A further example in which there is categorical certainty that no relevant distinction exists between the original and the branch is the analogy that forbids wasting an orphan’s property by wearing it out, based on the ruling that forbids wasting it by eating it; in both cases the absence of any differentiating factor is certain.
- The subtle (khafī) analogy is one whose effective cause is derived by juristic inference, without certainty that no relevant distinction exists between the original and the branch.
An illustration is the analogy that extends the prohibition of usury to ashnān (alkali) on the grounds that, like wheat, it is sold by measure. The cause—being sold by measure—is established by neither text nor consensus, and it is not certain that no relevant difference exists, for one might distinguish the two by noting that wheat is edible, whereas alkali is not.
Analogy of resemblance (qiyās al-shabah)
Among the forms of analogy is the “analogy of resemblance,” where a branch wavers between two originals that carry different rulings, sharing features with each. The branch is therefore attached to whichever of the two it more closely resembles.
Consider the example of a slave: does he acquire ownership when something is transferred to him, by analogy with a free man, or does he, like an animal, acquire no ownership at all? When we examine the two originals—the free man and the animal—we find the slave occupying a middle position. Inasmuch as he is a rational human who is rewarded and punished, marries and divorces, he resembles the free man. Yet inasmuch as he is bought and sold, mortgaged, endowed, gifted, inherited, not entrusted with deposits, liable only up to his value, and subject to financial transactions, he resembles the animal. With regard to financial dealings, he most closely resembles the animal, and is therefore attached to it.
This category of analogy is weak, for there is no suitable effective cause linking the branch to the original apart from a general resemblance in most rulings, while another original also competes for that resemblance.