Analogy (Qiyās) in the Zaydi legal text KITAB USUL AL-FIQH, COPIED BY MAHMOUD B. MAHMOUD B. ALI AL-MAFAHIR AL-SIWASI, NEAR EAST, DATED 722 AH/1322-23 AD | Arts of the Islamic World | 2019 | Sotheby's

Analogy (Qiyās) in the Zaydi legal text

The article explores marginal commentaries on Ṣārim al-Dīn al-Wazīr's al-Fuṣūl al-luʾluʾiyya, examining the Zaydi treatment of qiyās. It analyzes the Zaydi perspective on the validity and categorization of analogy, comparing it with other legal schools.

Analogy (Qiyās) in the Zaydi legal text

Sarah Islam (Princeton University) and Jan Thiele (Spanish National Research

Council – CSIC, Madrid)

Work on our chapter began with an inspection of marginal commentaries in manuscripts of Ṣārim al-Dīn Ibrāhīm b. Muḥammad al-Wazīr’s (d. 914/1508) al-Fuṣūl al-luʾluʾiyya, an important Zaydī legal text summarizing the basic principles of usūl al-fiqh. Al-Wazīr’s book has survived in at least 55 manuscripts, scattered around collections of Zaydī manuscripts worldwide.

The existence of commentaries on al-Fuṣūl al-luʾluʾiyya is well attested in the literature produced by premodern and modern scholars of Zaydism. One such commentary has been listed by the cataloguers of the Arabic manuscript collection of the Ambrosiana Library in Milan: they record a “Gloss” (Ḥāshiya) on al-Fuṣūl al-luʾluʾiyya collected by Aḥmad b. ʿAbd Allāh b. Ibrāhīm b. Muḥammd Ibn al-Wazīr (d. 985/1577). “Ibn ʿAbd Allāh” was Ṣārim al-Dīn al-Wazīr’s great-grandson and a scholar who was particularly renowned for his expertise in the field of Tradition.

In our chapter, we focused on his discussion of qiyās. In the simplest terms, qiyās is an interpretive tool that jurists use to derive laws from Islam’s evidentiary sources. Often defined as ‘analogical reasoning’, qiyās was a deductive process in which rules from the Qurʾan and other textual sources that are applied in a known case, were then applied to new cases which were analogically similar and for which the Qurʾan and other Islamic legal sources provided insufficient evidence to produce an independent ruling.

In his commentary, Ibn ʿAbd Allāh explains points of interpretive disagreement among the schools of law, focusing on the major distinguishing points of Zaydī thought on the controversial status of qiyās and its sub-categories vis-à-vis the Imāmīs and the Sunnī schools of law.

Among the Imāmīs, theoretically, qiyās was considered too uncertain an interpretive tool to be used with authority. Despite their Shīʿī affiliation, the Zaydīs—who were heavily influenced by Ḥanafī legal theory—adopted the position of the Sunnī legal schools of the validity of qiyās. Hence, we find al-Wazīr in his text endorsing the validity of qiyās as a legal tool, and Ibn ʿAbd Allāḥ in his commentary reaffirming the legal status of qiyās, pointing to its ubiquitous usage - even by jurists who might claim not to use it.

Ibn ʿAbd Allāh centers his discussion on two questions. First, did qiyās (as defined in uṣūl al-fiqh) encompass various forms of both legal analogical reasoning and syllogistic reasoning — such as what might be found in formal logic (manṭiq) — as most Ḥanafīs believed? Or was qiyās one narrowly defined legal procedure that adopted a specific type of analogical reasoning in its application, as many Shāfiʿīs opined? Second, were co-absence (qiyās al-ʿaks) and co-presence (qiyās al-ṭard) valid forms of qiyās?

Ibn ʿAbd Allāh discusses the second question first. Co-presence (qiyās al-ṭard) refers to the idea that when a specific judgment was operative in a case, another feature co-existed in a correlative fashion in that case as well. This co-existing feature was the occasioning factor (ʿilla) for that judgment. Co-absence (qiyās al-ʿaks) implied that the opposite was also true: when a specific judgment was not operative, then this corresponding feature was also not present in the case. For example, there is wine, and there is vinegar made from wine. Wine is forbidden while vinegar made from wine is permitted. The feature of “being intoxicating” is present in wine, but disappears with its conversion into vinegar. Hence, one could deduce that the occasioning factor for the prohibition of wine was its intoxicating quality. Some jurists considered this line of reasoning to be air-tight, or at the very least probabilistic. Those who deemed it an invalid argument said that multiple features could correlate with the presence of a given judgment without having the causal force of being the occasioning factor for that judgment. In the case above, wine was both intoxicating and had a distinctive smell. Both features changed with its conversion to vinegar: how could one deduce with absolute certainty which of the two (smell or “being intoxicating”) was the occasioning factor? In such a case, these jurists argued that without weightier evidence, co-presence (qiyās al-ṭard) alone was insufficient to single out one feature as the occasioning factor. Co-absence (qiyās al-ʿaks) in their view was an even weaker premise since this process entailed the void or absence of a specific feature. In such a case, the question of what feature was missing was an exercise of conjecture.

In agreement with the Ḥanafīs, both Ibn ʿAbd Allāh and al-Wazīr take the view that both aforementioned categories are valid forms of qiyās. Ibn ʿAbd Allāḥ supports this with three reasons. First, co-absence (qiyās al-ʿaks) was very similar to the conditional hypothetical syllogism (qiyās al-talāzum) which was a valid form of analogical reasoning in formal logic. Second, both categories of qiyās were quite similar to two other legally derived categories of qiyās already recognized by most jurists: qiyās al-ʿilla and qiyās al-dalāla. Ibn ʿAbd Allāh argues that qiyās al-ʿilla, entails those instances in which an explicitly mentioned textual occasioning factor (ʿilla) is applied from a previous case to a new case. The framework is not dissimilar to qiyās al-ṭard in certain aspects. Likewise, qiyās al-dalāla entails those instances involving an inferred occasioning factor. Third, he notes that his intellectual opponents, the Shāfīʿīs, theoretically did not consider the act of borrowing ideas from non-legal genres to be valid within the realm of qiyās. However, on a practical level, they nonetheless used many of the exact same interpretive tools. They simply assigned them an alternate category or asserted their textual (in lieu of speculative) roots, such as in the example of qiyās al-dalāla above (which was a category they did consider to be valid). In this way, he argues, jurists who supported different theoretical frameworks often, in reality, used the same interpretive legal tools. They just categorized them differently or provided different rationales to support their validity.