The Peculiar Case of Analogy in Islamic Legal Reasoning

The idea of being fated to decide the same way in the future as we did in the past might strike one as odd, our previous decisions binding future ones. Of course, there can be special circumstances to that effect. Someone may have relied on our doing things a certain way or harboured expectations that we would do the same again in the future. But normally one does not employ such thinking when judging prospectively for we are always open to reconsidering and changing our minds. It is in this way that individual reasoning differs from legal reasoning, for we expect judges to refer to previous analogous cases when deciding an immediate case.

This article tells a tale of legal reasoning; how one substratum of such reasoning—analogical reasoning—evolved in the formative period of Islamic Law (750-1000 AD). Whilst being primarily focussed on Islamic Law, this article will refer to Western legal thought as being largely similar in its approach to analogical reasoning albeit revealing interesting nuances. It should also be noted that Islamic Law is undergirded by the primacy of guidance for humanity, as defined and disseminated by the religion of Islam. As such, included in the competency of traditional and neo-traditional Islamic jurisprudence are the practicalities of worshipping God, as well as the usual legal regimes one expects such as contract law or criminal law.

Upon asking a Muslim in the modern day, one will come to realise that analogising is a basic and well known source of Islamic law. That is to say, the use of analogical reasoning is wholly uncontroversial. However, this was not always the case. Alongside the holy Quran, the traditions, practices and sayings of the holy Prophet (known as the sunna) and consensus of scholarship, jurists embark on a process of independent legal reasoning known in Arabic as ijtihad, in an effort to uncover guidance.

An analogical argument is an argument that a case should be treated in a certain way because that is the way a similar case has been treated. This is different to an argument from precedent, which holds that a case should be decided a certain way because such is the same way an earlier case has been treated. One must be aware that arguments by analogy need not involve a strict analogy, but systematic reasoning in a broader sense, according to the jurists of the formative period. A basic argument by analogy is as such; it is established law that a thief must compensate a victim x for the theft of y, thus she ought to compensate the victim xx for the theft of yy. In Arabic, this type of reasoning is known as qiyās, which loosely translates to measurement or gauging. To explore the early scholarly reactions to the use of analogical reasoning, we must turn to 8th century Iraq. The story of analogies in Islamic jurisprudence is surprisingly dramatic, with controversial origins. It began as a taboo topic and an unpopular—perhaps blasphemous—option for jurists, yet evolved into a unanimously accepted source of Islamic Law by the end of the aforementioned formative period.

Conventional wisdom on the matter tells us that systematic legal thought in Islamic jurisprudence originated in Iraq. This is contrasted with contemporary Meccan and Medinan law in the Hijaz peninsula which was more piecemeal. Early Iraqi jurists were spoken of as being on a journey to search for greater coherence and consistency. One contemporary writer touches upon the guiding premise behind this unique emphasis on consistency: “The teachings of the holy Prophet were embodiments of general principles, rather than arbitrary fiats.”

Thus we can view Iraq as the home of analogical structuralism; a doctrine placing importance on structure over function and manifesting itself in this context as the presumption of consistency in the law. Early Iraqi jurists believed the law to be inherently sensible, not a haphazard collection of statements arrived at through the primary revelatory sources i.e the holy Quran. Rather, the primary sources point to the larger legal system the juristic community is devising, and said legal system makes sense to the human mind, its parts fitting together to form a harmonious whole. As mentioned, the analogical consistency to be used in pursuit of this harmonious whole does not simply mean plain analogy but any kind of rationalisation by which rules make sense in light of other rules or premises. All of this is to say that the Iraqi emphasis on consistency was remarkable due to its novelty.

Thus far, detailing the need for consistency and rationalisation of the law may seem obvious, for we see this as synonymous with legal reasoning itself. However, upon comparison with contemporary Medinan law, the controversy of such reasoning becomes apparent. In Medina, jurists would rely primarily on the traditions, practices and sayings of the holy Prophet (the sunna) to derive new context-specific rulings. As one primary source shows, this could fly in the face of analogical consistency at times. It recounts a conversation in which a student asks a prominent Medinan jurist named Saʿīd b. al-Musayyab about the compensation for injuries to a woman’s fingers:

I asked Saʿīd b. al-Musayyab, “How much [is the blood-money] for a woman’s finger?” He responded, “Ten camels.” I asked, “How much for two fingers?” He responded, “Twenty camels.” I asked, “How much for three?” He responded, “Thirty camels.” I asked, “How much for four?” He responded, “Twenty camels.” I responded, “When her wound is greater…her blood-money decreases?” Saʿīd responded, “Are you an Iraqi?…It’s the sunna, my nephew.”

It is against this jurisprudential backdrop that we find the peculiar trend of shunning and at times ridiculing analogical reasoning and consistency. Such is the experience of an influential jurist of the time named Ḥammād b. Abī Sulaymān, who was the teacher of Abū Ḥanīfa—grandfather of the Hanafi jurisprudential school of thought. During his travels the former was ridiculed by mobs for the extent of his analogising, with one incident being particularly vivid; he was asked by a mob whether a man who fornicates with a dead chicken earns paternity of an egg that later comes out of the chicken, clearly satirising qiyās by extending fornication and paternity to bestiality. However, objections to analogising were not limited to satire but also had theological undertones. Another story details the first meeting between Abū Ḥanīfa and Imām Jaʿfar al- Ṣādiq, the sixth Shiʿi imam. The two are introduced by a third party, with Abū Ḥanīfa being named as the one who “analogises in the faith with his opinion.” Ja’far states:

“Fear God, and do not use analogy in the faith…for the first to use qiyās was Satan, when God commanded him to prostrate to Adam and he said, ‘I am better than him. You made me from fire and him from clay’.”

It is interesting to note that many objections from this era were premised upon the idea that analogical consistency was a normative or subjective endeavour, involving the jurist’s ‘opinions.’ Consequently, one can understand the protective nature of jurists’ panic, for the sunna is seen as objective and ultimate. However, we can observe from other primary source materials that the use of qiyās was not the result of normative judgements. Fascinatingly, Abū Ḥanīfa reportedly replied to the famous saying of the holy Prophet: “Ablution is half of faith,” by asking “So why does one not perform ablution twice so as to perfect their faith?” Thus one can see the insistence on systematic logical progressions, rather than opinion based reasoning.

As previously mentioned, qiyās often means not a strict analogy, but consistent systematic reasoning in a broader sense. Included in this is reasoning a fortiori, meaning literally to argue ‘from the stronger.’ This is conveniently demonstrated by one prominent jurist’s statement: “The strongest kind of qiyās is [deducing], from the commendation of a small act of piety, the presumably stronger commendation of a greater act of piety…[and reasoning], from the permission of a great quantity, the presumably even more unqualified permission of a smaller quantity.” A common example of this taught in Islamic jurisprudence is the Qur’anic verse: “Do not even say ‘Oof’ to [your parents].” This a fortiori necessitates that one may not physically harm their parents, for if one cannot express frustration with their parents then anything progressing down the logical chain of disrespect is prohibited.

There are two main assumptions that can be gleaned from this type of reasoning: there is a reason behind specific laws as well as the existence of rationally intelligible reasons behind the law generally. It is at this point that we observe the junction between jurisprudence and theology, for the notion that specific divine laws are intelligible became contested by some. Several jurists and scholarly figures rejected any rationality behind the law, claiming that God’s commandments are arbitrary from the human perspective. It was this arbitrariness that the 8th century Iraqis rejected.

One school of thought in particular has been spotlighted in jurisprudential history as donning the anti-qiyās crest. The Ẓāhirīs rejected any rational sensibility to the law, and with it qiyās. One figure famously argued that the commandment regarding uttering “oof” to one’s parents did not prohibit physical violence against one’s parents, or indeed anything other than literally saying “oof.” The extrapolation of this commandment to all forms of disrespect and violence—which necessitates analogical reasoning and deduction—risks belief that humans can rationally make sense of God’s law. That humans can rationalise holy law seems to be instinctual to the modern individual. This premise is implicit in any intellectual inquiry into the inner workings of religion, be that scriptural exegesis, jurisprudence or even theology; why bother if one is doomed to never find out? However, such an optimistic leap was seen as too great and borderline blasphemous by the Ẓāhirīs, a view that needless to say did not survive to the modern age.

Let us now turn to the modern day. In Western legal traditions analogical reasoning has also been a contested area. While seemingly taken for granted, unlike in the Islamic formative period, there is no consensus on why the similarity between two situations provides a reason for treating them both in the same manner. In English common law, a court must follow an indistinguishable precedent unless the court has the power to overrule an earlier decision, as per the hierarchy of courts. That is to say, if the factual matrix of both cases is the same, the earlier precedent must be followed. According to modern western legal thought, the strongest justification for analogical reasoning lies in the value of replicability, ultimately upholding the coherence of the law.

According to Western legal thought, there are two important realities of legal decision-making. Firstly, legal materials are splintered; precedents, statutes, conventions and doctrines are the product of different people at different times with different outlooks. As a result, legal doctrine may seem incoherent widely, but more coherent on a local scale. This is further the result of the pluralism of decision makers who make decisions using the same body of fragmented materials but do not share the same critical outlook. This can result in a large scope for disagreement when legal decision-makers face novel questions.

Analogical reasoning thus serves to make the outcome of cases more predictable by giving weight and authority to previous decisions and doctrines. Crucially, analogical reasoning is a unanimously accepted method of ensuring predictability, in a naturally non-uniform decision-making space.

As one might expect, we find great similarity in the justifications for analogical reasoning given by western legal thought and that of the formative Islamic jurists. However, there are some interesting nuances. While jurists in 8th century Iraq would not view the sources of Islamic law as fragmented legal materials, since they are largely divinely inspired, there exists an acknowledgement that the edicts decreed in the Quran and sunna might seem disjunctive. However, it was their very belief that Islamic law—and legal literature—is not fragmented or incoherent that led to an emphasis on analogical reasoning. Thus qiyās was a tool of vindication of sorts. More straightforwardly, both paradigms recognise the wide and undefined scope of answers to novel cases, owing to a plurality of decision makers. Analogical reasoning thus services as an effective counter to a lack of replicability.

Striving for replicability is not the main impetus for why we do what we do in everyday life. We rarely make decisions based on how easy it will be to replicate that same decision, come similar circumstances. We tend to make decisions based on prudence and morality, not what will be most consistent with our past and future decisions such that others can predict our actions.

However, making it easy for others to predict outcomes in this way is desirable in institutionalised law. As one academic puts it, one key to the rule of law is the ability for one to plan their lives and personal affairs with confident knowledge of the legal parameters in society, something that would be quite difficult if existing precedents and legal doctrines drastically changed in novel cases.

In all, we have explored the somewhat dramatic journey of analogy in Islamic legal reasoning; from being shunned to embraced as a source of law. The western legal paradigm and the formative Islamic paradigm share some intriguing parallels. Whilst the justifications presented by western legal thought are reciprocated in early Iraqi jurisprudence, there is a theological component at play. The Muslim jurist’s belief in the perfection of God’s revelation inspires a need to reveal and comprehend some of the rationality behind it, though there is an acceptance that the human mind can never wholly understand such. Another peculiar reflection of this study is our modern-day presumption that systematic and consistent reasoning is universal and perhaps always was. As mentioned several times throughout this article, we rarely bind our future decision to the past notwithstanding similarity of circumstance, yet our gut instinct is an expectation of such consistency in institutional and legal decision-making. Whilst far from an exhaustive answer, this might be attributed to an implicit, mutual understanding we have as societies; we expect those with authority over us to also demonstrate obedience to rules and systems by virtue of the power they possess.