ISLAMIC DEVELOPMENT BANK ISLAMIC RESEARCH AND TRAINING INSTITUTE MUHAMMAD AL-MUKHTAR AL-SALAMI GRAND MUFTI OF THE REPUBLIC OF TUNISIA Translated from Arabic by : Prof. Dr. Mohammad Hashim Kamali Eminent Scholars Lecture Series No. 15 ﺑﺴﻢ ﺍ ﺍﻟﺮﲪﻦ ﺍﻟﺮﺣﻴﻢ In the Name of God Most Compassionate, Most Merciful 3 TABLE OF CONTENTS PREFACE 7 INTRODUCTION 9 Compatibility of Reason and Revelation 9 Universality and Pervasiveness of Shari’a 11 Qiyas as a Pillar of the Universality and Pervasiveness 12 of Shari’a DEFINITION AND MEANING OF QIYAS 17 Juristic Attitudes Towards Qiyas 18 Qiyas according to the Sunni Schools 19 Theory and Practice of Qiyas in the Sunni Schools 21 Effects of Extensive use of Qiyas on Juristic 28 Development THE PILLARS (ARKAN) OF QIYAS 31 The Original Case(al-Asl) 31 The Parallel Case (al-Far’) 33 The Effective Cause (‘Illah) 33 Conditions of the Effective Cause 35 Methods of Identification of the Effective Cause 42 ( Masalik Al – ‘Illah ) The First Method: Textually Identified ‘Illah 44 1. The Explicit Text (Sarih) 44 2. Allusion (al-Ima’) 48 The Second Method: Consensus Ijma’ 51 The Third Method: Inference (al-Istinbat) 56 1. Probing and Classification al-Sabr wa’l-Taqsim 56 2. Suitability al-Munasabah 58 3. Resemblance (al-Shabah) 61 - The First Cause of Confusion 62 - Argument of the Opponents of Resemblance 68 - The Second Cause of Confusion 69 Inference from the Manifest Test, Not from the 74 5 Meaning 1 . Rotation (al-Dawran) 74 2 . Coextensiveness (al-Tard) 78 Unrestricted Interests ( Al-Masalih Al-Mursalah ) 79 The Ulema Definition of Maslahah 80 Maslahah and its Reference to Sound Nature (al-Fitra) 85 Maslahah and Human Reason 85 The Criterion of Public Interest (Dabit al-Maslahah) 89 Ranks of Maslahah 90 Methods of Determining the Unrestricted and Restricted 99 Public Interest Unrestricted Interests and Qiyas 110 CONTEMPORARY APPLICATIONS OF QIYAS 114 The Current Problems 114 - Banknotes Securing a Pledge (Rahn) from a Partner 121 Credibility of Al-Masalih Al-Mursala 121 REFERENCES 129 6 PREFACE It is one of the principal objectives of the Islamic Development Bank (IDB) to promote research in Islamic economics and to explore both the theoretical and practical dimensions of the question as to how this discipline can relate to, and utilise the resources of the Shari’a sciences, especially those of the fiqh, usul al-fiqh and the goals, or maqasid, of the Shari’a. This is in fact the subject of the original charter which laid down the basic concept and framework of the IDB. The Bank is thus enjoined, in Article (2) of that charter, to assist and facilitate the advancement of studies and research in economics, fiscal and banking activities in accordance with the principles of the Shari’a of Islam. It was in pursuance of this purpose that the Islamic Research and Training Institute (IRTI) was established and the Institute has, ever since its inception, been active in the enhancement of Islamic literature and research in general, and in carrying out theoretical and applied economic research in particular areas that help to introduce and solidify information on Islamic economics. The holy Ramadan lecture series programme is yet another step in the direction of fulfilling the noble mission that IRTI has undertaken. The Ramadan lectures of the year 1415H was blessed with a series of important discussions that included a lecture by His Eminence Shaykh Muhammad Mukhtar al-Salami, the Grand Mufti of the Tunisian Republic, bearing the title “Qiyas and its Modern Applications”. The eminent presenter is an accomplished jurist of reputation and credentials in Islamic law and jurisprudence. In the present essay, the author has addressed one of the well-known proofs of Shari’a and a familiar theme 7 of usul al-fiqh, namely analogical reasoning or Qiyas, which is an accepted basis of legislation and judgment in all the Sunni schools. We read to this effect in a statement of Ibn al-Qayyim who has in turn quoted Imam al-Muzani to say that “Muslim jurists, ever since the days of the Prophet (s.a.w) down to our own times have resorted to analogical reasoning in all areas of religion and have reached consensus to the effect that what resembles the truth is truth and what resembles falsehood is falsehood. No one may therefore deny the validity of Qiyas, for it is based on nothing other than credible similitude and resemblance”.1 The eminent writer of the present work has presented the juridical theory of Qiyas in which he has also included some instances of the application of Qiyas to contemporary issues. The product of his work shall remain like a benevolent tree with strong roots and bountiful fruit. May Allah (s.w.t) shower His blessings on the author and make this benevolent act a firm foundation for the burgeoning of Islamic economics so as to bring benefit to the Muslim community the world over. God knows the true intentions of His servants and He is our guide to the straight path. Dr. Omar Zuhair Hafiz Deputy Director, IRTI 1 Ibn Qayyim, I’lam al-Muwaqqi’in (Dar al-jil edn), Vol. 1, p. 205. 8 INTRODUCTION COMPATIBILITY OF REASON AND REVELATION Man's eagerness to acquire knowledge is a divine endowment in him, which is testified by a reference in the Torah to the story of Adam and Eve and how they ate from the tree of knowledge. The Qur’an has on the other hand tied up knowledge to the best use man can make of the faculties God has endowed in him. Starting from Adam, the father of mankind, God taught Adam what he learnt; and then made him the audience of the revelation and he accepted the revelation and proclaimed it. Human knowledge was then split into two branches, both reflecting man’s interest in the quest for knowledge. The first branch of this knowledge is characterised by research in pure human knowledge, as in mathematics and its related fields, where man attempts to understand the laws of the universe, discover its secrets, and utilise them for his own welfare. This also includes the domains of art, its principles and laws, together with man's efforts at the sublimation and refinement of taste. These are the proper fields for man's independent activity, and the responsibility that goes hand in hand with his vicegerency on earth. Research in these areas also manifest the fruits of man’s efforts; for he can determine the limits of these fields, and may from time to time return to them for correction, amendment, or invalidation. So the spheres of human knowledge that are associated with discovery include all of his mental, material and aesthetic activities. Since man as an individual and as a species is in a state of change and 9 evolution, then all that springs from him is necessarily influenced by his nature and the stages of his development. Passivity in this sense stands in opposition to his natural inclination for progress that God has decreed for the human race. In this case, there are no established facts enshrined in sacredness in a way that would prevent man from examining them, and criticising them, with a view to their correction and amendment. Islam has thus declared its basic premise about man's release from the fetters that hindered his progress; for Islam as a religion has acknowledged man's competence in the fields under his control and within the circle of his activities. Here we have the mind interacting with the senses and feelings, singly or coordinated in the different fields of human endeavor. Thus, by close contact with nature through observation and experience, both affective and effective, human knowledge can be advanced and verified. The second branch includes fields of research where human reason and revelation are engaged in a way that makes them an integral whole, with the view of attaining man's happiness in this life, in his personal and social relations as well as in his life Hereafter. In this respect, rationality cannot operate independently of revelation, nor can revelation ignore reason. As for revelation which is contained in the Qur’an and the Sunna, it cannot be understood and no ruling can be extracted from it without examining the text, and applying methodological rules to ascertain its meaning through recourse to insightful ijtihad. This will lead to the correct formulation of legal decisions within the general framework of the five values of obligatory, recommendable, permissible, reprehensible, and forbidden. Methodological guidelines also ensure accuracy in particularisation of the general, qualification of the absolute, and the correct application of abrogation. Then, after arriving from the most reliable conjecture to a firm legal ruling, comes the application of these rulings to specific situations. The succession of events and the occurrence of new legal cases do not mean repetition of the same situation that were encountered at the time when the text was revealed. For every new case has its own 10 specifications in place and time as well as in environmental circumstances that make it unique. So the mujtahid examines each case to see how far a legal rule might apply to a new situation and ascertain the method of its implementation. This has been expressed by Imam Ash- Shatibi under verification of the effective cause (tahqiq al-manat) as he wrote: “It is enough to point out that the Shari’a did not insist on regulating every detail of specific cases. It has instead come up with the general rules and unrestricted statements that can cover innumerable cases. Yet every case manifests certain peculiarities that are not shared by other cases in the same category; and what is commanded in general does not include every case nor does it preclude all cases, but each case has its own specific features.