The a fortiori Arguments
Perhaps one of the most evincive arguments known to the usulists is the a fortiori argument in both of its forms, the a minori ad maius and the a maiori ad minus. In expounding the modes of reasoning that come under the umbrella term qiyas[63], ShaficI (d.
204/820) remarks that the strongest form of qiyas may be illustrated by the following example: when God or his messenger forbids a small quantity of a certain matter, we conclude that a larger quantity of the same matter is also forbidden. Similarly, if, say, the consumption of a large quantity of a certain foodstuff is declared permissible, then a smaller amount of that foodstuff would also be permissible[64] [65]. As an example of the first type of inference, known to Western jurisprudence as a minori ad maius, Shafici gives Quran XCIX.7-8 «Whoso has done an atom’s weight of good shall see it, and whoso has done an atom’s weight of evil shall see it.» From this it is understood that the reward for doing more than an atom’s weight of good and the punishment for doing more than an atom’s weight of evil are more substantial than that promised for an atom’s weight. An example of the second argument, the a maiori ad minus, is God’s revelation permitting the killing of non-Muslims who engage themselves in war against Muslims. From this text one infers that acts short of killing, such as the confiscation of the property of non-Muslims, are allowed.Some scholars, Shafici remarks, refuse to term such inferences qiyas. They argue, he says, that the meaning of the texts encompasses these cases, that is, they come directly under the clear intention of revelation. The term qiyas must be used only to designate arguments in which the assimilated case (far*) resembles, but is not subsumed under the meaning of the original, revealed case ShaficI is referring primarily to the Iraqi (Hanafi) jurists, who, together with the Syrians, were familiar with the a fortiori arguments[66].
As it will become clear, great many later Hanafi u$ulists also advocated this doctrine. The eleborate defense of the Hanafi position can be found in numerous later Hanafi and non- Hanafi usul treatises. An exponent of a common Hanafi doctrine is Abu Bakr al-Sarakhs! (d. 490 or 495/1096 or 1101) who treats of this issue as one which takes its premises from language, yielding a non-inferential, purely linguistic line of reasoning. In his quadrilateral division of textual legal propositions according to a hierarchical order of clarity, he assigns to the third category the designation daldlat al-na^, that which is understood from the language of the texts without rational inference.[67] [68] In contradistinction to the first category, Hbdrat al~nass, which contains the types of statements that are expressly revealed to specify the ruling of a particular matter (ma kana al-siydqu li-ajlihiy4, this category of propositions is intended to legislate in matters which have not been explicitly specified but are clearly understood from the language of these propositions. Legal questions in this category are denoted in the texts (madlulun calayha) but not specifically stated (ghayru man- susin zalayha). The understanding of the meaning of such questions is the property of all laymen who have an adequate knowledge of the language, and not restricted to the reasoning lawyer. From Quran XVII: 23 «Say not ‘Fie’ to them (to parents) neither chide them, but speak to them graciously» one knows that uttering ‘Fie’ is prohibited because it signifies a disrespectful attitude towards one’s parents. The language of this injunction makes it abundantly clear that all words denoting actions of the same meaning, and actions exceeding in strength the mild expression of ‘Fie’, such as insulting or beating one’s parents, are prohibited. The purpose behind the prohibition of ‘Fie’ is to declare it forbidden for children to cause the least amount of harm to their parents. This, Sarakhsi insists, is not an inferential matter subject to the reasoning tool of qiyas, but only linguistic, because the full extent of the meaning of Tie’ is in fact encompassed by the meaning of harm (adha)[69]-> it thus follows that harmful things which may range from expressing the mere sound of dissatisfaction to murdering one’s parents are forbidden by the immediate, uninferred specification of the Quran. Of the same type of statements, Sarakhsi argues, is the Prophetic hadith about cats: «It is (the cat) not impure; it is of those (animals) which wander about around you». On the basis of this hadith it is reasoned that animals such as mice and snakes are also ritually pure because they possess the same property of wandering about around humans. This line of reasoning, Sarakhsi argues, is identical with the reasoning adopted in the question of beating one’s parents in that its S’ZZa, or ratio decidendi, is so conspicuous in the language of the texts that the ruling can be grasped in the mind without the application of the method of qiyds. The only difference between the category under which the case of parents falls, and the second, more explicit category designated as ishdrat al-nass, is that in the latter the injunction is understood through the medium of lafz, the immediate meaning of the letter of the text, whereas in the former through the mcfnä, the implied but uninferred meaning of the text[70].What Sarakhsi terms dalalat al-naff[71] the ShaficI jurist Sayf al-Din al-Ämidi (d. 630/1232) calls mafhüm al-muwäfaqa, that is, the a fortiori correspondence (bil-awlä) of the rule in the original case to the assimilated case[72]. That from the prohibition, for example, of a small quantity of a certain matter one concludes that a larger quantity is even more prohibited, renders the ruling of the assimilated case stronger and more relevant (ashaddu munasabatari) to the intention of the Law Giver.
It is on these grounds that AmidT is more inclined to consider conclusions based on this category of propositions as linguistic and not inferential (qiydsiyyd). Qiyds, he insists, precludes the requirement that the Hila including the rule of the assimilated case be more relevant to this rule than to the rule of the original case. Such relevance, however, constitutes a fundamental element in mafhum al-muwafaqa. Also fundamental in this linguistic structure is the logical subsumption of the original case under the assimilated (in the a minori ad maius); e.g. the Quranic prohibition of uttering ‘Fie’ is part of the prohibition of harmful acts directed towards parents. Amid! claims the existence of a consensus against the inclusion in qiyds of the principle of the subsumption of the original case under the assimilated. If there is to be any subsumption in qiyds it would be that of the assimilated case under the original[73] [74].Needless to say, this polemic against including in qiyds the a fortiori argument in both of its forms had its counter polemic, with the ShaficIs as its chief exponents. Of these we find Abu Isfraq al- Shlrazi (d. 476/1083) and Abu al-Hasan al-Mawardi (d. 450/1058). The former, pinning the crux of the issue, pointed out that a fortiori conclusions involve an inferential line of reasoning because in this category the language of the texts does not explicitly state the ruling with regard to matters implied. Striking one’s parents, which is obviously forbidden, cannot be understood from the very word ‘Fie’. Only by implication that this term can be taken to mean ‘any harm,’ and such implication can be understood only through qiyds™. This type of qiyds, Mawardi states, is of the perspicuous (jail) type, which, among other types, is the closest to the unambiguous, self explanatory texts. The ease with which a fortiori conclusions are reached derives from the fact that in such an argument the assimilated case, though unspecified by the texts, comes under the meaning (macna) of these texts[75].
The lack of specification, M award! insists, draws the difference between the nass, the legally clear texts, and al-qiyas al-jali. In the nass the case as well as its rule are specified, but in qiyas the rule is derived on the basis of another case. The word ‘Fie’ does not itself denote the meaning of ‘striking’ or ‘insulting’ and, conversely, ‘striking’ and ‘insulting’ are not used to describe the disrespectful act expressed by the term ‘Fie’. The proponents of this conception argue that a king could order his guards to execute his father without uttering the expression ‘Fie’ before him[76]. Thus, the rule of prohibiting striking parents was deduced from the intention behind the prohibition of ‘Fie’, and not intuitively conceived from the very word itself[77].The perception of the intent behind this injunction constitutes for the ShaficT intellectual Abu Hamid al-Ghazal! (d. 505/1111) the cornerstone in reasoning from the category of premises which have been revealed to prohibit acts diverting from or obstructing the performance of an obligation[78]. The full legal impact of such an injunction as «When the call for prayer is heard on the day of congregation, hasten to God’s remembrance and leave your trading» (Quran LXII : 9) cannot be adequately appreciated if the command were understood to be only against practicing trade on Friday. The intent of the verse and the context in which it was revealed (siyaqu l-ayatiwa-maqsuduha) makes it necessary to conclude that all other transactions and activities which divert from Friday’s prayer must be taken to be of the same genus of trading, and thus prohibited[79].
Under the same typology, Ghazal! remarks, comes the verse about the treatment of parents. However, the much debated question that Ghazal! poses here is whether the conclusion ‘It is forbidden to strike one’s parents’ is reached through the medium of language or through qiyas. The determinant in this question is the relation between striking and ‘Fie’.
If ‘Fie’ conveys in linguistic usage the meaning of striking, then this is not qiyas. On the other hand, if the prohibition of striking is understood from the cilla of the prohibition of saying ‘Fie’, then such an inference involves qiyas ipso facto. The fact that such a qiyas is quite intuitive and that its conclusion can be reached with little analysis, makes of it no less qiyas than other inferences subsumed under that term. Ghazali excludes the first possibility, that is, the linguistic inference that from ‘Say not Fie to them’ the act of striking one’s parents must be forbidden. In language ‘say not Fie’, as shown in the aforementioned example about the king, does not necessarily imply the negation of striking or other more brutal acts. Against the claim of some jurists that the prohibition of the abuse of parents is understood from the customary usage (curf) of the language of the verse, Ghazali retorts that the signification of textual premises may be grasped by making recourse to cur/only when the methods of causation (i.e. the method of establishing and verifying the cause, ta^lil) and linguistic analysis have failed. In this case, however, Ghazali asserts, the method of causation, which the jurist ought to consider first, must suffice. Thus the cause behind the prohibition in the verse is the necessity to respect parents, and the knowledge, which occurs through reason and custom, that uttering ‘Fie’ runs against such respect. And since striking obviously contradicts respect, the ruling of prohibition obtains. This, Ghazali insists, is the very course of reasoning known as qiyas[80].Responding to the opponent’s contention that if this is deemed to be qiyas then the Anti-Qiyas folk[81] would have rejected the rule of the present case, Ghazali states that they could not have done so because if they had rejected this qiyas and abided by the strict letter of revelation the rule would have been restricted to the mere prohibition of saying ‘Fie’ to parents. It would then also be argued that the texts of revelation contain no prohibition with regard to striking one’s parents. To carry these assumptions to their logical conclusion would entail the paradox of prohibiting the uttering of ‘Fie’ in the presence of parents on the one hand, and allowing striking or insulting them on the other. That Qiyasists and Anti-Qiyasists reached the same conclusion is due to the fact that the premises as
well as the course of reasoning in this particular case were easy to grasp. This, Ghazal! says, does not alter the fact that what is involved in this type of reasoning is qiyas23.
Be it as it may, the fact remains that no small number of jurists held the view that the a fortiori argument is one of the arguments which come under qiyas. Even jurists like Amidi, who considered it a linguistic inference, had in the final analysis to classify this argument as a type of qiyas, though he did mention that this matter was controversial[82] [83]. Amidi’s classification is significant as it demonstrates that ignoring the substantial claims of the opponents was something unaffordable. Though it is difficult to establish precisely the identity of those who stood on both sides of the argument, it can be safely said that neither side was a minority. Drawing on earlier sources, the thirteenth/nineteenth century scholar Ibn cAli al-Shawkani remarked that in his treatise al-Nihaya, al-§afT 1-Hindi (d. 715/1315) reported that the majority of jurists held the view in favor of subsuming the a fortiori under qiyas. On the other hand, Abu Bakr al-$ayrafi reported that the Mutakallims—the Ashcaris and the Muctazilis—upheld the opposite view[84]. To these Shirazi added «some Zahiris»[85]. Although the accuracy of ijayrafi’s classification can be instantly contested by bringing forth the example of Ghazali who was an Ashcari Mutakallim, there seems no reason not to accept it as well-nigh true. III.
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