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  • Chapter 3 - The Insufficiency of Concomitance Alone

  • from Part I - Islamic Legal Theory (Uṣūl al-Fiqh) and Related Genres
  • Edited by Omar Anchassi, Universität Bern, Switzerland, Robert Gleave, University of Exeter
  • Book:
    Islamic Law in Context
    Published online:
    14 November 2024
    Print publication:
    21 November 2024, pp 33-46

  • Summary

    This chapter explores the discussion of the utility of co-presence and co-absence (al-ṭard wa-l-ʿaks) - a.k.a. concomitance (dawarān) - in determining whether a property is a cause (ʿilla) of its associated ruling (ḥukm) in the famous Mukhtaṣar of Ibn al-Ḥājib (d. 646/1249), as well as in the commentary of ʿAḍud al-Dīn al-Ījī (d. 756/1355) and its gloss by Saʿd al-Dīn al-Taftāzānī (d. 793/1390). This issue, while seemingly abstract, is vitally important to the proper application of causal qiyās. For this type of qiyās to be a legitimate method for deriving legal norms, one first needs to determine the cause of the rule in an authoritatively established case (called the ‘root-case,’ or aṣl). Only then can that rule be transferred to the disputed case (the ‘branch-case,’ or farʿ) in which the self-same cause exists. Arguments from concomitance (dawarān) are based on a knowledge that wherever the presumed causal property exists the legal norm exists (‘co-presence’), and wherever this property does not exist the legal norm does not exist (‘co-absence’).