An Introduction to Islamic Law (5 page)

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 the
Prophet 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 of
land ownership. A person can possess barren land without cultivating it, but the cultivation of it, and subsequent entitlement to it, is the point
.

The
ratio
may consist of more than one attribute, all of which must be considered as “causing” a normative rule to arise from them. For instance, the
ratio
of the
theft penalty encompasses five attributes: (1) the object stolen must have been taken away by stealth; (2) it must be of a minimum value; (3) it must in no way be the property of the thief; (4) it must be taken
out of custody; and (5) the thief must have full legal capacity. All of these attributes must obtain for an act to qualify as theft, an act punishable by cutting off the hand. All attributes must exist together; no single one by itself suffices to produce the
ratio legis
.

The rationale behind the rule is at times comprehensible: for example, the
intoxicating attribute of wine renders it prohibited because intoxication incapacitates the mind and hinders, among other things, the performance of religious duties. In this example, we comprehend the reason for the prohibition. Some properties, however, do not disclose the reason. We do not know, for instance, why the quality of edibility should be the
ratio legis
for the prohibition of
usury in the exchange of some goods; all we know is that no object possessing the property of edibility can be the subject of a transaction involving usury.

The
ratio
may also be causally connected with its rule in a less than explicit manner. From
Quran 17:23, “Say not ‘Fie’ to them [parents] neither chide them, but speak to them graciously,” the jurists understood that uttering “Fie” before one’s parents is prohibited because of the lack of respect the expression entails. If the utterance of “Fie” is prohibited, then striking one’s parents is
a fortiori
prohibited. The prohibition of striking is indirectly engendered by the prohibition against uttering “Fie,” and is not explicitly stated in the texts. At times, the sequence of events may help unravel the
ratio
, for the sequence may be interpreted causally. The
Prophet, for instance, tersely commanded a man to free a slave upon hearing that the man had engaged in sexual intercourse with his wife during the fasting hours of
Ramadan. Although the connection between the infraction and the command was not made clear by the Prophet, the sequence of events nonetheless renders them causally so connected. The Prophet would not have behaved in this manner without the occurrence of a particular event that precipitated his particular command.

The
ratio legis
may also be known by
consensus. For example, it is the universal agreement of the jurists that the father enjoys a free hand in managing and controlling the property of his minor children. Here, minority is the
ratio
for this unrestricted form of conduct, and property the new case. Thus, the
ratio
may be transposed to yet another new case, such as the unrestricted physical control of a father over his children.

A significant method for discovering and evaluating the
ratio
is that of
SUITABILITY
(
MUNASABA
). We have noted that the Quran prohibits the consumption of wine because it possesses the attribute of
inebriation, leading the intoxicated person to neglect his religious duties. The theorists argued that even if the Quran did not allude to the reason for the prohibition, we would still come to understand that the prohibition was pronounced because of inebriation’s harmful consequences. This is
reasoning on the basis of suitability, since we, independently of revelation and through our
rational faculty, are able to recognize the harmful effects of intoxication and thus the rationale behind certain sorts of prohibition.

However, there are limits to rationality within and without the method of suitability. Since the law cannot always be analyzed and comprehended in (exclusively) rational ways, reason and its products are not always in agreement with the legal premises and their conclusions. Suitability, therefore, may at times be relevant to the law, and irrelevant at others. No
ratio
may be deemed suitable without being relevant, and any irrelevant
ratio
becomes unsuitable, precluding it from further juristic consideration. In the case of
divorced women who are of the age of majority, male guardianship is waved by virtue of the life experience that such divorcees have gained. Thus, such divorcees may remarry without the need for a guardian’s approval. Logically, this reasoning would apply to divorcees who are minor, but rationally this is inappropriate since it runs counter to the aims of the law in protecting the welfare and interests of minors
.

Suitability’s goal is to offer “relevant” ways of reasoning that serve the
public interest (
MASLAHA
) as defined by the fundamental principles of the law. In other words, interpreting the law in the light of suitability is accomplished independently of the specific revealed texts, since the
ratio
is not, in the first place, textual. Rather, it is rational and seeks to conform to the spirit of the law, which is known to prohibit what is harmful and to promote what is good for this life and for the hereafter. The systematic exclusion of harm and inclusion of benefit are the fundamental aims of the law, and it is to these aims that the rational argument of suitability must conform. Protection of life, religion, private property, mind and offspring are the most salient of these goals. These are known as the indispensable necessities, for without them no society or legal system can meaningfully exist.

Once the
ratio
in analogical
qiyas
is identified and confirmed to be the
relevant
and
complete
common factor between the original and the new cases, very little else is involved in the transference of the legal norm from the former to the latter case
. Analogy, however, is not the only method of inference subsumed under
qiyas
. Another important argument, among others, is that of the
a fortiori
type. For example, from Quran 5:3, “Forbidden unto you are carrion, blood, flesh of the pig,” the jurists took the last four words to include all types of pork, including that of wild boar, although the original reference was to domestic pigs
.

Another type of legal reasoning is
istihsan
, which is an inference that presumably starts from a revealed text but leads to a conclusion that differs from one reached by means of
qiyas
. If a person, for example,
forgets what he is doing and eats while he is supposed to be
fasting during the month of
Ramadan,
qiyas
dictates that his fasting becomes void, since food has entered his body, whether intentionally or not. But
qiyas
in this case was abandoned in favor of a Prophetic
hadith
which pronounced the fasting valid if the act of eating was the result of a mistake. The
qiyas
reasoning here is one that typically falls within a large area of the law where no exceptions are allowed. If fasting during Ramadan is broken on any given day, then
qiyas
requires compensation. Yet, despite the fact that
istihsan
is based on a text, the very choice of this text represents a juristic intention to create an exception to the law. If a mistake does not invalidate fasting, then no atonement or compensation is required.

Some, but by no means all,
istihsan
exceptions were justified by sacred texts. Many were in fact based either on consensus or on the principle of
NECESSITY
. For instance, to be valid, any contract involving the exchange of commodities requires immediate payment. But some contracts of hire do not fulfill this condition, a fact that would render them void if
qiyas
were to be invoked. The common practice of people over the ages has been to admit these contractual forms in their daily lives, and this is viewed as tantamount to consensus. As an instrument that engenders certainty, consensus becomes tantamount to the revealed texts themselves, thereby bestowing on the reasoning involved here the same force that the Quran or the
hadith
would bestow.

Likewise, necessity often requires the abandonment of conclusions reached by
qiyas
in favor of those generated by
istihsan
. Washing with ritually impure water would, by
qiyas
, invalidate prayer, but not so in
istihsan
. Here,
qiyas
would lead to hardship in view of the fact that fresh, clean water is not always easy to procure. The acceptance of necessity as a principle that legitimizes departure from strict reasoning is seen as deriving from, and sanctioned by, both the Quran and the Sunna, since necessity, when not acknowledged, can cause nothing but hardship
.

A third method of inference is
istislah
(public interest), i.e., reasoning that does not appear to be directly based on the revealed texts. We have already taken note of the important role that public interest plays in determining the
ratio
’s suitability in
qiyas
. It is because of this relationship between the
ratio
and suitability that
maslaha
is deemed an extension of
qiyas
. As such, most theorists do not devote to it an independent section or chapter but treat it under the category of suitability. This fact attests to the heavy emphasis that
qiyas
places upon the non-literal extrapolation of rules.

On the basis of a comprehensive study of the law, the jurists came to realize that there are
five universal principles that underlie the Shari
a, namely, protection of life, mind, religion, property and offspring.
The reasoning was that the law has come down explicitly to protect and promote these five areas of human life, and that nothing in this law can conceivably run counter to these principles or to any of their implications, however remotely. If the feature of public interest in a case can be shown to be indubitably connected with the five universals, then reasoning must proceed in accordance with
maslaha
. The condition of universality is also intended to ensure that the interests of the Muslim community at large are served
.