4. Juristic Analogy: This refers to taking an injunction that applies in one case and applying it in another because they share a characteristic that is the effective cause of the injunction being applied in the first case. Juristic analogy ranks as the fourth source of Islamic legislation, though its effects are more widespread and far-reaching than that of juristic consensus due to the fact that so many injunctions in Islamic Law are based upon it. The reason for this is that the issues where consensus has taken place are few, since there is no way that it could occur after the earliest eras of Islamic history. The reason for this is that the scholars have become scattered all over the world and have not been able to engage in mutual consultation.
This is not the case for juristic analogy, because it does not require unanimous agreement. Quite the contrary, each jurist uses analogy according to his own, personal reasoning for every new situation that has not been previously addressed by the Qur’ân, Sunnah, or consensus. It should not go unnoticed that the Qur’ân and Sunnah are necessarily limited in the number of issues that they can directly address. At the same time, the number of new occurrences and expected future occurrences knows no limit. There is no way for Islamic legal injunctions to be established for every new development and every possible transaction except by way of applying the methods of reason, at the forefront of which is that of analogy. Analogy is the most widely applied and versatile sources for extrapolating specific injunctions to deal with new issues confronted by Islamic Law.
The sacred texts generally state the effective cause and the rationale for most of the injunctions that they establish. This facilitates applying these injunctions in new but similar cases that make their appearance in every age. The texts of the Qur’ân are mostly of a general and universal nature, as we have seen. This has opened the doors to analogous reasoning, allowing cases that the texts have not treated to be referred back to those that the texts have dealt with decisively by applying the textually established injunctions wherever their effective causes are evident.
The cases handled by way of analogy in Islamic Law are too numerous to count. The greater portion of Islamic legislation is made up of these cases. Analogy continues to be used for every new issue that is not directly addressed by the sacred texts. For example, the texts that deal with injunctions pertaining to an agreement of sale are more than those that deal with a lease agreement. Consequently, the jurists, by way of analogy, took many of the injunctions referring to sales and applied them to lease agreements due to the fact leasing is essentially the sale of rights and benefits.
Likewise, the texts deal at length with the injunctions pertaining to the guardians of orphaned minors, detailing their rights, responsibilities, and capabilities. The jurists, by way of analogy, applied the same injunctions to the executors of endowments, due to the similarities in their duties. They also derived many of the injunctions pertaining to endowments themselves from those that the texts had established for bequests.
The Secondary Sources of Islamic Law
There are other acceptable means of deriving Islamic legal injunctions, besides the four primary sources. The Qur’ân and Sunnah have given indication that these sources are also to be considered as legitimate means of establishing legislation, except that they play a subsidiary and subordinate role to that of the four primary sources. For this reason the majority of scholars do not count them as distinct sources of law, but merely as extensions of the primary ones. We shall deal with the two most important of these secondary sources: consideration of general welfare and customary practice.
