Al-Qiyas: IBN TAYMIYYAH’s little known masterpiece
In my opinion, this is one of the best Fiqh books ever written. I regard it as a masterpiece for its penetrating logic. It elucidates so many important issues and contracts in commercial transactions. In this book, IBN TAYMIYYAH’s powerful reasoning truly comes alive. He lays to rest any claims that some contracts have been approved by exception although they break the rules, or what is termed in Arabic “Khilaf Al-Qiyas.”
Qiyas is frankly too complex to fully elaborate in an article, one can however summarize the main aspect. When we have a new case where we need to find a ruling, we look at a case that has been mentioned in text and see if they have the same ‘Illah’ or underlying or operative cause. If they do, then the new case will have the same ruling as the case previously mentioned and ruled upon. This is the simple view. Of course there are different types of Qiyas, and in some cases, no ‘Illah’ has been mentioned and therefore it has to be deduced. Some have translated Qiyas as Analogy, measurement, analogical inference, and deduction.
For example Gold and Silver were recognized currencies and what has been termed as ‘Ribawi Mal’, meaning there are rules for their trading, such as immediate delivery when they are exchanged. In addition, lending them at a stipulated increase is Haram and is considered Riba. It is also commanded that Zakat is paid upon amounts meeting the threshold and time period.
In the modern era, Paper money is considered as Gold and Silver based on ‘Qiyas’. Why? Because it shares with Gold and Silver the same ‘Illah’ or underlying cause or characteristic, which is that it has a particular value used for exchanges as in currencies, called ‘Thamaniyyah’ somewhat translated as ‘moneyness’. Basically, paper money serves the same function as Gold and Silver as a currency and is a store of value, therefore the same rules apply. In 1982, The Islamic Fiqh Academy pronounced that the characteristic (Illah) of Riba that occurs within Gold and Silver is due to their measure of wealth and store of value (Thamaniyyah) and therefore Paper currency has replaced Gold and Silver.
This book is in fact an amalgamation of a short work by IBN TAYMIYYAH and an added work by his student IBN AL-QAYYIM on the same theme. Altogether the book is fairly short with only 236 pages of which 74 were written by IBN TAYMIYYAH himself and the rest by IBN AL-QAYYIM.
IBN TAYMIYYAH was born in 1263 A.D. in Haran, which is in modern Turkey. Soon afterwards however, the family moved to Damascus, escaping from the Tatar invasions. There, it is said, he learned under the tutelage of as many as 200 scholars, and began to write and teach at age seventeen. His teaching even included classes on Tafsir of The Quran in The Ummayad Mosque in Damascus.
Throughout his life and travels, he was jailed numerous times in Damascus, Cairo, and Alexandria. He even participated in a battle between The Mameluks and The Tatars in defense of Damascus in 1303 A.D.
In the brief book, or more accurately a letter on Qiyas, IBN TAYMIYYAH explains exactly his point of view at the beginning: “The word Qiyas is all encompassing and includes True Qiyas and Corrupt Qiyas. True Qiyas is what Shariah has brought, which is the gathering of issues that are similar, and the separation between issues that are different… This is of the justice that Allah had sent his messenger. True Qiyas is where the ‘Illah’ in the original case is present in the new case without opposition to stop its ruling…and where Shariah has specified certain types with a ruling that differentiates it from its similar counterparts, then there must be a description specific to that type that requires its specific ruling and eliminates its equality to others. However, the specific description may appear to some and not appear to others…whoever sees in Shariah something against the Qiyas, it is only against the Qiyas he himself has decided and not against the true Qiyas.”
This is actually a very powerful statement and goes against many of the accepted views of which transactions are deemed to be exceptions and against the Qiyas, as we shall see.
He then begins quickly to establish his point of view by describing the mistake other scholars have made in certain contracts by reviewing Muadarabah, Musaqat, and Muzara’ah. “Those who stated that Mudarabah, Musaqat, and Muzara’ah are against the Qiyas thought that these contracts are of the Ijarah type because it is work against compensation, and in Ijarah, the compensation and the work being compensated must be known, so when they saw that the work in these contracts is unknown and the profit is unknown, thy said this is against Qiyas, and this is their mistake as these contracts are of the Musharakaat type and not of the specified compensatory contracts where both the compensation and compensation must be known.”
Basically, for IBN TAYMIYYAH, the problem is one of categorization of the contracts. If you place the contract in the wrong category, you may be tempted to designate it as against the Qiyas. He however, places contracts in their rightful category and therefore, there is no exception here, it is not against the Qiyas.
He goes on in this first section to elaborate some important points on the nature of some contracts: “To explain this, the work whose intention is money is three types: a) The work is intended and is known and capable of being delivered, and this is Ijarah, b) The work is intended but is unknown and uncertain, and this is Ju’alah (success based), and c) The work is not intended but the profit itself, and that’s Mudarabah, as the owner of the funds is not interested in the work itself…and this is a Musharakah, one with his effort, while the other with his money, and the profit is between them.”
IBN TAYMIYYAH then moves to describing Hawala, which is another complex issue, sometimes confused with the Sale of Debt for Debt and the forbidden “Bay’ Al-Kale’ Bil-Kale’”. He goes on to explain: “As for Hawala, those who said it’s against Qiyas say it’s a sale of debt for debt and it’s not permissible, and this is wrong from two points: a) A sale of debt for debt has no general text or consensus, and the statement concerns ‘Bay Al-Kale’ Bil-Kale’, and Al-Kale’ is the delayed which is not possessed against another which is delayed and not possessed, just like in Salam, if both money and goods are delayed, and b) Secondly, Hawala is actually a settlement of rights and not a sale, as the owner of the right, if he receives his due from the debtor, he will have settled his rights, and if he transfers this right onto another debtor, he will settle with the new debtor, one debt for another.”
This is an excellent point he makes, as over and over again in many places we see the issue confused between the Sale of Debt for Debt and ‘Bay’ Al-Kale’ Bil-Kale’ which is more to do with delaying both parts of the transaction.
IBN TAYMIYYAH quickly discusses Qard (Loan): “He who said that Qard is against the Qiyas, said so because it’s a sale of a “Ribawi” against its kind without possession, and this is wrong, as a Qard is of the type of “Tabarru” (Benevolence).”
This is an important issue, which he discussed in other books. Basically the issue is that some scholars stated that since selling money for money such as Gold and Silver, even if equal on deferred basis without immediate possession is Riba, of the Riba of Sales type, then lending Gold and Silver in the same amounts with a delay in the repayment is also Riba, but is an exception and against the Qiyas. Let’s take a look at what other scholars have said of this issue and the response of IBN TAYMIYYAH.
AL-QARAFI (died c. 1285 A.D.) in his book ‘Al-Furooq’ (The Differences) states in Difference # 201 on the difference between the basis of Sale versus Loan: “Know that the Qard goes against three Shariah basis, the Riba basis if it were in Ribawi items such as the two currencies (gold and silver) and foods…the reason for breaking these rules is the benefit of people…”
IBN MUFLIH (died c. 1479 A.D.) in ‘Al-Mubdi’ which is an explanation of Ibn Qudamah’s ‘Al-Muqni’ in Bab Al-Qard: “It is paying wealth to another to benefit from it and return its equivalent, and it is a type of transaction that is an exception to the Qiyas of Compensatory Contracts (Mu’awadat) because of a benefit that the Legislator (Allah) has observed as a kindness to those who are needy.”
IBN TAYMIYYAH disagrees that a Qard is an exception to the rules of Riba, and states in his ‘Majmou’ Fatawa’: “He who said that the Qard (Loan) is against the Qiyas states that it’s a sale of a ribawi item against another of its type without immediate possession. This is wrong, the Qard is of the type of Tabarru (Benevolence) like Ariyyah (lending someone an object to use).” IBN TAYMIYYAH continues to explain why a Qard is not against Qiyas in his ‘Al-Fatawa Al-Kubra’: “Allah Almighty has forbidden that a man should pay another Ribawi Mal against receiving the same in a Sale unless there is immediate exchange, and has allowed this payment as a Qard. They have payments in common…but what is different are the Maqasid (purposes), the purpose of a Qard is benevolence to the borrower and his benefit and not compensation and profit.”
He then makes a wonderful and memorable statement on the meaning of contracts:
“What distinguishes between this behavior and that behavior is the purpose and intent. Without the Maqasid (purposes) and intent of people, the rulings would not change, and the names (of contracts) follow the Maqasid, and no one is allowed to think that the rulings have changed simply because of the change in names, whose meanings and purposes have not changed. When the Maqasid have changed with these actions, the names and rulings have changed. The Maqasid (purposes of contracts) are the reality of actions and their basis, and actions are judged by intent.”
Salam is also problematic for some scholars who have deemed it against the Qiyas as it is a sale of what one does not possess, which is forbidden in Hadith. However, IBN TAYMIYYAH dismisses this also as wrong: “As for the statement that Salam is against the Qiyas is based on their reports of The Prophet (PBUH)…and therefore Salam is a sale of what a man doesn’t have and so it is against the Qiyas…but this is of two meanings, either a) selling a specific item and thus one would have sold the property of others before buying it…or b) selling something that one can not deliver…as for deferred Salam it is a debt like other debts and is the same as a sale on deferred payment, for what is the difference between one of the compensations being delayed, or the other being delayed and Allah has said “O you who believe! When you incur debt among yourselves for a certain period of time, write it down.” [Verse 282, Al-Baqara], and Ibn Abbas testified that Salaf (Salam) guaranteed by the debtor is permissible in Allah’s book and he read this verse, thus the permissibility of Salam is according to Qiyas and not against it.”
Of the 74 pages however, he dedicates almost 20 just to Ijarah, obviously a very important subject for him. Again, here, he explains why it’s not against the Qiyas. He states: “As for Ijarah, which they say is against the Qiyas: they said it’s a sale of non-existent matter since the benefits are non-existent at contract time, and the sale of something non-existent is forbidden.” He goes on to state: “There is nothing in The Book of Allah, neither in The Sunnah of his Messenger, nor even based upon any of The Sahaba that the sale of a non-existent item is forbidden, not by any general statement, nor by any general meaning. There is however the forbidding of selling some things that are non-existent as there is forbidding selling some things that are present and the ‘Illah’ (reason) is not in their presence or non-existence but what has been verified based on The Prophet (PBUH) that he has forbidden the sale of ‘Gharar’, and Gharar is what Can Not be delivered, whether it is present or non-existent.”
In this book, IBN TAYMIYYAH explains in simple language much of what has been in dispute and clarifies the intents and categories of contracts, giving the reader a true understanding of Shariah. At the beginning of this short book, he makes a simple yet powerful statement on Shariah: “The basis of all contracts is Justice, with which all messengers have been sent and all books revealed, Allah has stated “We sent Our messengers with the clear proofs, and We sent down with them the Book and the Balance, that humanity may uphold justice.” [Surat Al-Hadid, Verse 25].
At the end of his life, which took place in prison in the fort in Damascus, he wrote a lot, so much so, that when the order was made to stop him from writing from prison and remove all writing utensils, over 60 volumes had to be removed and sent to the ‘Grand Adliya Library.’ Still, he used coal to write on pieces of paper.
IBN TAYMIYYAH died in 1328 A.D. at the age of 67 in prison. It is reported by chroniclers that between 60 to 100 thousand men attended his funeral and over 15 thousand women watched from rooftops. He left close to 70 books; famous among them are such books as ‘Majmou Al-Fatawa’ a collection of over 30 volumes, ‘Al-Uqood’ which delves into the theory of contracts, and ‘Al-Qawa’ed Al-Nuraniyyah’ which elaborated on many Fiqh principles. IBN TAYMIYYAH left an indelible legacy such that he would always be remembered best as ‘Shaikh Al-Islam.’