1

AN EPISTEMOLOGY of CERTAINTY:

An Exploration of Systems of Certainty within the Rational Sources of Sunnī Legal Theory

BY

MOHAMED REZA ISMAIL

ISMREZ001

2

ABSTRACT

For early jurists like al-Shāfi’ī (d.820), the idea of certainty

with regards knowing God’s decree, was coterminous with

whatever was exclusively contained within the revealed

sources. This paper will explore the way in which the

rational sources of Islamic Jurisprudence, usūl al-fiqh, were

conceived in order to know God’s decree with certainty.

We will examine the way in which the apparatus of Qiyās

(analogical reasoning) as well its cognate sciences had been

conceived and constructed, for example via the

superimposition of Qiyās onto the first-figure logical

syllogism, in order to bring novel legal cases within the

ruling locus of the revealed sources. Later on however,

culminating in the work of the Andalusian jurist al-Shātibī

(d.1388), these formalized processes of deduction were

eclipsed by more substantive inductive reasoning processes

which aimed to achieve certainty in legal judgement via a

cumulative understanding of the higher purposes of the

law based on an exhaustive, inductive survey of its sources.

We will argue that in a world of changing circumstances,

these systems of inductive reasoning are better suited to

achieving certainty with regards God’s decree and the

overall purpose of the law.

3

TABLE OF CONTENTS

1. Introduction

2. A Typology of Legal Reasoning Systems for producing Certainty

3. Deductive Certainty:

(a) Juridical Qiyās – Early Definitions and the role of Al-Shāfi’ī

(b) Formal Logic and the conversion of Qiyās to Logical Syllogisms

(c) The Necessary Properties of a Ratio Legis (‘illa)

(d) The Methodology of Extracting a valid Ratio Legis (‘illa)

(e) Istihsān, Takhsīs al-‘illa and the Shāfi’ī school revisited

4. Inductive Certainty:

(a) The validity of Ijma’ (Consensus) and its justification

(b) The culmination of inductive corroboration: Al-Shātibī

(c) Istislāh and Maslaha Mursala

5. Conclusions

4

1. Introduction

In its entirety the lex divina was known only to God. All things were subject to divine

providence and thus ruled and measured by this law. But in reality few were the

issues to which a clear judgement was given in the Qur'an and the Sunna of the

Prophet. Principles and methods had to be developed for discovering, with certainty,

what God had ordained for each question, whether related to belief or action. The use

of these two revealed sources, the Quran and Sunnah was not left to the personal

judgement of the jurist, for he might speculate on God's intentions without reaching

the right decreed solution. It was necessary then to draw a master plan of systematic

methodology not only for the purpose of understanding the contents of the sources

but also for drawing certain conclusions that are thought to be identical to those of the

lex divina. The chief rational tool employed in this methodology was a system of

analogy, Qiyās and its related rational cognates. [Hallaq, 1984: 680]

We will be examining how the idea of certainty in the rational sources of Sunni legal

theory has evolved from a constructed set of formal reasoning processes which pre-

figures all notions of certainty in what is specifically circumscribed by the literalism of

the texts, to an idea of certainty which draws its validity from inductive based

processes predicted on a cumulative reading of the source materials of Islamic Law

and a concomitant understanding of its overarching principles.

The study will be located in the rational organs of Islamic Jurisprudence (usūl al-fiqh).

This includes, but is not limited to the study of Qiyās. It will consider the related

disciplines of Istihsān, Istislāh and Maslaha Mursala The basis for the study however

requires an understanding of the genesis of usūl al-fiqh as a whole. Indications are that

usūl al-fiqh was simply a manner of systematizing the existing corpus of positive law

that has already been arrived at as a result of local and other needs without necessary

recourse to the usul. In this sense, legal theory was not an autonomous science i.e. it

was not a legal methodology per se, but rather an ex-post epistemology of the science

of fiqh. [Al-Azmeh, 1988: 251]

5

Legal theory was the product of the 9th and 10th centuries. In some respects it was

quite different and far more developed than that on which the 8th century positive law

was based. In relation to this theory, positive law, which was formulated between the

beginning of the 2nd century of the Hijra (ca. 750 A.D.) and the middle of the 9th

century, may be classified under two headings: (a) there were the laws structured on

the basis of the precepts in the Qur'an and the Sunnah. These laws were in place long

before legal theory emerged on the surface, and was considered by its founders as

well as by their followers as methodologically sound and in need of no

reinterpretation or rationalization; then there was (b) laws based on loose analogy and

unsystematic legal reasoning. At the time of their birth these laws were condemned

by a number of prominent jurists, most notably like al-Shāfi’ī for their methodological

deficiencies and their arbitrary structures. It is to the reformulation and

rationalization of the legal reasoning underlying this category that legal theory had to

devote much of its energy. [Hallaq, 1984: 681]

Using the aforementioned, we begin to locate our study. The early jurists needed to

rationalize the existing corpus of positive law into a systematic and coherent

framework. They also needed some logical apparatus to cater for new cases of law.

This apparatus would need to posit a theoretical mechanism for coping with a world

of changing circumstance, but at the same time, be sufficiently antithetical to the

native systems of free rationalism like ra’y. So initially Qiyās was conceived of by

jurists like al-Shāfi’ī simply to reign in the free rationalism of ra’y and nazar. The idea

was to bring new cases under the ambit of the existing legislation found in the

revealed sources – because only the revealed sources represented certainty. So for al-

Shāfi’ī, Qiyās still represented a process that engendered only probability in its

conclusions. Later, we will examine how prominent usulis like al-Ghazālī and al-Rāzī

superimposed the framework of formal logic onto the mechanism of Qiyās in order to

fortify its logical procedure and to make the validity of its legal conclusions

irrefutable and certain.

6

Thus, via the efforts of al-Ghazālī, al-Rāzī and others, the methodology Qiyās was

subsumed and re-interpreted under the rubric of deductive (and therefore irrefutable)

proofs. Under these transformed, formalized logical algorithms, one would

occasionally be lead into conclusions which contradicted other pieces of textual

evidence, and out of these considerations the logical outlet of Istihsān, or juridical

preference was conceived by the Hanafi scholars. Again we see here, evidence of the

manipulation of a logical process to fit the dictates of the revealed corpus of law.

The broad conclusion that we wish to draw from our examination of the rational

methods of deductive certainty is that, because of its very genesis, mechanism and

logical apparatus, strict Qiyās and its formal cognates do not provide an adequate

mechanism for the genuine extension of the law. Rather they provide an algorithm

which allows for the interpretation of new cases such that they fall within the locus of

static textual indications. So it does not give one tools to produce new law. It gives

one tools to re-interpret new cases so that they can subsumed under the old existing

textual law.

Thereafter our focus will shift to processes of inductive reasoning to achieve certainty.

These processes find traction within the usūl literature in the study of authenticating

solitary traditions from the Prophet, and are were also integrally involved in the

arguments for the validation of the usūli doctrine of Ijma’ or Consensus. The interplay

between the doctrines of Qiyās and Ijma’ will be drawn into focus here. Recall that

Qiyās and more broadly, the whole edifice of usūl al-fiqh was constructed so as to

rationalize the existing corpus of positive law and the normative practices of the early

community. The normative practices of the community in turn derived their

legitimacy and validity from Ijma’. [Hallaq, 1984: 682] So the doctrine of Ijma’ in some

sense is logically prior to the establishment of the methodologies of usūl al-fiqh, and

therefore shaped its entire discourse, including the refinement of Qiyās. However,

Ijma’ draws its validity from inductive processes of reasoning – we will show this. So

by extension, the argument is that it is precisely these processes of inductive

7

reasoning which legitimizes the existence of other systems of reasoning that are

characteristic of Qiyās and its cognates. In other words, if we accept that Qiyās and its

mechanism served to logically justify existing normative rulings and practices of the

early community, but these normative practices were in turn legitimized by Ijma’,

then it follows that Ijma’ legitimizes Qiyās in some sense. Inductive reasoning is thus

the parent system of attainting certainty.

In all, the point we wish to make is that even though it can be procedurally fortified

via logical syllogism and deductive rigour, Qiyās by its very construction cannot

function as a genuine rational tool to deal with a world of changing circumstance. It is

designed to revert to the authority of texts, which are finite bodies of knowledge –

meaning that they cannot always contain certain answers to every conceivable new

thing.

Instead, what is more expedient in a world of changing circumstance and new

contexts is an organic, non-formal rationalism which is nonetheless informed by the

over-arching universals implicit in the law. These universals can be successfully

gleaned, as al-Shātibi eloquently showed, via an inductive survey of the divine texts

and a proper lens of appreciation of the particulars of the law, which in some cases

must not draw our attention away from the universals. So in all, inductive processes

are better suited as systems for achieving certainty.

8

2. A Typology of Legal Reasoning as systems for achieving Certainty

In as much as two legal systems differ in their structure and function; they also differ

in the types of arguments which they employ in their service. Legal reasoning for the

purposes of this paper can be categorized as being either deductive, analogical and

finally, inductive. [Hallaq, 1985:79]

Deductive reasoning is perhaps the most universal, which is why this form of

reasoning is seldom discussed in Islamic Legal theory. Hallaq theorizes that perhaps

this was due to the relative ease of mental endeavour with which conclusions could

be reached [Hallaq, 1985: 83]. In essence, this line reasoning involves the subsumption

of a particular under a general/universal. So for example when the Quran states in

chapter 5 verse 96: “And I permit to you the catch of the sea....” it is merely a matter of

subsumption which leads us to conclude that feeding on fish and other animals which

inhabit the sea (particulars) are thus permissible (since they can be subsumed under

the general term “inhabitants of the sea”).

The structural features of deductive reasoning reduce its argument to the First Figure

Syllogism. The first figure syllogism can be explained by a simple illustration: All

intoxicants are forbidden (major premise). All wines are intoxicants (minor premise).

Therefore, all wines are forbidden (conclusion). The subsumption of a particular

under a general stands out as one of the most fundamental characteristics of any

categorical syllogism. It is one of the chief characteristics which distinguish deductive

from inductive (and analogical) reasoning. This is one of the defining features of

deductive reasoning – as it involves the necessary relation between the premises and

the conclusion - and it is what distinguishes deductive reasoning from inductive and

analogical (Qiyās) reasoning. In analogical reasoning (Qiyās), we only have a probable

judgment about a particular when it resembles another particular in a relevant

respect.

9

What this paper will show is that with al-Ghazālī and others, analogical arguments

(Qiyās) were transformed and converted into deductive inferences (which have the

form of the first figure syllogism) by means of establishing the ‘illa (middle term) as a

conclusive term. Via this process, certainty, or at least procedural certainty is

engendered. For complete certainty, one would also need complete certainty on the

material premises. We will delve into this later, but for example, if it is conclusively

shown that the cause of the prohibition of usury in wheat is edibility, then this fact

can be categorically used to state that all edible things are usurious. [Hallaq, 1990:

340].

In inductive reasoning, the rudimentary conception is based drawing inferences from

past events or rulings to similar future events or rulings. The increasing multiplicity

of similar previous events contributes to the certainty in our inferences about future

events. What differentiates inductive reasoning from analogy is located in the

mechanism of analogy. In analogy, we extend the ruling from a previously solved

case to a new case based on a relevant similarity. This being so, an analogy between

the new case and a single precedent before would suffice. However, in induction, we

require a multiplicity of past evidences before we can even begin to postulate and

draw inferences in the future in the context of a new case. What we will come to see

via the articulations by al-Shātibi is that induction leads to the same degree of

certainty as deductive processes. For Islamic Law, the corpus of law, represented by

the Quran and Sunnah are finite and exhaustible – implying that a complete

enumeration of the instances supporting or negating a point of law yields the highest

degree of certain knowledge about that point, provided counter-evidence does not

exist. [Hallaq, 1985: 92]

So therefore, we will only be dealing with two systems of reasoning in this paper: the

first are reasoning systems based on deductive certainty (under which the later usulis

like al-Ghazālī would like to include Qiyās) and then we have inductive reasoning

systems which culminate in the work of al-Shātibi. Opwis provides a useful

10

characterization of deductive and inductive reasoning as representing “formal” and

“substantive” rationality respectively. [Opwis, 2001: 63].

In formal rationality, the correctness and validity of a ruling is judged mainly

according to the logical and formal correctness of the procedure employed in reaching

the ruling. The aim is to systematize the legal procedure in a manner that minimise

fallibility, subjectivity and arbitrariness in deriving rulings. By identifying correct

methods, and requiring jurists to adhere to them, formal procedures ensure the

highest possible levels of certainty. In the procedure of legal analogy, a jurist

establishes by logical analysis one or several criteria that identify the ratio legis (‘illa)

in the original case (asl), which, if recognized in the case (far’) warrants the

subsumption of this new case under the same ruling as the original case. The formal

steps which the jurist must follow to identify the correct ‘illa is thus of paramount

importance in this method. We will revisit this idea extensively in what is to follow.

The new ruling then obtains its validity from a formal method of deriving

conclusions. The stricter the jurist follows the logical steps required for identifying the

ratio legis, the closer he stays to the original sources of law and the less he is prone to

deviate from the law as stated in the revealed texts – which as we repeatedly point

out, represents the ultimate source of certainty for the jurist.

In contrast, when substantive rationality is at work, the validity of a ruling depends

not so much on the formal application of the correct method of law finding but rather

on its correspondence with the ethical consideration of the purpose of the law that has

been understood inductively via a cumulative and macro-reading of the authoritative

sources. A ruling’s conformity with abstract norms and precepts that are considered

to be the purpose of the law stands in the foreground to evaluate rulings correctness.

The closer a ruling corresponds to the purposes of the law, the closer it represents the

divine intent behind the law. The aim of substantive rationality is to find a ruling for

the case in question which is most appropriate to the aims of the lawgiver.

Consequently, substantive rationality emphasizes to larger extent the investigation

11

and cumulative appreciation of the meanings of rulings established in the

authoritative texts rather than analyzing the definition of the raw facts involved.

[Opwis, 2001: 67]

12

3. Deductive Certainty:

(a) Juridical Qiyās – Early Definitions and the role of Al-Shāfi’ī

The verbal noun Qiyās has been derived from its root q-y-s, meaning to measure. Qis

rumh or qās rumh are the Arabic idioms meaning the measure of a spear. This shows

that it has also another root q-w-s signifying the same meaning. The expression 'qistu'

l-shay'a bi ghayrihi (also followed by the preposition 'alā and ilā) means measured the

thing by another thing like it. The word Qiyās as such has not been used in the

Qur’an. The Qur’anic expression qāba qawsayn (two bows length away or measure of

two bows, see Qur’an 53:9) may roughly reflect the same idea. It is difficult to say

precisely whether the noun qaws (bow) has been derived from Qiyās, because bow

was used for measurement in Arabia. The word qaws also stands for yard-stick used

for measurement, and hence the bow used for shooting the arrow was called qaws.

[Hasan, 1980: 1]

Schacht is of opinion that the term Qiyās and its concept and method have been

derived from the Jewish exegetical term hiqqish taken from Aramaic root naqsh,

meaning 'to beat together. He further asserts that 'the existence of an original concrete

meaning in Aramaic not in Arabic (where Qiyās belongs to the root q-y-s) makes the

foreign provenance certain'. He also infers from the similarity in the technique of

discussion of al Shafi’i' and his Christian contemporary Theodore Abu Qurrā that the

doctrine of Qiyās in Islamic jurisprudence has been influenced by the Greek logic and

the Roman law. [Schacht, 1959: 99 – 100]

An expression of the methods used in the 8th century was analogy, which was often

interchangeably called ra’y (opinion), nazar (personal consideration), istihsan (juristic

preference) or Qiyās (analogy). Although at a later time Qiyās came to denote strict

analogy, it was possible at this early period to discern highly systematic opinions that

may invariably be subsumed under one or the other of these categories. This

inconsistency and confusion of legal methods emanated from the yet undeveloped

13

character of analogical reasoning. In not infrequent cases analogical inference lacked a

coherent logical basis. It may well have been the case that, guided by no systematic

method, they also attempted to justify customs that were prevalent at the time. Most

of these were termed, or labelled as, istihsan or ra'y cases. Theoretically, it would seem

plausible that legal theory should dispose of this entire segment and instead

reconstruct, in accordance with its principles, a new law. But in the light of the

doctrine of consensus (Ijma’) such an act would at least constitute a fatal danger that

threatened the existence of the Sunni community. In its entirety this law dictated the

actual behaviour of the community and had been for a long time the basis of conduct.

To contend that throughout this time the community had abided by a law of which at

least a part was dubious is to say that the community was in the wrong. This

conclusion, of course, would not only contradict the consensual foundation of Sunni

Islam but would also negate the fundamental premises underlying its existence. Since

rejecting positive doctrines outright was out of the question, legal theory resorted to

defending them via way of structured rationalism. [Hallaq, 1984: 682]

The question of the definition of Qiyās is enigmatic. We do not find its definition in a

formal technical manner in the extant early legal literature. Even al-Shafi’i who is said

to be the founder of Muslim jurisprudence did not give its logical definition. Al-Shafi’i

justifies its use in the absence of a rule of law about a certain question in the Qur’an,

Sunnah and Ijma’ (consensus). Sometimes he uses the word Ijtihad, and sometimes

Qiyās for the same meaning, which confuses his readers. The following dialogue

throws light on the definition of Qiyās:

“He asked: What is Qiyās? Is it Ijtihad, or are the two different?

Al-Shafi’i replied: They are two terms with the same meaning He asked: What is their

common (basis)? Al-Shafi’i' replied: On anything which befalls a Muslim there is a

binding rule (hukm lazim), or an indication (dalālah) as to the right path. If there is a

definite rule, it should be followed, if there is no definite rule, the indication to the

right path should be sought by ijtihad, and ijtihad is Qiyās.” [Al-Shafi’i, 1321: 35]

14

He says: "Legal knowledge is of two kinds: ittiba' (adherence) and istinbāt (inference).

Ittiba' means adherence to the Qur’an; if it is not possible, then adherence to the

Sunnah; and if it is also not possible, then adherence to the unanimously agreed

opinions of the early Muslims which no one has opposed. If it (ittiba') is not possible

in a certain case, then Qiyās should be exercised on the basis of the Qur’an; and if is

not possible, then on the basis of the Sunnah of the Prophet, and if it is not possible,

then on the basis of the unanimously agreed opinion of the early Muslims which is

not opposed by anyone. No personal opinion is permissible except by exercising

Qiyās.” [Al-Shafi’i, 1321: 48]

Al-Shāfi’ī has however given us the constituent parts of Qiyās. He says: “If in any

command given by God or His Prophet there is an indication that the command was

given for a certain idea or reason (ma'na), and a new situation for which no textual

rule exists, arises, the law about the (similar) situation already covered by the text

should be applied to this new situation, provided it has the same idea or reason

(ma'na).” One can infer the definition of Qiyās from the various statements of al-Shafi’i

as follows: Qiyās is a method or a value-judgement (hukm) seeking a rule of law about

a fresh situation not covered by the text by applying a rule of law about the situation

already covered by the text if it has the same reason or idea (ma'na) as the new

situation has.” Most of the later definitions are similar to it. [Al-Shafi’i, 1321: 70]

What we need to show here is that for al-Shāfi’ī, Qiyās was mainly conceived of to

regulate ra’y and to systematize the corpus of extant positive law at the time. But

simultaneously, al-Shāfi’ī was careful not to attach the notion of certainty onto either

the mechanism or conclusions of Qiyās so as to jeopardize the status of the revealed

sources as the ultimate sources of certainty. Qiyās for al-Shāfi’ī does not therefore

yield certainty, but only probability. We need to understand the role of al-Shāfi’ī more

closely in order to refine our understanding of the context in which later usūlis like al-

Ghazālī addressed the issue of certainty.

15

Al-Shāfi’ī is arguably credited with the first, written, systematic treatment of legal

theory in his work al-Risāla. Our concern here is not whether al-Shāfi’ī can be called

the master architect of usūl al-fiqh, the amalgamate science of Islamic jurisprudence.

Indeed Hallaq [1993] has discussed this question, and had concluded that as a full-

fledged methodology, usūl al-fiqh represents a synthesis of reason and revelation, the

former being the means by which the latter is interpreted so that the divinely

prescribed law can be known. The constitutive elements of usūl al-fiqh i.e.

epistemology, legal language, the theory of abrogation, transmission of the texts,

Ijma’, Qiyās, and so forth-are organically interconnected and interdependent, and the

absence of any such element would create an incorrigible imbalance in legal

methodology. Therefore, usūl al-fiqh as a legal methodology is larger than the total

sum of its constitutive parts. He concludes that this methodology, with all its

constitutive parts, did not exist in the 9th century. Furthermore, in the 9th century, al-

Risāla received no commentaries or refutations, attesting to its marginal value at that

point. [Hallaq, 1993: 600]

But this does not concern us here. What is clear and irrefutable is that his al-Risāla

shaped the ensuing theological, and therefore, ethico-legal discourse in the centuries

which followed. Makdisi [1984] sets out to show that by raising the Prophet's Sunnah

to the level of the Qur’ān, and by restricting the use of native reasoning (ra’y), legal

analogy (Qiyās) and the conditions of consensus (Ijma’), al-Shāfi’ī purpose in writing

al-Risāla was to create for traditionalism a science which could be used as an antidote

to kalām, associated with the rationalist Mu’tazilah, whom he called “Ahl al-kalām”,

the partisans of dialectical theology, and whom he regarded as his adversaries.

[Makdisi, 1984: 12]

In addition, Calder [1983] contends that though not explicitly stated, al-Shāfi’ī‘s

Risāla, functions as a refutation of Mu’tazili epistemology: “Revelation, it (the Risāla)

asserts, is a necessary, exclusive and sufficient source of knowledge for all human

purposes-and its interpretation is the prerogative of the fuqahā”. If this was not his

16

primary aim, then al-Shāfī’i had at least a shared purpose in writing al-Risāla as a

document to counter any system of religious knowledge that pretends to go beyond

the Qur'ān and the Sunnah. In contrast to Kalām, which went beyond the revealed

texts to speculate about their author, God Himself, al-Shāfī’i’s doctrine declared the

Qur'ān and the Sunnah to be all that was needed for salvation. For al-Shafi'i believed

that the divine revelation, as expressed in the Qur'ān and the Sunnah, provides for

every possible eventuality. [Calder, 1983: 77 – 80]

Building on from this therefore, al-Shāfī’s central contention is to construct a

framework for the extraction of moral laws so as locate divine legislative authority in

the revealed texts, that is, the Qur'ān and the Sunnah. The implication here is

therefore a relegation (by al-Shāfi’ī) of Ijma’ and Qiyās to subsidiary sources of

authority. The idea behind this relegation should be clear, if we understand Ijma’ and

Qiyās to offer avenues in which the divine will can be the subject of interpretation by

the human intellect, allowing it to therefore independently serve as a source of law. If

he can logically demonstrate why Qiyās and Ijma’ should not be independent sources

of law (independent of the Qur'ān and Sunnah), then he would have succeeded in

establishing a system of jurisprudence, usūl-al-fiqh, that is indeed solely predicated

on the Qur'ān and the Sunnah singularly as the independent sources of authority.

The early schools of positive law used Qiyās in a more liberal sense and it was closer

to ra’y than to nass, that is, explicit evidence from the revealed sources, the Qur’an or

Sunnah of the prophet as captured by the authenticated Hadith. With the restrictions

that al-Shāfi’ī placed on Qiyās it became a “quasi-nass” and was structurally

regulated so as to circumscribe new cases under the ambit of the revealed sources. By

limiting the scope of Qiyās he wanted to bring about systematic reasoning in law,

such that authority is vested squarely with the revealed sources and also to eliminate

chaos, which resulted from the free use of ra’y. This concern of his of course speaks

directly to his abhorrence of the views of the Mu’tazilah about the ability of the

human intellect to discern the divine will. [Hasan, 1966: 252]

17

Qiyās, according to the Medinese, was akin to ra’y, hence it was not strictly consistent

and formal. Their arguments involving Qiyās fall short of al-Shāfi’ī’s rigorous

requirements for Qiyās. For example, according to the Medinese, the performance of

Hajj by proxy is unlawful in the lifetime of a man. It is lawful only in case he dies or

leaves a will. They derive this doctrine from the report of Ibn Omar that one should

not say prayer or keep fast on behalf of another person. They reject many traditions

from the Prophet reported by Mālik himself which allow performing of Hajj by proxy

in old age. Al-Shāfi’ī reproaches them for their negligence of the traditions from the

Prophet. He argues that Hajj cannot be compared with prayer and fast because these

are two different shar’i institutions. Further, he mentions a general principle that one

institution cannot be extended to another institution by analogy. Again, he refutes the

Qiyās of the Medinese by logical arguments. He contends that if Hajj is at all

equivalent to prayer and fast, one can say prayer and keep fast on behalf of another

person by the same logic ; but this is not allowed. He further argues that if a man

leaves a will to say prayers and to keep fasts on his behalf, it would not be valid. By

such criticism al-Shāfi’ī intends to show that the Medinese themselves distinguish

Hajj from prayer and fast. Therefore, their Qiyās is inconsistent. Qiyās then, according

to the early schools, was seen as nothing but the presentation of border-line parallels

which had no strict resemblance with each other, whereas al-Shāfi'i understands by

Qiyās identical or quasi-identical cases. Al-Shāfi'i does not approve of the procedure

of the early jurists, he wanted perfect resemblance in both the cases. From the above

examples it is evident that he intends to avoid independent Qiyās as far as possible

and to follow the traditions literally as they stand in order that sole legislative

authority remained vested with the revealed sources. [Hasan, 1966: 254]

The point of the foregoing was simply to illustrate that with al-Shāfi’ī, Qiyās was

sufficient as a tool to curtail the arbitrary free reasoning of ra’y – he had no visions of

it as a rational tool to engender certainty. We will see later when we examine al-

Shāfi’ī’s stance on Ijma’, that his broader project to limit the certain sources of law to

18

the revealed sources means that for Ijma’ as well, we can only achieve probability. So

al-Shāfi’ī’s formulation of Qiyās was such that it did not represent certainty, but we

should note that its procedural mechanism had at that point not been refined. In fact,

nowhere does al-Shāfi’ī explicitly make reference to a ratio legis (‘illa). We turn now

to some definitions of Qiyās that had become almost universal in the usūl literature

after al-Shāfi’ī. [Hasan, 1966: 254]

We draw from the above that whilst there was no settled definition of Qiyās in the

usūl literature until perhaps the later works of al-Ghazālī and his contemporaries, we

nonetheless see the general agreement on its scope and mechanism, and for our

purposes it is sufficient to say the following.

Every Qiyās is composed of four parts:

1. The original case covered by the text. This is known as asl (the original) or maqis

‘alayh (the case from which analogy is drawn).

2. The parallel or new case, known as the far’ or maqis (the case which is analogically

compared with the textual rule) which is not covered explicitly by the text. A

jurist finds out a rule of law for this case by the exercise of Qiyās.

3. The Ratio Legis of the law. This is known as the ‘illa (cause of the textual law in the

original case).

4. The law of the original case covered by the text. This is known as the hukm al-asl.

This law would now apply to the parallel case by analogical extension.

Given that we have agreed on the definition of Qiyās for this paper, let us now

examine the conditions and contexts in which it was allowed to operate, in other

words, let us discuss its scope of applicability.

The conditions which we will describe below do not constitute an exhaustive set of

such conditions, but they merely serve to illustrate the point. Also, although we will

not discuss this, the over-arching assumption in the applicability and conditions for

the exercise of Qiyās is that we are not in possession of an explicit text which regulates

19

the new case, the far’. Qiyās only becomes operable when we are looking to subsume a

new case (having no explicit ruling) under the ruling of an existing case (for which

there is a ruling), based on a relevant similarity which is the basis of the rule - the ‘illa.

Firstly, the law of the original case should not contradict human reason. This is

because it is precisely the idea of causality, and the identification thereof with regards

to the ratio legis, that we are able to extend the law to parallel cases via our mechanism

of analogy. If a law enunciated in texts are not causal, then they do not lend

themselves to rational evaluation and therefore they do not lend themselves to

generalization. There are some theological considerations here of which we will only

make brief mention:

The issue reduces to whether God’s rulings are laid down due to some underlying

cause (ratio legis/’illa) which can be apprehended by the human intellect.

The Mu’tazilah on the whole assert that because the works of God are not

purposeless, the human being having been endowed with intellect, can derive the

ratio legis of a ruling (‘illa) which is itself the logical cause or “motive” for a ruling.

There exists thus an unwavering, absolute causal relationship between the ‘illa (cause)

and the ruling (effect). [Sachedina, 2005: 255-257]

The Ash’arites in contrast argue that the ‘illa itself is not the originator of a particular

ruling, but God is via the texts. The ‘illa is only a “sign” which signifies the ruling and

allows extension to other cases. The law becomes effective on the authority of the

Lawgiver and not by their perceived causes. In their opinion there is no absolute

necessary cause-effect relationship between the ‘illa and the ruling. Sometimes the ‘illa

exists but the law does not exist and vice versa. [Sachedina, 2005: 255-257]

In general, the Ash’arite theologians developed elaborate ways of reconciling their

essentially non-casual worldview to the requirements of causality within

jurisprudence. Al-Rāzī provides an interesting case here, to which we will turn at a

later point.

20

Secondly, it is necessary for the validity of Qiyās that the textual injunction of the

original case should not be exceptional. The reason is that the ratio legis is determined

by examination of the original case for the purposes of generalization. If a certain legal

injunction is exceptional and confined to a particular case and situation, then this ratio

legis cannot be evaluated rationally and therefore generalized. A simple example will

suffice: According to Qur’anic stipulation, two males or a male and two females are

required to bear witness in the case of evidence. However, we ascertain via an

authentic Prophetic narration that in one instance, the Prophet allowed the testimony

of Khuzaymah alone in a particular case, as he was known for his merit and rectitude.

The case of Khuzaymah however, being exceptional, cannot be logically evaluated

and generalized. In other words, against the law of evidence, the case of Khuzaymah

cannot be made an original basis, even though it finds its origination in the divine

texts. [Hasan, 1986: 18]

Thirdly, we must have that for Qiyās to be applicable; the textual wording of the

original case should not change after one employs the mechanism. In other words, the

relationship of causation which one identifies and carries over to a ruling in the

parallel case must not thereafter contradict the original textual wording. As

aforementioned, Qiyās is not operable on a case for which there is textual law. An

example again will suffice. The Prophet allowed the killing of only 5 kinds of reptiles

specified by him within the holy precinct (haram) in Mecca. Via analogy, these 5 types

of reptiles cannot be extended to other creatures because then the mechanism of

causation and the analogy would take the total number of species allowed to be killed

to more than 5, which would contradict the original textual words of the Prophet.

[Hasan, 1986: 23]

This last example is perhaps the most illustrative. We can see here that Qiyās as tool

was constructed such that it was far from a flexible and free rational apparatus. It was

heavily constrained by the dictates of text, and it was curtailed in its procedure to

operate in instances where the conclusions derived could possibly contradict textual

21

indications. Once more this was because the texts alone represented the ultimate

certainty and any logical procedure was to gravitate towards their pronouncements or

otherwise the procedure was deemed inadmissible.

(b) Formal Logic and the conversion of Qiyās to Logical Syllogism

The infiltration of logic into Sunni jurisprudence heralds a significant change in the

attitudes of jurists towards the epistemological status of usūl al-fiqh . We mentioned at

the outset that it does not appear that early usūl al-fiqh had autonomous agency as a

legal methodology. Rather it was merely a manner of ex-post fact systematization

positive law that has already been arrived at had without recourse to the usul.

[Azmeh, 1988: 251]

It was not until the 9th and the beginning of the 10th century that the concept was

developed in the arenas of kalām to encompass a variety of categories and methods

which soon became part and parcel of the kalām oriented usūl al-fiqh. To the usūlis,

‘ilm meant the knowledge of the divine law and the methods and procedures which

lead to this end. It could not have, therefore, been more fitting than to introduce logic

and its sophisticated tools for the enhancement of the existing knowledge about

knowledge.

Put differently, just as formal logic had legitimized the kalām discourse by serving as

the primary organ of debate, the introduction of formal logic into the methodology of

kalām-oriented usūl al-fiqh meant that the existing corpus of positive law could be

justified using a formal-logical machinery that was hard to refute. The theories of the

acquisition of knowledge, definition and syllogistics were viewed as universal

organons of control through which the precarious position of legal certitude can be

strengthened. By means of logic legal argument could be constructed in the most

formalized form possible. The details of legal analogy, one of the most prevalent

forms of legal argument, had to fit indirectly in this scheme of formal logic. Insofar as

logical construction is concerned, analogy was deemed as a consequent or secondary

22

to formal arguments. In the final analysis, legal analogy, in order to be formally valid,

had to conform to the laws of logic. This is perhaps the pivotal point in the process

which al-Ghazālī had started when he affirmed time and again that legal analogy

must ultimately revert to first figure syllogism. [Hallaq, 1990: 336]

The central question with which al-Ghazālī had to grapple was the validity of the

essentially inductive character of legal argument. The underlying issue in his

discussion of the above mentioned causal and non-causal demonstrations was the

cause (‘illa), the term common to the minor and the major premises. In analogical

inference, the fundamental problem lies in the obscurity or uncertainty of the

distinction between essential and non-essential elements with regard to two similar

matters (or cases). Viewed from the standpoint of formal logic, analogical inference

does not rest on logical necessity; that is, the similarity between the two cases is not a

fundamental logical relation. It is in this light that one must view al-Ghazālī's insistent

claim that in order to be valid analogy must adopt the form of first figure categorical

syllogism. But to do so, it is of utmost importance to establish, as al-Ghazālī

repeatedly attempts to do, that the 'characteristic' (khassiyya) common to both

premises (cases) is an essential characteristic in all respects. The crux of the problem of

formalizing inductive legal arguments thus lies in the circle of similarity and the

extent to which it can be proven to logically entail a conclusion. [Hallaq, 1990: 336]

In a telling passgage in his work Shifa al-Ghalil, al-Ghazālī states: 'The thief’s hand

must be amputated, The body-snatcher is a thief; therefore, 'The body-snatcher must

be amputated'. This and other examples he provides are syllogisms of the first figure

where the middle term (‘illa) is the subject in the major premise and the predicate in

the minor premise. The central idea of this passage is the notion of the subsumption of

a particular under a general/universal. This is one of the defining features of

deductive reasoning – as it involves the necessary relation between the premises and

the conclusion - and it is what distinguishes deductive reasoning from inductive and

analogical (Qiyās) reasoning. In analogical reasoning (Qiyās), we only have a probable

23

judgment about a particular when it resembles another particular in a relevant

respect. Al-Ghazālī makes repeated mention of this. What he is attempting to show is

that analogical arguments (Qiyās) can be converted into deductive inferences (which

have the form of the first figure syllogism) by means of establishing the ‘illa (middle

term) as a conclusive term.

Once this is done, the process of analogical reasoning engenders the same degree of

certainty like that of deductive processes predicated on the syllogistic first figure.

How Al-Ghazālī achieves this is via a conversion of the particular textual premise

embodying the legal norm (asl) to a major universal premise in a deductive argument

through the universalization of the 'illa which induces, causally or otherwise, the

ruling in the original case. This would transform analogy to a first figure syllogism. A

case in point is the Qur’anic prohibition of the consumption of wine. The jurist may

argue that the reason for the prohibition is the intoxicating quality (wasf) found in

wine, and he may therefore formulate his findings in the categorical proposition: 'All

intoxicating objects are forbidden' (or more precisely 'The consumption of any intoxicating

object is forbidden'). Once he establishes the major premise, he will be able to set forth a

syllogism in which the minor premise is, say, 'Whiskey is an intoxicating object', and

the conclusion 'Whiskey is forbidden' (or 'The consumption of whiskey is forbidden').

Though the same conclusion can be derived by the medium of analogy as well as

syllogism, al-Ghazālī contends that when the conclusion is syllogistic it is certain,

whereas a conclusion by ordinary legal analogy is merely probable. [Hallaq, 1989:

304]

Similarly, if it is conclusively shown that the cause of the prohibition of usury in

wheat is edibility, then this fact can be categorically used to state that all edible things

are usurious. [Hallaq, 1990: 340]. This is evident in the passage: 'Edibility is the cause

of usury,' and 'Edibility is found in quince'; therefore, '[Quince] is usurious'. Likewise,

'Usurpation is the cause of restitution,' and 'Usurpation is found in real estate';

therefore, 'Restitution [in usurped real estate] is obligatory'. The jurists' reasoning in

24

this category is that quince is edible just like wheat, or that analogous to wheat it is

usurious.”

What we see here is the idea of superimposing the logical machinery of deductive

reasoning onto the early native rationality of analogical reasoning as conceived by say

al-Shāfi’ī. Recall that for al-Shāfi’ī, Qiyās does not represent certainty, whereas Al-

Ghazālī is attempting to fortify the legal process by structuring the particulars of new

legal problems into a form in which formal logic delivers the conclusion in an

irrefutable manner. In doing so, al-Ghazālī is formalizing the rational mechanism of

usūl al-fiqh such that arbitrary opinion (ra’y) is relegated to the periphery of legally

accepted methodologies for the discovery and institution of law. Through the

universalization of the ‘illa, the cornerstone of juridical inference, al-Ghazālī and later

usulis following from him, succeeded to a great extent, from the logical standpoint, to

reinterpret and even reconstruct the legal reasoning underlying the already existing

judicial rulings.

All of this is not without qualification however; al-Ghazālī establishes the most

fundamental issues in Qiyās al-‘illa and states that these issues are logical and legal at

the same time. The format of the arguments are logical-formal, but the material

premises are legal – meaning that they derive their validity either from the texts or

consensus or via other sanctioned methods like the notion of co-extensiveness and co-

exclusiveness1. The validity of constructing a syllogistic argument thus depends

heavily upon the truthfulness and validity of the ‘illa as the central feature of the

universalization of the major premise.

1 Co-extensiveness and co-exclusiveness, al-tard wa l-‘aks, are two complementary methods of

enquiry by which the presumed validity of a hypothesis is confirmed or denied. One of the

most common uses of these methods concerns the verification of the cause of a judgment. Co-

extensiveness thus confirms the existence of the judgment when the cause exists, and co-

exclusiveness, in contradistinction, establishes the absence of the judgment when the cause is

absent. We will return to this later when we examine the properties of an ‘illa and when we

look at Istihsān.

25

For example if we consider 'Edibility is the cause of usury,' and 'Edibility is found in

quince'; therefore, '[Quince] is usurious', al-Ghazālī pre-empts that an interlocutor

might doubt the validity of either the major or minor premise. If the interlocutor

doubts the validity of the major premise, then al-Ghazālī contends that this is purely

legal matter which needs to be settled via the texts or via other accepted

methodologies aimed at extracting a valid ‘illa. If the interlocutor doubts the validity

of the minor premise then this can be proven via recourse to sensory perception,

customary practice, clarifying the definition or again via the revealed texts [Hallaq,

1990: 342].

Once these premises are accepted however, the logical machinery of the method

makes the conclusion irrefutable. Logically speaking therefore, the cause must always

produce the effect. We will revisit this later, but it should be apparent this implication

of al-Ghazālī’s logical endeavour is not consistent with the theological Ash’arite

paradigm of which he considered himself an adherent. Recall that for the Ash’arites

the ‘illa itself is not the originator of a particular ruling, but God is. The law becomes

effective on the authority of the Lawgiver and not by their perceived causes. In their

opinion there is no necessary cause-effect relationship between the ‘illa and the ruling.

Sometimes the ‘illa exists but the law does not exist and vice versa.

Another prominent jurist and Ash’arite theologian worthy of consideration is Fakhr

al-Rāzī (d.1209).

Examining al-Rāzī’s elaborations on legal analogy from his work al-Mahsūl, it is clear

that he structures it like a logical syllogism with two premises, both of which he calls

the asl, and a conclusion derived from these premises. The first premise is that the

ruling in the text is causally attributable to a particular characteristic; the second

premise is that this characteristic is present in the case for which a ruling is sought.

Both premises are known (ma’lūm), and the ruling in the case to be decided is

unknown (majhūl). [Al-Rāzī, 1988: II: 305]

26

However, in the subsequent section of his discussion on legal analogy, al-Rāzī

modifies the basic terminology associated with the procedure of Qiyās and he

explains as follows; jurists understand basis (asl) as the case for which a ruling is

textually determined, whereas logically a basis (asl) is the source, or principle from

which something derives, just as the derivation (far’) – which jurists understand to

mean the case over which there is a disagreement – is logically the ruling which is

sought to be confirmed, and which is derived from an asl. Therefore, the basis (asl) is

either the ruling (hukm) in the agreed upon case, or it is the ratio legis (’illa) of that

ruling on which we will derive the new ruling. [al-Rāzī, 1988: II: 242]

Opwis [2001] explains how al-Rāzī conceives of legal analogy to be in truth a double-

syllogism, i.e. two consecutive syllogisms. She explains with the example of

analogizing the prohibition of grape wine (khamr) to date wine (nabidh). The first

syllogism is in this case a third figure syllogism in which the middle term is the

subject in both the first and second premises, and the second syllogism is a first figure

universal syllogism. This can be illustrated below:

First Syllogism:

I: wine is prohibited (asl, hukm al-asl)

II: wine is an inebriating thing (wasf)

III: inebriating things are prohibited (‘illa)

Second Syllogism:

I: inebriating things are prohibited (‘illa)

II: date wine is an inebriating thing (wasf)

III: date wine is prohibited (far’, hukm al-far’)

27

In the first syllogism, the first premise corresponds to what jurists call the asl, the

agreed upon case or the ruling in the agreed upon case, it is a statement about a

specific ruling belonging to a specific object. It is known via textually explicit

statements in the Qur’an (see for example chapter 5 verse 90-91). The second premise

is a statement about the relationship between the object of the ruling and its legally

relevant characteristic (wasf). It is known through juridical analysis that the only

characteristic of wine that has any relevant bearing upon its legal status is its

inebriating properties. For example, it is of no legal relevance that wine is a liquid or

that wine is red, but it is its property of being an inebriating thing which is of legal

relevance. The conclusion then is that the characteristic of inebriation is associated

with the legal ruling of prohibition. This conclusion, since it is derived from two

premises may be called a derivation (far’), although in legal language this conclusion

constitutes the ratio legis (‘illa) for the ruling the wine is prohibited. The second

syllogism takes as its first premise the conclusion of the first syllogism. We know that

something which inebriates is prohibited. The second premise establishes that this

legally relevant characteristic is present in another object, date wine, which

consequently leads to the conclusion that the ruling of prohibition is transferred to

date wine.

It is apparent that in al-Rāzī’s double-syllogistic construction of legal analogy the key

issue is to establish the second premise of the first syllogism. In other words, in

conventional legal terminology, the main task is to identify the characteristic of the

already established ruling that serves as its ratio legis, in order to then employ it in the

second syllogism to derive a ruling for the new case in question. So in essence we

arrive at the same position as we did with al-Ghazali. The issue is only to identify a

valid ‘illa, but after this is done, the logical machinery of the syllogistic method is

irresistible. Once the ‘illa is accepted as valid, the logical machinery extends the rule

in way that makes refutation near impossible. [Opwis, 2001: 76]

28

With al-Ghazālī and al-Rāzī we see the very apex of formal methods of deductive

certainty. Their configuration and structuring of the system of juridical Qiyās within a

logical-syllogistic framework solidified the rational apparatus of Sunni legal theory

such that it provided an algorithm which allowed for the interpretation of new cases

such that they fell within the locus of static textual indications. So again we see here,

as sophisticated as these logical-syllogistic superimpositions were, it did not give one

tools to produce new law. It gave one tools to re-interpret new cases so that they can

subsumed under the old existing textual law.

(c) The Necessary Properties of a Ratio Legis (‘illa)

What the aforementioned analysis has served to demonstrate, amongst other things, is

the pivotal role which the ratio legis, the ‘illa has to play in the mechanism of Qiyās.

What we turn to now are the consideration of a set of properties which all ‘ilal must

possesses before they can be accepted as such. We will notice that there are many

inter-school (mathhab) differences with regards to the relative importance of certain

properties. What is more important is that we register the constructed nature of these

requirements. Remember that Qiyās was constructed in a highly regulated and

constrictive manner precisely to curtail it from morphing into an autonomous rational

tool. We see more evidence of this in how the requisite properties of the ‘illa are

specified. [Azmeh, 1988: 253-255]

The first consideration is the ‘illa should be a regular and stable attribute (wasf dabit).

This means that its legally relevant quality must not exist in multiple polymorphous

forms in different contexts. For example, inebriation is the ‘illa of the prohibition of

grape wine. However if it is not the case that all wines carry the property of

inebriation, however small in degree, then the extension of the ruling of grape wine to

say date wine is not conclusive.

The second consideration is that the ‘illa should be apparent (ẓ āhir) and obvious (jali).

For example, the hikmah of a sale contract is the consent of the contracting parties and

29

its 'illa is their offer and acceptance. Their mutual consent cannot be the 'illa because it

is latent. The hikmah of shortening the prayer and of the exemption of fasting during

journey is “hardship”, but this is not the ‘illa because it is irregular ('adam indibat) for

it changes from condition to condition, and from person to person. Moreover, it has

several degrees. No degree of it can be appointed as the basis of the rule (manat al-

hukm), nor is there any way to distinguish it from other elements or to determine it

regularly. Hence “journey” has been appointed as a basis of the rule (manat or 'illa) for

it is apparent and obvious. If the hikmah is obvious by itself and consistent in such a

way that it can be determined and realised definitely, then it can be considered a basis

of the rule. [Al-Qarāfi, 1306: 177-178]

Thirdly, the ‘illa should be effective for the rule (mu’athir). There are various

definitions of mu’athir in the usūl literature. The most common one seems to be that

mu’athir is that which is textually indicated i.e. in the Qur’an or Sunnah, or that which

has been indicated by Ijma’. However, what is more meaningful here is to adopt the

requirement of “effectiveness” that is consonant with the idea of co-extensiveness and

co-exclusivity (al-tard wal-‘aks). Tard has been explained to mean that whenever the

'illa exists, the effect or rule (hukm) also exists, and conversely ‘Aks means that the rule

is absent whenever the ‘illa is absent. When the quality (wasf) which is considered to

be the 'illa in a certain place exists, and the effect or rule (hukm) does not exist, it is

technically called naqd (separation of the effect from the cause). This is a logical

incompatibility. Hence some scholars call this condition ‘adam al-naqd (non-existence

of in compatibility). There is a disagreement amongst the jurists about the condition of

co-extensiveness for the validity of the 'illa. Those who stipulate the co-extensiveness

for the 'illa think that separation of cause from effect voids the 'illa. Hence they do not

allow particularisation of the 'illa (takhsis al ‘illa). Those who do not stipulate the co-

extensiveness for the 'illa validate the 'illa manqudah (separation of cause from effect).

Hence they allow the particularisation of the 'illa (takhsis al ‘illa). Al-Ghazālī has

mentioned three points of view about the condition of co-extensiveness (ittirād): One

30

point of view is that if the 'illa remains separate from the effect, it voids the 'illa, and

indicates that it is not an 'illa. The reason is that if the 'illa were sound, it would be co-

extensive, and the effect would exist whenever it existed Another view is that if the

'illa occurs in those places where it is separate from its effect, and the separation of

effect from it particularises it, it would always be valid. A third view is that if the 'illa

is derivative and probable, and it is not co-extensive, it is void, and if it is expressly

mentioned in the text, it would be particularised and be valid – we discern from his

other works that this was his preferred view. [Al-Ghazālī, 1937: 293]

Finally, a controversial requirement of the ‘illa relates to its extendibility (ta’diyah).

This property of an ‘illa allows it to be extended to other cases. The Hanafi scholars

argue that this is of paramount importance, because if one cannot locate the relevant

legal property in other cases, this would render the entire process of Qiyās a futile

exercise. For example, in the case of riba (usury) the trading in Gold and Silver with an

excess or delay is prohibited. The ‘illa as determined by the Shafi’i scholars are that of

“currency-value”. The Hanafi scholars maintain that if this was the ‘illa, then this

property of Gold and Silver would be confined to those metals alone, and so would be

of no use in the extension of law of prohibition to other cases. They rather contend

that because Gold and Silver “possess weight and measure” usurious practices with

them are prohibited2. [Nyazee, 2000:224]

A further property is sometimes specified as munāsaba, or appropriateness of the ‘illa

based on the objectives of the lawgiver. This is treated by al-Ghazālī as a method to

extract the ‘illa rather than a property of an ‘illa per se, so I will deal with this in the

next section.

2 We will revisit both these topics (co-extensiveness and extendibility) when we consider

takhsis al ‘illa under Istihsan (juristic preference) later on.

31

(d) The Methodology of Extracting a valid Ratio Legis (‘illa)

We have dealt in the previous section on the properties which a valid ratio legis

should possess in order to be considered valid. We will now consider the methods of

identification and extraction of the ratio legis. What we will see is that methods of

indentifying and extracting an ‘illa are classified as either certain (qat’i) or probable

(zanni). The certain methods of indentifying and extracting an ‘illa are evidences

which indicate it as such from the textual sources (nusus) or consensus (Ijma’). The

probable methods of identifying and extracting an ‘illa have been variously

categorised, but we will focus on “suitability” (munāsabah). Some jurists have also

cited “co-extensiveness and co-exclusivity” (tard wal-‘aks), but we have treated this

previously as a property and not as a methodology of extraction.

Once more, it is immediately apparent that in the classification of these methods,

certainty is associated with what is textually indicated in the texts (nusus) or indicated

via Ijma’. Once a text indicates or indentifies the underlying reason for a ruling, no

other probable consideration of alternatives are allowed. [Hasan, 1986: 11]

The mechanism of Qiyās must then operate using the inputs provided by the texts and

its conclusions become irrefutable.

We also see again the issue of validation via Ijma’. Remember that we have shown

that Ijma’ was validated via processes of inductive reasoning. However we see here

that Ijma’ is one of the certain sources in which an ‘illa can be indentified and

extracted. The mechanical, deductive formalism of Qiyās is therefore subject to the

validation of its input (the ‘illa), via processes of Ijma’, which in turn is validated via

inductive reasoning. The status of inductive reasoning as the parent system of

certainty is once more demonstrated.

We will start our examination of the certain ways in which an ‘illa can be indentified

and extracted by looking at Ijma’.

32

If the community at large, or the users of Qiyās in a certain period, agree upon the

causality of a certain attribute (wasf) of a commandment, that attribute or quality will

be taken as a valid ‘illa. For instance, when Iraq was conquered, the Companions

demanded ‘Umar to distribute the agricultural land among the warriors. Opposing

their stand 'Umar contended that if the lands were distributed among them, that

would remain circulating among the rich. He referred to the Qur'anic verse which

prohibits the distribution of fay' among the warriors. He recited the verse "...So that it

be not taken by turns by the rich among you" (Qur’an, 59:7). The cause for controlling

the land by the state as pointed out by ‘Umar was finally accepted by the Ijma’ of the

Companions. [Hasan, 1986: 234]

The other example is the punishment of eighty flogs for drinking. This is an analogy

drawn with the punishment of slandering (qadhf) prescribed by the Qur’an, as argued

by 'Ali. He said: "When a person drinks, he is intoxicated and eventually falls into

raving. When he raves, he commits slandering." This process of reasoning did not find

any objection from the Companions, and hence it was tacitly approved via Ijma’.

[Hasan, 1986: 234]

Now we will consider textual indications from the Quran and Sunnah, which are also

considered certain methods to identify the ‘illa. Al-Āmidī [1914] says of them:

“Mention of an indication (dalil) from the Qur’an or the Sunnah to the causality (talil)

of a quality of rule by a word made originally for it (‘illa) in the dictionary without

any need of inquiry (nazar) and reasoning (istidlāl).” [Al- Āmidī, 1914: 364]

Here al- Āmidī is of the opinion that words like lām, kāf, min ajl, fa’, inna and bā’

indicate causation expressly. When they occur in a certain passage of text it indicates

towards causality directly. [Al- Āmidī, 1914: 366]. We will provide some examples:

33

Min Ajl:

“Because of the this incident (min ajli dhālik) .....We laid down for the Children of

Israel...” (5:32)

Lam:

“And I have not created Jinn and Man, except that they should serve Me (li ya’budūn)”

(51:56)

“Observe the prayer because of the declining of the sun (li dulūk al-shams)” (17:78)

Kay:

“So that (kay) it be not a thing taken in turn among the rich of you” (59:7)

“So We brought you back to your mother so that (kay) her eye might be cooled and

she should not grieve.” (20:40)

Bā’:

“So for the inequity of the Jews (fa bi thulmihim), We forbade them the good things.”

(4:160)

“By the grace of Allah (fa bi ma rahmatin) you are kind to them.” (3:159)

Inna:

The Prophet said about a pilgrim who fell from his camel and died while he was in

the state of ihram: “Do not cover his head, and do not bring perfume near him, for he

(fa innahu) will be resurrected calling the talbiyah on the day of Judgement.” [Hasan,

1986: 237]

The above examples are merely an illustrative selection. The point is that classical

jurists like al-‘Āmidi for instance, scoured the textual sources for these and other

significant causal terms which would indicate toward the ‘illa. Once the ‘illa has

34

found textual indication, it can then be employed in the mechanism of Qiyās with no

other considerations necessary. We will now consider the probable methods of

indentifying and extracting an ‘illa, the foremost of which is the issue of “munāsaba”

or suitability.

Munasaba, we will see, represents the most interesting and hotly debated

consideration when we are looking to indentify and extract an ‘illa.

Literally, munāsib means an appropriate or suitable quality. Its import is the

agreeability of a quality of a law with the over-arching purpose, rationale and wisdom

of the law for which it has been instituted by the lawgiver. It is based on human good

(maslaha), reasoning (istidlāl) and consideration of the purposes of the Shariah (maqāsid

al-Sharī’ah). The process of finding an ‘illa by these considerations have been referred

to as ikhala (conjecture), or takhrīj al-manat (derivation of the basis of the rule).

The is a disagreement over what constitutes munasaba according to the Hanafi and

Shafi’i scholars. The Hanafi scholars say that a munasib (suitable) illa’ must also be

mula’im (compatible/relevant) and mu’athir (supported by the text or consensus). We

have seen previously that mu’athir can be defined in various ways, but for the Hanafi

scholars, mu’athir only means what is textually indicated or what is agreed upon by

Consensus.

Most Shafi’i scholars agree the munasaba must entail mula’ama (compatibility and

relevance with the law) and also mu’athirah, but they define mu’athirah more broadly;

it can be what it supported by the texts or consensus, but it can also be defined as

what is effective in bringing out the law, in much the same way as we have defined it

when we considered the ‘illa properties of co-extensiveness and co-exclusivity. So for

the Shafi’i scholars, mu’athirah does not only mean what has been specifically

indicated in the texts or consensus, but what is effective in bringing out the rule, as

postulated by processes of ikhāla (conjecture).

35

Al-Ghazālī, in his Shifa al-Ghalil, provides a very detailed and convoluted

classification of munāsabah. These classifications have been adopted and elaborated by

almost all jurists after him. Here, al-Ghazālī seems also to adopt the definition of

mu’athir as that which is textually indicated. [Al-Ghazālī, 1971: 169-194]

The first kind of munasib is that which is textually supported by the law (munasib

mu’athir) or that which is relevant and directly compatible with it (munasib mula’im).

All mu’athir cases are automatically mu’laim by extension, but the reverse obviously

does not hold. An example of support from the texts (‘ayn to ‘ayn) would be the ruling

that touching one’s private parts makes breaks ablution according to a Prophetic

report – by Qiyās then, touching the private parts of another person would also break

ablution.

An example of ‘ayn to jins Qiyās is the example of the menstruating woman, who is

not obliged to follow the requirement of 5 daily prayers. So this serves as munasib

mula’im ‘illa to exempt her also from fasting during Ramadan. The ratio legis in the

first ruling is the hardship caused on account of the frequency of the prayers. Thus the

repetition of prayer is the ‘ayn of the ruling. But the jins of the ruling looks to alleviate

hardship in all of its forms, which makes it a suitable ratio legis to exempt the

menstruating woman from fasting during the month of Ramadan.

The second type of munasib is that which lacks relevance and no specific source bears

evidence to take it into account. It is therefore rejected by the users of Qiyās according

to al-Ghazālī. Into this category, al-Ghazālī places the juristic doctrine of Istihsan

(juristic preference) and also ra’y (arbitrary opinion).

The third type of munasib is called strange (munasib gharīb). Al-Ghazālī says this

would be open to Ijtihad. Neither its textual indications nor its relevance to the law

are obvious. An example of this case would be that a woman who is divorced three

times by her husband on his deathbed still inherits from him. (divorce at any other

time would preclude the woman from inheriting). This is on the analogy of a law

36

which says that a killer may not inherited from his victim. This law was obviously

constituted to prevent people from trying to access their inheritance before the

apportioned time. Inheritance being given only at its apportioned time is the ratio

legis here. In the reverse way, the dying husband cannot prevent his wife from

receiving her inheritance on his deathbed, because then he would be seen to deny

inheritance at the apportioned time.

The fourth type of munasib is that which is relevant and compatible (mula’im), but no

specific source attests to its consideration. This is called munasib mursal or also istidlal

mursal, but most commonly maslaha mursalah. This topic arguably represents the most

hotly debated area in the entire usūl literature.

Recall that we have been defining munasib as that which is suitable and agreeable to

the over-arching rationale and intent of the lawgiver and the purposes of the law.

However, in all the other acceptable categorizations of the munasib, excluding munasib

mursal, we see that we have some link to the textual sources. If not directly, at the

level of essence (‘ayn), then indirectly at the level of genus (jins). What is assumed

here by the usulis is that the objectives of the lawgiver and the broader aims of the

Shariah are already imbibed in the textual sources of the law. We do not have to check

their validity as suitable ‘ilal when they are automatically declared as suitable by

virtue of their link to revealed texts. Maslaha then, according to the usulis, is implicit

in the texts.

However with munasib mursal, we see that the texts are silent on the matter. Now, we

have to independently extract and identify an ‘illa that is suitable and consistent with

the broader aims of the Shariah.

Munasib mursal or maslaha mursalah represents the point of intersection of this entire

paper. We have seen how the consideration of munasib mursal has a direct place in the

identification and extraction of an ‘illa to be used in formal, deductive based Qiyās

procedures to attain certainty. But we also see that, precisely because the texts are

37

silent on these matters, we cannot use formal, deductive Qiyās based procedures, and

we have to resort to our cumulative understanding of the purposes of the Shariah and

its aims, in order to postulate about what could bring about maslaha for society. So

this takes us directly into the realm of inductive based reasoning processes. We rely

on inductive reasoning to attain certainty about whether a postulated ‘illa serves the

broader aims of the Shariah. We can see evidences of this with the work of al-Ghazālī

but the approaches reach its pinnacle in terms of rigour and refinement in the work of

al-Shātibi. [Masud, 1997: 127-168]

I will treat this issue more exhaustively when we deal with the mechanism of Istislah –

that is, reasoning by consideration of maslaha in the next section when we deal with

inductive reasoning processes.

(e) Istihsān – Some considerations

Istihsān, defined in the broadest terms amounts to nothing but a “preferred” form of

legal argument that is based on Qiyās, in which a special form of textual evidence

gives rise to a conclusion different from that which would otherwise be reached by

“regular” Qiyās. What we are aiming to show here is the specific position adopted by

al-Ghazālī and most of the Shāfi’ī school with regards their rejection of Istihsān. What

we will show is that their disregard for Istihsān is rooted in their disdain for any

textually unregulated rational methodology (recall al-Shāfi’ī himself), as well as their

disdain for the logical implications of any process which allows a “cause” to be

separate from its “effect” (recall that it was precisely al-Ghazālī who wished to fortify

the procedural methodology of Qiyās via the superimposition of Aristotelian

syllogistic formalism. This framework cannot logically permit the separation of

“cause” and “effect”.)

We have already mentioned (with regards to the extraction of an ‘illa) the principles of

co-extensiveness and co-exclusiveness, al-tard wa l-‘aks, in that they are two

complementary methods of enquiry by which the presumed validity of a hypothesis

38

is confirmed or denied. One of the most common uses of these methods concerns the

verification of the cause of a judgment. Co-extensiveness thus confirms the existence

of the judgment when the cause exists, and co-exclusiveness, in contradistinction,

establishes the absence of the judgment when the cause is absent. What this implies

here is that for an ‘illa to be valid, the effect must always be present when the cause

(‘illa) is present.

What we have to examine here is the idea of the validity of a cause, an ‘illa, which is

not co-extensive, that is, is it necessary that in order for an ‘illa to be valid, the effect

(i.e. the legal rule/qualification is present) whenever the cause (i.e. the ‘illa) is

present? This seemingly innocuous consideration leads us into an examination of 2

competing theories about the function of an ‘illa, which is often referred to as the

“sign” and “motive” models. This has implications for the vexed area concerning the

‘illa as a transitive or intransitive cause, which in turn has implications for the

consideration of the specialization of the ‘illa (takhsis al-’illa). We will deal with these

issues sequentially.

At the heart of the contest between the two models lies the question of the function of

the ‘illa. For one model the ‘illa is a “motive”or ba’ith which serves to originate and

explain the law, for it is the “motive” of the qualification. This is generally the view of

the Shāfi’ī School and the Mu’tazilite theological sect. [Zysow, 1984: 375]

In contrast, under the “sign” model the ‘illa is simply an ‘alama or sign, by which the

original qualification can be applied to new cases. The function of the ‘illa is to extend

the law of the original case to new cases. This is the view of the Hanafi School and the

Ash’ari theological sect. [Zysow, 1984: 375]

What is particularly revealing is how these competing models view the original

qualification (hukm al-asl). Under the “sign” model, the ‘illa is a sign by which the

original qualification may be applied to new cases and does not in any way explain

the original case, which stands on the authority of the texts. Under the “motive”

39

model, both the original and the further instances of the qualification are ascribed to

the ‘illa as a motive for both these cases. So the original case here is merely an instance

of the cause (‘illa) in operation as well – the function of the texts is merely to make

known the dependence of the qualification upon the cause. [Zysow, 1984: 376]

Under the “sign model” of interpretation, there is no analogy in the presence of texts

and there is also no provision for an intransitive ‘illa (‘illa al-qasirah) – referring to an

‘illa that finds no application beyond the original case. This is also referred to as the

extendibility of an ‘illa. The classic example here is example of the Shāfi’ī school’s

contention that the prohibition of usury with regards to Gold and Silver rests on an

identification of an ‘illa as “mediums of currency exchange”. In other words, because

Gold and Silver are “mediums of currency exchange” usury is prohibited in them.

This is an intransitive cause which cannot be extended for example to other metals. So

the Hanafis reject using “mediums of currency exchange” as the ‘illa in favour of “has

weight and can be measured” as the underlying quality which serves as the ‘illa for

prohibition of usury in them – this allows them to extend this to other cases. For the

proponents of the sign model, the Hanafis, the function of the ‘illa is precisely to

extend the law to other cases and so an intransitive ‘illa is thus a contradiction in

terms. [Zysow, 1984: 376]

All of the above is meant to guide us into a discussion surrounding the

specialization/particularization of the ‘illa (takhsis al-’illa). We should keep what we

have said above in mind and link this to an examination of the juristic doctrine of

Istihsān before we can adequately deal with the issue of takhsis.

Istihsān, defined in the broadest terms amounts to nothing but a “preferred” form of

legal argument that is based on Qiyās, in which a special form of textual (or other e.g.

consideration of necessity) evidence gives rise to a conclusion different from that

which would otherwise be reached by “regular” Qiyās. The literal meaning of Istihsān

is to consider a thing good. Since a jurist departs from the law established for a certain

case, he obviously prefers a law which he considers good to the law already

40

established for that case. In this sense, Istihsān is a preferential reasoning. [Hallaq,

1984: 684]

Al-Sarakhsi (d. 1112) enunciating various definitions in al-Mabsut, explains it as a kind

of Qiyās. He defines Istihsān as (a) “A means of seeking ease and convenience in legal

injunctions;" (b) "to set aside Qiyās and adopt what is more suitable to the people;" (c)

"to adopt what is accommodating and to seek mildness;" (d) "to adopt tolerance and

to seek what causes comfort."

All these definitions indicate a common theme, namely, to set aside a law which

causes hardship and instead to adopt or formulate a law which provides ease and

comfort. Al-Sarakhsi himself quotes a Qur'anic verse (2:185) which says, that the

purpose of the divine commands is to provide ease and remove difficulty. He also

cites a number of traditions which allude to this idea.

Explaining it further he observes that Istihsān is not an independent source of law,

entirely separate from Qiyās. It is in fact a kind of Qiyās. Qiyās has been divided into

two kinds, Jali (obvious) and Khafi (latent). Jali is the one which is generally the end of

product of the conventional application of the principles of Qiyās. Qiyās Khafi, also

known as the concealed or latent analogy, occurs when upon deeper reflection, a

sounder outcome can be realised by a broader consideration of the impact of

outcomes that would ordinarily be applicable under a superficial examination of

similitude. [Al-Sarakshi, 1324: 145]

Qiyās Jali is rejected when it contradicts a nass (clear text), Ijma' (consensus), darūra

(necessity) and Qiyās Khafi (latent analogy). In other words, a jurist sets aside Qiyās

and uses Istihsān in all these cases. We may give a few examples in the following

paragraphs to illustrate the kinds of Istihsān mentioned above.

Let us first take up the kind which is based on the text. If a man, who is observing fast

eats or drinks something in forgetfulness, he may continue his fast. His fast does not

become void, for the Prophet is reported to have said that God provides him with

41

food and drink. His fast is valid by Istihsān based on the text. But Qiyās (i.e. the

established rule of law) requires that his fast should become void by eating or

drinking, because fast puts restraint upon eating, drinking and sexual intercourse

from dawn to sunset with the implied intention of fasting. Hence Abu Hanifa is

reported to have observed about a person who eats or drinks unintentionally (sahwan)

during his fast: "If this had not been supported by a tradition of the Prophet, I would

have decided that one should make atonement for such a fast." [Hasan, 1977: 351]

Also, similar principles apply regarding the contract of hire (ijara) and “sleeping

partnership” (salam). According to Qiyās Jali hire is not valid, for it is necessary that

the object for which an agreement is made should be physically present at the time of

the contract. In the case of hire, the usufruct (manfa'a) and the charges or wages (ujra)

do not exist at the time of the contract. Hence it should not be allowed according to

the established rules (Qiyās). Besides, a contract cannot be attributed to the future

existence of usufruct or wages because monetary compensations are not open to

attribution to something in the future in contracts like sale and marriage. But in this

case Qiyās has been set aside because of a tradition of the Prophet which says: "Give

the labourer his wages before his sweat dries up". This tradition validates the contract

of hire. [Hasan, 1977: 351]

The Shāfi’ī jurists do not recognize Istihsān as a basis of law. Al- Shāfi’ī himself raised

serious objections to the legitimacy of Istihsān. He takes as an arbitrary opinion calling

it sometimes "seeking pleasure", and at other times "arbitrary law-making in religion".

According to him, Qiyās is a genuine source of law, for it is based on some authority

while Istihsān is not. [Al-Shāfi’ī, 1321: 73]

The broader point made by the Shāfi’ī scholars (and here we include al-Ghazālī) is

that of naming nomenclature. They do not doubt that Qiyās Jali can be set aside in lieu

of some textual evidence (nass) which alters the original ruling obtained via Qiyās. But

then, for them, the ruling is grounded in that specific nass and is justified

independently by it - why is there then the need to call this process Istihsān they ask.

42

The same argument holds for Ijma’. Their argument essentially then reduces to a

rejection of Istihsān that is based on sources other than the texts and Ijma’, which

means Istihsān based on necessity or maslaha. [Hasan, 1977: 351]

More than this, and now we come to our issue, Istihsān also facilitates the

specialization/particularization of the ‘illa (takhsis al-’illa).

Particularization, accepted by many a jurist-but vigorously rejected by others-takes

place when it becomes obvious to the jurist that an unexpected element (legal fact)

influences the relationship between the ‘illa and the judgement, thus compelling the

jurist to take it into consideration in Qiyās. To be weighty such an element must find

support in the revealed sources. The introduction of this element necessitates the

particularization of the ‘illa; that is, it changes a part of the content of the ‘illa, or some

of its properties, enough to lead to a judgement congenial with that element. For

example, the consumption of the meat of an unlawfully slaughtered animal (mayta) is

prohibited. But this prohibition can be removed under circumstances of hardship or

starvation. Starving in the desert, for instance, renders the eating of mayta permissible

by an injunction from the sources which consider it reprehensible to cause the death

of a man only because lawful food is not available to him. Starving to death is the

element that particularized the original ‘illa which in turn led to a judgement different

from that which would have been reached by an ordinary procedure of Qiyās. It is

precisely in this sense that a number of Hanafis and Hanbalis defined Istihsān as the

abandoning of a judgement in favour of another. Ibn Taymiyya (d. 949), a staunch

advocate of Istihsān, argued that the only dividing line between Qiyās and Istihsān is

that the former does not require the particularization of its ‘illa whereas the latter

does. [Hallaq, 1984: 683]

Istihsān is essentially a Hanafi construction that is predicated on an alteration of legal

outcomes that would ordinarily flow from the process of Qiyās. We see that from our

examples from the texts and also from our consideration of takhsīs. Remember that

also the Hanafis adhere to the sign model of the ‘illa. Takhsīs is a direct consequence of

43

the adoption of the sign model. The standard version of the sign model not only

allows for takhsīs, it requires it. This is because for the sign model, the function of the

‘illa is precisely to extend the legal qualification from the original case (asl). In the

original case itself the cause has no function, for the legal qualification is based on the

text (nass) not on the cause. It is for this reason that the sign model will not allow for

intransitive cases (inextendable ‘ilal). To compensate for this, the Hanafi scholars

conceived the notion of takhsīs, because without this construction they would have to

deal with cases in which an intransitive ‘illa. For example, in our case before -

concerning the consumption of carrion in order to save one’s life – if it were not for

the notion of takhsīs, then this example would constitute a case in which the ‘illa

would find no application beyond the original case and therefore be intransitive, an

untenable position.

Al-Ghazālī, being a Shāfi’ī scholar, has a totally different conception of the ‘illa,

namely that of a “motive” or explanation of the rule of law. Under the “motive”

model, both the original and the further instances of the qualification are ascribed to

the ‘illa as a motive for both these cases. The original case here is merely an instance of

the cause (‘illa) in operation as well – the function of the texts is merely to make

known the dependence of the qualification upon the cause. So under this system,

almost by definition, the cause (‘illa) and qualification (legal rule or effect) are never

separated from each other.

What we have here is a once more a fascinating example of how, at least for the

Hanafi scholars, the constructed requirements of the ratio legis were modified to

accommodate the revealed texts. What we see here is that formal logic would

stipulate that in order to be a valid causative factor, a ratio legis must simultaneously

be co-extensive and co-exclusive. We cannot logically have a separation of cause and

effect. We showed earlier that al-Ghazālī and al-Rāzī transformed Qiyās into a

deductive process such that when we have a certain cause, we always have an effect.

However, occasionally the logical machinery of Qiyās produces a conclusion which is

44

contrary to some textual indications. Now, if Qiyās were genuinely an unconstrained

rational vehicle for the genuine extension of the law, what would happen is that the

formal, syllogistic procedure, designed to produce irrefutable conclusions, would be

given preference over the dictates of the revealed texts. However, we have repeatedly

shown that this was not the case. The logic had always to make room for the texts and

not vice-versa. So in order to accommodate certain derived conclusions that

contradicted textual indications, the doctrine of particularisation of the 'illa (takhsīs al

‘illa) was conceived by the Hanafis within Istihsān, as a means to account for these

textually contradictory logical conclusions.

45

4. Inductive Certainty:

(a) The validity of Ijma’ (Consensus) and its justification

Our focus now shifts to the role of the inductive reasoning method as a process to

arrive at certainty. We will use as a point in case the issue of the validity of Sunni

consensus – Ijma’.

What we aim to show in this section is that the validity of Ijma’ is sanctioned by

inductive reasoning processes. We have already seen that Ijma’ represents one of the

certain methods of identifying the ratio legis in cases involving Qiyās. We have also

seen how Ijma’, as implicitly represented by the normative practice of the early

community, shaped the construction and discourse of the early systems of usūl al-fiqh,

including Qiyās. We make the point again that if we accept that Qiyās and its

mechanism served to logically justify existing normative rulings and practices of the

early community, and these normative practices were in turn legitimized by Ijma’,

then it follows that Ijma’ legitimizes Qiyās in some sense. Inductive reasoning is thus

the parent system of attainting certainty.

But the important role of Ijma’ as a sanctioning instrument and as a source of law of

the "middle nation" was bound to generate extensive discussion and criticism – this

was primarily because of the questions around the foundation and validity of Ijma’ as

a religious doctrine. In other words, classical Muslim jurists, who undertook the task

of developing usūl al-fiqh , had to prove that Ijma’ rests on the strength of the two

primary sources, the Qur'an and/or the Sunnah. For, as we have repeatedly said

before, nothing can be regarded as representative of absolute certainty if it is not

somehow grounded in these textual sources. The implication of accepting Ijma’ as a

sanctioning force and, moreover, as a source of law without basing it on the sources

was grave. It meant that those jurists who participated in the formulation of

consensus were themselves the legislators, which in turn implied a dilution of the

46

absolute certainty and authority of the textual sources. Consensus as a legal precept

had to be thus grounded in this revelation. [Hallaq, 1986: 428]

One of the challenges for the justification of Ijma’ is the trap of circularity in argument.

Meaning here that the traditions which sought to corroborate or justify the validity of

Ijma’ were in fact solitary traditions -whose validity remains questionable until

legitimized by Ijma’ itself. So we would then have a case of Ijma’ looking for

justification in pieces of evidence which remains inadmissible before the process of

Ijma’ - a circular argument.

Al-Shafi’i stratagem for dealing with Ijma’, given that it is not in custody of a

definitive text of revelation seems to have resonated well with his idea the even Ijma’

does not represent certainty – its conclusions are mere highly probable, as al-Shafii

held that the Qur'ān and the Sunnah alone represent certainty. What al-Shāfi’ī needed

in order to rebuke his opinion of Ijma’, was either an unambiguous Qur’ānic verse

guaranteeing the infallibility of the community or an explicit statement from the

Prophet transmitted from the “generality to the generality” to the same effect. But he

obviously cannot produce this. At best he shows that there are only solitary traditions

which for him do not represent absolute certainty as proofs. Al-Shāfi’ī would have

fallen in the trap of circularity had he held the view that Ijma’ on a case of law, which

is in turn based on solitary traditions, leads to certainty. He does not do this – as he

says. So it cannot be maintained that al-Shafi’i fell in the trap of circularity because the

authenticity of the traditions adduced is not claimed to represent certainty or be

guaranteed by Ijma’, instead their meaning is determined by the standard rules of the

Arabic language. So he admits that Ijma’ can be conclusive only when based on

highly reliable texts, and for him this absolved Ijma’ of its responsibility as a

legislative source, and absolved him of the responsibility of proving that it was one.

The certainty of Ijma’ is thus, according to al-Shāfi’ī a derivative of the certainty of

revelation and not one which is self-constituted. This is in perfect consonance with the

47

status which al-Shāfi’ī accorded Ijma’ as a weaker principle relative to the certainty of

Quran and Sunnah. [Hallaq, 1986: 431 – 433]

All of the above is merely to provide a context for our general aim here, which is to

show that Ijma’ came to be validated by inductive processes. The discussion above

was merely to show that as proved by al-Shāfi’ī, Ijma’ finds no explicit, certain

validation in the textual sources – and so could never be associated with that which is

certain. The statements which seem to corroborate Ijma’ are each only of muted

certainty which require external validation. It is precisely the notion of inductive

corroboration which provided this external validation.

In al-Mustasfa, which he wrote during the last few years of his life, al-Ghazālī

produced a rather thorough statement concerning Ijma’. While still dismissing the

Qur'anic evidence alone as unsatisfactory, he accepts the solitary traditions which

were used by his predecessors to justify Ijma. He enumerates 11 traditions, among

which the tradition is "My community shall never agree on an error." The rest of the

traditions, which are all solitary traditions, were taken to enjoin Muslims to hold fast

to the community, to forewarn divisive tendencies, and to restate the infallibility of

the community. But al-Ghazālī is well aware that solitary traditions do not lead to the

certainty required in Ijma’. Al-Ghazālī however maintains that these traditions,

though they are not transmitted arithmetically in the mutawatir fashion, lead ‘ilm

darūri (immediate knowledge) because they are mutawatir in meaning (bil-ma’na).

The strict mutawatir report, whose authenticity is absolutely certain, reaches us

through channels of transmission sufficiently numerous to preclude any possibility of

collaboration on a forgery. Moreover, the persons witnessing the Prophet saying or

doing a particular thing must be sure of what they saw or heard, and their knowledge

of what they witnessed must be based on sensory perception (mahsus). All of the

above conditions must be met at each stage of the transmission if the status of

mutawatir is to be maintained. This type of tawatur is also known as tawatur-lafzi.

[Hallaq, 1986: 441]

48

By stating that the solitary traditions are tawatur bil-ma’na, he means that the

transmission of these traditions also occurs through a multitude of solitary channels,

and all traditions, though different in wording, convey the same meaning (ma’na).

Although the justification of tawatur-ma’nawi ultimately reverts to the same principles

of tawatur-lafzi, those Muslim jurists who admitted the authoritative character of the

former seemed to have stressed the element of inductive support as the cornerstone of

its validity. Here we have the same principle of induction at work. Given the common

theme that they all convey, these reports cumulatively cannot but enhance the

argument that this common theme is unquestionably true. The degree of probability

attached to them individually is immediately eliminated once they are grouped

together as one aggregate. The Prophet, al-Ghazālī says, declared the infallibility of

Islamic community by a multitude of explicit statements and intimations which make

it necessary for the mind to be certain of such knowledge. Certain knowledge of the

authoritativeness of Ijma’ immediately occurs in the mind when the mind becomes

acquainted with the cumulative effect of these traditions. Al-Ghazālī argues that each

of these traditions alone can probably be dubious, but the same cannot be said of all of

them as an aggregate. The support which each tradition gains from the others makes

it improbable that all of them together are doubtful. Thus, like the mutawatir-lafzi,

these traditions as a whole lead to certainty. [al-Ghazali, al-Mustasfa, I:48 quoted in

Hallaq, 1990: 20]

Two or three centuries after al-Ghazali, jurists such as al-Shātibi and al-Qarāfi,

magnified the inductive methods of reasoning, thereby giving these forms of

argument a decisive edge. In al-Ghazali’s time the role of induction does not seem to

have been fully appreciated. This can be seen in al-Ghazali's manner of treating other

sources of potential evidence in order to additionally try to validate Ijma’ by as many

means as possible. In this he may be said to have anticipated the articulate theories of

al-Qarāfi and al-Shātibi . The latter maintained that all pieces of evidence, whether

traditions, verses, or other types of argument, must be taken into account because

49

each additional piece of evidence enhances, by means of inductive support, the

argument for authoritativeness. He argued that through the complete enumeration of

such evidence certain knowledge can be reached. The work of al-Shātibī can be seen

as the fullest treatment of the inductive method of achieving certainty within Sunni

legal theory. It is to his articulations that we now turn.

(b) The culmination of inductive corroboration: Al-Shātibī

The theory of inductive corroboration stood as the methodological foundation for a

number of material and theoretical legal principles, ranging from Prophetic reports, to

Consensus, as we have just seen. While the majority of usulis confined the use of the

theory of inductive corroboration to problems such as these, we find that in his work

al-Muwafaqat fi usūlal-ahkam, al-Shātibī went so far as to anchor his entire theory of

usūl al-fiqh in inductive principles.

Al-Shātibī begins with the fundamental premise that the general theoretical legal

principles and the sources of the law are firmly grounded in certitude and that they

derive the authoritativeness from God, for should there be any degree of probability

concerning these principles and sources, there might follow the ominous conclusion

that such probability may well decline to a degree of doubt (shakk), thereby rendering

the Shariah, the decree of God inconsistent. The certitude surrounding the general

principles and sources of the law must then be derived either from conclusive pieces

of textual evidence, which admittedly are rare, or through an inductive survey of the

multitude of probable pieces of evidence supporting these principles. [al-Shātibī ,

1969, I:13]

Al-Shātibī argues that the aggregation of such pieces of evidence is perhaps the main

source of certainty in law. The tawatur, whether lafzi or ma’nawi, derives its certainty

from this principle. Each individual chain of transmission is undeniably probable, but

when a sufficient number of transmitted reports are heard, certainty of the content

obtains. He asserts that both the conclusive certainty concerning the five pillars of

50

Islam and the indubitable authoritativeness of Ijma’ and Qiyās are established in this

manner. Likewise, the fundamental juridical principles like the right to have a religion

or to own property are advocated by the Shariah in terms that are individually

probable, but in their multiplicity they corroborate these principles beyond doubt.

[Al-Shātibi, 1969, I: 13-14]

Furthermore, the evidence that may be utilized in proving the certainty of legal

principles may not be confined to the formal verbal expression contained in the

Prophetic reports and the Quran. Rather these principles derive from the meaning

which may be found, by means of induction, to permeate the entirety of shar’i material

sources.

Induction in al-Shātibī ’s theory is not merely an exhaustive account of the reports

that pertain in their totality to a particular issue, but rather a thematic induction

(istiqrā’ ma’nawi) of the spirit and letter of the Shariah. The evidence may not be

decreed for a particular case, or may not even directly touch upon the issue in

question, but its indirect relatedness the issue yields certainty in the event of

obtaining a sufficient number of corroborative instances. [Al-Shātibī, 1969, II: 35-36]

In other words, the certainty of the general legal principles results from the

cumulative corroboration of statements and indications found in passages and

contexts that are not as a whole necessarily relevant to these principles. Corroborative

pieces of evidence may appear in passing or as minor points in a larger body of

evidence. [Al-Shātibī, 1969, I: 13-15]

Al-Shātibī asserts that in contradistinction to the particularistic nature of positive legal

rulings (furu’), legal theory entails the construction of general principles and universal

truths (kullīyāt). The great majority, if not the entirety, of these kullīyāt are based on a

multitude of probable instances or particular statements which corroborate each other

to the degree of certainty. Al-Shātibī is aware of the basic rule of induction which

premises that to attain certainty with regard to a matter, all the particulars or species

51

subsumed under that matter must be enumerated and found to be mutually

corroborative. If, however, once succeeds in reaching a kullīyah on the basis of

enumerating the great majority of instances, then there should be no instance which

will contradict the kullīyah. This may be explained in the light of his assumption that if

a particular instance is proven to be in contradiction with the rest of the instances

constituting a given kullīyah, then one of the two, the instance or the kullīyah is

invalid. But al-Shātibī remains convinced that once a kullīyah is reached on the basis of

the great majority of relevant corroborative instances, then such a kullīyah cannot be

invalidated by what appears to be a non-conforming instance. Upon examining such

an instance one would find that its essence (dhāt) differs from the essences of the other

corroborative instances, a difference which justifies its un-subsumability under that

kullīyah. The essences of the particulars under a kullīyah must be identical, and must

not be subject to external influences. [Hallaq, 1990: 27]

(c) Istislāh and Maslaha Mursalah

The passages above which deal with the salient features of al-Shātibī’s methodology is

meant to provide a rigorous framework for our discussion on inductive reasoning

systems which aim to attain certainty with regard to the realisation of maslaha, and

the objectives of the Shari’ah.

Recall that in our discussion of munasib mursal, when we were dealing with the

methods of extracting and indentifying a possible ratio legis, we made the comment

that maslaha finds its way into both deductive and inductive reasoning systems. In

conventional Qiyas, when we argue deductively, we note that there is always some

link to the textual sources – whether direct or indirect. Thus the majority of usulis

hold that maslaha is present in those textually-based cases because maslaha is always

implicit in the divinely revealed sources which are the ultimate source of certainty.

Then, maslaha finds its way (as we have shown) into the procedural steps to identify

an ‘illa for the mechanism of Qiyās when the texts are silent, but in so doing, this

simultaneously leads us away from conventional Qiyās, into the realm of inductive

52

reasoning systems because then we have to – without the assistance of texts - decide

on a suitable ‘illa based on the over-arching universals of the Shariah. (kulliyat al-

Shariah).

Istislah is the practice of reasoning on the basis of maslaha. It has broad

interpretations, but it most pointedly finds traction when we are considering maslaha

mursalah, that is, reasoning on the assumption that the texts are silent on the matter –

the Arabic word “irsal” means to “let go”, and in so keeping, maslaha mursalah finds

specific application in those instances in which the texts have “let go” of the problem.

Al-Ghazālī provides us with a definition of maslaha which has become almost

universal in usūl literature:

“Maslaha is, primarily, an expression of bringing about a cause of benefit or averting a cause

of harm. Yet this is not what we mean, for bringing about a cause of benefit and averting a

cause of harm are purposes of human beings, and peoples well-being lies in achieving their

purposes. Rather, we mean by maslaha the preservation of the purpose of the law. The purpose

of the law, as far as human kind is concerned, is to preserve them their religion, their life, their

intellect, their offspring and their property. Whatever encompasses the preservation of these

five fundamentals is a maslaha and whatever fails these fundamentals is a mafsada, the

averting of which is a maslaha. The preservation of these five fundamentals occurs in the rank

of necessities.” [Al-Ghazali, 1937: II:481]

The purpose of the Shariah, and any religious law according to al-Ghazālī is therefore

the maslaha of humankind with respect to these five fundamental elements which he

mentions. All of the masālih can be established directly out of an examination of the

textual sources according to al-Ghazali. [Al-Ghazali, 1937: II:481]

This is where the link with al-Shātibi becomes evident. We have showed previously

that for al-Shātibi, an inductive survey of the sources of the Shariah, that is the Qur’an

and Sunnah, yield certain knowledge with regards to its universals (kullīyāt). These

universals are clearly the five fundamentals which al-Ghazālī speaks of: “to preserve

53

them their religion, their life, their intellect, their offspring and their property.”

Furthermore, since this process is based on a finite corpus i.e. the textual sources are

conceivably exhaustible for any one person; learned scholars should find it no great

task to examining all of their particulars. [Masud, 1997: 127-168]

Al-Ghazālī divides the masālih into the rank of necessities (darūriyāt), the rank of needs

(hājāt) and the rank of improvements and embellishments (tahsināt and tazyināt). The

five fundamentals as aforementioned constitute the rank of necessities. [Al-Ghazālī,

1937: II:481-483]

For the preservation of necessities, al-Ghazālī gives examples of rulings from the

Shariah to illustrate, like for instance the injunction to kill the unbeliever who leads

Muslims astray (protection of religion), the institution of retaliation (protection of

life), the punishment of drinking wine (to preserve the intellect), the punishment for

adultery (to protect offspring and lineage) and the laws which prevent usurpation

and theft (to protect property).

For examples constituting the rank of needs, al-Ghazālī contends that to put a legal

guardian in charge before marrying a minor does not constitute a necessity, but it is

needed for procuring masalih such as the protection of offspring, because it may be

feared that if unsuitable partners (defined as societal rank and status) are brought

together in marriage it often leads to acrimonious dissociations which disrupt the

family unit.

The third rank which constitutes the rank of improvements and embellishments, is

occupied by considerations like good manners and proper behaviour. [Al-Ghazālī,

1937: II:481-483]

With regards now to the issue of maslaha mursala, al-Ghazālī contends that only

matters which pertain to the rank of necessities (darūriyāt), can carry the force of law

in the absence of textual indications. Furthermore, al-Ghazālī stipulates further

conditions which must be fulfilled before one can enact a ruling based on maslaha

54

mursala, so in all the matter must be of the rank of neccasities (darūriyāt), then the

matter must also represent certainty (qat’iyya) and finally the matter must be universal

(kulli).

He provides a famous example which satisfies all these requirements:

Some unbelievers shield themselves with some Muslim prisoners which they have

captured. If the Muslim army shoots at the unbelievers, they will strike some of their

own brethren as well, who are innocents – this is strictly forbidden by law. However,

should they take no action; the unbelievers will march on and conquer the Muslim

lands, killing all the Muslims as well as the prisoners. Al-Ghazālī argues here that is

known with certainty that the law’s intention is to reduce killing, or when this is not

possible keep killing to a minimum. On this basis, al-Ghazālī contends that it is

permissible to strike at the oncoming enemy, even though some innocent Muslims

will be killed in the process. Here the survival of the community at large outweighs

the deaths of the few prisoners. This line of reasoning is only acceptable because (a) it

pertains to the fundamental, necessary (darūrī) maslaha of preserving religion (b) it is

certain (qat’i) that the entire Muslim community will be eliminated if the oncoming

force is not curtailed and finally (c) the striking of the oncoming force concerns the

entire Muslim community (kulli) and so is not limited to the interests of a select few.

Because the example satisfies all the conditions stipulated by al-Ghazālī he believes

that the action to shoot at the oncoming force carries the force of law. [Al-Ghazālī,

1937: II:481-489]

In conclusion, al-Ghazālī incorporates decisions based on a maslaha mursala into the

framework of valid legal rulings by anchoring maslaha in the purposes of the Sharī’ah

and setting it outside the formal procedure of conventional legal analogy (Qiyās). He

thus divides the jurists possibilities to arrive at legal rulings into two broad systems,

which also represent our two systems of achieving certainty viz. Deductive and

Inductive systems. There are those (deductive) that are based directly on the textual

sources (and here this specifically includes conventional Qiyās) and those (inductive)

55

that arrive at equally valid legal rulings via a cumulative consideration of the over-

arching purposes of the Sharī’ah that have been inductively gleaned from divine texts.

The latter process is thus concerned with bringing about maslaha by preserving the

five fundamentals of human existence. This process confers legal validity in a way

that resembles formal conventional Qiyās, except that unlike conventional Qiyās, no

specific source or text (asl) attests to the correctness of the ruling that is to be

transferred to a non-decided case by means of a common ratio legis (‘illa). This implies

that in fact a maslaha pertaining to the rank of necessity (darūrī) is taken as the asl and

a relevant suitability serves as the ratio legis (‘illa) common to both the supposed asl

and the far’. [Opwis, 2001: 60]

56

5. Conclusions

This paper has been an exploration of two systems – deductive and inductive - that

are employed within the rational organs of Islamic Jurisprudence in order to arrive at

certainty with regards to knowing God’s decree. I have not tried to present a

sequential historical narrative of their respective unfolding, but rather I have tried to

study the actual operational mechanisms involved in the two systems to see what this

can tell us.

We began by looking at the logic and mechanism underlying the formal, deductive

method of proof. If we accept the assertion that usūl al-fiqh was a retrospective

construction in order to rationalize already existing pieces of law, then it stands to

reason the usūl scholars needed a rational vehicle in order to justify, but not

contradict, already extant laws. For this they devised the tool of Qiyās. Rationality in

Qiyas then only refers to the mechanism and not necessarily the results.

What scholars like al-Ghazālī and al-Rāzī succeeded in trying to do was to

superimpose the mechanism of the first-figure syllogism, which was an argument

structure borrowed from formal Aristotelian Logic, onto the mechanism of Qiyas. The

aim of this superimposition was the attainment of irrefutable certainty in the method,

provided that the inputs could be agreed upon. The validity of constructing a

syllogistic argument would therefore still depend heavily upon the truthfulness and

validity of the ‘illa as the central feature of the universalization of the major premise.

Once this is done however, and the premises (particularly the major premise) is

accepted, the logical machinery of the method makes the conclusion irrefutable.

Logically speaking therefore, the cause must always produce the effect.

With al-Ghazālī and al-Rāzī we see the very apex of formal methods of deductive

certainty. Their configuration and structuring of the system of juridical Qiyās within a

logical-syllogistic framework solidified the rational apparatus of Sunni legal theory

such that it provided an algorithm which allowed for the interpretation of new cases

57

such that they fell within the locus of static textual indications. So again we saw here,

as sophisticated as these logical-syllogistic superimpositions were, it did not give one

tools to produce new law. It gave one tools to re-interpret new cases so that they can

subsumed under the old existing textual law.

Then we examined inductive systems of reasoning aimed at achieving certainty. We

see that these systems of reasoning first find traction in the science of authenticating

the content of solitary Prophetic reports. We wished to show that Sunni consensus or

Ijma’ came to be sanctioned by inductive reasoning processes. Then we registered

how Ijma’, as implicitly represented by the normative practice of the early community,

shaped the construction and discourse of the early systems of usūl al-fiqh, including

Qiyās. We make the point then that if we accept that Qiyās and its mechanism served

to logically justify existing normative rulings and practices of the early community,

and these normative practices were in turn legitimized by Ijma’, then it follows that

Ijma’ legitimizes Qiyās in some sense. Inductive reasoning is thus the parent system of

attainting certainty.

We showed how al-Shātibi based his entire system of usūl on inductive reasoning

processes and how the rigour of his inductive approach attains notions of certainty

that are as convincing as deductive methods. Finally we show how these methods of

inductive reasoning find resonance within the rubric of Istislāh or arguing for legal

certainty via considerations of maslaha, which in turn is known with certainty by an

exhaustive, inductive survey of the sources of Islamic Law.

In all, the point we wish to make is that even though it can be procedurally fortified

via logical syllogism and deductive rigour, Qiyās by its very construction cannot

function as a genuine rational tool to deal with a world of changing circumstance. It is

designed to revert to the authority of texts, which are finite bodies of knowledge –

meaning that they cannot always contain certain answers to every conceivable new

thing.

58

Instead, what is more expedient in a world of changing circumstance and new

contexts is an organic, non-formal rationalism which is nonetheless informed by the

over-arching universals implicit in the law. These universals can be successfully

gleaned, as al-Shātibi eloquently showed, via an inductive survey of the divine texts

and a proper lens of appreciation of the particulars of the law, which in some cases

must not draw our attention away from the universals. So in all, inductive processes

are better engineered systems for achieving certainty.

59

Bibliography: Works Cited

‘Abd al-Jabbar, al-Qadi. 1962: Al-Mughnī fī Abwāb al-Tawhīd wa’l ‘Adl. Cairo, Dar

al-Fikr al-‘Arabi

Al-‘Amidi, Ali b. Muhammad. 1914: Al-Ihkam fi usul al-ahkam. Beirut. Dar al Kitab.

Al-Azmeh, A. 1988: Islamic Law and the Appropriation of Reality in Islamic Law: Social

and Historical Contexts. London: Routledge.

Al-Ghazālī, Abu Hamid b. Muhammad 1937: Al Mustasfa min ‘ilm al-usul. 2 vols.

Cairo, al-Maktabah al Tijariyyah

--------1971: Shifāl-Ghalīl fi Bayān al-Shabah wal-Mukhīl wa Masālik al-Talīl, ed. Hamd

al-Kabisi. Baghdad: Matba’at al-Irshad.

Al-Qarāfī, Ahmad. 1306: Sharh Tanqih al-Fusūl. Cairo, Dar al-Fikr al-‘Arabi

Al-Sarakshī. 1324: Al-Mabsūt. Cairo, Dar al-Fikr al-‘Arabi

Al-Shāfi’ī. 1321: Al-Risāla. Cairo, Dar al-Fikr al-‘Arabi

Al-Shātibi, Ibrahim b. Musa. 1969: al-Muwafaqāt fi usūl al-ahkām. Ed. Al-Hamid. 4

vols. Cairo, Dar al-Fikr al-‘Arabi

Calder, N. 1983: Ikhtilāf and Ijmā in al-Shāfi’ī’s Risāla. Studia Islamica, No. 58 (1983), pp. 55-81 Fakhry, M. 1994: Ethical Theories in Islam. Leiden: E. J. Brill.

Hallaq, W.B. 1984: Considerations on the Function and Character of Sunnī Legal Theory Journal of the American Oriental Society, Vol. 104, No. 4 (Oct. - Dec., 1984), pp. 679-689

60

------------1985: The Logic of Legal Reasoning in Religious and Non-Religious Cultures: The Case of Islamic Law and the Common Law. Cleveland State Law Review 34, New York -----------1986: On the Authoritativeness of Sunni Consensus. International Journal of Middle East Studies, Vol. 18, No. 4 pp. 427-454 -----------1989: Non-Analogical Arguments in Sunni Juridical Qiyās. Arabica, T. 36, Fasc. 3 (Nov., 1989), pp. 286-306 ------------1990: Logic, Formal Arguments and Formalization of Arguments in Sunnī Jurisprudence. Arabica, T. 37, Fasc. 3 (Nov., 1990), pp. 315-358 -------------1993: Was al-Shāfi’ī the Master Architect of Islamic Jurisprudence? International Journal of Middle East Studies, Vol. 25, No. 4 (Nov., 1993), pp. 587-605 -------------1997: A History of Islamic Legal Theories: An introduction to Sunni Usūl al Fiqh. Cambridge. Hasan, A. 1966: Al-Shāfi’ī’s role in the Development of Islamic Jurisprudence. Islamic Studies, Vol. 5, No. 3 (September 1966), pp. 239-273 --------------1977: The Principle of Istihsan in Islamic Jurisprudence. Islamic Studies, Vol. 16, No. 4 (Winter 1977), pp. 347-362 --------------1980: The Definition of Qiyās in Islamic Jurisprudence. Islamic Studies, Vol. 19, No. 1 No. 1 (Spring 1980), pp. -------------1986: Analogical Reasoning in Islamic Jurisprudence. Islamabad, Islamic Research Institute.

61

Hodgson, Marshall G. S. 1974. The Venture of Islam: Conscience and History in a World Civilization. 3 Vols. Chicago: Chicago University Press. Pp. 214-358 Makdisi, G.1984: The Juridical Theology of al-Shāfi’ī: Origins and significance of Usul al-Fiqh. Studia Islamica, No. 59 (1984), pp. 5-47 Masud, Muhammad Khalid. 1997: al-Shatibi’s Philopsophy of Islamic Law. New Delhi, Kitab Bhavan. Nyazee, Imran Ahsan Khan. 2000: Islamic Jurisprudence. International Institute of Islamic Thought Opwis, F. 2001: Maslaha: An Intellectual History of a Core Concept in Islamic Legal Theory. PhD dissertation. Yale University, Faculty of the Graduate School. -------------2005: Maslaha in Contemporary Islamic Legal Theory. Islamic Law and Society, Vol. 12, No. 2, pp. 182-223 Al-Razi, Fakhr al-Din. 1988: Al-Mahsul fi ‘ilm usūl al-fiqh, 2 vols. Beirut, Dar al Kutub al ‘ilmiyyah. Sachedina, A. 2005: Islamic Ethics: Differentiations. In The Blackwell Companion to

Religious Ethics, edited by William Schweiker, 254-267. Oxford: Wiley-Blackwell

publishing.

Schacht, J.1959: The Origins of Muhammaden Jurisprudence. Oxford.

Zysow, A. 1984: The Economy of Certainty: An Introduction to the Typology of Islamic

Legal Thoery. PhD dissertation, Harvard University Graduate School of Arts and

Sciences.

62

Other Works consulted:

Al-Shahrastāni, ‘Abd al-Karim. 1968: Al-Milāl wa’l-Nihāl, edited by A.A. al-Wakīl.

Cairo.

---------1934: Nihāyat al-Iqdām, edited by A. Guillame. London.

Johnston, D. 2004: A Turn in the Epistemology and Hermeneutics of Twentieth Century Uṣ ūl al-Fiqh. Islamic Law and Society, Vol. 11, No. 2 pp. 233-282 Khallaf, Abd al-Wahhab.1984.: 'Ilm usu-l al-fiqh. Alexandria: Mu'assasat Shabab al-Jami'a Moosa, E. 2005: Muslim Ethics? In The Blackwell Companion to Religious Ethics,

edited by William Schweiker, 237-243. Oxford: Wiley-Blackwell publishing

Nyazee, Imran Ahsan Khan. 1994: Theories of Islamic Law: The methodology of Ijtihad.

International Institute of Islamic Thought and Islamic Research Institute.

Raysūnī, Ahmad, and Muhammad Jamāl Barut. 2000: al-Ijtihad : al-nass, al-waqi`, al-maslahah. Hiwarat li-qarn jadid. Bayrut: Dar al-Fikr al-Mu`asir.

Raysūnī, A. 2005: Imam Shātibī’s Theory of the Higher Objectives and Intents of Islamic

Law translated by Nancy Roberts, publisher IIIT.

Raysūnī, A. 2010: al-Kullīyāt al-asāsīya lil-sharīʻa al-Islāmīya. Rabāṭ : Dār al-Amān.