Qiyās

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Qiyās ( Arabic قياس) in Islamic jurisprudence denotes a certain form of inference by analogy that can be used as a means of finding norms if there is no statement in the Koran or Sunna on a certain issue and there is also no scholarly consensus on this. The term is from the Arabic root qys قيس derived, whose basic meaning is "measure", "compare", "assess".

In Sunni Islam, the Qiyās is the fourth source of law after the Koran, Sunna and Idschmāʿ . The Twelve Shia rejects Qiyās, but allows for the proof of reason ( dalīl al-ʿaql ). The Zahirites and some Hanbalites also rejected the qiyās.

Fundamental to the Sunni conception of qiyās is the statement made by ash-Shāfiī in his Kitāb Ibṭāl al-istiḥān ("Book of the Debilitating Considerations of Equity"), which forms part of his Kitāb al-Umm . Here, the Hanafi's "equitable consideration" (istiḥsān) is rejected as a means of finding norms, but at the same time it is also defined which are the permissible means of finding norms: "No one who wants to work as a judge or mufti is allowed to join to base the jurisprudence or the issuance of his expert opinion on something other than a binding report, namely the book, the Sunnah or what the scholars consistently teach, or on the conclusion by analogy according to one of these things ". Ash-Shāfidī assumed that qiyās and ijtihād are identical.

Components of qiyā

Qiyās consists of four elements: (1) a goal case (farʿ) for which a normative evaluation (ḥukm) is sought; (2) an initial case (aṣl) for which a normative evaluation has already been given through the Koran , Sunna or consensus ; (3) an identifiable reason (ʿilla) for the normative assessment of the initial case, which can be transferred to the target case; If all three of the aforementioned elements are present, then (4) results in the normative evaluation of the target case.

With regard to the ʿilla , numerous prerequisites are mentioned that must be met, including “clear exposure” (ẓuhūr), “ascertainability” (inḍibāṭ) and “appropriateness” (munāsaba). Appropriateness, which is discussed a lot, should be present if the ʿilla brings about a benefit (maṣlaḥa) or avoids damage. For example, prosperity is the ʿilla for the commandment to pay zakat and avoidance of intoxication is the ʿilla for the Koranic ban on wine .

In some systems, the "appropriateness" category is broken down further, according to:

  • Degree of urgency in “compelling necessity” (ḍarūra), “neediness” (ḥāǧa) and “completeness” (tatimma). Among the things that are imperative are the five universals (al-kullīyāt al-ḫams) derived from Sharia law : life, religion, family, reason and property. The greater the urgency, the more suitable it is for qiyās.
  • Degree of specificity of ʿilla and farʿ. The more specific both are, the more suitable they are for qiyās.
  • Position of the basic religious texts in relation to the intended benefit. If the benefit is explicitly recognized in the texts, it is a "recognized benefit" (maṣlaḥa muʿtabara), which is a sound basis for the argument. If this benefit is explicitly excluded in these texts, it is an "excluded benefit" (maṣlaḥa mulġāt) which is not suitable for argumentation. It is an “optional benefit” (maṣlaḥa mursala) if the basic texts do not contain any evaluative statements. It can also be used as an argument.

literature

  • M. Bernard : Ḳiyās. 1. in Law. In: Encyclopaedia of Islam . New Edition. Volume V, pp. 238-242.
  • R. Brunschwig : "Argumentation fāṭimide contre le raisonnement par analogie ( qiyās )" in Recherches d'islamologie: Recueil d'articles offert à Georges C. Anawati and Louis Gardet par leurs collègues et amis . Peeters, Louvain, 1977. pp. 75-84.
  • Robert Gleave: Imāmī Shīʿī Refutations of qiyās. In: Bernard G. Weiss (Ed.): Studies in Islamic legal theory. Leiden 2002, pp. 267-293.
  • Malcolm Kerr: Islamic Reform. The Political and Legal Theories of Muḥammad ʿAbduh and Rashīd Riḍā. Berkeley 1966, pp. 66-79.
  • Birgit Krawietz: Hierarchy of Legal Sources in Traditional Sunni Islam. Berlin 2002, pp. 203-223.
  • Ruth Mas: Qiyas: A Study in Islamic Logic. In: Folia Orientalia. Vol. 34, (1998) 113-128. (online at: spot.colorado.edu )
  • Nabil Shehaby: ʿIlla and Qiyās in Early Islamic Legal Theory. In: Journal of the American Oriental Society. 102/1 (1982), pp. 27-46.
  • John Wansbrough : Qur'anic Studies. Sources and Methods of Scriptural Interpretation. 1st edition. Oxford 1977, p. 167 and passim .

Individual evidence

  1. ↑ See Gleave and Devin Stewart: Islamic Legal Orthodoxy. Twelver Shiite Responses to the Sunni Legal System . Salt Lake City 1998, p. 15.
  2. ↑ See Bernard 239b-240a.
  3. ↑ Lā yaǧūzu li-man istaʾhala an yakūna ḥākiman au muftiyan an yaḥkuma wa-lā yuftiya illā min ǧihati ḫabarin lāzimin wa-ḏālika l-kitābu ṯumma s-sunnatu au mā qāla-yaḫahlu l-ūna au mā qāla-hū a ahlu l-alā qāla-hū a ahlu l-ūna au qi fīl ūna au baʿḍi hāḏā. Cf. aš-Šāfiʿī: Kitāb al-Umm 7 volumes Ed. Būlāq: al-Maṭbaʿa al-amīrīya. 1321-1325h. Volume VII, pp. 270f.
  4. ↑ See Bernard 241b
  5. ↑ See Krawietz 221.
  6. ↑ See Kerr 69
  7. ↑ The representation follows Kerr 69f.