•USHUL FIQH 5 •The Secondary Sources •CONTENT

B.  The Secondary Sources:

1.Qiyas (Analogy) 2.Istihsan (Juristic Preference)

3.  Maslahah Mursalah (Jurisprudencial    Interest)

4.  Sadd dharai’ (Blocking the Lawful Means to an Unlawful End)

•1. Qiyas (Analogy)

Qiyas:

> Measuring or estimating one thing in terms of another.

> The equality of a case, whose hukm is not mentioned explicitly in the texts, with a case whose hukm is mentioned, on the basis of the equality between the underlying causes found in the two cases.

•Elements of Qiyas 1.The case (set of facts) mentioned in the text with its hukm. It is called asl or maqis ‘alaih. 2.The Hukm of the set of facts mentioned in the text. It is called hukm al-asl. 3.The ‘illah or the underlying cause that has led to the hukm. 4.The new case or the set of facts for which the hukm has not been explicitly mentioned and which needs a hukm. This is called far’ or the offshoot. •Examples of Qiyas 1.Khamr (wine from grape) is haram in the Qur’an (5:93-94) because it is an intoxicant. Thus, each one of the intoxicants other than khamr is haram too. So, the hukm of khamr can be extended to them through qiyas (analogy). 2.There is a hadith: “The murderer will not inherit” it is because he is hastening the benefit prior to its appointed time through a criminal act or unjustified enrichment. This hukm can be extended through qiyas to a legatee whose murdered the testator, who has bequeathed his property to the legatee in his will. • 3.There is a hadith: “A believer is a brother to his believer, therefore, it is not permitted for a believer to make a proposal (for marriage) where the proposal of his brother is still pending, or to make an offer of sale where his brother’s offer is pending” The underlying cause or ‘illah is causing harm to another’s interest. The proscription can be extended to the hiring of services or property through analogy. 4.Indulging in sale when the call for the Friday prayer is made is prohibited by the text of the Qur’an. The underlying cause is reducing the incentive to offer the Friday prayer. This hukm can be extended to other contracts like pledging or marriage that may have been planned at such a time.

•Types of Qiyas

A. Qat’i (definitive) and Dhanni (probable) Qiyas.

1. Qiyas is Qat’i (definitive) when two conditions are met:

* That the mujtahid is fully convinced about   the ‘illah he has discovered in the asl.

* That exactly the same ‘illah is found in   the far’. That is, there are no distinctive   attributes.

2. Qiyas is dhanni (probable) when the one or two conditions above are not met.

B. Qiyas Aulawi, Musawi and Adna.

1. Qiyas Aulawi is qiyas that is of a higher order. The example is of constructing analogy for beating parents upon saying “uff” or “fie” to them. The ‘illah is torment and the torment inflicted in beating them is more than that in saying “uff”.

2. Qiyas Musawi is qiyas where the hukm established is of an equivalent order or of the same strength. The example is the prohibition of eating up the property of orphans. The ‘illah is hostility against their property. This can be extended to the burning of those property unjustly.

3. Qiyas Adna is qiyas that is of a lower order. The example is that of extending the prohibition of riba to all types of food on the basis of “food in general” as the ‘illah.

•2. Istihsan (Juristic Preference)

Istihsan:

> To consider something good.

> Moving away from the implications of analogy to an analogy that is stronger than it, or it is the restriction of analogy by an evidence that is stronger than it.

•Examples of Istihsan 1.Analogy requires that ritually pure water should be used for ablution. In the case of wells in which dirt or carcasses of animals have fallen, following strict analogy would mean the non-use of these wells. However, following the principle of necessity the use of them be permitted. 2.The general principle of sale requires that thing that does not exist cannot be sold. In the  contract of hire (al-ijarah), the benefits or services that are being paid for do not exist at the time of contract. However, the contract has been permitted on the basis of necessity. •Types of Istihsan 1.Istihsan through the text (nash). The example is that of khiyar as-syarth (stipulated option). The general principle requires that all contracts become binding on their conclusion. A tradition permits the stipulation of an option for three days as an exception to this principle. 2.Istihsan on the basis of Ijma’. The example is the contract of istishna’ (the manufacturing contract with advance payment). The general principle forbids transactions in things that do not exist at the time of contract. An exemption was made on the basis of consensus for the manufacturing contract seeking strength from the exemption made for the contract of salam. •

3.   Istihsan on the basis of what is good (ma’ruf). The principle is that we follow what the Syariah would consider to bee good, that is, we determine it in accordance with the general principles of the Syariah. It does not mean following each and every custom in accordance with what the people have been practicing. Even if it is an age old custom and is generally considered good, the ruling of Syariah must be given before it can be accepted.

4.Istihsan on the basis of necessity (dlarurah). The example is the case of wells in which dirt or carcasses of animals have fallen, following strict analogy would mean the non-use of these wells. However, following the principle of necessity the use of them be permitted.

• 5.Istihsan on the basis of maslahah. The example is that the general required that artisans were not to be held liable for things handed to them, unless it could be proved that they were guilty of negligence. In other words, the burden of proof of negligence was placed on the customer. Ali changed the rule, because the artisans were misusing the facility. 6.Istihsan on the basis of qiyas khafi. The general rule required that if beasts of prey had drunk from water it was no longer pure. Strict analogy required that the rule be applied to domestic animals as well. Pondering over the issue the jurist finds that beasts of prey have soiled saliva, whereas domestic animals do not. The rule was not applied to such animals. •3.  Maslahah Mursalah (Jurisprudencial Interest)

Maslahah:

> The acquisition of manfa’ah (benefit) or    the repulsion of madlarrah (injury, harm).

> The preservation of the purposes of Islamic law in the settlement of legal issues.

Maslahah Mursalah:

Is a highly flexible and advanced type of analogy. It is employed when the jurist cannot find a rule for the case at hand through literal interpretation nor can he extend the meaning through strict analogy (qiyas), because there is no specific base (asl) from which he can extend the rule by analogy.

•Illustrations of Maslahah Mursalah 1.The compilation of the Qur’an after the death of the Prophet (peace be upon him). 2.The rule for murder (qatl ‘amd) provided in the texts was that one life could be taken for one life by way of retaliation. It was not clear whether a number of persons could be subjected to qisas when they participated in killing a single person. Umar decided that all of them should be put to death. • 3.It is permitted on the basis of Maslahah Mursalah to the ruler to impose taxes if the coffers are empty and needs money for jihad or for preserving the security of the Muslim Ummah. 4.There is no penalty in the Qur’an for drinking of wine. In the Sunnah the traditions vary, with some providing 80 lashes and others 40. Ali fixed the penalty at 80 on the analogy of qadhaf.

•4.  Sadd dharai’ (Blocking the Lawful Means to an Unlawful End)

The term Sadd dharai’ means “blocking the lawful means to an unlawful end”.

The principle is not concerned with unlawful acts, because those are prohibited anyway. It is concerned with lawful acts that may be prohibited as they lead to unlawful result. For example, the cultivation of poppy has been banned in many countries, because it is leading in most cases to the production of opium and heroin, which is a deadly drug that is being misused.

•Types of Lawful Acts

For purposes of this principle, the jurist divide acts into three kinds:

1.Those that rarely lead to harmful results. The interest (maslahah) to be secured in such acts is greater than the injury (mafsadah) to be sustained. Examples are: looking at a woman to be proposed to and maintaining vineyards for grapes. 2.Those that usually lead to harmful results. The injury in such acts is much more than the benefits to be derived. Examples are: the sale •

of arms during waves of terrorism and rebellion; renting out property to one who will use it for unlawful purposes, like maintaining a brothel; like the selling of grapes to a winery.

3. Those in which there is an equal probability of harm and benefit. This is a difficult area. Examples are: marrying a woman with the intention of divorce so as to enable her to remarry her previous husband; prohibiting multiple transactions that may lead to riba when combined, like bai’ al-’inah.