Consensus (ijmaa‘) and analogy (qiyaas) and their application in the modern context
Question

                What is the clear difference between consensus (ijmaa‘) and analogy (qiyaas)? Please give some examples to clarify, from the time of the Prophet and modern times.
Praise be to Allah.
    
    Consensus (ijmaa‘) and analogy (qiyaas) both come under the heading 
    of evidence based on general principles on which shar‘i rulings may be 
    based. Consensus comes after Qur’an and Sunnah in the list of shar‘i 
    evidence. 

    From a 
    linguistic point of view, the word ijmaa‘ may refer to two things:

    1.Decision, as in the verse in which Allah, may He be exalted, says 
    (interpretation of the meaning): “So decide upon your course of action 
    [fa ajmi‘u]” [Yoonus 10:71].

    2.Agreement, as it is said Ajma‘at al-jamaa‘ah ‘ala kadha [the 
    group agreed upon such and such]. 

    In 
    Islamic terminology, it was defined by az-Zarkashi (may Allah have mercy on 
    him) as follows: It is the unanimous agreement of the mujtahid scholars of 
    the ummah of Muhammad (blessings and peace of Allah be upon him) after his 
    death concerning some issue at any particular time.

    End 
    quote from al-Bahr al-Muheet by az-Zarkashi, 6/379 

    From 
    this definition it is known that certain conditions must be met for there to 
    be consensus, which are:

    1.The agreement should be among the mujtahid scholars of the ummah of 
    Muhammad (blessings and peace of Allah be upon him); this excludes the 
    consensus of previous nations.

    2.It should come after the death of the Prophet (blessings and peace of 
    Allah be upon him)), because consensus during his lifetime is of no 
    significance.

    3.It should come at a particular time, so that no one will think that 
    what is meant is the consensus of all mujtahid scholars throughout all ages 
    until the Day of Resurrection, because that is impossible. 

    
    Consensus constitutes shar‘i proof, because it is based on the idea that the 
    ummah as a whole is infallible and that it cannot agree on misguidance. This 
    is proven by the texts of the Sunnah. At-Tirmidhi (2167) narrated from Ibn 
    ‘Umar that the Messenger of Allah (blessings and peace of Allah be upon him) 
    said: “Allah will not cause my ummah – or the ummah of Muhammad (blessings 
    and peace of Allah be upon him) – to agree on misguidance.”

    
    Classed as saheeh by al-Albaani in Saheeh al-Jaami‘ as-Sagheer, no. 
    1848 

    Ahmad 
    narrated in his Musnad (27224) from Abu Basrah al-Ghifaari, the 
    companion of the Messenger of Allah (blessings and peace of Allah be upon 
    him) that the Messenger of Allah (blessings and peace of Allah be upon him) 
    said: “I asked my Lord, may He be glorified and exalted, for four things, 
    and He granted me three of them and withheld one from me. I asked Allah, may 
    He be glorified and exalted, not to cause my ummah to agree on misguidance, 
    and He granted me that.” 

    Some 
    Qur’anic texts support this principle too, such as the verse in which Allah, 
    may He be exalted, says (interpretation of the meaning): “And 
    whoever contradicts and opposes the Messenger (Muhammad SAW) after the right 
    path has been shown clearly to him, and follows other than the believers’ 
    way. We shall keep him in the path he has chosen, and burn him in Hell - 
    what an evil destination” 
    [an-Nisa’ 4:115]. 
    In this verse, He makes it obligatory to follow the way of the believers and 
    warns against differing from them. This indicates that when they are 
    unanimously agreed on something, it must be sound, because if it were 
    possible for them to agree on a mistake, then the one who is told to follow 
    them would be being told to follow them in their mistakes, but what Allah 
    enjoins us to follow can only be true and correct. 

    See:
    al-Fusool fi’l-Usool, 3/262 

    Shaykh 
    al-Islam Ibn Taymiyah said: The consensus of this ummah constitutes shar‘i 
    proof, because Allah, may He be exalted, has told us that they enjoin all 
    that is good and forbid all that is evil. If they agreed on making 
    permissible something that is forbidden, or waiving an obligatory duty, or 
    prohibiting something that is permissible, or saying something false about 
    Allah, may He be exalted, or any of His creation, that they would be 
    described as enjoining what is evil and forbidding what is good.

    End 
    quote from Majmoo‘ al-Fataawa, 28/125 

    Hence 
    it is known that Allah, may He be exalted, has protected the ummah of 
    Muhammad (blessings and peace of Allah be upon him) from agreeing on 
    misguidance or error. There is a subtle reason for this that was explained 
    by az-Zarkashi when he said: The reason why only this ummah was given this 
    quality of only agreeing on what is correct is that they are now the only 
    believing group on earth, because the Prophet (blessings and peace of Allah 
    be upon him) was sent to all mankind, whereas the Prophets who came before 
    him were sent only to their own peoples, so the followers of each one were 
    only part of the total number of believers. Therefore each community was not 
    the only one that was the believing group in any particular era. But in the 
    case of this ummah, the believers are all in this ummah (and not anywhere 
    else), and the hand of Allah is with the jamaa‘ah (main body of Muslims). 
    Hence – and Allah knows best – they were given the privilege of agreeing 
    only on that which is sound and correct.

    End 
    quote from al-Bahr al-Muheet, 6/396 

    
    Examples of consensus (ijmaa‘): 

    There 
    are no examples of consensus at the time of the Prophet (blessings and peace 
    of Allah be upon him) because, as we explained above, consensus can only be 
    valid after the death of the Prophet (blessings and peace of Allah be upon 
    him). Al-Aamidi said: The consensus of those who lived at the time of 
    revelation does not constitute proof or evidence at the time of revelation, 
    according to scholarly consensus. Rather it only constitutes proof or 
    evidence after the death of the Prophet (blessings and peace of Allah be 
    upon him).

    End 
    quote from al-Ihkaam fi Usool al-Ahkaam, 1/213 

    With 
    regard to examples after the death of the Prophet (blessings and peace of 
    Allah be upon him), there are many examples, including, for example: 

    The 
    consensus of the scholars on the prohibition on building new churches in 
    Muslim lands. This consensus was narrated by Shaykh al-Islam Ibn Taymiyah. 
    It says in al-Furoo‘ wa Tasheeh al-Furoo‘ (10/338): They are to be 
    prevented from building new churches and synagogues. Our shaykh (Ibn 
    Taymiyah) stated that there was consensus on this point. End quote. It says 
    in al-Insaaf fi Ma‘rifat ar-Raajih min al-Khilaaf by al-Mirdaawi 
    (4/236): They are to be prevented from building new churches and synagogues. 
    Shaykh Taqiy ad-Deen (may Allah have mercy on him) stated that there was 
    consensus on this point. Our companions made an exception for what they (the 
    Jews and Christians) stipulated at the time of making peace deals, if they 
    said “These are ours.” It was also narrated by as-Subki. It says in 
    Fataawa as-Subki (2/369): Building (new) churches is forbidden, 
    according to scholarly consensus. End quote. 

    There 
    are several modern examples of consensus, such as the consensus of Muslim 
    scholars that it is forbidden to play the role of the Prophet (blessings and 
    peace of Allah be upon him) or other Prophets and Messengers of Allah 
    (blessings and peace of Allah be upon them) in movies and TV shows. This 
    consensus was mentioned by Shaykh Bakr Abu Zayd (may Allah have mercy on 
    him) when he said: Those scholars who allowed acting within certain 
    guidelines are unanimously agreed that it – playing certain roles – is 
    prohibited in the case of the Prophets and Messengers of Allah (blessings 
    and peace of Allah be upon them), and that it is prohibited in the case of 
    the Mothers of the Believers, the wives of the Prophet (blessings and peace 
    of Allah be upon him) and his descendants (peace be upon them), and in the 
    case of the Rightly Guided Caliphs (may Allah be pleased with them).

    End 
    quote from Hukm at-Tamtheel, 1/43 

    With 
    regard to analogy (qiyaas): 

    This 
    is evidence on which shar‘i rulings may be based; it comes after consensus. 
    In linguistic terms it refers to comparing and seeing similarities. In 
    Islamic terminology, it was defined by Ibn Qudaamah as follows: Giving a 
    ruling concerning a novel issue (i.e., one that is not directly mentioned in 
    shar‘i texts) that is the same as the ruling on a basic issue (i.e., one 
    that is directly mentioned in shar‘i texts), on the basis of some common 
    factor between the two issues.

    End 
    quote from Rawdat an-Naazir wa Jannat al-Manaazir, 2/141 

    What 
    is meant by giving the same ruling on a novel issue as that given on a basic 
    issue is putting it under the same category and giving it the same ruling. 

    There 
    are four pillars or components of analogy: the basic issue, the novel issue, 
    the ruling and the common factor. 

    These 
    components may be understood further by giving an example. If we say, for 
    example, that nabeedh is an intoxicant, then it is haraam like khamr (wine). 
    In this case the basic issue is khamr. This is called the basis of the 
    analogy, which is the issue or item of which the text speaks or on which 
    there is consensus. 

    The 
    novel issue is nabeedh, which is the matter concerning which analogy is 
    made. This is the matter concerning which there is no text or consensus; it 
    is the issue for which we want to find the shar‘i ruling. 

    The 
    ruling is that it is prohibited. This refers to a ruling that is proven 
    concerning the basic issue, whether on the basis of a text or consensus, and 
    whether the ruling is one of prohibition or otherwise, which we want to 
    transfer to the novel issue concerning which there is no evidence or direct 
    mention in any text. 

    The 
    common factor is intoxication. The factor is the reason for which the 
    Lawgiver issued a ruling concerning the basic issue. 

    It is 
    worth noting that the Prophet (blessings and peace of Allah be upon him) 
    used analogy in his fatwas to point out this principle to the people and 
    teach it to them. 

    For 
    example: 

    
    Al-Bukhaari (1852) narrated from Ibn ‘Abbaas (may Allah be pleased with him) 
    that a woman from Juhaynah came to the Prophet (blessings and peace of Allah 
    be upon him) and said: My mother vowed to perform Hajj, but she did not 
    perform Hajj before she died; can I perform Hajj on her behalf? He said: 
    “Yes, perform Hajj on her behalf. Don’t you think that that if your mother 
    owed a debt, wouldn’t you pay it off? So pay off the debt owed to Allah, for 
    Allah is more deserving of having debts owed to Him being paid off.” 

    Muslim 
    (1148) narrated from Ibn ‘Abbaas (may Allah be pleased with him) that a 
    woman came to the Messenger of Allah (blessings and peace of Allah be upon 
    him) and said: My mother has died and she owed one month (of fasting). He 
    said: “Don’t you think that if your mother owed a debt, you would pay it off 
    on her behalf?” She said: Yes. He said: “The debt owed to Allah is more 
    deserving of being paid off.” 

    It 
    says in al-Fudool fi’l-Usool (4/48): … Another example is the hadeeth 
    of Ibn ‘Abbaas: A man came to the Prophet (blessings and peace of Allah be 
    upon him) and said: My father is a very old man and he has not performed 
    Hajj; should I perform Hajj on his behalf? He said: “Don’t you think that if 
    your father owed a debt, wouldn’t you pay it off?” He said: Yes. He said: 
    “So perform Hajj on his behalf.” 

    
    According to another hadeeth, a woman from Khath‘am asked the Prophet 
    (blessings and peace of Allah be upon him): “The obligation of Hajj has come 
    when my father is an old man and he cannot sit firmly on his mount; can I 
    perform Hajj on his behalf? He said: “Don’t you think that if your father 
    owed a debt, and you paid it off, wouldn’t that be sufficient?” She said: 
    Yes. He said: “The debt owed to Allah is more deserving of being paid off.” 

    Ibn 
    ‘Abbaas narrated that a man came to the Prophet (blessings and peace of 
    Allah be upon him) and said: My sister vowed to perform Hajj, but then she 
    died. The Messenger of Allah (blessings and peace of Allah be upon him) 
    said: “Don’t you think that if she owed a debt, wouldn’t you pay it off?” 
    She said: Yes. He said: “So pay off the debt owed to Allah, for it is more 
    deserving of being paid off.” 

    These 
    reports affirm the principle of analogy and highlight the comparison of 
    matters to others that are similar. It was narrated from Muhammad ibn 
    al-Munkadir that the Messenger of Allah (blessings and peace of Allah be 
    upon him) was asked about making up missed Ramadan fasts: could they be done 
    separately (not one after the other)? He said: “What do you think, if a man 
    owes a debt to another man, and he starts to pay it off little by little?” 
    He said: There is nothing wrong with that. He said: “And Allah is more 
    generous and easy-going.” Thus he gave an analogy and highlighted points of 
    similarity. 

    
    Another example is the hadeeth of ‘Umar who said: I got excited and kissed 
    (my wife) whilst I was fasting, then I said: O Messenger of Allah, today I 
    did something serious; I kissed (my wife) whilst I was fasting. He said: 
    “What you think, if you rinse your mouth with water whilst you are fasting?” 
    I said: There is nothing wrong with it. He said: “So what is the problem?” 
    The Messenger of Allah (blessings and peace of Allah be upon him) gave an 
    analogy and pointed out something similar. End quote. 

    With 
    regard to the modern application of analogy, one example is that of DNA 
    testing as compared with the skill of examining the features of fathers and 
    children to detect similarities and family resemblance, and confirm 
    parenthood. The Islamic Medical Science Organisation, in its eleventh 
    session, in which they dealt with the topic of genetic engineering, the 
    human genome and genetic treatment, which was held in Kuwait, 23-25 Jumaada 
    ath-Thaaniyah 1419 AH/13-15 October 1998 CE, was of the view that: DNA 
    testing, from a scientific point of view, is an almost foolproof means of 
    establishing biological paternity and determining the identity of an 
    individual, especially in the field of forensics. It has reached a level of 
    definitive proof that is accepted by the majority of fuqaha’ in matters 
    other than issues related to hadd punishments. This view was supported by 
    the Islamic Fiqh Council belonging to the Muslim World League during its 
    sixteenth session which was held in Makkah al-Mukarramah, 21-26 Shawwaal 
    1421 AH, on condition that all its conditions are completely fulfilled, as 
    it says in its recommendations that “If DNA testing completely fulfils all 
    its conditions, and human error is avoided, then its results are virtually 
    definitive in proving or disproving paternity of children.” 

    
    Another example is comparing taking a certain amount of blood in the case of 
    one who is fasting, to the procedure of cupping, as we have discussed in 
    fatwa no. 50406

    And 
    Allah knows best.