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B13 · باب القياس · Qiyās: why it is valid, what it needs, what it produces, istiḥsān, and why a cause has no exceptions (v2/118–215)

1. In short
2. Why it matters
3. B13a.01 · مذهب الجمهور ومنكرو القياس · Qiyās extends a text's ruling to new cases; it cannot found a ruling from the start
4. B13a.02 · شبه نفاة القياس · The deniers' case: the Qurʾān is enough, opinion puts oneself before God, and a chosen cause carries doubt
5. B13a.03 · أدلة الكتاب · The Qurʾān commands qiyās: "take heed" means judging a thing by its like
6. B13a.04 · أدلة السنة والإجماع · The Prophet taught by analogy, and the Companions agreed on using opinion where there was no text
7. B13a.05 · الرد على الطاعنين في الصحابة · The Companions did not act against the texts by opinion, and had no special licence to
8. B13a.06 · الدليل المعقول · Reason shows qiyās is needed: every event has a ruling, and assuming things stay as they were is only for sheer necessity
9. B13b.01 · ما لا بد للقياس من معرفته · Qiyās is studied in five steps, and it works like a lawsuit
10. B13c.01 · تعليل الأصول · Before reasoning from a text, one must show that this text has a cause here and now; a general presumption is not enough
11. B13d.01 · شروط القياس الخمسة · Qiyās has five conditions, all guarding against reasoning that overrides a text
12. B13d.02 · الشرط الأول: ما ثبت خصوصه بالنص · What a text made special to one person or case is not reasoned from
13. B13d.03 · الشرط الثاني: المعدول به عن القياس · A ruling that is an exception to qiyās is not extended
14. B13d.04 · الشرط الثالث (أ): لا قياس في اللغة ولا فيما لا يتعدى · Qiyās cannot establish a word's meaning, or rest on a cause that reaches no other case
15. B13d.05 · الشرط الثالث (ب): عين الحكم إلى نظيره ولا نص فيه · The very same ruling, to a case truly like the root, and only where there is no text
16. B13d.06 · الشرط الرابع: بقاء حكم النص · Reasoning may not change the ruling of the text it starts from
17. B13d.07 · الشرط الخامس وما لا مدخل للقياس فيه · Reasoning may not void a word of the text, and some questions are not for qiyās at all
18. B13e.01 · ركن القياس · The core of a qiyās is the feature that marks the ruling and makes the new case like the root
19. B13e.02 · دليل صحة العلة · A feature is shown to be the cause by being fit and then upright, and the Ḥanafīs prove it upright by its effect
20. B13e.03 · الرد على أهل الطرد والإخالة · Co-occurrence and a feature "suggesting itself" are not enough; a cause is proven by its effect in the roots
21. B13e.04 · المؤثر في الفقه · The imams reasoned by features with a clear effect, and such reasoning is qiyās even when no root is named
22. B13f.01 · حكم القياس · A qiyās only extends the text's ruling to a new case; it does not tie the root's own ruling to the cause
23. B13f.02 · مواضع القياس · Qiyās cannot establish a cause, a condition or a ruling; it can only decide whether an agreed ruling extends
24. B13g.01 · الاستحسان · Istiḥsān is not following one's desire: it is judging amounts left to opinion, or the stronger proof over the obvious qiyās
25. B13g.02 · ترك القياس أصلا · When istiḥsān is taken, the qiyās it leaves is dropped entirely; qiyās is left for a text, consensus or necessity
26. B13g.03 · القياس والاستحسان نوعان · The stronger effect wins, whether obvious or hidden; an istiḥsān from a hidden qiyās extends, one from a text or consensus does not
27. B13h.01 · لا تخصيص في العلل الشرعية · A legal cause has no exceptions: where the ruling fails, the cause was absent or was never the cause

In short

• This chapter asks how qiyās works and where it stops [Overview]. Qiyās extends a text's ruling to new cases; it never founds one [B13a.01]. It needs five conditions [B13d.01] and a feature shown to affect the ruling [B13e.02]. Istiḥsān is not desire: it is judging an amount the law left open, or the stronger proof over the obvious qiyās [B13g.01].

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Why it matters

• Since the wine text has no proven cause, the ban on other intoxicants is a precaution, so one who holds them lawful is not declared an unbeliever, unlike one who holds wine lawful [B13c.01].

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B13a.01 · مذهب الجمهور ومنكرو القياس · Qiyās extends a text's ruling to new cases; it cannot found a ruling from the start

• In plain words: Is qiyās a valid way to know legal rulings, and what can it do? The Companions, the Followers and the imams held that qiyās on rulings fixed by texts is valid and sound, a way of worshipping God. It extends a text's ruling to new cases that have no text.
• In his words: "But it is not fit to establish a ruling from the start": «وَلكنه غير صَالح لإِثْبَات الحكم بِهِ ابْتِدَاء» (v2/118)
• Who disagrees: The deniers: first al-Naẓẓām, then a Baghdad theologian, then Dāwūd al-Aṣbahānī and the Ẓāhirīs, who say qiyās cannot extend a ruling at all. Their mildest version allows it only in necessity, and says there is none, since one can assume things stay as they were (istiṣḥāb). So Sarakhsī sets out to show that qiyās is an original proof that comes before istiṣḥāb.
• Deeper: v1 B13a.01

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B13a.02 · شبه نفاة القياس · The deniers' case: the Qurʾān is enough, opinion puts oneself before God, and a chosen cause carries doubt

• In plain words: What do those who deny qiyās argue? They say the Qurʾān covers everything, by text or by what its words imply, and where it is silent things stay permitted. Using opinion is putting oneself before God (Q 49:1). They cite reports against opinion, like ʿUmar's "beware the people of opinion". Choosing the feature that causes a ruling carries doubt, and God's rights are not established by doubt. Worship is a test, which opinion cannot work out.
• Who disagrees: Sarakhsī answers all of this in the next four topics, from the Qurʾān, the Sunna, the Companions' consensus and reason.
• Deeper: v1 B13a.02

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B13a.03 · أدلة الكتاب · The Qurʾān commands qiyās: "take heed" means judging a thing by its like

• In plain words: Where does the Qurʾān command qiyās? In "take heed, O people of insight" (Q 59:2): in Arabic, taking heed (iʿtibār) means returning a thing's ruling to its like, which is qiyās. "Those who draw it out" (Q 4:83) means drawing out meaning by opinion. And "refer it to God and the Messenger" (Q 4:59) means referring a dispute by likeness.
• Example: The Ḥanafīs find the cause of ribā (measure, whether by volume or weight, and the same kind) just as the cause of Māʿiz's stoning is found: zinā is the cause, and iḥṣān (roughly, being married) is only a condition. So ribā is forbidden in other goods of one kind sold by measure or weight, as stoning applies to every muḥṣan who commits zinā.
• Who disagrees: The deniers say one may extend a cause the text states, like Māʿiz's, but not one drawn by opinion, like the cause of ribā. Sarakhsī answers that both are found in exactly the same way.
• Deeper: v1 B13a.03

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B13a.04 · أدلة السنة والإجماع · The Prophet taught by analogy, and the Companions agreed on using opinion where there was no text

• In plain words: Did the Prophet and the Companions use qiyās? The Prophet taught by comparison. He likened a kiss while fasting to rinsing the mouth, and told the Khathʿamī woman that "God's debt is more worthy" of being paid. He approved Muʿādh's "I will use my opinion". The Companions used opinion where there was no text: they argued the grandfather's share by comparisons. The reports against opinion, he says, concern opinion that goes against a text or follows desire.
• Example: They chose Abū Bakr as caliph by ʿUmar's qiyās. He asked: "will you not accept for your worldly affairs the one the Messenger accepted for your religion?", meaning leading the prayer.
• Who disagrees: Some objected that the Prophet also had ʿAbd al-Raḥmān b. ʿAwf lead prayer without that making him caliph. Sarakhsī answers that the Prophet chose Abū Bakr when the Companions were assembled and a successor was needed. He kept to him after they named others, and none of this held for Ibn ʿAwf.
• In his words: "So we know they agreed on using opinion where there is no text, and their consensus is proof enough": «فَعرفنَا أَنهم كَانُوا مُجْمِعِينَ على جَوَاز الْعَمَل بِالرَّأْيِ فِيمَا لَا نَص فِيهِ وَكفى بإجماعهم حجَّة» (v2/132)
• Deeper: v1 B13a.04

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B13a.05 · الرد على الطاعنين في الصحابة · The Companions did not act against the texts by opinion, and had no special licence to

• In plain words: Did the Companions act against the Prophet's clear words by their own opinion? Some attackers say so, or say the Companions had a special licence. Sarakhsī calls that claim itself a slur on them. Their conduct matches the texts. All the cases they cite but one, ʿAmr's, were a choice of the stricter course where the Prophet's word allowed an easier one. ʿAmr b. al-ʿĀṣ held that his duty to wash had lapsed through the hardship of the cold, and the Qurʾān makes tayammum lawful to lift hardship.
• Example: The Prophet signed to Abū Bakr to stay in his place leading the prayer, and he stepped back anyway. He took the strict course out of respect, so it was not disobedience.
• Who disagrees: The attackers above. Sarakhsī's language about them is polemical: whoever attacks the Companions, he says, is a heretic whose cure is the sword unless he repents. This is his polemic, not a report of what the attackers said.
• Deeper: v1 B13a.05

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B13a.06 · الدليل المعقول · Reason shows qiyās is needed: every event has a ruling, and assuming things stay as they were is only for sheer necessity

• In plain words: Does reason itself show that qiyās is needed? The Qurʾān explains everything by its meanings, not only by its words: "uff" forbids beating too. Texts are finite and events are not, yet every event has a ruling of God. Applying a text's meaning wherever it is found is ruling by the text, not by opinion. God makes the cause effective; opinion only picks it out. Qiyās applies only where no text from the Qurʾān or Sunna exists.
• In his words: "Continuing the prior state is acting on ignorance; it may be resorted to only in pure necessity, like eating carrion": «فَأَما اسْتِصْحَاب الْحَال فَهُوَ عمل بِالْجَهْلِ فَلَا يجوز الْمصير إِلَيْهِ إِلَّا عِنْد الضَّرُورَة الْمَحْضَة بِمَنْزِلَة تنَاول الْميتَة» (v2/140)
• Example: A pilgrim who kills game owes what two just men judge its value to be (Q 5:95), which is judging by opinion.
• Who disagrees: The deniers call opinion putting oneself before God. Sarakhsī answers that qiyās is in the Qurʾān by indication, so it is judging by what God revealed.
• Deeper: v1 B13a.06

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B13b.01 · ما لا بد للقياس من معرفته · Qiyās is studied in five steps, and it works like a lawsuit

• In plain words: How should one study qiyās? Sarakhsī takes five steps: what the word means, its conditions, its core, its result, and how it can be answered. In rulings, qiyās means returning a thing to its like so that it shares the ruling. It works like a lawsuit. The texts are witnesses and their meaning is the testimony. The one reasoning is the claimant, the ruling sought is the claim, and the heart is the judge. As with witnesses, the text must have an understood meaning, and the feature must fit the ruling. Only then can the other side defend.
• Who disagrees: al-Shāfiʿī and others differ on some of these steps (B13c.01, B13e.02).
• Deeper: v1 B13b.01

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B13c.01 · تعليل الأصول · Before reasoning from a text, one must show that this text has a cause here and now; a general presumption is not enough

• In plain words: Before reasoning from a text, must we prove that its ruling has a cause? There are three views. Texts have no cause unless proved; or they have one unless something prevents it; or, "closest to al-Shāfiʿī's doctrine", they have one in principle, but a proof must pick out the feature. The Ḥanafīs add that there must also be a proof that this text has a cause here and now. A text presumed to have a cause is like a witness of unknown standing: enough to defend one's own view, not to bind others.
• Example: The wine text has no cause, Sarakhsī says: wine is forbidden in itself. Other intoxicants are forbidden as a precaution, so one who holds them lawful is not declared an unbeliever, unlike one who holds wine lawful.
• Who disagrees: al-Shāfiʿī treats the wine prohibition as having a cause, with no proof. ⚑ Some Ḥanafīs argued that gold and silver have a cause just because texts have causes in principle. Sarakhsī says that is not right until a proof shows it for this text.
• Deeper: v1 B13c.01

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B13d.01 · شروط القياس الخمسة · Qiyās has five conditions, all guarding against reasoning that overrides a text

• In plain words: What conditions must qiyās meet? Five. (1) The root's ruling is not made special to it by another text. (2) It is not itself an exception to qiyās. (3) The reasoning extends the very same legal ruling to a like case that has no text. (4) The text's ruling stays in the root as it was. (5) No word of the text is voided. Each guards against qiyās overriding a text.
• Who disagrees: al-Shāfiʿī differs on some of these; the next topics give the cases.
• Deeper: v1 B13d.01

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B13d.02 · الشرط الأول: ما ثبت خصوصه بالنص · What a text made special to one person or case is not reasoned from

• In plain words: Can we reason from a ruling that a text made special to one person or case? No. Extending it would cancel its special status, which is qiyās against a text.
• Example: Khuzayma's single testimony counted as two, an honour to him alone, so no one else's single testimony counts as two. Salam (paying now for goods delivered at a set later date) is a concession by text for a seller who cannot deliver now. So a salam with no later delivery date is not allowed by qiyās on ordinary sale.
• Who disagrees: al-Shāfiʿī says the Prophet's special feature was marriage by the word "gift", so no one else may marry by that word. Sarakhsī answers that "exclusively for you" (Q 33:50) describes marriage without a dower.
• Deeper: v1 B13d.02

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B13d.03 · الشرط الثاني: المعدول به عن القياس · A ruling that is an exception to qiyās is not extended

• In plain words: Can we extend a ruling that is itself an exception to qiyās? No: qiyās itself denies such a ruling, and one cannot build on a proof that denies it. What the text itself treats alike is covered by the text, not by qiyās.
• Example: A fast survives eating while forgetful. For one who is forced, or asleep with water poured down his throat, the fast breaks. For them the excuse came from people, while the right in the fast is God's, so their excuse does not count as He counted the forgetful eater's ("God fed you"); the fast breaks. Compare a shackled man who prays seated and must repeat, while a sick man need not. Intercourse while forgetful is treated like eating, since the text makes them equal in the fast.
• Who disagrees: ⚑ Some Ḥanafīs thought every istiḥsān ruling departs from qiyās. Sarakhsī: "it is not as he thought"; some are a hidden qiyās.
• Deeper: v1 B13d.03

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B13d.04 · الشرط الثالث (أ): لا قياس في اللغة ولا فيما لا يتعدى · Qiyās cannot establish a word's meaning, or rest on a cause that reaches no other case

• In plain words: Can qiyās decide what a word means, or rest on a cause that reaches no other case? No. This third condition is "the richest in fiqh". Whether a word applies is learned from the language, not by legal qiyās. A cause that does not extend beyond its text cannot be reasoned from at all. And one text's ruling is not reasoned into another text that has its own. Reasoning gives no certain knowledge, only a basis for action in the new case, while in the root the text already binds.
• Example: A deliberately false oath is not really an oath, so it carries no expiation. Sodomy is not zinā by name, so for Abū Ḥanīfa it carries no ḥadd.
• Who disagrees: al-Shāfiʿī allows reasoning by a cause that does not extend, like gold and silver "as prices". Sarakhsī answers that such reasoning yields nothing, since the text already binds the root.
• Deeper: v1 B13d.04

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B13d.05 · الشرط الثالث (ب): عين الحكم إلى نظيره ولا نص فيه · The very same ruling, to a case truly like the root, and only where there is no text

• In plain words: What does "the same ruling, to a like case, where there is no text" rule out? A different ruling, a case not truly like the root, and a case with its own text. The reasoning must carry exactly the root's ruling to a case like it that the texts leave open.
• Example: No expiation is due for deliberate killing by qiyās on accidental killing, since that case has its own text. The slave freed for the expiations of an oath and of ẓihār (a husband likening his wife to his mother) need not be a believer by qiyās on the killing expiation, since those texts are unqualified.
• Who disagrees: Some object that the Ḥanafīs extend in-law prohibition (a man may not marry the mother or daughter of a woman he has had intercourse with) to zinā. Sarakhsī answers that the root is the child who unites the two parents. Intercourse in the place of procreation stands in for the child, for caution. Lineage is not built on caution, so it is not established that way.
• Deeper: v1 B13d.05

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B13d.06 · الشرط الرابع: بقاء حكم النص · Reasoning may not change the ruling of the text it starts from

• In plain words: Can reasoning change the ruling of the text it starts from? No. After the reasoning, the text's ruling must stay in the root exactly as it was.
• Example: Some reason that one given the ḥadd for qadhf (an unproven accusation of zinā) may testify after repenting, like others punished for other crimes. The Ḥanafīs reject this: his testimony is never accepted, since the text makes its loss permanent, part of his penalty. That loss follows the ḥadd, not the accusation itself.
• Who disagrees: al-Shāfiʿī voids his testimony by the accusation alone, which ignores the time the text gives him to bring four witnesses. To the charge that the Ḥanafīs changed texts themselves (zakāt paid in value), Sarakhsī answers that this comes from the text's own necessity, not from reasoning.
• Deeper: v1 B13d.06

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B13d.07 · الشرط الخامس وما لا مدخل للقياس فيه · Reasoning may not void a word of the text, and some questions are not for qiyās at all

• In plain words: Can reasoning void a word in the text? No: that is the fifth condition. And some questions are not for qiyās at all. Some turn on what a prohibition means in the language. In others, the one who denies a ruling needs no qiyās, since what is not legislated cannot be established by it.
• Example: Other predators are not added to the "five" harmful animals that may be killed inside and outside the Ḥaram, since that would void the number five.
• Who disagrees: al-Shāfiʿī's "sinfulness" cause for rejecting the slanderer's testimony voids "ever" in the verse on qadhf (accusing a chaste person of zinā) (Q 24:4), since rejection for sinfulness would end with repentance.
• In his words: "This shows that the proof of the one affirming is not the proof of the one denying": «وَبِهَذَا تبين أَن حجَّة الْمُدَّعِي الْمُثبت غير حجَّة الْمُنكر النَّافِي» (v2/173)
• Deeper: v1 B13d.07

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B13e.01 · ركن القياس · The core of a qiyās is the feature that marks the ruling and makes the new case like the root

• In plain words: What is the core (rukn) of a qiyās? It is the feature that marks the ruling, one of the features the text's words include. It may be built into the thing, incidental, a name, or a ruling. It may be one feature, a pair, or several, but several count only when no single one works alone. Not every feature is the cause, and one may not pick a feature without proof.
• In his words: "From among the features the text's name includes, by which the branch becomes like the root in the ruling that it establishes in the branch": «من بَين الْأَوْصَاف الَّتِي يشْتَمل عَلَيْهَا اسْم النَّص وَيكون الْفَرْع بِهِ نظيرا للْأَصْل فِي الحكم الثَّابِت بِاعْتِبَارِهِ فِي الْفَرْع» (v2/174)
• Example: The Prophet called the chronic bleeding of a woman with istiḥāḍa "the blood of a vein that burst": "blood" is a name and "burst" an incidental feature. So she must make wuḍūʾ for each prayer.
• Deeper: v1 B13e.01; B13c.01

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B13e.02 · دليل صحة العلة · A feature is shown to be the cause by being fit and then upright, and the Ḥanafīs prove it upright by its effect

• In plain words: How do we know that a feature really is the cause? The jurists say in two steps, as with a witness: it must first be fit, matching the causes the Prophet and the Companions gave, and then upright. The Ḥanafīs say a cause is shown upright by its effect: once it is seen to affect the ruling, it is upright. The ruling's absence when the feature is absent proves nothing.
• In his words: "A cause's uprightness is known by its effect": «عَدَالَة الْعلَّة تعرف بأثرها» (v2/177)
• Who disagrees: The school of ṭard (relying on co-occurrence) says it is enough that the ruling appears with the feature, with no understood meaning. Some followers of al-Shāfiʿī say a cause is upright if it strikes the heart as sound; others, if it is tested against at least two other roots without contradiction.
• Deeper: v1 B13e.02

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B13e.03 · الرد على أهل الطرد والإخالة · Co-occurrence and a feature "suggesting itself" are not enough; a cause is proven by its effect in the roots

• In plain words: Why is it not enough that a ruling appears with a feature, or that the feature suggests itself? A ruling also appears with a condition: "if you enter the house you are free" frees him when he enters, yet entering is not the cause. A feature that suggests itself rests on mere conjecture, which binds no one else. Testing it against other roots only adds witnesses; it does not show them upright. What makes a feature proof is its effect appearing in the roots.
• Example: The cat's leftover water does not become impure, because the Prophet said cats are "among those who go around" among you: hardship lifts impurity, as necessity lifts a prohibition.
• Who disagrees: The school of ṭard (relying on co-occurrence), and those who rely on a feature striking the heart. Sarakhsī answers that co-occurrence can be shown for any rival cause, so it settles nothing.
• Deeper: v1 B13e.03

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B13e.04 · المؤثر في الفقه · The imams reasoned by features with a clear effect, and such reasoning is qiyās even when no root is named

• In plain words: Did the imams really reason by features with a clear effect, and is it still qiyās if no root is named? Sarakhsī shows that the imams reasoned this way, and the Ḥanafīs do the same in disputed questions. Such a feature always has a root: left unnamed when obvious, named when not.
• Example: Repeating the head-wipe in wuḍūʾ is not sunna, "since it is a wiping", which points to lightening. A free man able to marry a free woman may still marry a slave woman, provided he has no free wife.
• Who disagrees: ⚑ Some Ḥanafī shaykhs said that without a named root it is inference, not qiyās. Sarakhsī answers:
• In his words: "The soundest to me: it is qiyās in every case": «وَالأَصَح عِنْدِي أَن نقُول هُوَ قِيَاس على كل حَال» (v2/191)
• Deeper: v1 B13e.04

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B13f.01 · حكم القياس · A qiyās only extends the text's ruling to a new case; it does not tie the root's own ruling to the cause

• In plain words: What does a qiyās actually produce? The Ḥanafīs say its only result is to extend the text's ruling to a new case that has no text. It does not tie the root's own ruling to the cause, since in the root the text already binds. Qiyās works only where no text is found.
• In his words: "The ruling of the cause we call qiyās, or a cause established by opinion, is, in our view, extending the text's ruling by it to a branch that has no text": «حكم الْعلَّة الَّتِي نسميها قِيَاسا أَو عِلّة ثَابِتَة بِالرَّأْيِ تَعديَة حكم النَّص بهَا إِلَى فرع لَا نَص فِيهِ عندنَا» (v2/192)
• Who disagrees: al-Shāfiʿī says its result is to tie the root's ruling to the cause, with extension allowed but not required. Sarakhsī answers that tying the root's ruling to the cause would change the text's ruling.
• Deeper: v1 B13f.01

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B13f.02 · مواضع القياس · Qiyās cannot establish a cause, a condition or a ruling; it can only decide whether an agreed ruling extends

• In plain words: On what questions can qiyās be used at all? There are four kinds of question: whether something is a cause, whether something is a condition, whether a ruling exists (each with its attributes), and whether an agreed ruling extends beyond its text. Qiyās works only in the fourth. Causes, conditions and rulings are set by the Lawgiver and known by hearing, that is, from the texts.
• In his words: "Whoever understands this is spared the labour of memorising three quarters of what people use qiyās in": «وَمن فهم هَذَا سقط عَنهُ مُؤنَة الْحِفْظ فِي ثَلَاثَة أَربَاع مَا يسْتَعْمل النَّاس الْقيَاس فِيهِ» (v2/193)
• Example: Whether travel drops half of the four-rakʿa prayers is known from the Prophet's word, "a charity God gave you", not by qiyās. Whether Islam alone, without the protection of Muslim territory, gives life and property legal value (taqawwum, making them compensable) is also not for qiyās.
• Deeper: v1 B13f.02

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B13g.01 · الاستحسان · Istiḥsān is not following one's desire: it is judging amounts left to opinion, or the stronger proof over the obvious qiyās

• In plain words: Is istiḥsān just following one's desire? No. For the jurists it is one of two things. It may be judging by reasoning an amount the law left to opinion, like the gift to a divorced woman "in kindness" (Q 2:236). Or it may be a proof that opposes the obvious qiyās the mind first leaps to; after full reflection that proof is stronger, so acting on it is required.
• Who disagrees: A jurist wrote against istiḥsān as leaving a legal proof for desire. Sarakhsī answers that preferring the stronger proof is not desire, and that al-Shāfiʿī himself said "I prefer thirty dirhams" for the divorced woman's gift.
• Deeper: v1 B13g.01

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B13g.02 · ترك القياس أصلا · When istiḥsān is taken, the qiyās it leaves is dropped entirely; qiyās is left for a text, consensus or necessity

• In plain words: When the Ḥanafīs take istiḥsān, does the qiyās they leave still count? No, it is dropped entirely. Qiyās is left for one of three grounds: a text, consensus, or necessity; or, as the next topic shows, for a hidden qiyās stronger than the obvious one.
• Example: A gang loads stolen goods onto one man's back: qiyās would cut only the carrier's hand, istiḥsān cuts all of theirs. If the qiyās still counted, it would be a doubt that bars the ḥadd.
• Who disagrees: ⚑ Some later Ḥanafīs thought istiḥsān is only the better choice, while the qiyās stays allowed. Sarakhsī: "this is a mistake, in my view", since the books say "we left this qiyās", and what is left may not be acted on.
• Deeper: v1 B13g.02

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B13g.03 · القياس والاستحسان نوعان · The stronger effect wins, whether obvious or hidden; an istiḥsān from a hidden qiyās extends, one from a text or consensus does not

• In plain words: Does istiḥsān always beat qiyās, and can it be applied to other cases? Each has two kinds, and the winner is whichever has the stronger effect, not whichever is obvious or hidden. So birds of prey's leftover water is clean by istiḥsān, though qiyās on beasts of prey says impure: they drink with a dry bone beak, and the cat's hardship applies. An istiḥsān that rests on a hidden qiyās is still qiyās, so it extends to other cases. One that rests on a text or consensus goes against qiyās, so it does not extend.
• In his words: "Preference is only by strength of effect, not by being obvious or hidden": «وَإِنَّمَا يكون التَّرْجِيح بِقُوَّة الْأَثر لَا بالظهور وَلَا بالخفاء» (v2/203)
• Example: When buyer and seller dispute the price before delivery, both swear, by a hidden qiyās, and this extends to leases and to heirs. After delivery, mutual oaths while the item still exists rest on the text alone, so they do not extend: once the item is destroyed, there are no mutual oaths.
• Deeper: v1 B13g.03

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B13h.01 · لا تخصيص في العلل الشرعية · A legal cause has no exceptions: where the ruling fails, the cause was absent or was never the cause

• In plain words: Can a legal cause hold while "an obstacle" blocks its ruling in some case, the way a general text has exceptions? Sarakhsī says no. Where the ruling fails, the cause itself is absent, or was never the cause. A cause that could be blocked in one case could be blocked in every case, and then it would prove nothing. Istiḥsān by a text, consensus or necessity removes the cause; it does not make an exception to it.
• Example: ⚑ If water is poured down a sleeping person's throat while he fasts, Zufar says the fast stands, like the forgetful eater's. The Ḥanafīs say it breaks: the forgetful eater's act is legally dropped ("God fed you"), while the sleeper's comes from people.
• Who disagrees: ⚑ Some Ḥanafīs allowed such exceptions to causes. Sarakhsī says allowing them leans toward the principles of the Muʿtazila:
• In his words: "That is a great error by its holder": «وَذَلِكَ خطأ عَظِيم من قَائِله» (v2/208)
• Deeper: v1 B13h.01

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