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Introduction

That the Sunni juristic conception of arguments can generally be characterized as nonformal is due to the fact that the validity of arguments rests primarily upon the epistemological value of the revealed premises from which they are constructed[54] [55].

The linguistic and legal structure of these premises determine the type of argu­ment to be used in reaching the legal norm, the hukm. Accordingly, methods of reasoning employed in the construction of positive and substantive law range, as we shall see, from syllogistic to inductive arguments, including irregular deductions such as relational arguments[56]. These arguments, though often disguised by the seem­ingly impenetrable and unique formulations of the usulists, can with the assistance of logic and dialectic be deciphered, and subse­quently labeled with the corresponding designations given to them in these fields. Without such a procedure the identity of arguments prescribed in the works of usul al-fiqh will remain in the realm of the obscure.

Muslim legal theoreticians conceive the material sources—the Quran, the Sunna and consensus[57]—as linguistically consisting of two basic categories: one encompassing clear premises, subject to only one interpretation, and the other ambiguous, capable of vary­ing interpretations. Premises in the first category, unlike the second, yield necessary and thus certain knowledge (cilm daruri qatic). Necessary or immediate knowledge is defined as the cogni­tion which compels itself upon the mind without inference, such as the knowledge of the law of the excluded middle, the feeling of ill­ness and the hearing of a particular sound[58]. Through the sense of hearing, for instance, knowledge of certain revealed ‘clear speech’ necessarily obtains in the intellect. Furthermore, necessary knowledge is said to obtain even with regard to matters unspecified by the sources, but matters which are tacitly subsumed under a categorical textual statement.

An excellent case in point is Quran V:3 «forbidden to you are carrion, blood, pork (lahm al-khinzir)...». Sunni jurists unanimously argued that the term ‘khinzir, though it was originally intended to mean only ‘pork’, covers all types of swine meat, including that of wild boars (khinzir barn). Though reasoning in this case can be clearly reduced to a syllogistic form, the jurists insisted that reaching the conclusion ‘The meat of wild boars is forbidden’ needs no inference since it is understood from the language of the Quranic statement itself (min jihati dalalati al- lajz)[59]. Thus matters specified in the material sources and those which can be immediately subsumed under them were considered to be purely linguistic and certainly outside the sphere of inferential reasoning. Only points of law and fact that were not covered by the sources were to be the object of reasoning through what is known as qiyds. The domain of the operation of qiyds was therefore predetermined to a significant extent by the volume of textual statements which were deemed to have been imbued with daldldt al· nas$. Admittedly, however, the constitution of such statements amounted only to a fractional portion of the body of legal propositions[60]. The size of their portion was further narrowed down by the objections that were raised concerning those legal proposi­tions which fell on the fine line between what is viewed as ‘clear speech’, capable of being applied intuitively to particular factual situations, and ‘less clear speech’, the latter’s application being subject to legal analysis and inferential reasoning.

Consisting chiefly of the second category, legal propositions required the instrument of qiyas for extending the law embodied in them to unprecedented facts. But the linguistic and legal structure of these propositions was by no means uniform, a fact which had a significant effect on the evolution of varying types of arguments within qiyas. This essay seeks to explore these types to the single exception of analogy.

The subsumption of analogy under qiyas is not only beyond dispute, but has been so predominant that the great majority of modern scholars conceive of qiyas as a term which exclusively denotes analogy[61]. Though unjustified, this conception is to a certain degree understandable, for analogy is the single argu­ment that was unqualifiedly accepted by all mainstream Sunni jurists[62]. That other arguments were not universally embraced in medieval jurisprudence must neither lessen from their importance nor be a cause for their neglect. In fact, one of the most vital discus­sions that arose in legal theory was with regard to methods of linguistic interpretation and legal reasoning in those cases which fell in the gray area between the explicit specification of revelation where reasoning was said to be superfluous, and the total absence of such revelation where analogy was deemed indispensable.

II.

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Source: Hallaq Wael B.. Law and Legal Theory in Classical and Medieval Islam. Routledge,2022. — 344 p.. 2022
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