Introduction

It is only reasonable to assume that dissimilar legal systems possess dissimilar patterns of legal reasoning. Inasmuch as two legal systems differ in their structure and function, they also differ in the types of arguments they employ in their service.

This, it must be pointed out, is a preliminary investigation which awaits a more thorough and comprehensive study—primarily because legal logic in Islam has not yet been analyzed, and our knowledge of the methods of legal reasoning subsumed under what is commonly known as qiyas is still rudimentary. This is particularly evident from the fact that, with very few exceptions, modern scholars of Islamic law translate qiyas as analogy without realizing the existence of other arguments (e.g., a fortiori argument in both its forms, the a minori ad maius and a maiori ad minus, reductio ad absurdum and induction) which are comprised by that nomenclature. This paper is not aimed at arguing for the existence of these arguments in qiyas\ rather, it presupposes them.

By way of introduction, it must be noted that the general attitude of Islamic and common law lawyers^[3] towards logic cannot be described as positive. Although lawyers from both systems find logic an indispensable tool for the systematization and consistency of legal concepts and doc­trines, logic generally remains suspect.^[4] Surely, in each case, this attitude is the result of different causes. The Islamic lawyer resists logic because he views it as an offshoot of Greek philosophy. For him the unqualified acceptance of logic entails the acceptance of metaphysical conclusions which run against the fundaments of his belief as Muslim. Only when logic is stripped from its theological implications and used merely as a tool does the Islamic lawyer consider it legitimate.

In common law, logic is also rejected whenever it is conceived as a rigorous tool of inference. Of great concern are the results to which logic may lead against the constantly changing social reality. Law, Justice Holmes said, is "the resultant of a conflict at every point between logic and good sense—the one striving to work fiction out to consistent results, the other restraining and at last overcoming that effort when the results become too manifestly unjust.”^[5] By this statement, Justice Holmes im­plied that logic brings about formal consistency of concepts irrespective of the consequences when applied to concrete matters of fact. The heart of the problem, common law lawyers argue, is compromising the necessary logical deduction from non-contemporaneous premises with contempo­rary problems, while simultaneously taking into account social and eth­ical questions.^[6] Although this is a major problem facing the common law lawyer, the question of the serviceability of logic in law as a normative system^[7] constitutes yet another insurmountable difficulty.

II. Role of Logic

Although the notion of "high authority” as a source of law lingers in the background of the common legal tradition, it would be accurate here, for all intents and purposes, to state that common law is rooted in, or grafted to, sociology. As such, it is to be construed in sociological terms. Common law is an instrument of social control and its relevance to society is an ever-present element in the mind of counsel as well as of the court. On the other hand, law in Islam is conceived not as a means employed in the service of society, but, rather, in the service of God, who alone knows what is best for society. Islamic law delineates the dictates of divine will, and it is perceived as the ideal way in which man can worship his Creator. It is an all-encompassing law which covers every conceivable human act, from liturgical forms to neighborly conduct, to partnership and homicide. Its sources are the Quran, the Sunna of the Prophet, the consensus of the community and its scholars, and the method of inference known as qiyas. Through the latter, which is the primary concern of this paper, the law is derived from the former three sources. Whatever these sources dictate becomes the law governing all Muslims. The changing social reality, at least in theory, has no effect whatsoever on the process of judicial reason­ing. Only when these religious sources enjoin the protection of a certain human need does the law allow for that need and for those analogous to it. Should this need change because of new circumstances and conditions, the Islamic lawyer stands helpless in the face of the omnipotent sources. For example, one cannot alter a rule based on an explicit textual injunc­tion and still characterize that rule as Islamic. Islamic law is not a law enacted by Muslims; rather, it is enacted by God, for Muslims. Human reason cannot make law; it only functions as the means by which law is discovered. Thus, instead of being organically tied to social exigencies, Islamic law is rooted in divine volition and authority, whether or not this authority takes cognizance of social reality.

Legal reasoning in common law thus differs from its Islamic counter­part in that it is bound by facts and norms which, while relevant to the conclusion, are not entirely intrinsic to the premises. Reasoning in com­mon law recognizes the validity of a legal norm (conclusion) although such norm may not follow entirely from the given, established rules (premises). Admittedly, this somewhat lax procedure is often insisted upon in common law in exchange for a more mutable and flexible law. In Islamic law, on the other hand, the jurist is bound only by those premises which are prescribed by the religious sources, and, unless a certain ambi­guity in the premises allows the inclusion or exclusion of certain material facts, nothing that does not follow from the premises can or should be joined to the conclusion.

Common law lawyers conceive logic as the organ by which one seeks to discover the conditions under which a conclusion follows from given premises. In other words, logic is viewed as concerned with the validity of the conclusion as it relates to the premises from which it is derived. Common law lawyers, interested as much in the truthfulness and validity of the legal premises and their relevance to changing situations, have always attempted to curb the overuse of formal logic in law. Although to a certain extent Muslim lawyers expressed their own reservations about logic, they have been considerably less successful in resisting the influ­ence of logic on law.

III. Types of Arguments Used in Both Common Law and Islamic Law

A. Deduction

Admittedly, both legal systems use deductive logic, particularly when general principles and rules are laid down.^[8] Under a broad principle, the judge subsumes the case which needs a solution, and applies the general legal principle to that particular case. Such an operation, though purely deductive, seems so intuitive that one need not be thoroughly familiar with logic to conduct it. When it is established, for instance, that things intoxicating are forbidden in the Quran, little analysis is needed to reach the rule that whisky, vodka, etc., are forbidden by law.

Perhaps as a result of the impact of modem formal logic, common law lawyers, as well as other Western legal theorists, have gone well beyond their Muslim counterparts in discussing the relevance of deductive logic to law. An articulate treatment of this subject has not been undertaken in Islam,^[10] although Western lawyers have dealt with it somewhat unsuc­cessfully. The judgment that A is guilty of offense X and must therefore be punished by Y can be a conclusion of a syllogism in which the major premise is a statute and the minor premise is a set of facts about A. This conclusion certainly differs from the conclusion in the classic syllogism ’’All men are mortal; Socrates is a man; therefore, Socrates is mortal.” The latter conclusion is a factual statement, whereas the former’s factuality hinges upon several conditions yet to be fulfilled. Such a distinction be­tween legal and non-legal syllogism does not seem to disturb some com­mon law lawyers. Sir Rupert Cross, for instance, has observed that "[o]ne allowance must certainly be made for this distinction, but it may yet be the case that there is a sufficient resemblance between the methods by which the conclusion is reached to justify the description of each of them as an example of deductive reasoning.”^[11] The acceptance of non-factual or normative statements in legal deduction is the result of the fact that the logic of norms has not yet been worked out.^[12]

The lack of a practical solution for this and other problems^[13] in deduc­tive legal reasoning has prevented common law lawyers from dwelling too long on them.

In addition to syllogistics, both Muslim and common law lawyers use other arguments which take the form of deduction. The first is reductio ad absurdum, which is often used to reach a conclusion about a case by making a certain assumption and then proving that this assumption con­tradicts an established legal norm. The judge asserts, for instance, that X is a goal that the law ought to promote; but Y impedes, or would impede, the realization of X\ therefore, Y ought to be prevented by law. Another instance of this argument may be the assertion that X is a goal which the law ought to promote; accepting F as legal would defeat the realization of X\ therefore, Y ought not be legally recognized. This argument abounds in both legal systems.^{[14] [15] Also very common is the a fortiori argument by which a law governing a certain situation is extended to another more obvious situation. This is of two types: a minori ad maius and a maiori ad minus. An example of the first type is the inference from the Quranic injunction "Say not ’fie’ to them (i.e., to parents) nor repulse them, but speak to them graciously”[16] that mistreating or beating parents is forbid­den. Here the legal norm is transferred from a limited act to a more general one. The second type requires a reversal of this process, i.e., from the general to the particular. For instance, from the rule that the con­sumption of large quantities of wine is prohibited, it is ruled that the drinking of the smallest particle of wine is also prohibited.16}

The nature of law and its sources in the Islamic and common legal traditions make it difficult to work out legal concepts solely by means of formal arguments. Lawyers from both systems have acknowledged that deduction is only one of several arguments employed in legal reasoning.^[17] Primarily, the lack of universal or general principles contributes chiefly to the relegation of strictly formal arguments to a secondary, often negli­gible, position. Despite the increasing entrenchment of the legislature on the common law, case law still constitutes the major segment of the com­mon law system. Similarly, Islamic law is characterized by its concern with individual cases rather than with general precepts, a resultant man­ifestation of the material structure of its two primary sources: the Quran and the Sunna. The Quran was revealed to Muhammad piecemeal in order to fulfill and answer the specific needs which arose during the period of his Mission. Likewise, the Sunna, expressed in a collection of reports of the utterances and deeds of the Prophet, came to answer similar needs in later times. Characteristically, these two sources deal with spe­cific issues and, strictly speaking, contain relatively few general legal principles. It is therefore clear that, like common law, Islamic law is, in a large measure, case law. This fact determines the type of argument and logic which best fits and serves common case law and Islamic law.

B. Legal Analogy

One of the most commonly used arguments in both systems, and one which answers most of the law’s needs, is reasoning from part to part or case to case, an argument known as legal analogy.^[18] The basic course of reasoning is the extension of a legal rule from one case to another due to a similarity which is deemed by the judge to be a material similarity. The form of this argument is as follows:

A has the properties X, Y.... B has the properties X, Y.... A has the rule J.

X, Y... are relevant properties in inducing J.

Therefore, B must have the rule J.

Such an argument gives rise to serious problems. For the logician, this argument, however meticulous it may seem, remains imperfect at best. Muslim logicians and philosophers discard it because it is conjectural and merely leads to probable (zanni) knowledge. The Muslim and common law lawyers, while realizing its shortcomings, have no choice but to accept it. Undoubtedly, they have striven, within the limits imposed by the nature of such an argument, to strengthen it by supporting arguments with a view toward realizing its utmost potential. The crucial problem posed is determining the element of similarity which justifies the trans­ference of the rule of one case to another. For it is this element which determines the validity of the conclusion.^[19] How, in light of such consid­erations, the common element in analogy is decided in Islamic and com­mon law is perhaps the most illustrative differentiation, not only of the legal reasoning in both systems, but also of their function and goal.

Whether it is taken to be ’’[t]he ground or reason of decision,” or ”[t]he point in a case which determines the judgment,”^[20] or, as the Muslim jurist would put it, ’’that which induces the judgment,”^[21] the ratio decidendi and the Islamic ^cilla (the relevant similarity which justifies the transference of the judgment from the precedent to the new case) have remained the most illusive doctrines in common law and Islamic law. In Britain and the United States, this doctrine has been a major concern of a number of experts since the beginning of this century; in Islam, it occupied major portions of jurisprudential theories for several centuries. The first major attempt at defining the rules for finding the ratio of a case was made by Professor Goodhart in 1930. He concluded that the ratio is neither found in the reasons given in the judge’s opinion nor in the rule of law set forth in that opinion. Nor is it necessarily found by a consideration of all the ascertainable facts of the case and the judge’s decision. Rather, Goodhart argued, the ratio is to be found by taking account of (1) the facts treated by the judge as material, and (2) his decision as based on them. In finding the ratio it is also necessary to establish what facts are held to be material by the judge.^[22] In other words, Goodhart proposes that a later court is bound by the presumably applicable precedent and its ruling, as an outcome of the judge’s consideration of the material facts determined in the earlier case.

After lengthy polemics in the Modern Law Review about the ratio de­cidendi,^[23] Professor Julius Stone argued that Goodhart was attempting to set forth a prescriptive theory rather than a descriptive account for deter­mining the ratio decidendi^[24] Stone found this unacceptable. He main­tained that in each precedent there is implicit a number of ratio decidendi, and it is left to the deciding judges to determine, in light of current exigencies (e.g., public policy, ethics, justice), the "appropriate level of generality” in the precedent which must prevail in the new case.^[25] It is not the material facts in the earlier case which must dictate the decision of the later court but rather "the analogical relevance of the prior holding to the later case,” which requires "the later court to choose be­tween possibilities presented by the earlier case.”^[26] Representing what may be termed "the sociological school of jurisprudence,” Stone emphat­ically argued that the later court is the final arbiter of which ratio is applicable to the case in question.^[27]

In short a "rule” or "principle” as it emerges from a precedent case is subject in its further elaboration to continual review, in the light of analogies and differences, not merely in the logical rela­tions between fact situations, and the problems springing from these; but also in the light of the import of these analogies and differences for what is thought by the later court to yield a tolera­bly acceptable result in terms of "policy,” "ethics,” "justice,” "ex­pediency” or whatever other norm of desirability the law may be thought to subserve. No ineluctable logic, but a composite of the logical relations seen between legal propositions, of observation of facts and consequences, and of value-judgments about the accept­ability of these consequences, is what finally comes to bear upon the alternatives with which "the rule of stare decises” confronts the courts, and especially appellate courts. And this, it may be supposed, is why finally we cannot assess the product of their work in terms of any less complex quality than that of wisdom.^[28]

Thus, ’’wisdom” and, as Justice Holmes stated, "good sense,” must be employed in determining the ratio rather than a mechanical or fixed set of logical rules.^[29] The lack of serious attempts in the Anglo-American legal tradition to "prescribe” methods by which a ratio of a case can be decided is an eloquent testimony to the disinterest of common law lawyers in a permanently defined and inflexible set of rules which might control and limit the ability of law to adapt itself to the changing reality.^[30]

On the other hand, the Islamic lawyers, being acutely conscious of the religious character of their law, stress the dictates of the sources of law rather than the needs of the new cases to which they seek to find the "sound’ solutions. Divinity has expressed its will in the Quran and sunna which are deemed not only the ideal guides in man’s life but also the final revelation to mankind. Thus, insofar as deciding a new case is concerned, the Muslim jurist can operate on two levels which are determined by the nature of these two sources. On the first level, the jurist is bound by the explicit textual statements and commands. What determines the judg­ment in the new case is solely the explicit ratio in the original text, i.e., the precedent. There is little latitude for deciding the case in light of current exigencies. On the second level, however, the jurist is allowed a certain, although limited, freedom of interpretation in deciding the new case, due to the ambiguous nature of the textual precedents.

This paper is not concerned with the linguistic principles which come into play in determinating the ^cilla\ it focuses on the logical and perhaps semi-logical tools employed for this purpose. The first condition set forth for finding and establishing the ^cilla is its efficiency, that is, its causal relationship with the judgment. The property or properties which con­stitute the ^rilla must bring about a judgment. Joining an inefficient prop­erty to the ^cilla will no doubt spoil that ^cilla. Intoxication, for instance, is an efficient property which necessitates the judgment of prohibiting the consumption of wine. Should it be assumed that redness is a property which together with intoxication effects the judgment of prohibiting red wine, it must then always be assumed that in any judgment of prohibiting intoxicants the property of redness must be present in conjunction with the property of intoxication. Otherwise, the ^cilla which is extended to a new case, say white wine, becomes invalid because the property of redness is inefficient due to its absence from white wine, while the same judgment of prohibition remains in effect. Since part of the ^cilla has no efficiency beyond the case of red wine, the ^cilla as a whole is rendered invalid.^[31]

The second method is coextensiveness (the presence of the ^cilla when the judgment is present) and coexclusiveness (the absence of the ^cilla when the judgment is absent).^[32] Like efficiency, this method seeks to emphasize the causal connection between the judgment and its ^cilla. A valid causal relationship must have both the coexistence of the cause and its effect and the absence of one when the other is absent. This method also guarantees the exclusion of an additional, unnecessary ^cilla. If two different ^cillas are claimed to induce the judgment, it is inconceivable that when one ^cilla becomes absent, the judgment becomes absent as well.^[33]

In conjunction with these methods, Muslim jurists employ a third the­ory which may be termed the "joined method of difference and agree­ment.”^[34] By the method of difference, it is demonstrated that certain properties, say A,B,C..., constitute the only difference between the ^cilla in the precedent and the ^cilla in the new case. It is then proved that these properties are inefficient and irrelevant in inducing the judgment. In other words, such an analogy first assumes the total sum of differences between the ^cillas X and Y are A, B, C.... The second premise is that A, B,C... have no weight insofar as the judgment, J, is concerned. Since X and Y are identical save for A, B, C..., J is the judgment.

As a prerequisite to the method of difference, the method of agreement must come into play. By this method, the similarity between X and Y is found. Then the judgment of the precedent is transferred to the new case.^{[35] [36] The method of difference and agreement can be implemented only by use of what the logicians call disjunctive and conjunctive syllogism. Put schematically, the course of reasoning by analogy is as follows:}

P has properties A, B, C, D_t E, F.

Q has properties A, B, C, D, E.

P has the rule J.

F is not a property in Q.

A, B, and C are not relevant similarities.

D and E are relevant similarities and efficient in J.

D and E are present when J is present and absent when J is absent.

Therefore, Q has (or must have) the rule J.

The effort expended in establishing the relevant similarity which, in turn, determines the validity of transferring a judgment of one case to another must be seen in light of the conflict between formal logic and the actual needs of the law. Both Western and Muslim lawyers recognize the insuperable difficulties encountering conclusions by analogy. Some ide­alists in the West have gone so far as to say that a conclusion by analogy can be valid only after modus barbara.³⁶ The Muslim logician, Farabi, also argued that to be valid, analogy must be converted to the following syllogistic form: All S’s are JCs; all A’s are S’s; therefore, all A’s are JCs. This is so, he insisted, because valid analogy amounts to syllogistic in­ference. And when a syllogism cannot serve, analogy cannot be valid.^{[37] [38]} However, the imprecise nature of legal propositions and the law’s actual requirements prevent jurists from accepting, much less adopting, such arguments. In real life it is rarely possible to ascertain conclusively the exact similitude between all aspects of two cases. Thus, to convert an analogy to strict syllogism would be tantamount to forging a link which is justified neither by the facts in the precedents or in the new case.

Another argument to which Muslim and common law lawyers resort is argumentum e contrario^[39] In analogy, the two cases possess a similarity which justifies extending the rule from the precedent to the new case. In the argumentum e contrario, the absence of such a link and the di­ametrical opposition of the two cases brings about a conclusion.^[40] The argument may take one of two forms. The first is "S is a P; therefore, no non-S is a P.” An example of this may be the following: From the rule that several legal residences are allowed for private persons, it is inferred that several legal residences are not allowed for corporations.^[41] The second form, often claimed to be the most important argument in Islamic law after analogy,^[42] may be best illustrated by the well-known example about the purity—or impurity—of pets. The ruling that dogs are impure is reached on the basis of a Prophetic report making the Prophet refrain from visiting a residence in which a dog is present, but allowing him to visit another residence in which there is a cat. The Prophet then remarks that "(the cat) is not impure.” This statement, coupled with the fact that he withheld his visit to the residence of the dog’s owner, led to the conclu­sion that dogs are impure.^[43]

C. Induction

The last of the major arguments common to both systems is induction^[44] which, unlike deduction or analogy, bases itself more often than not on conclusions reached by other arguments. Except for a relatively few cases in the Quran and the Sunna where ready-made solutions are given, cases in Islamic law are ordinarily solved either through analogy from case to case, or by deduction through the subsumption of a case under a general principle. In induction, the common rule for a number of cases is extended to another case because this case is similar or identical in relevant as­pects. Induction is then possible only when a number of identical cases exist. The form of the argument is: A,B,C,D... are cases which have the common characteristic X and the rule J; all cases which have the charac­teristic X must have the rule J; S has the characteristic X; therefore, S has (or must have) the rule J. A concrete example of induction from Islamic substantive law is the case of interest (riba). The Prophet was said to have prohibited the exchange of gold for gold, silver for silver, date for date, wheat for wheat, and barley for barley unless they were equal in quantities and delivered immediately. The ^cilla for this prohibition was determined (e.g., in the Hanafi School) to be their nature as fungible commodities sold by weight and measure. For this reason, exchange by unequal amounts was prohibited.^[45] In accordance with this line of reason­ing, all goods possessing this ^cilla, such as raisins, must be subject to prohibition if exchanged under the aforementioned conditions.

The question then becomes: What differentiates induction from anal­ogy in legal reasoning? The legitimacy of this question derives from the fact that the relevant similarity between the new case and the already solved cases is the same. This being so, an analogy between the new case and a single precedent would suffice. However, the common law lawyers would object that the extention of the rule by induction leads to a degree of certainty which is higher than that attained in analogy. The multi­plicity of cases (instances) gives inductive support to the rule of the new case which analogical inference fails to provide. Thus, as in scientific induction, legal induction in common law belongs to a class of arguments superior to that of analogy; it stands in the middle position between analogical and deductive arguments.

In Islamic law, induction ranks even higher on the scale of certainty. It can be complete (perfect), leading to the same degree of certainty yielded by deduction. The entire corpus of common law is, as a practical matter, unlimited, making complete induction infeasible. In Islam, however, the sources of the law are defined and exhaustible. 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. In the context of religion where a single explicit statement in the sources has a force of finality, it may be argued that multiple propositions should lead to a degree of certainty at least tantamount to that yielded by deduction. Such an inductive process would simply con­stitute a multi-deductive argument. For this reason a number of Muslim jurists hold complete legal induction to have a force equal to deductive arguments. However, even when incomplete, induction derives its force from the relative number of instances which can be observed with regard to a particular case. "The larger the number of pieces of textual evidence is, the stronger our knowledge becomes.”^[46]

In addition to its function as a method of reasoning, induction in Isla­mic law plays the significant role of reinforcing uncertain or weak prem­ises. The equivalent of such a role is not to be found in common law. In the Islamic legal system, uncertain propositions from the Sunna (which alone constitutes the greatest bulk of the legal sources) may gain an added aggregate support by use of the inductive method, transforming them into certain premises.

How does this process work? To answer this question, it must first be observed that the dicta of sunna are divided into two basic categories: the mutawatir and the ahadi. The mutawatir traditions are transmitted by countless persons who hear or see the Prophet say or do a certain thing. The large number of transmitters makes it inconceivable that the wit­nesses or the transmitters could have agreed on falsifying the report. Due to the authenticity of such a report and the certitude surrounding its transmission, the mutawatir traditions are said to lead to certain knowl­edge of what they contain. Traditions transmitted by fewer people than those who have witnessed and transmitted the mutawatir traditions are called ahadi. The latter, when taken individually, do not lead to certain knowledge of the information they convey. Accordingly, when used indi­vidually as premises in an argument, a mutawatir tradition with an explicit meaning leads to certainty while an ahadi tradition with the same clarity of meaning leads only to probable knowledge. Thus, rules based on individual ahadi traditions are only tentative and experimental. Many Muslim jurists, however, argue that ahadi traditions can lead to certain knowledge if they are supported by other pieces of circumstantial evidence (qara’in) which may include other traditions of the same type and indecisive or ambiguous Quranic verses.^[47] These textual pieces of evidence must, when interpreted, have the same meaning as the tradition which they purport to support. Another precondition for reaching cer­tainty in such an arrangement is the number of supporting traditions and verses: They must be altogether as numerous as those in the mutawatir category. But unlike the latter which cannot, whether individually or collectively, be dubious, an ahadi tradition can only be probable insofar as its authenticity is concerned. The aggregate of ahadts, however, cannot be dubious because Muslim jurists reason that a multitude of reports trans­mitted through so many channels and by so many transmitters who could not have known each other cannot possibly constitute a lie or a conspiracy in fabricating the report. In their multiplicity, the ahadi traditions gain a strength tantamount to that of the mutawatir⁴¹

The doctrine of inductive support is undoubtedly the product of a com­promising approach to blend the elements of form and material substance in legal argument. Unlike the Aristotelian logicians who were primarily concerned with form, Muslim jurists paid equal attention to the material substance of the premises in relation to the degree of certainty to which they can lead. The emphasis that Islamic law places on the premises as the determinant of the degree of certainty of the conclusion may be illus­trated by discussing the views of the influential Ibn Taymiyya on this subject.

Ibn Thymiyya’s argument must be seen as a response to the traditional view which holds syllogistics superior to analogy. Against this view, he argues that syllogism and analogy are equivalent because any analogical argument can be converted to first figure syllogism.⁴⁸ Writing in the Isla­mic tradition, Ibn Taymiyya sees the analogical argument as consisting of four terms: (1) the asl, the precedent which is extracted from the scrip­ture; (2) the far*, the new case requiring a solution; (3) the ^cilla, the similarity common to the asl and the far*\ and (4) the hukm, the rule which is transferred from the former to the latter. The weakness of anal­ogy does not lie in its form since it can be converted to syllogism. Rather, the weakness lies in the material substance of the premises and, more particularly, in the ^cilla. "If the subject matter (of the premises) is certain, whether the form of the argument is analogy or syllogism, then (the conclusion) is certain.”⁴⁹ For instance, should the jurist conclusively es­tablish that the consumption of wine was forbidden in the Quran because it is an intoxicant, he would be able to convert this possible analogy to a syllogism in which the major premise is "All intoxicants are forbidden;” the minor premise is "Vodka is an intoxicant;” the conclusion is "Vodka is forbidden;” with the middle term being the property of intoxication.^{50 [48] [49] [50] [51] Here, the conclusion is formally and materially valid. Thus, whatever form of argument is used, a certain middle term will surely lead to a certain conclusion. In answer to the question of how one can know for certain whether or not a universal proposition is true, Ibn Taymiyya argues that statements derived from an infallible source (e.g., the Quran) are always certain.}

The fundamental idea underlying Ibn Taymiyya’s theory of logic in general, and legal logic in particular, is that the knowledge of the exter­nal world results from the observation of particular things.^[52] Universal propositions are inferred by analogy and induction from particular propo­sitions. If it is true that analogy and induction yield probable knowledge, our knowledge of the external world can only be probable. The only excep­tion, however, is scriptural knowledge, which by virtue of being decreed by God, can only be certain.^[53]

IV. Conclusion

This brief analysis of the logic of legal reasoning in Islamic law and common law has shown that the ultimate causes for difference between the two systems stem from the obvious fact that Islamic law is steeped in religion, whereas common law is a product of an essentially secular culture. The effect of this fundamental difference manifests itself in two main areas, the first of which is deductive and analogical reasoning. Law in the common legal tradition is conceived as a man-made instrument of social control which is in need of constant modification in line with social change. Accordingly, judges in common law have persistently endeavored to reason in keeping with the primal need of adapting law to current reality. Deductive logic, as one method of reasoning, is viewed as suffi­ciently stringent to disallow a gradual change in legal formulations. This is why deduction is often rejected and referred to as "dry logic.” The ramifications of this attitude are even more evident in analogical reason­ing. The similarity between two cases can justify an analogy on the basis of a ratio which the new case dictates, rather than on the basis of a ratio which the judge in the earlier case determined. Therefore, the similarity between the two cases becomes that similarity which the current policy of "ethics” and "justice” require. A change of this policy will most likely call for a change in the similarity which will result in a different rule.

Islamic law can be said to be more consistent in the application of logical principles, mainly because of the marginal importance of the ele­ment of change in Islamic law. Being strictly religious, law is bound by the letter and spirit of the fixed sources from which it is derived. In the process of formulating the law, the Muslim jurist has no choice but to abide by the prescription of these sources. In accordance with this concep­tion, the current needs of society have no particular importance in deter­mining the similarity between the two cases. The material similarity is that which is dictated by the sources; any analogy to be drawn subse­quently (which has been determined by scholars to be valid) must be based on the already established similarity. Thus, logical consistency takes priority over other considerations, including change.

Induction is the second area in which the difference between Islamic law as a religious system and common law as a secular system manifests itself. While induction serves as a method of legal reasoning in common law, Islamic law takes induction beyond this limited scope to employ it for the reinforcement of uncertain legal propositions. As demonstrated, in­duction can bring greater certainty into law because the bulk of the legal sources in Islam is defined and exhaustible.

All in all, Islamic law can be described as more "logical” than common law. This is clearly the result of the absence of the consideration for change in Islamic law. This seemingly positive characteristic of "log- icism” has cost Islamic law a high price, manifesting itself in drastic reforms in the modern era, including the wholesale borrowings of Euro­pean codes to replace the inoperative traditional laws. Common law, on the other hand, proved flexible enough to forestall the need for such radical reforms.

ADDENDA

p. 80, n. 2: see article II in this collection.

p. 93, n. 46: on qara’in, see article X in this collection.

p. 94, n. 48: Nicholas Heer’s article was published in A Way Prepared: Essays on Islamic Culture in Honor of Richard Bayly Winder, eds Farhad Kazemi and R.D. McChesney (New York: New York University Press, 1988): 109-115.

p. 95, n. 51: on Ibn Taymiyya’s empiricism, see the Introduction to Wael B. Hallaq, trans., Ibn Taymiyya Against the Greek Logicians (Oxford: Clarendon Press, 1993), pp. xx ff, xxviii ff; id., ‘Ibn Taymiyya on the Existence of God’, Acta Orientalia, 52 (1991): 51 ff., 62 ff