The Epistle on Legal Theory

The Status of Consensus and Analogy

٤٣٣ 433 The Status of Consensus and Analogy 728 729 Companion, I said, if I cannot find a prooftext from scripture, a Prophetic practice, an instance of consensus, anything of similar import to the Companion ’s opinion that would justify using his opinion as the basis for a ruling ,453 or an illustration of how it could be used for analogical reasoning. Only rarely does one find that the opinion of one Companion remains unopposed by another. The Status of Consensus and Analogy “You have based rulings on the Book and Prophetic Practice,” he said. “How do you rule on the basis of consensus, and then analogies? Do you accord consensus and analogies the same status as a scriptural prooftext or a Prophetic practice?” Even if I do base rulings on them in the same way that I do using the Book and accounts of Prophetic Practice, I replied, the principle that underlies my rulings that I base on them differs. “Is it permissible,” he asked, “for such bases to have differing underpinnings and yet be used in issuing the same kinds of rulings?” Yes, I answered. When one rules on the basis of the Book and widely agreed-upon instances of Prophetic Practice, concerning which there is no dispute, in such a case we say: we have ruled correctly both according to the apparent meaning and the true meaning. When one rules on the basis of an account of a Prophetic practice that has been narrated as an isolated transmission, and upon which people have not agreed, we say: we have ruled correctly, but on the basis of the apparent meaning, since it is possible for the person who related such a hadith-report to have been mistaken. We rule on the basis of consensus, and then analogies, which is weaker,454 but they are a matter of necessity, because it is not allowed to analogize if there is an extant report, just as the performance of substitute ablutions with sand when one is traveling and lacks water allows one to achieve ritual purity. Doing so does not allow one to achieve ritual purity if water is available, but rather it only does so if water is ٤٣٤ 434 =>
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ß N 2O !HI Š i ü  ٤٣٥ 435 The Status of Consensus and Analogy 730 lacking. So, too, what comes after Prophetic Practice can constitute authority only if an account of his Practice is lacking. I have discussed the authorities that support reasoning by analogy above. Then he said, “Can you give me an example of something that is like this?” Yes, I said. I rule against someone on the basis of personal knowledge that what is alleged against him is as alleged, or I rule on the basis of his admission against interest. If I have no such knowledge, or he makes no such admission , then I would rule against him on the basis of the testimony of two witnesses, even though they might be mistaken or speculating. My personal knowledge and his own admission are stronger evidence against him than the testimony of the two witnesses. I might also rule against him on the basis of the testimony of one witness and an oath, and that is weaker than the testimony of the two witnesses. Then I might rule against him on the grounds of his refusal to take an oath in combination with the oath of his accuser. That is weaker still than the testimony of the one witness and the oath, because he might decline to take the oath out of fear of notoriety, or because he considers the matter regarding which he is asked to swear unimportant, even though the other party, who swears in his own favor, might be untrustworthy , greedy, and a sinner. End of the Book The Epistle Praise Be to God and May God Bless Muḥammad This page intentionally left blank ...