these fields, and may from time to time return
to them for correction, amendment, or invalidation.

So the spheres of human knowledge that are associated with
discovery include all of his mental, material and aesthetic activities.
Since man as an individual and as a species is in a state of change and
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evolution, then all that springs from him is necessarily influenced by his
nature and the stages of his development. Passivity in this sense stands in
opposition to his natural inclination for progress that God has decreed for
the human race. In this case, there are no established facts enshrined in
sacredness in a way that would prevent man from examining them, and
criticising them, with a view to their correction and amendment.

Islam has thus declared its basic premise about man's release from
the fetters that hindered his progress; for Islam as a religion has
acknowledged man's competence in the fields under his control and
within the circle of his activities. Here we have the mind interacting with
the senses and feelings, singly or coordinated in the different fields of
human endeavor. Thus, by close contact with nature through observation
and experience, both affective and effective, human knowledge can be
advanced and verified.

The second branch includes fields of research where human
reason and revelation are engaged in a way that makes them an integral
whole, with the view of attaining man's happiness in this life, in his
personal and social relations as well as in his life Hereafter. In this
respect, rationality cannot operate independently of revelation, nor can
revelation ignore reason. As for revelation which is contained in the
Qur’an and the Sunna, it cannot be understood and no ruling can be
extracted from it without examining the text, and applying
methodological rules to ascertain its meaning through recourse to
insightful ijtihad. This will lead to the correct formulation of legal
decisions within the general framework of the five values of obligatory,
recommendable, permissible, reprehensible, and forbidden.
Methodological guidelines also ensure accuracy in particularisation of the
general, qualification of the absolute, and the correct application of
abrogation. Then, after arriving from the most reliable conjecture to a
firm legal ruling, comes the application of these rulings to specific
situations.

The succession of events and the occurrence of new legal cases do
not mean repetition of the same situation that were encountered at the
time when the text was revealed. For every new case has its own
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specifications in place and time as well as in environmental
circumstances that make it unique. So the mujtahid examines each case to
see how far a legal rule might apply to a new situation and ascertain the
method of its implementation. This has been expressed by Imam Ash-
Shatibi under verification of the effective cause (tahqiq al-manat) as he
wrote: “It is enough to point out that the Shari’a did not insist on
regulating every detail of specific cases. It has instead come up with the
general rules and unrestricted statements that can cover innumerable
cases. Yet every case manifests certain peculiarities that are not shared
by other cases in the same category; and what is commanded in general
does not include every case nor does it preclude all cases, but each case
has its own specific features. There is also a third and an intermediate
category of cases that share both these ends. What this all means is that
there is, in almost all these three categories of cases, room for the jurist to
investigate further. But he has to examine under which evidence it
comes; if it partakes of similarities at both ends, then it is really a difficult
task.2

The same methodology applies when the jurist tries to seek
guidance over the ruling of an issue, when he does not find a text in the
Qur’an or Sunna to regulate a particular case, be it in the domain of
worship, commercial transactions, or social relations. Here Islam, as the
word indicates, means man’s surrender to God and submission to His
commands, which submission brings the believer out of the sphere of
caprice to the realm of commitment to the rule that pleases his Lord and
Creator. This is the purport of the following ayah of the Qur’an: “If they
argue with you, then say: I have surrendered myself to God and
whosoever that follows me; and say to those to whom the Book was
brought and to the common folk. Have you (too) surrendered? If they
have surrendered, then they are (rightly) guided."3

UNIVERSALITY AND PERVASIVENESS OF SHARI’A

Islam is a universal religion for all humanity with all its different
races, colors, nations, tribes, communities and individuals, at the time of

2 Al-Muwafaqat, Vol. 4, p. 92.
3 Surat Al-‘Imran, Ayah 20.
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