An Introduction to Islamic Law Read Free Page B

unequivocal texts in theQuran and therecurrent hadith ; thus, reopening such settled cases to new solutions would amount to questioning certainty, including conclusive texts in the Quran and the Sunna. Yet, as already noted, the cases determined to be subject to the certainty of consensus remained numerically insignificant as compared to those subject to juristic disagreement. The point remains, however, thatinferential reasoning is legitimate only in two instances, namely, when the case in question had not been subject to consensus (having remained within the genre of juristic disagreement) or when it was entirely new.
    The jurists recognized various types of legal reasoning, some subsumed under the general term QIYAS , and others dealt with under such headings as ISTISLAH (public interest) and ISTIHSAN (juristic preference). We begin with qiyas , considered the fourth source of law after consensus.
    The characterization of this category as a “source of law” need not imply that it was a material source on the substance of which a jurist could draw. Instead, it is a source only insofar as it provides a set of methods through which the jurist arrives at legal norms. The most common and prominent of these methods isanalogy. As the archetype of all legal argument, qiyas is seen to consist of four elements, namely: (1) the new case requiring a legal solution (i.e., the application of one of the five norms); (2) the original casethat may be found either stated in the revealed texts or sanctioned by consensus; (3) the RATIO LEGIS , or the attribute common to both the new and original cases; and (4) the legal norm that is found in the original case and that, owing to the similarity between the two cases, must be transposed to the new case. The archetypal example of legal analogy is the case of wine. If the jurist is faced with a case involving date-wine, requiring him to decide its status, he looks at the revealed texts only to find that grape-wine was explicitly prohibited by the Quran. The common denominator, the ratio legis , is the attribute ofintoxication, in this case found in both drinks. The jurist concludes that, like grape-wine, date-wine is prohibited owing to its inebriating quality.
    Of the four components of qiyas , the ratio legis occasioned both controversy and extensive analysis, since the claim for similarity between two things is the cornerstone and determinant of inference. Much discussion, therefore, was devoted to the determination of the ratio , for although it may be found to be explicitly stated in the texts, more often it is intimated or alluded to. Frequently, the need arose to infer it from the texts. For instance, when theProphet was questioned about the legality of bartering ripe dates for unripe ones, he queried: “Do unripe dates lose weight upon drying out?” When he was answered in the affirmative, he reportedly remarked that such barter is unlawful. The ratio in this hadith was deemed explicit since prohibition was readily understood to be predicated upon the dried dates losing weight; hence, a transaction involving unequal amounts or weights of the same object would constitute USURY , clearly prohibited in Islamic law. In other instances, the ratio may be merely intimated. In one hadith , the Prophet said: “He who cultivates a barren land acquires ownership of it.” Similarly, in 5:6, the Quran declares: “If you rise up for prayer, then you must wash.” In these examples, the ratio is suggested in the semantic structure of this language, reducible to the conditional sentence “If . . ., then . . .” The consequent phrase “then . . .” indicates that the ratio behind washing is prayer, just as the ownership of barren land is confirmed by cultivating it. It is important to realize here that prayer requires washing, not that washing is consistently occasioned by prayer alone. For one can wash oneself without performing prayer, but not the other way round. The same is true ofland