Malik, may Allah be pleased with him, issued fatwas for more than fifty years. People came to him from the East and West to ask for fatwa. Since questions are endless and events occur every day, it is necessary for understanding of the texts to go beyond their immediate significance to recognition of their immediate and further aims and to perception of their indications and suggestions, so that the extent of their comprehensiveness may be correctly ascertained. Only then is it possible to understand what lies behind the judgements made by the Companions in cases where there was no well-known sunna and which could not be included within the meaning of the literal text, even though the text might indirectly indicate to it.
That is why analogy is necessary for someone like Malik. Since fiqh, in its finest meaning, is the penetration of the insight of the faqih to ascertain what is meant by the expressions which indicate judgements and thus recognise its causes and recognise its ends, the faqih must therefore use analogy since he must ascertain the cause behind the judgement in order to recognise the full extent of what is meant by the Shari’a. When he knows the cause, then the judgement is established in all that it applies to because the similarity between matters demands similarity in judgement, and sameness between things with the same qualities demands sameness in the judgements to which they are subject.
Analogy in Islamic fiqh denotes the connection of something without a text to its judgment by another textual matter with a judgement by virtue of a shared cause between the two. It is part of submitting to the principle of similarity between matters which obliges similarity in its judgements because sameness in the cause obliges similarity in judgement. Thus analogy is natural and logical because of the logical connection based on similarity. When the similarity is complete, then it must be connected to the same judgement.
We find that the Noble Qur’an uses the law of sameness in judgments by the resemblance of qualities and actions in all its similes and instructions, and Allah says, “Have they not travelled in the earth and seen what was the end result of those before them? Allah destroyed them utterly. And those who reject will get the same as that.” (47:10) He clarifies the difference of judgement when there is no sameness when He says, “Or do those who perpetrate evil actions reckon that We will make them like those who believe and do right actions, their living and their dying being the same? How evil is the judgement that they make!” (45:21) The Almighty also says, “Would We make those who believe and do right actions the same as the corrupters of the earth? Would We make the godfearing the same as the dissolute?” (38:28)
You see that the Qur’an applies the rule of logical equality in the most perfect manner and it confirms the judgment when similarity exists and negates it when there is disparity. There are numerous reports from the Prophet about adopting this wise dictum and guiding the Companions to it.
It is related that ‘Umar ibn al-Khattab said to the Messenger, may Allah bless him and grant him peace, “Messenger of Allah, I did something terrible. I kissed while I was fasting.” The Messenger of Allah said, “Do you think that you can rinse your mouth with water while you are fasting?” He replied, “There is no harm in it.” The Messenger of Allah said, “So fast.” Do you not see that the Messenger of Allah made a connection between rinsing the mouth with water while fasting and kissing while fasting? He pointed out the similarity between them since both of them could lead to something which would break the fast or not. It does not in itself break the fast. Breaking the fast is possible if it leads to that. Because of the similarity between them they are equal in judgement. As rinsing does not break the fast – and that was known to ‘Umar – and so the kiss does not break it.
The traditions from the Messenger of Allah are numerous about the application of this just principle in the deduction of judgments for which there is no clear text. Some texts are applied to them by the sameness in the judgement between similar things.
Al-Muzani, the companion of ash-Shafi’i, summarises the idea of analogy and the action of the Companions in it excellently:
“The fuqaha’ from the time of the Messenger of Allah, may Allah bless him and grant him peace, until today have used analogies in all judgements in their deen and they agreed that the like of what is true is true and the like of what is false is the false, and no one is permitted to deny analogy because it is the resemblance and similarity of things.”
Malik used that method and used the similarity between things to arrive at a judgement. When they were similar, the legal cause existed. He employed analogy in certain questions in which he knew the decisions of the Companions. So he made an analogy about the condition of the wife of a missing man when he is deemed to be dead and she does an ‘idda as a widow and then marries someone else and then the first man appears alive. He compared this with the case of someone who had divorced his wife and informed her of divorce and then took her back but did not inform her of being taken back and then she married after the end of the ‘idda. That was because ‘Umar gave a fatwa that this woman belonged to her second husband, whether or not the marriage had been consummated. Malik used this as an analogy for the wife of the missing man and said that she belongs to the second husband, whether or not it has been consummated. There is no doubt that the basis of this analogy is the similarity between the two cases, even if he mentions it with the agreement of the People of Madina. By this it is clear that the basis of the agreement is this analogy, and the basis of the similarity is that both of them married with a good intention on the basis of legal knowledge established by legal means, but the error became clear after that. She had no way to ascertain the error before he appeared. Thus the wife of the missing man married on the basis of the legal judgement and the divorced woman married on the basis of divorce and end of the ‘idda, and the wife of the missing man had no way to ascertain whether he is alive and the divorced woman had no way to know she had been taken back. So the two cases are similar and the judgement must be the same and the same judgment is a result of this similarity.
When no direct precedent was available to him Malik used to make analogies based on judgements derived directly from texts in the Qur’an and judgements derived directly from hadiths of the Prophet. The Muwatta’ contains many examples of that. We find that at the beginning of the chapter he presents those ayats and hadiths which he considers to be directly relevant to the subject in hand and then after that he gives secondary rulings, connecting like to like and similar to similar.
He also drew analogies based on the consensus of the people of Madina because, as we have seen, he considered that to be the Sunna. In the Muwatta’ he mentions the ‘generally agreed-on way of doing things’ and then gives secondary rulings in situations where there is similarity in the circumstances surrounding the questions about which he was asked for a fatwa.
Malik also used to utilise the fatwas of the Companions as a basis for analogy, as we saw in the case of the wife of the missing husband in which he followed the fatwa of ‘Umar about the divorced woman who was not aware of having been taken back by her husband, which was confirmed by the agreement of the people of Madina on similar cases.
In general, he used analogy based on textual matters according to their judgement in transmitted sources or what is judged to be transmitted in his view: the Book, Sunna, consensus of the people of Madina and the fatwas of the Companions.
Some of the analogies were stronger in his view because they were based on general legal principles affirmed by many sources of Islamic Shari’a which have become part of the known Islamic Shari’a. These analogies are raised to the level of contradicting of some of the texts in which a judgement is established by a probabilistic means – either because the evidence is probable like general expressions, and so Malik considers the evidence to be probable, or it is because the means of its confirmation is probable because it is a single tradition and so its ascription to the Messenger is uncertain.
We mentioned earlier that the general text of the Qur’an is made specific by that sort of analogy, that he preferred it to the single tradition, and that the single tradition is weakened by its opposition.
Maliki fiqh does not make an analogy based only on textual judgements applied directly to the text as ash-Shafi’i mentioned in his Usul. Analogy can be based on questions which were deduced by analogy. When the analogy is complete in one of the secondary rulings and there is another secondary ruling, he can make an analogy based on it. Ibn Rushd clarifies that in al-Muqaddamat when he says:
“When he knows the judgement in the secondary rulings, it becomes a principle and it is permitted to base analogy on it by another cause derived from it. It is called a secondary ruling as long as it vacillates between two principles and it does not yet have a judgement. It is like that when an analogy is made on that secondary ruling after it is established as a principle by another secondary ruling which established the judgement in it by a cause derived from it: so it becomes a basis and analogy is permitted on it.
“It is not as some ignorant people state: ‘Questions are secondary rulings and it is not valid to use them for analogy against one another; valid analogy is based on the Book, Sunna and consensus.’ This is a clear error. The Book, Sunna and consensus are the fundamental principles of the Shari’a. Analogy is first based on them and analogy is only validly based on what is derived from them after it is impossible to make analogy on them. When the event occurs and there is nothing in the book or in the Sunna or in what the community agrees is a definitive text… then analogy must be made according to what is derived from them.” (pt. 1, p. 22)
Then he makes it clear that that was agreed upon by Malik and his people. He says:
“Know that this idea is part of what Malik and his people agree upon. They do not disagree in their books about making use of analogy by comparing questions against each other. It is a sound idea, even when people disagree with it, because the Book, Sunna and consensus are the basis for legal judgements, just as necessary knowledge is a basis for logical knowledges. So as logical knowledge is based on necessary knowledge or on that which is based on necessary knowledge, so it continues endlessly according to order and sequence according to likelihood. It is not valid to base the more likely on the less likely. It is like that with oral knowledges based on the Book, Sunna and consensus of the community or on what is can validly be based and so on forever. One must compare the most likely with the most likely, and it is not valid to base the more likely on the less likely.”
You see from this that Ibn Rushd stated that Malik and his people believed that analogy was not only based on established judgements from the three principles: the Book, the Sunna and consensus, but there could also be analogy based on secondary rulings established by deduction and what was similar to them in the sum of its attributes which gave it this judgement.
The benefit in this is clear and evident in three ways. Or it might be said that its fruits appear in these three aspects:
1. Malik based analogy on questions which the Companions had deduced and used them for analogy. So he used them as a basis for analogy in similar questions, relying on the Companions’ fatwas .
2. Comparing the secondary ruling to a principle known by analogy expands the area of analogy because in this case the cause by which the first analogy was established has been forgotten, and a new comparison is formed between this secondary ruling and the other which is considered as its principle. So the cause of the judgement in defined in it and established in the secondary ruling since they share in this quality. Indeed, the case will end in linking the new cause with the old cause. Analogy is the same, but the mujtahid is not burdened with the effort of investigation into the basis of the first analogy. Rather he considers the established secondary ruling to be a confirmed principle on which to base analogy.
3. This subject expands deduction in a school of one of the mutjahidun because he considers the secondary rulings in which the principles were deduced which he does not use for comparison and by that the scope of fiqh is expanded and ijtihad in it and deduction based on it grows and fatwas are not constricted or difficult. Indeed, the area of deduction is open and the path is improved.
Part of the benefit in that type of analogy used frequently in Maliki fiqh – considering the secondary ruling as a principle to be used in analogy – is that partial secondary rulings are compared to one another while the cause in them is not universal, as it is in Hanafi fiqh. Hanafi fiqh makes the underlying causes in them inclusive and all-embracing in the form of a universal rule and every secondary ruling achieved in it establishes the judgement which is its cause; and so all the rulings are connected to the first principle and one secondary ruling is not compared to another. Thus the analogies of the Hanafis are universal and the analogies of the Malikis are partial in this respect.
At this point we do not intend to detail the categories of analogy nor the attributes of the underlying cause nor its method because that subject is the science of fundamental principles and most of the principles of the Malikis coincide with those of others and are not different from them. There is nothing in their study which will distinguish Maliki fiqh from others. What we are studying is the distinct quality of Maliki fiqh by indicating the areas which set it off from others and give it an independent legal being.
Here we should indicate something which clarifies an area of Maliki thinking, or to be more precise, indicates the most characteristic thing by which Maliki fiqh is distinguished. It is the attention to public welfare (al-masalih al-mursala). Maliki fiqh is distinct among the various types of fiqh by the pre-dominance of public welfare in it.
There is no evidence in the Shari’a for the abrogation or consideration of masalih mursala. It is an independent source of deduction, and so it is examined in analogy and is one of the means of clarification and definition of the underlying cause. This is designated as commensurability.
Al-Qarafi states in his clarification:
“Commensurability contains the acquisition of benefit or averting evil. The first is as wealth is a reason for the obligation of zakat and the second is as intoxication is a reason for the prohibition of wine. Commensurability is divided into that which is in the position of necessities, which are needs, and that which is in the position of supplementals. So the first is given priority over the second, and the second over the third when there is a conflict. The first are like the five universals: preservation of life, religion, lineage, sanity and property. Some say that honour [instead of religion] is one. The second level is like the marriage of the young ward. Marriage is not a necessity but a need in which a spouse is sought. The third is that which will encourage noble character, like the prohibition against taking drugs, denying someone’s suitability for testimony or slaves making depositions, and maintenance of relatives. Descriptions vary between these levels: like cutting off hands of several people for the loss one hand. Its legitimacy is necessary to protect people’s limbs.
“An example of all of them being combined in the same quality is that the maintenance of life is necessary, wives are a need and relatives are a supplement. The precondition of good character in testimony is necessary to protect lives and property; for being the imam (in the prayer) is a need because it is intercession and the need leads to the improvement of the state of the intercessor. Marriage is a supplement because the guardian is a relative whose nature keeps him from shame or causing injury.
“Removing hardship from people is benefit, even if it leads to the opposite of the rules. They are necessary and cause easement. This is as in the case of a land in which it is impossible to find people of good character. Ibn Abi Zayd says in an-Nawadir, ‘The testimony of those like them is accepted immediately because that is necessary. That is also obliged in judgeship and authorities. It is applied by need with dispute in the case of trustees.” (p. 169)
We quoted these words to show how Malik thought that commensurability indicated the cause of the analogy as Kitab al-Usul mentions. It shows how they delved into the application of that evidence, expanded it and defined many of the secondary rulings of their fiqh accordingly. That is why he mentioned that when there is dispute in secondary rulings, there is dispute in the fundamentals.
You see from this that in the school of Malik to they consider analogy to be founded on that which makes benefit an independent principle. That is clear since they state that if legal analogy is opposed to benefit, then one takes the benefit. So when analogy demands that good character be a precondition and there are people in a land where there is no one who could be called of good character, then there is allowance to accept the testimony of those like them and it is clear that the like of that is an event which is only witnessed by those to whom the precondition of justice applies. It is also allowed in the acceptance of the testimony of the best of those concerned.
They said something similar about authority and they accept that the one in authority can be other than someone with good character, although the basis is that he should have good character, if there exists what obliges that allowance out fear of harm and disorder by rebellion against him or there is no one who has better character than him, and such cases.
The fuqaha’ of the Maliki school use analogy but always subject it to the principle of bringing about the best interests of people and averting harm from them. So even if their analogy is absolutely correct, they do not proceed with it if that would prevent benefit or entail harm. They relax the general rules and leave them for the sake of specific benefits. That is part of istihsan.