Conditions Pertaining to the Hukm

II. Conditions Pertaining to the Hukm

A hukm is a ruling, such as a command or a prohibition, which is dispensed by the Qur'an, the Sunnah or ijma', and analogy seeks its extension to a new case. In order to constitute the valid basis of an analogy, the hukm must fulfill the following conditions.

1) It must be a practical shar`i ruling, for qiyas is only operative in regard to practical matters inasmuch as this is the case with fiqh as a whole. Qiyas can only be attempted when there is a hukm available in the sources. In the event where no hukm can be found in any of the three sources regarding a case, and its legality is determined with reference to a general maxim such as original freedom from liability (al- bara'ah al-asliyyah), no hukm could be said to exist. Original freedom from liability is not regarded as a

hukm shar`i and may not therefore form the basis of qiyas. [20. Shawkani, Irshad, p. 205; Khudari, Usul, p. 295]

2) The hukm must be operative, which means that it has not been abrogated. Similarly, the validity of hukm which is sought to be extended by analogy must not be the subject of disagreement and

controversy. [21. Amidi, Ihkam, III, 196-97.]

3) The hukm must be rational in the sense that the human intellect is capable of understanding the reason or the cause of its enactment, or that the `illah is clearly given in the text itself. For example, the effective cause of prohibitions such as those issued against gambling and misappropriating the property of another is easily discernable. But when a hukm cannot be so understood, as in the case of the number of prostrations in salah, or the quantity of zakah, etc., it may not form the basis of analogical deduction. Ritual performances, or `ibadat, on the whole, are not the proper subject of qiyas simply because their effective causes cannot be ascertained by the human intellect. Although the general purpose of `ibadat is often understandable, this is not sufficient for the purpose of analogy. Since the specific causes (al- `ilal al-juz'iyyah) of `ibadat are only known to Almighty God, no analogy can be based upon them.

All the rational ahkam (al-ahkam al-ma`qulah ), that is, laws whose causes are perceivable by human intellect, constitute the proper basis of qiyas. According to Imam Abu Hanifah, who represents the majority opinion, all the nusus of Shari'ah are rational and their causes can be ascertained except where it is indicated that they fall under the rubric of `ibadat. The Zahiris, and 'Uthman al-Batti, a contemporary of Abu Hanifah have, on the other hand, held that the effective causes of the nusus cannot be ascertained without an indication in the nusus themselves. This view clearly discourages

'that God has assigned certain causes to some of His laws, but we say this only when there is a nass to confirm it.' He then goes on to quote a Hadith of the Prophet to the effect that 'the greatest wrong-doer in Islam is one who asks about something, which is not forbidden, and it is then forbidden because of his questioning'.

Ibn Hazm continues: we firmly deny that all the ahkam of Shari'ah can be explained and rationalised in terms of causes. Almighty God enacts a law as He wills. The question of `how and why' does not and must not be applied to His will. Hence it is improper for anyone to enquire, in the absence of a clear text, into the causes of divine laws. Anyone who poses questions and searches for the causes of God's

injunctions 'defies Almighty God and commits a transgression'. [23. Ibn Hazm, Ihkam, VIII, 102; Muslim, Sahih Muslim, I, 423, Hadith no, 1599.] For he would be acting contrary to the purport of the Qur'an where God describes

Himself, saying, 'He cannot be questioned for His acts, but they will be questioned for theirs' (al- Anbiya', 21:21). It is thus known, Ibn Hazm concludes, that causes of any kind are nullified from the acts and words of God. For justification and ta'lil is the work of one who is weak and compelled

(mudtarr), and God is above all this. [24. Ibn Hazm, Ihkam, VIII, 103.]

The issue of causation acquires a special significance in the context of divinely-ordained laws, simply because the revelation was discontinued with the demise of the Prophet, who is no longer present to explain and identify the causes of the revealed laws. The Muslim jurists, like other believing Muslims, have shown a natural reluctance to be too presumptuous in their efforts to identify the causes of the divine laws. But the Issue does not pose itself in the same way regarding secular or man-made law. The norm in regard to modern laws is that they all have identifiable causes which can be ascertained with reasonable certainty. As such, analogical deduction in the context of modern law is a relatively easier proposition. But there are certain restrictions which discourage a liberal recourse to analogy even in modern law. For one thing, the operation of analogy in modern law is confined to civil law, as in the area of crimes the constitutional principle of legality discourages the analogical extension of the text. It should be further noted that owing to extensive reliance on statutory legislation, there is no crime and no punishment in the absence of a statutory text which clearly defines the offence or the penalty in question. Crimes and penalties are thus to be governed by the text of the law and not by the analogical extension of the text. It will thus be noted that owing to the prevalence of statutory legislation in modern legal systems the need for recourse to analogy has been proportionately diminished. This would in turn explain why qiyas tends to play a more prominent role in the Shari'ah than in modern law.

But in Shari'ah law too, as we shall later elaborate, there are restrictions on the operation of qiyas in regard to crimes and penalties. The qadi, as a result, may not draw analogies between, for example, wine-drinking and hashish owing to the similar effects that they- might have on the human intellect.

Nor may the crime of zina be made the basis of analogy so as to apply its penalty to similar cases. [25.

Shawkani, Irshad, p. 222; Abu Zahrah, Usul, p. 185.]

4) The fourth requirement concerning the hukm is that it must not be confined to an exceptional situation or to a particular state of affairs. Qiyas is essentially designed to extend the normal, not the exceptional, rules of the law. Thus when the Prophet admitted the testimony of Khuzaymah alone to be equivalent to that of two witnesses, he did so by way of an exception. The precedent in this case is

therefore not extendable by analogy. [26. The relevant Hadith reads: 'If Khuzaymah testifies for anyone, that is sufficient as a proof.' Ghazali, Mustasfa; II, 88; Abu Dawud, Sunan, III, 1024, Hadith no.3600.] Some of the rulings of the Qur'an which relate exclusively to

the Prophet, such as polygamy beyond the maximum of four, or the prohibition in regard to marriage for the widows of the Prophet (al-Ahzab, 33:53) are similarly not extendable by analogy. The legal norms on these matters have elsewhere been laid down in the Qur'an which enacts the minimum number of witnesses at two, the maximum for polygamy at four, and allow a widow to remarry after the expiry of the `iddah waiting period.

5) And lastly, the law of the text must not represent a departure from the general rules of qiyas in the first place. For example, traveling during Ramadan is the cause of a concession which exonerates the traveler from the duty of fasting. The concession is an exception to the general rule which requires everyone to observe the fast. It may therefore not form the basis of an analogy in regard to other types of hardship. Similarly the concession granted in wudu' (ablution) in regard to wiping over boots represents a departure from the general rule which requires washing the feet. The exception in this case is not extendable by way of analogy to similar cases such as socks.

But according to the Shafi'is, when the 'illah of a ruling can be clearly identified, analogy may be based on it even if the ruling was exceptional in the first place. For example, the transaction of 'araya, or the sale of fresh dates on the tree in exchange for dry dates, is exceptionally permitted by a Hadith notwithstanding the somewhat usurious nature of this transaction; the rules of riba forbidding exchange of identical commodities of unequal quantity. The 'illah of this permissibility is to fulfill the need of the owner of unripe dates for the dried variety. By way of analogy, the Shafi'is have validated the exchange of grapes for raisins on the basis of a similar need. The Hanafis have, however, disagreed, as the riding

of 'araya is exceptional in the first place. [27. Muslim, Sahih Muslim, p. 247, Hadith no. 920; Sha`ban, Usul, p 130.]