Elaborating An Appropriate Analogy

3. Elaborating An Appropriate Analogy

Analogy means applying to a case the same ruling given to a similar case because of common reason ('illah). It is a matter of natural rationale implanted by God in human minds and, according to Ibn al Qayim, an ingredient of al Mizan (right criteria) that descended from God with his Holy Book and made by God a support of the Book. God

says: "It is God who has sent down the Book in truth, and the Balance 9 " and "We sent aforetime our apostles with clear signs and sent down with them the Book and the Balance that men may stand forth in justice". 10 The balance is meant here as justice and the criteria and means with which we know justice. Appropriate analogy is the Balance. It is better to give it the noble name that is given to it by God and to recognize that there is an obligation on every Muslim to apply it as much as possible. It is not so with the name "analogy" because analogy may be right or wrong, praised or disclaimed, correct or incorrect. The right and correct analogy is the Balance that God sent along with his

Book 11 .

Imam Ibn Taimiyah said, "Analogy is an inclusive word. It includes correct analogy and incorrect analogy, but only the correct analogy is accepted in Shari'ah. It implies treating similarly, cases that are similar and differentiating between cases that are distinct.. The first application is called qiyas al tard (positive analogy) and the second is called qiyas al 'aks (negative analogy). Analogy in this meaning is part of justice and balance sent by God with His messenger. Appropriate analogy is one in which the reason on which a Shari'ah injunction is based exists in the two cases without anything that opposes it or prevents the application of the same injunction. This kind of analogy Imam Ibn Taimiyah said, "Analogy is an inclusive word. It includes correct analogy and incorrect analogy, but only the correct analogy is accepted in Shari'ah. It implies treating similarly, cases that are similar and differentiating between cases that are distinct.. The first application is called qiyas al tard (positive analogy) and the second is called qiyas al 'aks (negative analogy). Analogy in this meaning is part of justice and balance sent by God with His messenger. Appropriate analogy is one in which the reason on which a Shari'ah injunction is based exists in the two cases without anything that opposes it or prevents the application of the same injunction. This kind of analogy

Fiqh al Zakah (Vol. I), Dr. Yusuf al Qardawi

is always consistent with Shari'ah. By the same token, analogy by disregarding irrelevant differences is also a correct analogy where an acclaimed difference between the two cases is shown as irrelevant. Again this kind of analogy is also consistent with

Shari'ah." 12

In brief, if the reason that is common between the two cases, in analogy, is obvious and clear and if there is no relevant difference, apparent or otherwise, nor any factor preventing similarity, analogy should be applied an considered a Shari'ah evidence which no one can disclaim. Some object to this on the basis that zakah is one of the worships and in worships there can be no analogy. It is agreed upon that matters of pure worship don't have analogy since the true reasons behind them may never be known by human beings and in worships obedience to God is the only rationale. Analogy is not applicable to pure worships such as prayers, fasting, and pilgrimage. This prevents human beings from inventing forms of worships out of their own imaginations, without

a clear order from God.

As for zakah, it is not purely a worship, for in addition to being a worship it is a defined right of the poor, an established tax, and an ingredient of the social, and economic system of the society. The reasons for enacting zakah are, in general, known and clear. Why can we not then use analogy in zakah?

The Prophet, (p) collected fast-breaking zakah in the form of grains and fruits such as rye, date, and raisin. By analogy, al Shafi'i, Ahmad, and their disciples accept everything that is edible or the common food in that town or (common food) the payer in payment of zakah. They did not consider that these special grains and fruits are beyond analogy. On the other hand, the majority of scholars applied zakah on different kinds of grains and fruits by analogy to those grains and fruits mentioned by the Prophet, (p)l instead of restricting zakah to the items stated in the sayings such as wheat, rye, date and raisin. It is reported that 'Umar used analogy with respect to zakah when he ordered zakah on horses after he realized that they had become high in value, saying, "Should we only take one sheep out of every forty sheep and leave horses with

nothing?" 'Umar was followed in that respect by Abu Hanifah 13 .

Because of these precedents, I applied analogy on rented buildings because they are similar to agricultural land, and on wages because they are similar to grants an which Abdullah bin Mas'ud, Mu'a wiyah and 'Umar bin Abdal al 'Aziz used to collect zakah. These sorts of incomes and assets are included anyway under the general texts obligating zakah. By the same token we apply analogy on silk, milk and other animal products because they are similar to honey, which is mentioned in the Traditions.

However, to emphasize the importance of analogy it may be sufficient to quote Imam al Shafi'i in his al Risalah about zakah on gold: "The Prophet of God ordered zakah on silver currency and Muslims after him collected zakah on gold. They were either depending on a saying of the Prophet that never reached our times or applying analogy because of the similarities between gold and silver as money, since both were

used in several countries as measures and store of value 14 ." Imposing zakah on gold,

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especially since gold has become an international reserve for currency in most countries, is not a trivial issue, yet Muslims after the death of the Prophet (p) applied analogy on it and made it zakatable for it is very unlikely that there existed a hadith about it that did not reach al Shafi'i, Malik, al Bukhari, Muslim and others in spite of their keenness to reach out for all the correct sayings of the Prophet. Malik considers the action of Muslims on this matter to be like Sunnah about which there are no differences. Consequently he said zakah is obligated on gold (with a minimum of twenty dinars) the same way it is obligated on silver (with a minimum of two hundred dirhams).