Reza Ismail Certainty in Traditional Legal Theory

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AN EPISTEMOLOGY of CERTAINTY:
An Exploration of Systems of Certainty within the Rational Sources of Sunnī Legal Theory
BY
MOHAMED REZA ISMAIL
ISMREZ001

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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.

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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

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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]

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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.

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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

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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.

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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.

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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

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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

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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]

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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

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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]

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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.

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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

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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]

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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

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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.

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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

Reza Ismail Certainty in Traditional Legal Theory

Reza Ismail Certainty in Traditional Legal Theory

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