Conditions Pertaining to the Original Case (Asl)

I. Conditions Pertaining to the Original Case (Asl)

Asl has two meanings. Firstly, it refers to the source, such as the Qur'an or the Sunnah, which reveals a particular ruling. The second meaning of asl is the subject-matter of that ruling. In the foregoing example of the prohibition of wine in the Qur'an, the asl is both the Qur'an, which is the source, and wine, which is the original case or the subject-matter of the prohibition. However, to all intents and purposes, the two meanings of asl are convergent. We tend to use asl to imply the source as well as the original case, for the latter constitutes the subject-matter of the former, and the one cannot be separated

from the other. [11. Shawkani, Irshad, pp.204-205; Abu Zahrah, Usul, p. 180.]

The ulema are in unanimous agreement that the Qur'an and the Sunnah constitute the sources, or the asl, of qiyas. According to the majority of jurists, qiyas may also be founded on a rule that is established by ijma` validates guardianship over the property of minors, a rule which has been extended by analogy to

authorise the compulsory guardianship (wilayah al-ijbar) of minors in marriage. [12. Abu Zahrah, Usul, p. 181.]

There is, however, some disagreement as to whether ijma `constitutes a valid asl for qiyas. Those who dispute the validity of ijma' as a basis of analogical deduction argue that the rules of consensus do not require that there should be a basis (sanad) for ijma`. In other words, ijma' does not always explain its own justification or rationale. In the absence of such information, it is difficult to construct an analogy. In particular it would be difficult to identify the 'illah, and qiyas cannot be constructed without the

`illah. [13. Khallaf,`Ilm, p.53, Shawkani, Irshad,p.210.] But this view is based on the assumption that the `illah of qiyas is always identified in the sources, which is not the case.

The `illah may at times be specified in the sources, but when this is not so, it is for the mujtahid to identify it in the light of the objectives (maqasid) of the Lawgiver. The mujtahid, in other words, is faced with the same task whether he derives the `illah from ijma or from the nusus. Furthermore, the majority view which validates the founding of analogy on ijma` maintains that consensus itself is a

According to the majority of ulema, one qiyas may not constitute the asl of another qiyas. This is explained in reference to the effective cause on which the second analogy is founded. If this is identical with the original `illah, then the whole exercise would be superfluous. For instance, if it be admitted that the quality of edibility is the effective cause which world bring an article within the scope of usury (riba) then it would justify an analogy to be drawn between wheat and rice. But an attempt to draw a second analogy between rice and edible oil for the purpose of extending the rules of riba to the latter would be unnecessary, for it would be preferable to draw a direct analogy between wheat and edible oil,

which would eliminate the intermediate analogy with the rice altogether. [15. Ghazali, Mustasfa, II, 87; Shawkani, Irshad,

p 205.]

However, according to the prominent Maliki jurist, Ibn Rushd (whose views are here representative of the Maliki school) and some Hanbali ulema, one qiyas may constitute the asl of another: when one qiyas is founded on another qiyas, the far' of the second becomes an independent asl from which a different 'illah may be deduced. This process may continue ad infinitum with the only proviso being that in cases where an analogy can be founded in the Qur'an, recourse may not be had to another

qiyas. [16. Ibn Rushd, Bidayah, I, 4-5: Abu Zahrah, Usul, p. 183; Nour, `Qiyas', 29.] But al-Ghazali rejects the proposition of one qiyas forming the asl of another altogether. He compares this to the work of a person who tries to find

pebbles on the beach that look alike. Finding one that resembles the original, he then throws away the original and tries to find one similar to the second, and so on. By the time he finds the tenth, it would not be surprising if it turned out to be totally different from the first in the series. Thus, for al-Ghazali, qiyas founded on another qiyas is like speculation built upon speculation, and the further it continues

along the line, the more real becomes the possibility of error. [17. Ghazali, Mustasfa, II, 87.]

Having discussed Ibn Rushd's view at some length, however, Abu Zahrah observes that from a juristic viewpoint, one has little choice but to agree with it. This is reflected, for example, in modern judicial practice where court decisions are often based on the analogical extension of the effective cause (i.e. ratio decidendi) of an existing decision to a new case. The new decision may be based on the rationale of a previous case but may differ with it in some respect. In this event the new case is likely to constitute an authority in its own right. When, for example, the Cassation Court (mahkamah al-naqd) in Egypt approves a judicial ruling, it becomes a point of reference in itself, and an analogy upon it is made whenever appropriate without further inquiry into its origin. What Abu Zahrah is saying is that the doctrine of stare decisis, which is partially adopted in some Islamic jurisdictions, takes for granted

the validity of the idea that one qiyas may become the asl of another qiyas. [18. Cf. Abu Zahrah, Usul, p. 184.]

According to the Syrian jurist Mustafa al-Zarqa, the formula that one qiyas may be founded on another qiyas has in it the seeds of enrichment and resourcefulness. No unnecessary restrictions should

available to me, my knowledge of his views is confined to the extent that he is quoted by Nour, 'Qiyas, 29.]