Due to the intellectual decline that has affected Muslims throughout the last few centuries many concepts of Usul ul Fiqh (principles of jurisprudence) have become vague in the minds of some and misconceptions have creped in. Regarding the important subject of Qiyas the following are some of the key misconceptions that exist today:
a) Qiyas has no evidence for it and therefore is not a source of Shari’ah.
b) Qiyas is a human endeavor, it is only a personal reasoning and therefore the outcome of it isn’t a shari’ah rule.
c) Qiyas can be applied on everything.
d) The Illah (reason) behind a rule can be from the mind and doesn’t have to be in the shari’ah texts.
e) Customs and traditions can be the Illah for some rules.
f) Material benefit is the Illah for all the shari’ah rules.
g) There is no difference between the hikmah (wisdom) behind a rule and the Illah.
h) Applying a known shari’ah rule to a situation is the same as Qiyas.
Although the subject may sound complex to some especially due to the various terminologies, it is important to realize that the impact of these misunderstandings are widespread and thus the subject needs to be explained. Some common examples of how these misunderstandings affect the normal Muslim on the street include how some answer questions posed by non-Muslims about the shari’ah rules. Questions such as ‘why are Muslim men allowed to marry up to four wives?’, ‘why do Muslim women have to wear khimar (headscarf) and jilbab (outer garment)?’, ‘why doesn’t Islam allow a woman to be a ruler?’, ‘why is pork prohibited?’ and ‘why is riba (usury) prohibited in Islam?’ are commonplace. Unfortunately a common mistake of many Muslims is to invent reasons from the mind for these rules which Allah (swt) did not state and attempt to justify them on this basis, instead of proving the Islamic belief as a basis to accept whatever rules have been revealed for us. Often we also hear people espousing that material benefit is the reason behind all the shari’ah rules and therefore justify violating clear prohibitions or obligations upon this pretext such as those who justify riba (usury), combining prayers during work or supporting Kufr political parties in elections. These examples demonstrate the need of understanding the subject of Illah (legal reason) and Qiyas in a correct manner.
In order to clarify the subject of Illah and Qiyas and dispel these misconceptions we must discuss the subject from the root to understand its definition, evidences, scope, process and conditions.
Definition and evidences
Qiyas constitutes the fourth source of Ahkam Shar'iah after the Quran, Sunnah and Ijma as-Sahaba (consensus of the companions). Literally, Qiyas means estimation, measuring or ascertaining the length, weight, or quality of something, which is why scales are called miqyas. Thus the Arabic expression, qasat al-thawb bi'l-dhira' means that ‘the cloth was measured by the yardstick’. [Amidi, Ihkam, III, 183.] Qiyas also means comparison, with a view to suggesting equality or similarity between two things. Thus the expression ‘Zayd yuqas ila Khalid fi `aqlihi wa nasabih’ means that ‘Zayd compares with Khalid in intelligence and descent’. [Ghazali, Mustasfa, II, 54.] Qiyas thus suggests an equality or close similarity between two things, one of which is taken as the criterion for evaluating the other.
In the convention of Usul ul-Fiqh, Qiyas is a process to deduce a rule for a new issue that has a common Illah (motive or cause) with a known rule. The Illah of a Hukm Shari' of a known issue is compared to a new issue, and if they both share the same Illah, then Qiyas can be carried out. [Shawkani, Irshad, p. 198.]
The majority of ulema have defined Qiyas in this manner as the application to a new case (far'), on which the law is silent, of the ruling (hukm) of an original case (asl) because of the effective cause ('Illah) which is in common to both. [Amidi, Ihkam, III, 186.]
The Hanafi jurist, Sadr al-Shari’ah, in his Tawdih, defines Qiyas as ‘extending the (Shari’ah) value from the original case over to the subsidiary (far`) by reason of an effective cause which is common to both cases and cannot be understood from the expression (concerning the original case) alone.’ [`Ubaydullah ibn Mas'ud Sadr al-Shari’ah, al-Tawdih fi Hall Ghawamid al-Tanqih, p. 444]
The Prophet (saw) demonstrated Qiyas in the following Hadith:
The Messenger (saw) said to Al-Khathamiah, "If your father owed a debt and you paid it for him, would that suffice?" She said, "Yes." He said, "The same is for the debt of Allah." [Ghazali, Mustasfa, II, 64; Shawkani, Irshad, p. 212; Ibn Qayyim, I`lam, I, 200.]
In order to instruct the Muslims, the Prophet (saw) showed the Muslims how to compare the debt owed to Allah to that owed to a human being, such that paying it back fulfills the obligation. Thus, the rule confirms the acceptance of the settlement of the debt. On the other hand, the rule of the known Hukm may be one of negation. For example: 'Umar (raa) asked the Prophet (saw) regarding whether or not the kiss of a fasting person would break the fast. The Messenger (saw) said: "What if you rinse your mouth, does that break the fast?" The Prophet (saw) showed 'Umar (raa) how to perform Qiyas by comparing the kiss of the fasting person to the rinsing of the mouth and showing that neither breaks the fast. [Ibn Hazm, Ihkam, VII, 100; Ibn Qayyim, I'lam, I, 200; Khallaf, `Ilm, p. 57.]
The existence of an Illah constitutes the common matter upon which comparisons take place. The following Hadith is another illustration of the concept of Illah in Qiyas:
When the Messenger was asked about the trading of mature dates with dry dates, he asked: "Do the mature dates become lighter (in weight) if they dry up?" They said, "Yes." He said, "Then, no." [Daraqtuni]
When the Messenger (saw) was informed that the reality that exists in Riba, which is the increase, exists in trading mature dates with dry dates, he taught the Muslims that the rule of Riba would be applied to the rule of trading the dates. Based upon the Illah, the Prophet (saw) demonstrated Qiyas by extending the rule of riba to trading mature dates with dry dates.
The legal definition of Qiyas is taken from the Ahadith of the Messenger (saw):
l. Ibn Abbas narrated, "A woman said, 'O Messenger of Allah, my mother died owing a vow to fast; should I fast for her?' He said:
«إِنَّ أُمِّي مَاتَتْ، وَعَلَيْهَا صَوْمُ نَذْرٍ، أَفَأَصُومُ عَنْهَا؟ قَالَ: أَرَأَيْتِ لَوْ كَانَ عَلَى أُمِّكِ دَيْنٌ فَقَضَيْتِيهِ أَكَانَ يُؤَدِّي ذَلِكِ عَنْهَا؟ قَالَتْ: نَعَمْ، قَالَ: فَصُومِي عَنْ أُمِّكِ»
"What if your mother owed a debt and you paid it back for her, would that settle it?" She said, 'Yes.' He replied, 'Then, fast for your mother.'" [Muslim]
2. Also, 'Abdullah ibn Zubair narrated: "A man from Khath'an (a tribe) came to the Messenger of Allah (saw) and said, 'My father embraced Islam at an old age, and he cannot ride the camel and at the same time he is obligated to perform Hajj. Should I perform Hajj for him?' The Prophet (saw) said, 'Are you the eldest son?' He said, 'Yes.' The Messenger (saw) replied, 'What if your father owed a debt and you paid it back, would that settle it?'' He said, 'Yes.' The Prophet (saw) said, 'Then perform Hajj for him.'" [Ahmad]
In both Ahadith, the Messenger instructed the Muslims how to draw the analogy between the debt of Allah in fasting and Hajj and the debt to a human being. Both of them share the same Illah, which is the existence of a debt that must be paid. As the definition of Qiyas is derived from the Ahadith of the Prophet (saw), the definition is considered a Hukm Shari'. The rule that is extracted through Qiyas is a Hukm Shari' that must be followed as any other Hukm Shari' extracted from other legislative sources. The definitions and general rules which are extracted from the evidences are themselves considered Ahkam Shar'iah.
Qiyas is established upon an Illah, which is the common motive between any two issues. If there exists an Illah, then Qiyas can be performed. Otherwise, Qiyas is not possible. The Illah must be stated or derived from a Shari' text. If this is the case, this Qiyas would be Shari' because the Illah has been stated by a Shari' text. If this Illah has not been stated or derived from a Shari' text, the Qiyas cannot be considered valid from a Shari' perspective nor can it be considered a valid daleel.
The evidence that Qiyas is a source of Shar'iah is that the Illah is based upon or derived from a Shari' text. These Shari' texts are the Qur'an, the Sunnah, or Ijma' as Sahabah. These three have been proven as definitive sources of shari’ah upon which no one can disagree. Therefore, the evidence that the Illah exists in the text in general is definitive (qata’i) and this is also the case for Qiyas. The Prophet (saw) demonstrated Qiyas and considered it as a Shari' Daleel. The Sahabah followed him in this regard, and they also considered Qiyas as a Shari' Daleel to extract rules. The Prophet (saw) said to Mu'adh and Abu Musa al-Ashari when he appointed them as judges in Yemen, "What will you judge with?" They said, "If we do not find the rule in the Book or the Sunnah, we will compare the unknown issue with the known issue, and we will apply it."
Thus, the Sahabah clearly stated that they will use Qiyas, and the Prophet (saw) approved it. This example, along with those previously mentioned, demonstrate the use of Qiyas, the explanation of the rules of Qiyas, and the teaching of Qiyas by the Prophet (saw).
It is documented that the Sahabah used Qiyas in many instances. When Abu Bakr (ra) gave inheritance to the maternal grandmother and not the paternal one, some of the Ansar told him:
(لقد ورَّثت امرأة من ميت لو كانت هي الميتة لم يرِثها, وتركتَ امرأة لو كانت هي الميتة ورث جميع ما تركت)
"You have given inheritance to a woman (the maternal grandmother) from a dead person (the grandson) who, if she were the dead person, he would not inherit her. On the other hand, you left out a woman (the paternal grandmother) who, if she died, this person will inherit her. So give them the one-sixth of the inheritance." When Abu Bakr heard this Qiyas, he changed his rule and established the new rule.
In another example, Umar (ra) doubted applying the death penalty for the group that kills a person. Ali (ra) told him:
(يا أمير المؤمنين، أرأيت لو أن نفراً اشتركوا في سرقة، أكنت تقطعهم؟ قال: نعم. قال: فكذلك)
"O Ameer al Mu'mineen. If a group stole, would you cut their hands?" Umar said, "Yes," and Ali replied, "This is the same." Thus, Ali made Qiyas for the death penalty of a group based upon the penalty of theft for a group.
Also when the Companions held a council to determine the punishment of wine-drinking, Ali b. Abi Talib (ra) suggested that the penalty of false accusation should be applied to the wine drinker, reasoning by way of analogy, 'When a person gets drunk, he raves and when he raves, he accuses falsely.' [Shawkani, Irshad, p. 223; Abu Zahrah, Usul, p.177]
All of these examples establish that Qiyas is a Shari' Daleel through the Sunnah and Ijma' as Sahabah. However, this Ijma' has been narrated through the method of Ahad, which means that it is non-definitive (Thanni). Therefore, the Qata'i (definite) Daleel that Qiyas is a Shar'iah source is what was previously mentioned, that it is based on the Illah being stated in the text of the Qur'an, the Sunnah, or Ijma as-Sahabah.
The evidence for Qiyas is the shari’ah texts which contain ‘Illah. The presence of an ‘Illah entails that we follow the rationale of the text (ma’qool an-nass) since the rationale is not from the mind but the text itself. So if the rationale of the text extends to a new matter then we are obliged to extend it, otherwise we would not have followed the text which is an obligation.
The Arguments of those who reject Qiyas
The arguments against Qiyas have been articulated mainly by the Zahiri (literalist) school, and some Mu'tazilah, including, Ibrahim al-Nazzam. In principle, the Shi'ah Imamiyyah do not recognise the validity of Qiyas, as they maintain that Qiyas is pure conjecture which must be avoided. In addition, the Qur'an, the Sunnah and the rulings of the Imams, according to the Shi'i ulema, provide sufficient guidance for conduct, and any reference to Qiyas is unnecessary and unwarranted. [Mutahhari, Jurisprudence, p. 21.] This is definitely the view of the Akhbari branch of the Twelve Shi'ah, whose refutation of Qiyas closely resembles that of the Zahiris. But the Usuli branch of the Shi'ah validate action upon certain varieties of Qiyas, namely Qiyas whose 'Illah is explicitly stated in the text (Qiyas mansus al-`Illah), analogy of the superior (Qiyas al-awla) and obvious analogy (Qiyas jali). These varieties of Qiyas, in their view, are not mere speculations; they either fall within the meaning of the text or else constitute a strong probability (al-zann al-qawi) which may be adopted as a guide for conduct. But they validate this through recourse to ijtihad and `aql rather than Qiyas per se. [Asghari, Qiyas, pp.119,139.]
However, those who rejected Qiyas like the Zahiris did not actually reject the principle of Qiyas because they accepted it when it came from the mantuq (uttered meaning). Being Zahiris i.e. literalists they did not take the ‘Illahs that were derived from the mafhum (implied meaning) for this would be following speculation and not certainty. And as for the ‘Illah taken from the mantuq they did not call this Qiyas because they considered it as simply following the literal (Zaahir) meaning of the text whilst Qiyas for them was a term used to mean a speculative (thanni) process in legislation which they found unacceptable. That is why they rejected the term Qiyas and some of its forms though in reality they accepted it in principle.
Ibn Hazm one of the most outspoken against Qiyas from the Zahiri scholars said: 'that God has assigned certain causes to some of His laws, but we say this only when there is a nass (text) to confirm it.' He then goes on to quote a Hadith of the Prophet to the effect that, “The greatest wrong-doer in Islam is one who asks about something, which is not forbidden, and it is then forbidden because of his questioning”.
Ibn Hazm continues: ‘we firmly deny that all the ahkam of Shari’ah can be explained and rationalised in terms of causes. Almighty God enacts a law as He wills. The question of `how and why' does not and must not be applied to His will. Hence it is improper for anyone to enquire, in the absence of a clear text, into the causes of divine laws. Anyone who poses questions and searches for the causes of God's injunctions 'defies Almighty God and commits a transgression'. [Ibn Hazm, Ihkam, VIII, 102; Muslim, Sahih Muslim, I, 423, Hadith no, 1599.]
The supporters of analogy, according to Ibn Hazm, proceed on the assumption that the Shari’ah fails to provide a text for every matter, an assumption which is contrary to the ayat of the Qur'an in his view. He quotes the following ayat to this effect:
“We have neglected nothing in the Book” [TMQ al-An'am, 6:89]
“We revealed the Book as an explanation for everything.” [TMQ al-Nahl, 16:89]
“This day, I perfected year religion for you, and completed My favour upon you” [TMQ al-Ma'idah, 5:4]
Since the ahkam of the Lawgiver are all-inclusive and provide complete guidance for all events, our only duty is to discover and implement them. In his view to consider Qiyas as an additional proof would be tantamount to an acknowledgement that the Qur'an fails to provide complete guidance. [Ibn Hazm, Ihkam, VIII, 18.]
Furthermore he argues that Qiyas derives its justification from an 'Illah which is common to both the original and the new case. The 'Illah is either indicated in the text, in which case the ruling is derived from the text itself and Qiyas is redundant; or alternatively, where the 'Illah is not so indicated, there is no way of knowing it for certain. Qiyas therefore rests on conjecture, which must not be allowed to form the basis of a legal ruling. This is, according to Ibn Hazm, the has been mentioned in the Qur'anic ayah:
“Conjecture avails nothing against the truth” [TMQ al-Najm, 53:28]
Identifying the 'Illah in Qiyas is an exercise in speculation, whereas the Qur'an enjoins us to “pursue not that of which you have no knowledge” [TMQ al-Isra', 17:36] [Ibn Hazm, Ihkam, VIII, 9.]
Lastly, Ibn Hazm holds that Qiyas is forbidden in the Qur'an. [Ibn Hazm, Ihkam, VIII, 9] Thus the verse:
“O you believers! Do not press forward before God and His Messenger, and fear God” [TMQ al-Hujurat, 49:1]
According to his interpretation means that the believers must avoid legislating on matters on which the lawgiver has chose, to remain silent. The same point is conveyed in the Hadith where the prophet ordered the believers as follows:
« دعوني ما تركتكم إنما هلك من كان قبلكم بسؤالهم واختلافهم على أنبيائهم فإذا نهيتكم عن شئ فاجتنبوه وإذا أمرتكم بأمر فأتوا منه ما استطعتم »
“Ask me not about matters which I have not raised nations before you were faced with destruction because of excessive questioning and disputation with their prophets. When I command you to do something, do it to the extent that you can, and avoid what I have forbidden.” [Ibn Hazm, Ihkam, VIII, 15.]
Thus in regard to matters on which the shari’ah texts are silent, according to the Zahiri’s it is incorrect for a Muslim to take the initiative in issuing a hukm, for he is ordered not to do so. Qiyas therefore violates the express terms of the Qur'an and the Sunnah in their view.
Their arguments are flawed for the following reasons:
a) The ayat that mention that the Deen is complete and that the Quran has an explanation of everything mean that the Islamic sources i.e. the Quran and the Sunnah have the capacity to deal with all issues. The majority of Ulema argue that either rules have come directly within these texts or through indications upon which Qiyas or Ijtihad is necessary. Making Ijtihad or Qiyas does not invalidate the meaning of these ayat in fact they are the revealed method in order to extract the rulings from the Quran and Sunnah.
b) With reference to some of the ayat that the opponents of Qiyas have quoted, especially on the use of speculative evidence in law, the ayat in question forbid speculation (zann) in matters of belief (Aqeeda) only. As for the practical rules of fiqh, most of them are from texts which are speculative in meaning (thanni al-dalalah). This does not necessarily mean that action upon them must be suspended, the conclusion of which would mean that there would be no difference of opinion allowed at all in Fiqh, which would be contrary to established evidences permitting difference of opinion in certain areas.
c) The ayat from the Quran that contain Illah and the aforementioned evidences from the Sunnah and Ijma of the Sahaba have established Qiyas as a source of Shari’ah.
The process of Qiyas
Qiyas is the extension of a rule to new matters by analogy based on a shared ‘Illah. So the hukm of the old matter is extended to a new matter when the new matter shares the same ‘Illah as the hukm of the old matter. Thus Qiyas is always built on the following four pillars:
i. Asl (old matter)
ii. fari’ (new matter)
iii. Hukm (rule)
iv. ‘Illah (effective reason)
Amidi (Ihkam, III, 193) is however of the view that the result of Qiyas, that is the ruling which is to be applied to the new case (i.e. hukm al-far`), should not be included in the essential requirements (arkan) of Qiyas. For the hukm is only arrived at the end of the process; it should therefore not be rukn (pillar). Isnawi has on the other hand included the hukm al-far` among the essentials of Qiyas. The disagreement is however mainly theoretical as the hukm of the new case is, for all intents and purposes, identical with the hukm of the original case. [Cf. Zuhayr, Usul, IV, 58-59.]
To make sense of these four pillars let us look at the following example:
“O you who believe! When the call is proclaimed for the Salah (prayer) on the Day of Friday (jummah prayer) come to the remembrance of Allah and leave trade.” [TMQ 62:9]
Here the asl (old matter) is trade. The hukm is to leave trade when the azaan has been called. And the ‘Illah is distraction from the salaah. If we suppose the new matter is studying then we can see it will take the same hukm as the old matter because it shares the same ‘Illah, which is that studying will distract from the salah and hence it will take the same rule. So studying when the azan is called is Haram due to Qiyas. Therefore every Qiyas is Ijtihad because it is a process where a shar’iah rule is derived. However, not every Ijtihad is Qiyas as many Ijtihad’s may not include an Illah therefore would only be classified as Ijtihad.
Why is Qiyas a source of Shari’ah?
Something is defined as a source in Usul when it serves as a source for new ahkams. Qiyas is a source because we can extract new hukms from it. By extending the original rule to new realities via a shared ‘Illah produces new hukms for new realities and hence Qiyas is a source. This is one of the reasons why we say Islam is applicable for all times and places since new ahkam can be deduced for new realities and problems.
For example Allah (swt) said:
“And make ready against them all you can of power including horses to threaten the enemy of Allah” [TMQ 8:60]
The hukm is to prepare. The old matter is horses. The ‘Illah is to terrify the enemy of Allah. As for the new matter; it is anything that will realize the Illah of the preparation, which is to terrify the enemy. So these days it would be obligatory to have tanks, fighter planes, and aircraft carries since they terrify the enemy. Not only that, the ‘Illah obliges the Islamic state prepare in the following areas:
a) The arms development and war industry must be the strongest of its age if it is to fulfill the ‘Illah of terrifying the enemy
b) The state cannot depend on others for its sources of power and hence it has to strive to develop its own weapons and armaments
c) It should have new sophisticated weapons which will strike fear in the hearts of the kuffar. Like the American’s stealth bombers and daisy cutters. Similarly the Khilafah state should have new weapons in order to terrify the enemy.
These are new ahkam which did not exist before but exist now in our time. We were able to extract these new rules because the Qiyas serves as a source for new ahkaam.
Why does the Illah have to be Shari’ and not from the mind?
This is because the ‘Illah is the daleel which allowed the extension of the rule to the new matter. For this rule to be a hukm shar’i i.e. a valid ruling of the Sharee’ah it must be taken from the speech (Khitaab) of the legislator since the definition of hukm sha’I is the speech of the legislator relating to man’s actions. Any rule which is not from the speech of the legislator is rejected because it is not revelation (wahy) and we are ordered only to follow the wahy in our actions. Thus, since it is the ‘Illah which allows the extension of the hukm to a new matter it must be from the text and not from the mind. If it is from the mind then it is the speech emanating from the mind and this is not the source of Hukm shar’i. To extend the rule without a textual ‘Illah would be like extending the prohibition of alcohol to vinegar just because vinegar comes from alcohol. Alcohol is one reality and vinegar is another. One cannot arbitrarily extend the hukm without the text allowing such an extension. If the text allows it via an ‘Illah then this is a valid hukm shar’I, if not then it is a rational judgment which has no value in the Sharee’ah.
This is notwithstanding the fact that man is unable to give judgment on that which he cannot sense. If the Creator did not provide us the reason (‘Illah) for the legislation of the rule then how can man judge. Thus, not only is the rational ‘Illah rejected from the viewpoint of hukm shar’i but it is practically impossible for man to give such a judgment in the first place.
Furthermore, the fact that the mind cannot make analogy without a shar’i ‘Illah is aptly demonstrated by the reality of the Sharee’ah rules themselves. For example, we find similar realities are given different ahkam while different realities are given the same hukm. The mind can normally make analogy between similar things but the text contradicts this principle: So in the absence of water, of all things dust is sufficient to make wudhu even though they are two different things. According to the Shari’ah rules if a baby girl urinates on clothes then the clothes must be washed but if a baby boy does the same then it is sufficient just to sprinkle some water on it. Thus, similarity does not mean the same hukm just as dissimilarity does not mean a different hukm. So how can the mind make analogy for the sake of new ahkam when even the existing ahkam cannot be rationalized without a shar’i ‘Illah?
The areas of Ahkam Shari’ah which do not contain Illah
No ‘Illah exists in the asl (origin) of food, clothing, morals and ritual worships (Ibadat) for two reasons:
a) By a scrutiny of the texts we found that they do not contain ‘Illah.
b) These rules are not related to achieving results in this life, the primary motive in following them is worship.
The divine rules related to ibadat, morals, food-stuffs, and clothing cannot be reasoned by Illah. The primary motive for these actions is worship and hence there are no tangible results that we seek since the results are in the Hereafter. They should be taken as they came in the text and should not be based upon an Illah. Thus, prayer, fasting, pilgrimage, Zakah, the method of praying (Salah), the number of its rak'at, the rites of pilgrimage (hajj), and the minimum amount of property liable to payment of Zakah (nisab of zakah), and the like should be taken, accepted and submitted to as they came in the text (tawkifiyyah) and no Illah is sought for them. The same thing applies to the prohibition of eating the meat of a dead animal, pork and the like. Seeking Illah for these rules is wrong and dangerous, because if an Illah was sought the result would be that if the Illah of the rule ceased to exist then the rule would no longer exist. This is because the Illah is connected to the rule in existence and absence. As an example, if we assumed cleanliness was the Illah for the wudu (ablution), and physical exercise as the Illah for prayer, and good digestion as the Illah for fasting etc., then in these situations whenever the Illah doesn't exist, the rule would not exist either, this would lead us to abandoning these shari’ah rules. For example if someone raised a clean pig whom they had fed with good food and kept in a hygienic manner, would we then be permitted to eat it?
Therefore seeking an Illah is dangerous for the rule and its performance. Thus, it is obligatory to take rules of ibadat as they are, without seeking an Illah for them.
Another example is the issue of alcohol, there is no Illah for its prohibition, it is well known that it used be permitted at one time, even Hamza (ra) died while there was alcohol in his stomach as the verses prohibiting alcohol were revealed later. There is no Illah contained in the verses prohibiting it, furthermore the Messenger (saw) said:
« حرمت الخمر لعينها »
“Wine (khamr) was forbidden for itself.”
However in the furu’ (branches) of worship ‘Illah’s may exist because certain tangible results are sought. For example; Jihad is worship but its performance entails certain tangible results and hence there is a propensity for ‘illlah’s to exist. So preparation for jihad is a tangible result which is sought and it does contain an ‘Illah which is to terrify the enemy.
The morals (akhlaq) are values for which rules have been established to illustrate the virtues and noble deeds and their opposite. They also result from ibadat, as well as being observed in mu'amalat. This is because Islam aims in its legislation to take man on the road towards perfection, so as to reach the highest achievable level. Therefore man has to work towards acquiring the supreme qualities and to maintain them. The good moral is a value which is intended to be achieved once man acquired it because it is one which Shar'a has stated, and its value is targeted when performing these virtues and acquiring them. Morals are a part of the Islamic Shari’ah, and a part of the commands and prohibitions of Allah, which must be achieved by every Muslim so that his performance of Islam becomes complete, and his undertaking of the commands and prohibitions of Allah is perfected. A Muslim neither acquires moral attributes for their sake, nor for their benefit. Rather he acquires them only because Allah commanded him with them and for no other reason. So, a Muslim is not characterised with truthfulness for the sake of truthfulness itself, nor for the benefit it has, rather because Shar'a ordered of it. As for the fact the Muslim does not acquire morals for the sake of morals, this is because of the description of the actions. An action which man performs might be by itself, qabeeh(unpleasant), but he thought it hasan(pleasant), so he performed it. The attribute, which he was characterised with, might be by itself, qabeeh, but he considers it a hasan attribute so he acquired it and thus errors would arise because man performed morals for their own sake. For example, someone may seek to be truthful for the sake of it, therefore when he is captured by the enemy he is truthful to them and gives them all the information regarding the position of the Muslim troops and their strategy even though the Prophet (saw) said:
« الْحَرْبَ خَدْعَة ٌ»
“War is deceit” and Islam prohibits giving information to the enemy that would lead to harming the Muslims.
Unless Islam defines the hasan attributes and the qabeeh attributes and unless the Muslim performs them according to this definition, then his acquiring of these attributes would not be in compliance with the Ahkam Sharai'ah. Therefore, the Muslim should not be characterised with truthfulness for the sake of truthfulness, nor should he be characterised with compassion for the sake of compassion, nor should he be characterised with all the morals for their own sake. Rather he should be characterised with them as commands from Allah, because the fundamental fact is that these morals are based on the Islamic aqeedah. Observing this issue would guarantee the self-possession of the morals in individuals, thus purifying the soul of any impurity and distancing it from any corrupting factors. Therefore, the best way to protect morals is to confine them to what is stated in the text (Qur'aan and Sunnah), restrict them in the spiritual basis, and build them upon the Islamic aqeedah. As for not acquiring morals for the sake of benefit, this is because benefit is not intended of the moral and should not be aimed at, lest it corrupts it and makes it revolve around the benefit. Hence, morals are attributes which man must be characterised with, freely and willingly, by the incentive of taqwa (the fear of Allah). A Muslim does not abide by morals simply because they benefit or harm him in life, he does so in response to the commands and prohibitions of Allah. This is the understanding, which makes characterisation with good morals constant and steadfast and does not revolve around benefit. Such morals built on the exchange of benefit would make the individual a hypocrite, revealing certain behaviour while concealing his true nature. For example, may only be nice to another person because he wants him to buy something from him, but if there is someone who he cannot obtain material benefit from then he would not be nice to him.
Therefore, morals are not reasoned, and Illah should never be invented for them. They must be accepted as they came in Shar'a, irrespective of any Illah. It is erroneous and dangerous to seek Illah for morals, so as not to abandon the characterisation with morals when their Illah has ceased.
Illah can be found in the mu’amalaat (transactions) and uqubat (punishments
As for the mu’amalaat and uqubat it is possible that the texts regarding them may contain Illah’s because they generally entail tangible results. For example, Allah ordered the Messenger (saw) to distribute the spoils of war amongst the orphans and the poor. This is a tangible result sought by the hukm which is open to having an ‘Illah. Even though the hukm is fulfilled for Allah’s sake the result is still tangible which means that there may be a reason aim why the poor should receive the booty. The reason here of course is stated in the text: “so that the booty does not become a commodity only between the rich among you.” [TMQ 59:7]
Of course many other texts relating to these areas do not include an ‘Illah at all such as:
“Allah has permitted bai’a (trading) and has forbidden Riba (interest).” [Al-Baqara:275]
The rules and evidences regarding the Muslim woman having to wear Khimar (headscarf) and Jilbab, the allowance for man to marry up to four wives at one time, the prohibition of women being rulers and many other rules have come without Illah.
The means of extracting the Illah
i. Saraahatan (extraction of the ‘Illah from an explicit utterance)
Saraahatan refers to a sareeh or explicit indication of the text. What we mean by explicit indication is that the reasoning (ta’leel) is in the mantuq or the pronounced meaning of the text as opposed to the mafhum, which is the inferred meaning of the text. This we can see in the use of certain expressions and prepositions that denote reasoning. For example the expression ‘min ajl’ in Arabic which means ‘because of/ in order to’, it is an explicit indication of causality and not something that is inferred or derived from the text.
For instance the Messenger (saw) said:
«إِنَّـمَـا جُعِلَ الاسْـتِـئْذَانُ مِنْ أَجْلِ الْبَصَرِ»
“Indeed, permission has been made obligatory because of (min ajl) sight” [Bukhari 5772]
Here, the reasoning is explicitly pronounced in the text by saying ‘because of’. Thus, the reason for legislating the rule of asking permission before one enters another persons house is because (min ajl) one might see that which is not lawful to see, such as a non-mahram woman whose ‘awrah is not completely covered because she is in her private space. The same goes for the following saying of Muhammad (saw):
« إِذَا كُنْتُمْ ثَلَاثَةً فَلَا يَتَنَاجَى رَجُلَانِ دُونَ الْآخَرِ حَتَّى تَخْتَلِطُوا بِالنَّاسِ أَجْلَ أَنْ يُحْزِنَهُ»
“If there are three of you, two should not whisper to each other in front of the third because (min ajl) that will upset him.” [Ahmad: 1/375]
So the reason (‘Illah) for not whispering between two people while a third is present is because that might cause the third to become upset.
Shawkani lists a number of other expressions such as kay-la (so as not to), li-ajli (because of), li-alla, la'allahu kadha, bi-sahab kadha, etc. all of which are associated with the idea of explaining the causes [Irshad, p. 211].
ii. Dalaalatan (extraction from the implicit meaning)
To understand the extraction of this type of ‘Illah one must have some background understanding of dalalaatul lafaaz (textual indications) since it is from the indications (dalaalah) that the ‘Illah is extracted. The shari’ah text has two levels of meaning. One is the Mantuq which is the understanding one gets directly from the expression (lafz) used. For example Allah (swt) says: “Do not say to them ‘Uff’” [TMQ Isra: 23]
So saying ‘Uff’ is prohibited because ‘Uff’ is from the mantuq (pronounced or uttered meaning). But what about beating ones parents? Clearly this is not uttered in the text since the word ‘beating’ is not mentioned. The prohibition of such an action is understood from the implicit meaning or the indication (dalalah) of the text. i.e. that meaning is acquired from the indication of the expression (madlul al-lafz) and not from the expression itself. So beating is prohibited by greater reason.
There are many types of dalaalat (textual indications) but the one which concerns us here in terms of extracting the ‘Illah is the ‘dalaatul imaa wat tanbeeh’ (the indication of notification). This is where the implicit meaning notifies (tanbeeh) us of an ‘Illah.
Generally, this happens in two ways:
1. When the hukm is linked to a causal attribute (wasf mufhim) such that it has a mafhum mukhalafah (divergent meaning) or mafhoom muwaafaqah (congruent meaning). In other words the text mentions an attribute which rationally has a link to the hukm it has mentioned. This linkage is not uttered but understood from the text. For example:
The Messenger (saw) said:
« فى الغنم السائمة زكاة »
“On the grazing sheep zakah is payable.” The attribute which brings the hukm into existence is grazing. Naturally one might ask; what is it about grazing that obliges Zakah? If we think about the meaning of grazing we understand that it means to let the animals graze from the open pastures which are public property. Since this is taking from the public resources then one should pay it back by paying zakat i.e. give back to the public. Hence the one who feeds his livestock in a pen, he has not used the public resources and therefore Zakah is not payable. This causality (ta’leel) between the attribute and the hukm is not explicitly stated and hence it is not from the category of sareeh. But since it is understood from the meaning of the word grazing and its linkage to the hukm then we can say this is an ‘Illah extracted form the indication of the text i.e. this ‘Illah is notified (tanbeeh) by the implied meaning (mafhoom) and not from the uttered expression (mantuq).
Let us look at another example:
The Prophet (saw) said:
«إِنَّهَا لَيْسَتْ بِنَجَسٍ، إِنَّهَا مِنَ الطَّوَّافِينَ عَلَيْكُمْ وَالطَّوَّافَاتِ»
“The saliva of the cat is not impure (najas) because it is constantly around you (i.e. domesticated)” [Tirmidhi, Ahmad, Abu Dawud, Nasa’i, and Ibn Majah]
Here the hukm of impurity or purity of the cat’s saliva is linked to whether it is domesticated or not. So if the cat is domesticated then the saliva is pure and if not the saliva is impure. Here the text did not say explicitly that the reason for cat’s saliva being pure is because it is domesticated. Rather we understand this from the indication (dalaalah) of the word ‘domesticated’ and its linkage to the presence or absence of the hukm i.e. when the cat is around the house it is not going to eat najas (impurities) and hence its saliva is pure, but if it is wild then it is likely to eat whatever it finds outside and so its saliva will not be pure. This ‘Illah is not stated but understood or notified from the meaning of domestication and hence the ‘Illah is extracted from the indication (dalalaah) of the attribute. Thus, we call this ‘Illah an implicit ‘Illah.
2. The second category of the implicit ‘Illah is taken from the usage of particles (adawaat) which linguistically in origin do not give the meaning of ‘Illah but it is taken from the meaning implied by their usage. In total there are five ways in which this can take place but for sake of brevity we shall give one;
He (saw) said: “Whosoever revives a land, it belongs to him (man ahya ardan fahiya lahu)”
Here the ‘fa’ of consequence (fa at-ta’qeeb) is used to say that a land belongs as a consequence to the one who revives it. Hence one can deduce an ‘Illah from it because what came after the ‘fa’ was a consequence of what came before it. However the ‘fa’ in the Arabic language is not in origin used to mean consequence but has other usages as well. E.g. it may be used as a conjunction (like a waw) or it may be used to indicate emphasis.
For example: Allah (saw) says: “And (faa) unto Us is the return (failayna marji’ukum)” [TMQ 10:46]
Here the ‘fa’ means ‘and’.
Or it may mean a period of time as understood from the word ‘afterwards’ For example:
“Verily I am forgiving to him who repents, believes and does good deed; and afterwards remains constant (inni laghaffarun liman taaba wa aama wa ‘amila saalihan thummahtada)” [TMQ 20:82]
However from the usage of ‘fa’ in the hadith we can see it does not mean ‘and’ or ‘certain time period’ rather the context indicates consequence which gives the meaning of justification or ‘Illah i.e. the land belongs to him because he revived it. So again the ‘Illah here is not explicitly stated but understood from the indication (dalaalah) of the particle ‘fa’. Hence this is another example of an implicit ‘Illah.
One might ask what is the difference between ‘fa’ and ‘laam at-ta’leel’ which is considered to be explicit? The difference is that whilst ‘laam at-ta’leel’ in origin gives the meaning of causality unless the qara`in indicate otherwise, the ‘fa’ however does not give such a meaning. Rather what it means has to be indicated and understood from the context and therefore it is implicit and not an explicit ‘Illah.
iii. Istinbaatan (extraction by way of inference)
This ‘Illah is not taken from any explicit prepositions or particles and nor is it taken from the indication (dalaalah) of the uttered expression, rather it is inferred from the structure or a scrutiny of one or more texts.
For example:
When ‘Umar b. al-Khattab came to the Messenger (saw) inquiring if he’s fast was still valid after kissing his wife: the Messenger (saw) said:
“If you had gargled would your fast had been broken?” He (‘Umar) said: ‘No’ The Messenger (saw) replied: “then the same goes for kissing.”
Here the ‘Illah is not explicitly stated and nor is there an indication (dalaalah) from the wording as no attribute was mentioned. Rather a comparison is made between gargling and kissing. And it is from this comparison that we deduce the attribute or ‘Illah. We know in gargling the fast is broken when the water goes through so that must be the attribute common to kissing as well. Thus, the ‘Illah deduced is inzaal i.e. when the water goes through.
Let us take another example:
The Prophet (saw) explained them in the ahadith by their description rather than by enumerating them. Ibn Abbas narrated that the Prophet (saw) said:
«الناس شركاء في ثلاث الماء والكلأ والنار»
"Muslims are partners (associates) in three things: in water, pastures and fire," reported by Abu Dawud. Anas narrated from Ibn Abbas adding: «وثمنه حرام» "and its price is haram (forbidden)."
Ibn Majah narrated from Abu Hurairah (ra) that the Prophet (saw) said:
«ثلاث لا يمنعن: الماء والكلأ والنار»
"Three things are not prevented from (the people); the water, the pastures and the fire."
This is an evidence that people are partners (associates) in water, pastures and fire, and that the individual is prohibited from possessing them. But it is noticed that the Ahadith mentioned them as three, and they are Jamid (non-derived/rigid) nouns, and there was no mentioning of Illah (reason) in the Ahadith.
The Ahadith did not include Illah (reason), and this could imply that these three things are the only ones which represent public property with no consideration given to their depiction for the community’s need for them. However, if one scrutinised the issue he would find that the Prophet (SAW) allowed the possession of water in At-Taif and Khaybar by individuals, and they actually possessed it for the purpose of irrigating their plants and farms. Had the sharing (association) of water been just because it is water and not because of the consideration of the community’s need for it, then he would not have allowed individuals to possess it. So from the saying of the Prophet (SAW), "Muslims are partners (associates) in three things: in water, pastures and fire” and from his permission to individuals to possess the water, it can be deduced that the Illah (reason) of association in the water, pastures and fire, is their being of the community utilities that are indispensable to the community. So the hadith mentioned the three (things) but they are reasoned as being community utilities. Therefore this Illah (reason) is related to the reasoned (rule) in existence and in absence. So anything that qualifies as being of the community utilities is considered a public property, whether or not it was water, pasture or fire i.e. whether it was specifically mentioned in the hadith or not. If it ceased to be of the community utilities, even if it was mentioned in the hadith like the water it would not be a community utility, it would rather be of the things which can be possessed individually. The criteria for determining things to be a public utility is that anything which, if it was not available to the community, whether the community was a group of bedouins a village, city, or a State, and would cause them to disperse in search of it, then it would be considered of the community utilities, like the water sources, forests of firewood, pastures of livestock and the like.
Hence the ‘Illah here is a derived ‘Illah (‘Illah istinbaatiyyah) because it is inferred through the scrutiny of texts and not through an explicit meaning or an implied meaning of expressions.
iv. Qiyasan (extraction through analogy)
This is when a new ‘Illah is extracted from an existing implicit ‘Illah by way of analogy to the effective link that both share. To help us grasp this let us look at the following road safety instruction:
‘Do not drive when tired’
The effective link between tiredness and driving is that driving when tired may cause us to have an accident. Hence, the attribute of tiredness is obviously the ‘Illah for the instruction not to drive. However, because there is an effective link between the original attribute and the hukm then it is possible to make analogy between the existing attribute and any new attribute which shares the same effective link. Hence driving when stressed is analogous to tiredness because it shares the same effective link which is that it may cause an accident and hence this would be an example of a new ‘Illah extracted though Qiyas. So driving when stressed would also violate the instruction jut like tiredness.
Now let us apply the same principle to the following hadith:
« لا يَقْضِي الْقَاضِي بَيْنَ اثْنَيْنِ وَهُوَ غَضْبَانُ »
“The judge should not pass judgment in a state of anger” [Abu Dawud, Sunan, III, 1018, Hadith no 3582]
Here the implicit ‘Illah for not passing judgment is anger because anger will effect the judgment. So the effective link between the attribute of anger and the rule is disruption to objective thinking. Due to the existence of an effective link we can make analogy between anger and other new attributes which share the same effective link and extract a new ‘Illah though Qiyas. For example hunger is analogous to anger because it shares the same effective link, which is that it will effect objectivity. Hence hunger is a new ‘Illah derived through analogy. The Companions have extended the ruling of this Hadith to anything which resembles anger in its effect such as extreme hunger and depression. [Sha`ban, Usul, p. 151.]
One might say what is the difference between the implicit ‘Illah (‘Illahtu dalaalah) and the ‘Illah of analogy (‘Illah Qiyasiyyah) with regards to the extension of the original rule? Are they not the same? The answer is that the implicit ‘Illah is a causal attribute (wasf mufhim) and the extension of the rule is achieved if the new matter shares that causal attribute. However in the Illah of analogy the new matter does not come under the causal attribute. Rather the extension of the rule is through the extraction of a new ‘Illah and not through extension of the causal attribute to new matters.
For example the Hadith:
“On the grazing sheep zakah is payable”
Here the ‘Illah or causal attribute is ‘grazing’ for the rule of paying Zakat. New ahkam are derived when the new matter has the same attribute as the old matter. So Zakah needs to be paid for example on grazing camels because it has the same attribute of grazing as the old matter. This is different to the ‘Illah Qiyasiyyah because the new matter does not come under the old matter. So the attribute of hunger is different to that of anger. Hunger effects the hukm not because it comes under the original attribute but because it shares the effective link of the old attribute. So the difference really is that in the implicit ‘Illah new ahkam are derived by extending the original attribute to new matters while in the analogous ‘Illah new ahkam are derived by extracting new attributes which share the same effective link.
The shuruut (conditions) of ‘Illah
In order to insure that an ‘Illah is truly wahy (revelation) and not the product of the mind the following conditions have been stipulated:
a) The attribute should be understood to be the baa’ith or cause of legislating the rule and not what introduces (mu’arrifan) its presence; otherwise this will be a sabab. For example the Hadith:
“Fast when the moon is sighted (sumu li ru`yatihi)”
This is a sign of the existence of the rule and not cause or baa’ith of the legislating the rule. There is no rational link between the moon and fasting and hence the mind cannot understand any causation from this. So the sabab (cause) shows the presence of a legislated rule while the ‘Illah shows the reason for legislation.
Another example is the verse:
“Perform the salah from the decline of the sun [li-duluk al-shams] until twilight at night.” [TMQ Sura al-Isra', 17:78] This verse establishes the sabab (cause) of this salah as the time when the salah is due. Since the cause of the ruling in this text is not discernable to human intellect, it is referred to as a sabab but not as an 'Illah.
Sometimes the word sabab has been used by some scholars as a substitute for 'Illah. They normally make the distinction that sabab is normally reserved for devotional acts (ibadat) whose rationale is not perceptible to the human intellect. From this distinction, they belive that every 'Illah is concurrently a sabab, but not every sabab is necessarily an 'Illah. [Khallaf, `Ilm, pp. 67-68.]
b) The attribute must be effective (mu`athirah). This is because an attribute cannot be the ‘Illah of the hukm if the attribute did not effect the hukm. If the hukm continues regardless of what the attribute is then that attribute is not an ‘Illah. For example in the verse relating to Hajj: “That they may witness things that are of benefit to them” [TMQ 22:28] Whether one sees something beneficial or not does not effect the hukm of Hajj. So the hukm of hajj remains regardless of what benefit one may or may not obtain.
c) The attribute must be a causal attribute (wasf mufhim) i.e. it is an attribute which is Zaahir (evident in meaning) and mundabit (stable in its application) and have a proper relationship (munaasib) to the hukm. When it fulfils these criteria we can say it is a causal attribute. The reason it must be evident in meaning is because the ‘Illah needs to be extended to new realities. This cannot be done if the ‘Illah itself is obscure (khafi). As for mundabit; it means the ‘Illah is constant and not subject to differences in person, time and place. For example: if someone says: ‘a good curry is when it has plenty of chilli’, hot cannot be a constant and stable reason why is curry is good because it differs from person to person and hence cannot be extended to other foods. Similarly the ‘Illah must be stable and constant otherwise it cannot be applied to new realities. As for munaasib, this means one can intellectually see a rational link between the ‘Illah and the hukm. So not judging when in a state of anger for example is munaasib because there is a rational link, without a rational link one cannot judge if an attribute is the cause of the hukm or just a sign of its presence.
d) The attribute must be muttaridah. This means there must be a cause effect relationship between the attribute and the hukm. So the Illah not only effects the hukm but its absence entails the absence of the hukm and its presence entails the presence of the hukm. This is the reality of a true cause, which is that the effect is always dependent on the existence of the cause, and so in the same manner the hukm is always dependent on the existence of the ‘Illah.
For example:
“O Prophet! Tell your wives and your daughters ad the women of the believers to draw their cloaks (Jilbaab) all over their bodies. That will be better, that they should be known and not be molested.” [TMQ 33:59]
Although this ayah has come in the form (seegha) of an ‘Illah, it cannot be considered as such because the attribute is not muttaridah i.e. the hukm of jilbab remained in the time of the Messenger (saw) regardless of whether the women were molested or not. So molestation cannot be the cause of the rule because there is no cause-effect relationship between molestation and wearing the Jilbaab.
e) The attribute must be muta’addiyah i.e. extendible to new realities otherwise Qiyas cannot take place. So the verse:
"As to the thief, male or female, cut of f his or her hands." [TMQ Al-Ma’idah:38]
It contains an ‘Illah which is theft. However, because the ‘Illah cannot be extended to new matters it is qaasira (deficient and non-extendible). Hence it is termed a sabab (cause) because it merely serves as a sign for the presence of the rule.
f) The ‘Illah should not be confused with the hikmah. ‘Illah is the reason for legislating the rule while the hikmah is the result sought from the hukm.
Allah alone knows it the Hikmah (wisdom) behind a law, since our mind cannot conceive the essence of Allah, and hence we cannot comprehend His Hikmah. Sometimes the Hikmah has been mentioned in the texts, such as the saying of Allah (swt), "Lo! Prayer (Salah) preserves from lewdness and iniquity", and Allah (SWT)'s saying:
“Fasting has been written for you as it was written for those before you so that you may gain Taqwa”
Here Taqwa is a result sought from the fasting and not the reason for its legislation. If it was the reason that would mean fasting is no longer obligatory on the one who has attained God-fearing and piety. Also keeping away from lewdness and iniquity is the result sought from Salah and not the Illah, if it were the Illah this would mean that you do not need to pray Salah if it didn’t keep you away from these things.
g) And finally the attribute should not contradict another text from the Qur’an, Sunnah or ijma’ Sahabah.
For example someone may think that we can make Qiyas from the rule of duress to the issue of transplanting organs from a dead body in order to save someone’s life. One of the evidences for the rule of duress is the following verse:
“He has forbidden you Al-Maytah (meat of a dead animal), blood, flesh of swine, and any animal which is slaughtered as a sacrifice for other than Allah. But if one is forced by necessity without willful disobedience and not transgressing, then there is no sin on him. Truly, Allah is Oft Forgiving, Most Merciful.”[TMQ Al-Baqarah:173]
So the person who is in dire need can eat of what he finds from these prohibited foods that which is enough to keep him alive. If he does not eat from what is prohibited and dies, he is sinful, and he has killed himself. Allah (swt)said, “And do not kill yourselves.”[TMQ An-Nisa:29]
Based on what was mentioned of the rule of duress, can the same rule be applied to transferring organs from a person who is dead to another per son who is in need of it to save his life by Qiyas?
This Qiyas would be invalid as it contradicts the prohibition of violating the sanctity of the dead body, hurting, or mutilating it which is established by the following texts:
Aisha (ra), the mother of the believers, may Allah bless her, narrated that the Prophet of Allah said:
“Breaking the bone of a dead person is just like breaking it when he is alive.”[Ahmad, Abu Dawud and Ibn Habban]
Imam Ahmad narrated that ‘Amir ibn Hazm al-Ansari said the Prophet of Allah saw me leaning on a grave and said;
“Do not harm the owner of the grave”
Abu Hurayrah narrated that the Prophet of Allah (saw) said:
“For someobody to sit on a burning piece of charcoal and burn himself is better for him than to sit on a grave” [Muslim and Ahmad]
These ahadith show clearly that the dead have a sanctity just like the living body. They also show that violating the sanctity of the dead body and hurting it, is like violating the living body and harming it. So the result of the aforementioned Qiyas would be invalid as it contradicts these texts.
Customs and traditions cannot be an Illah
The valid Illah is the Shar'ai Illah that is mentioned in the text from Qur'aan and Sunnah, for only these two are the Shar'ai texts. Therefore, the Illah upon which the reasoned hukm Shar'ai is built is a Shar'ai Illah and not a rational Illah. In other words, Illah must be mentioned in the text either explicitly or implicitly or by deduction or through Qiyas. This Illah is connected with the reasoned hukm in presence and absence. Thus the rules revolve with their Illahs. So we find a thing is prohibited in a situation due to the existence of a Shar'ai Illah, and if this Illah disappears that very thing becomes permissible. So the hukm Shar'ai revolves with the Illah in existence and in absence, thus when it exists the hukm exists, and if the Illah does not exist the rule doesn't exist either. However, the absence of the rule due to the absence of the Illah does not at all mean that the Hukm Shar'ia has changed, rather the hukm Shar'ai of the question remains as it is, without change. It is only the rule no longer applied due to the absence of the Illah, and will be applied once the Illah returned. The relationship of the rule with the Illah in existence and in absence does not mean that the rules change due to the change of the time and place, thus claiming that bringing about the benefit and preventing corruption is the Illah of the Hukm Shar'ai, which changes as the time and place change, so the Hukm Shar'ai changes accordingly. This is because bringing about benefit and preventing harm are not at all the Illah of the Akham, since no text came to denote that bringing about benefit and preventing corruption are Illah for all the Akham, nor to denote that they are a Illah for a specific rule. Thus, it cannot be taken as a Shar'ai Illah. Moreover, the Shar'ai Illah is that which is taken from a shar'ai text and therefore should be restricted to it and its meaning. The shar'ai text has neither indicated that bringing about a benefit nor warding off corruption as being the Illah. Thus, the shar'ai Illah would be that which the shar'ai text has brought, not the bringing about of benefit nor warding off corruption. That which is brought in the text is not indicated by the time or the place nor indicated by the action itself. It is rather indicated by the text in manifesting the Illah of the rule. This text never changes, so no consideration is given to the time and place in this context, nor is there a value to bringing about benefit and preventing corruption. Accordingly, Ahkam Shara'iah do not change with the change of time and place, they remain as such regardless of the change of times and places. As for the change of traditions and customs of people, this does not have an effect in changing the rule, for the tradition is not a Illah of the Hukm Shar'ai nor a source for it. The traditions may agree or disagree with the Shar'a. If they disagree with the Shar'a then the Shar'a has come to abrogate and change them, since the function of the Shar'a is to change the corrupted traditions and customs, because they are the factors that cause corruption of the society. Therefore, they are not taken as a source for the Hukm Shar'ai nor a Illah for it and the rule does not change because of it. However, if the traditions were in agreement with shar'a, then the rule is proved by its Shar'ai evidence and by its Shar'ai Illah and not by these traditions, even if these traditions do not contradict the Shar'a. Therefore, the customs cannot rule over the Shar'a, rather the Shar'a rules over the traditions and customs. Accordingly, the Ahkam Shara'iah have their own evidence which is the text and they have Shar'ai Illah and the traditions and customs are not a part of that at all.
Difference between Manatt al hukm (reality of the rule) and Illah
It would be wrong to say that the Manat-ul Hukm is the reason behind the Hukm (I’llatul Hukm). This cannot be said because the subject (Manat) of the verdict is different from the reason (Illah) of the verdict, in fact there is a big difference between the subject and the reason. The Illah is what induces the verdict to be initiated, i.e. it is the thing that indicates the intention of the Legislator behind the verdict. This, without any doubt, requires a Shari’ah evidence to indicate it clearly so that it is understood that it is the intention of the Legislator for initiating the verdict. As for the subject of the verdict, this is the subject upon which the verdict applies or to which the verdict is related. In other words, it is the issue which the verdict conforms and not its evidence nor its reason (Illah). It therefore, follows that the Manat (reality) is the thing which the verdict is attached to, i.e. the verdict is brought to deal with it, or solve it. It is incorrect to say that the verdict is brought because of it, so as to say that it is the Illah behind the verdict. The Manat of the verdict is the non-textual aspect of the Shari’ah verdict. To comprehend it would be other than to comprehend the Illah. As comprehending the Illah would be to understand the text or texts which had come to justify the Illah.
For example, alcohol is haram, the divine law is the prohibition of alcohol. The investigation that a certain drink is alcohol or not, so as to judge it as haram or not is a investigation of the manatt. It is necessary to study whether the drink is alcohol or not in order to state that it is haram. The investigation of the reality of the alcohol is a verification of the manatt. And if you said that the water allowed to use for wudu is the mutlaq (absolute, unrestricted) water then the divine law is that the mutlaq water is the one which is allowed for wudu. So the investigation that the water is unrestricted or restricted in order to judge upon it as allowed for wudu, is a verification of the manatt. Therefore, it is necessary to study the water to determine if it is free or restricted. This study of the reality of the water is the verification of the manatt. And if you said the person who made hadath (discharged something from back or front) has to make wudu for the prayer, then the verification that the person is mohdath or not mohdath is a verification of the manatt, and so on. The famous Maliki scholar Imam al-Shatibi (died 780A.H.) said in the book Al-Muwafaqat: ‘These subjects and the like which we necessitated to define the manatt must take the evidence about it according to the reality of every incident.’ And he further states: ‘Ijtihad could be connected with the verification of the manatt, and thus it does not require the knowledge of the aims of the law giver (Allah), nor does it require the knowledge of the Arabic language, because the aim of this ijtihad is knowing the subject as it is. So it requires the knowledge of what this subject can’t be recognised without. Therefore the mujtahid has to be knowledgeable and mujtahid from this aspect in order to apply the divine law according to the specific requirement.’
The investigation of the Illah is referred to the understanding of the text which came justified (provided with reasoning). And this is an understanding of the ayat or ahadith, and it is not of the manatt. So in order to verify the manatt such as the verification of whether a liquid is alcohol is the investigation of the thing that is the subject of the shari’ah. Accordingly, it is not a condition that the one who verifies the manatt be a mujtahid or a Muslim, but it is enough that he or she to be knowledgeable of the matter.
The classical confusion
The Maqaasid (aims) of the Sharee’ah
One of the classical confusions regarding the subject of ‘Illah is the claim that the maqaasid (aims) of the Sharee’ah are the reasons (‘Illah) for the ahkams. This stems form the view that the Sharee’ah has come for the benefit (maslahah) of man. This benefit then is categorized into the five maqaasids or aims of the Sharee’ah which are; the protection of: Deen, life, mind, lineage and property. So if the Sharee’h as a whole seeks these aims then, it is concluded, that they must be the ‘Illah of the individual ahkaams. This is also established from a scrutiny (istiqraa) of the ahkams themselves which show that they seek these aims. So upon scrutiny one can see this from the results of the ahkams, the hikmahs and ‘Illahs contained within the text that these aims are sought. Thus it is concluded that aims or maSlaHa of the Sharee’ah are the ‘Illah of ahkaam. Those who followed this method of ascribing ‘Illahs to ahkams put conditions for this process. i.e. giving ‘Illahs to ahkams because they either contained a hikmah or a maslahah consistent with the maqaasid. They said the Sharee’ah must either acknowledge the maSlaHa or a text must not explicitly cancel it or there should be no text which stops us from considering its benefit. Hence they divided the benefits (maSaaliH) into three types:
i. Maslaha mulgha
ii. Maslaha mu’tabarah
iii. Maslaha murslaha
The first category is where the maSlaHa is canceled by the text itself. So when the text ordered jihad, for example, naturally this entailed the loss of life which contradicts the aim or maSlaHa of preserving life, but this maSlaHa is cancelled because of the text. However actions which have ahkams that do not explicitly cancel the maSlaHa fall under the second category of mu’tabarah where, it is claimed, their benefit is acknowledged by the Sharee’ah. So for example the maSlaHa or aim in the prohibition of drinking alcohol is acknowledged (mu’tabar) because it’s prohibition has a daleel. As for what that maslaha is, that is determined by the maqaasid. One of the maqaasid is the preservation of the mind so that becomes the maSlaHa of prohibiting alcohol and intoxication becomes its ‘Illah because it realizes the aim of preserving the mind. Naturally, this ‘Illah is extended to prohibit things other than alcohol which also intoxicate the mind. As for the third category; maSaaliH mursalah, this is where there is no specific daleel for the action so we cannot say its benefit has been canceled or that it has been acknowledged. However this action will come under the comprehensive daleel (daleel kulli), which they say are the five aims of the sharee’h. So if it realizes one of the aims of the Sharee’h then that is the maSlaHa of the action and on that basis the action would be legitimized. This is because the aims are treated as ‘Illahs, so if an action fulfils the aim then it is legitimate. Advocates of this view cite the example of when the Sahabah compiled the Qur’an. Here they say there is no specific daleel for that action but the action fulfils the maSlaHa of preserving the Deen and hence the action is obligatory. This is because the action fulfils the ‘Illah, which is the preservation of the Deen. Since the maqaasid have been arrived at through istiqraa i.e. scrutiny of the texts then they serve as the comprehensive evidence (dalil kulli) for actions which lack a specific daleel.
Thus, the above method is treated by some scholars as one of the ways (maslak) of identifying the ‘Illah. However if we examine the arguments we find their understanding is mistaken for the following reasons:
i. The maqaasid are aims of the sharee’ah as a whole and not the aims of the individual ahkams
The premise that the aims (maqaasid) are the aims of individual ahkaams is not correct. This is because the benefit of man is the ghaayh or aim of the Sharee’ah not the ‘Illah. For example: when Allah (swt) says:
“We have not sent you except as a mercy”
Here the mercy is a description of the message as a whole or in other words the Sharee’ah as a whole has come for the maSlaHa or good of man. However this does not mean the individual ahkaams have come as maslahah because there is no indication in the text which gave any consideration to the subject of benefit in harm. Rather, the ahkaams have come regardless of what the benefit or harm is. So man has to fight jihad even though he may lose his life and the hand of the thief is cut even though he may not be able earn his own living.
ii. Maqaasid are results of ahkaam and not their ‘Illah
As for the five maqaasids they are the results of certain ahkam and not the ‘Illah of these ahkams. For example Islam permitted polygny without providing an ‘Illah. However the reality of applying the hukm of polgany is that certain problems are solved. For example if the wife cannot bear children or the number of women in society is greater than men; these problems can be solves as result of applying the rule of polygany. Hence the hukm of polygamy brings certain results but these are not the ‘Illah of the hukm. The same goes for the rest of the ahkaams from which the maqaasid are extracted.
iii. The Hikmah are the aims sought by the lawgiver and not the ‘Illah of ahkaam
This is because the hikmah is the result desired by the Lawgiver and not the Lawgiver’s reason for legislation of the rule. So when Allah (swt) said:
“That they may witness things that are of benefit to them” [TMQ 22:28]
The benefits here are the results sought after the rule of hajj has been legislated. They are not the reason why hajj has been legislated otherwise hajj would not be necessary after the benefits have been acquired, which is absurd.
It is worth pointing out that the results and hikmah of ahkaam have nothing to do with the process of legislation and extraction of ahkaam as they come after the legislation of the rule. Only the ‘Illah is of significance because it is what causes the legislation to come into existence. Thus, the subject of hikmah and maqaasid are irrelevant when it comes to legislating rules.
iv. Finally, the maqaasid are not daleel kulli (comprehensive rules) which can serve as Illah’s for actions which lack a specific daleel.
As for the argument of istiqraa i.e. because the maqaasid have been taken from a scrutiny of the texts and hence this is a daleel kulli (comprehensive rule) to cover actions which do not have a specific daleel. This is wrong from two perspectives. Firstly, the maqaasid are merely a description of the reality of the ahkams and not the dalil kulli. Secondly, the dalil kulli is not a description of the reality of ahkams but a principle contained in a single or collection of daleels. So the principle of hiring is taken from the ayah about suckling. This is not the same for the maqaasid. They are the results and aims of the specific ahkaams from which they have been deduced, these results and aims cannot be used as evidences for other actions because the hukm shar’I is taken from a daleel or collection of daleels but not from the results and aims of daleels. So the fact that drugs like cocaine and heroin are Haraam is taken from the daleel like the Hadith:
“Every intoxicant is khamr and every khamr is Haraam.” [Abu Dawud, Sunan, III, 1043, Hadith no. 3672.]
The daleel for their prohibition is not the aim of protecting the mind, which is merely a result of certain ahkaam and hence cannot serve as a daleel.
2. as-Sabr wat taqseem or tanqeeh al manaat
Another erroneous means of extracting the ‘Illah is the process known as sabr wt taqseem (examination and isolation of the attributes) or tanqeeh al-manaat (isolating the ‘Illah). This is when the mujtahid examines, isolates and then eliminates those attributes (awsaaf) which could serve as ‘Illah for the hukm. For example khamr has a number of attributes; grape juice, it is a liquid and it can intoxicate. So the mujtahid like a detective tries to isolate the attribute (wasf) which best fits the conditions of the ‘Illah. He dismisses the first attribute because it is not extendable i.e. it cannot be applied to other things. As for being a liquid this cannot be the ‘Illah because it is not mu’atthirah ie it does not effect the hukm ie there is no rational link between the prohibition and the fact that it is a liquid. In the end he will go for the last attribute ‘intoxicant’ because it is munaasib ie agrees with the aim (maqsad) of preserving the mind. This process is wrong for the following reasons: Khamar is a noun and not an attribute and so to isolate the attributes that khamar has without the text indicating their consideration is incorrect. The text did not indicate whether explicitly or implicitly that intoxication is the ‘Illah for prohibition. As for the maqaasid, as we said above they are but results and aims of certain ahkaam and cannot be used to determine whether a certain attribute is an ‘Illah or not. The only way to do this is if the text itself gives an attribute which has a causal link to the hukm. Otherwise, one would be merely shooting in the dark and the result would be arbitrary.
Contemporary confusion:
Some contemporary scholars who have either been influenced by the western ideas and ways of thinking or they are loyal employees of certain corrupt governments and have sought to justify stances and positions based on an erroneous expansion of the above principles. We find them mutilating the Deen of Allah all in the name of maSlaHa. So Ibn Baz (though reportedly he later retracted the opinion) once believed peace with Israel was allowed because it is a maSlaHa whilst working to change the rulers is an evil if it entails bloodshed. Fahmi Huwaydi thinks that it is allowed to change the Khaleefah every so-many years because the text, he claims, is silent on this matter and the highest Maslahah of the Ummah would be neglected if we did not do this. Whilst Yusuf al Qaradawi thinks participation in a kufr government is allowed because it is a way of removing harm. Maulana Mawdudi on the other hand surmised that ruler should be bound by all the decisions of the shura because past Khulafah were dictatorial but it is okay to vote for a woman leader because it is a lesser of two evils. In all of these views the criteria is unrestricted benefit (maSlaHa) which contradicted the understanding of the classical scholars in two fundamental ways:
a) The classical scholars only considered the maSlaHa which did not contradict the known text whiles the above scholars ignored the text. So peace with the occupiers of Islamic land such as with Israel, the participation in kufr government, appointing a woman as a ruler etc are Haraam due to clear Qati meaning in the texts and would have come under the cancelled maslahas (mulgha) if we follow the classical criteria.
b) Whenever a new issue or problem came up the classical scholars would study the Qur’an, Sunnah, Ijma’ and Qiyas. If they did not find the daleel they would make recourse to maSaaliH mursalah. Thus, maSaaliH mursalah would be the last resort. But for the above scholars it is the first resort as if they are applying the Usul backwards. So the first thing they would consider is the maSlaHa whilst the evidences from the primary sources are either interpreted away or ignored.
The above type of thinking is a disease which has affected the legislative thinking of the Muslims. It has opened the floodgate to kufr thoughts and solutions. Thus, it is important to understand the correct methodology for extracting the ‘Illah.
Discussing the consequences of rules
The absence of Illah in many of the rules does not mean that it is prohibited to discuss the consequences of applying the shari’ah rules upon the reality and how it will solve problems. This is permitted and useful especially when it comes to explaining the systems of Islam such as the social, economic, punishment and ruling systems. Explanation of the reality is not a justification for a hukm and we should be careful not to make consequences of applying the shari’ah rule as an Illah for the rule as it has no relationship to Qiyas.
For example we can discuss how the rules from the Islamic social system such as separation of men and women, the dress code, etc will create a society where there will be less agitation of the instinct of procreation and a society in which there will be less rape, molestation, fornication and the like as was the reality under the Islamic Khilafah in the past.
Another example is that of polygyny (marrying more than one wife), we can discuss how this shari’ah rule can solve problems in the reality. It us clear from the effect of polygyny/plurality of wives that in the community in which it is permitted there will not be a plurality of mistresses, and in communities which forbid the plurality of wives will have a plurality of mistresses. In addition, polygyny solves many other problems, which take place in a human community in its capacity as a human community, which depends on polygyny to solve them. The following are some examples of these problems:
1. There are some men with unusual dispositions, who are unable to satisfy themselves with one wife. Either such men will oppress or hurt their only wife or they will look at other women if they find the door shut in front of them to take a second, third or fourth wife. There is a danger of this happening in terms of the spread of indecency and fornication amongst people and the creation of suspicion and doubts within families. Therefore, it is essential that a person who possesses such a disposition should have the opportunity to satisfy his strong urge in a halal manner i.e. in a way that Allah (swt) has legislated.
2. It may be that a woman is barren and therefore cannot bear children but her husband still loves her dearly and vice versa, which makes them determined to continue with their happy married life. The husband may however desire offspring and have a love for children. If it is not permitted for him to marry another wife and he finds no options available to him he will have to either divorce his first wife, which would lead to the destruction of the stability of the household and the end of a happy marriage, or he is deprived from enjoying offspring. This will lead to the suppression of the aspect of fatherhood present in the procreation instinct. Therefore, it is essential that such a spouse is given the opportunity to marry another wife in addition to the existing wife so that he can have the offspring which he desires.
3. The wife may be ill with a disease, which excuses her from having conjugal relations or looking after the house and seeing to the husband and children. She might still be cherished and dearly loved by her husband who might have no wish to divorce her, although he cannot live his life properly with just her alone, and consequently without another wife. It is imperative that in such a situation the opportunity is given to him to marry more than one wife.
4. Wars and uprisings might take place which claim the lives of thousands, even millions of men which may upset the balance between the ratio of men and women, as has happened previously, especially in Europe, in the First and Second World War. If a man is not able to marry more than one wife what are the rest of the women supposed to do? They will be deprived from family life and the happiness of a home and the ease and comfort of married life, not to mention what the procreation instinct can lead to in terms of the danger to morality.
5. It may be that in a nation, people or region the number of males and females is not equal. The number of females may be higher than males so the numerical balance between men and women is upset. And this is in fact the case amongst many peoples and nations. In such a situation there is no solution to this problem except the permissibility of polygyny.
These are real problems faced in the human community among peoples and nations. The Islamic rules when applied practically solve these problems.
Abu Ismael
a) Qiyas has no evidence for it and therefore is not a source of Shari’ah.
b) Qiyas is a human endeavor, it is only a personal reasoning and therefore the outcome of it isn’t a shari’ah rule.
c) Qiyas can be applied on everything.
d) The Illah (reason) behind a rule can be from the mind and doesn’t have to be in the shari’ah texts.
e) Customs and traditions can be the Illah for some rules.
f) Material benefit is the Illah for all the shari’ah rules.
g) There is no difference between the hikmah (wisdom) behind a rule and the Illah.
h) Applying a known shari’ah rule to a situation is the same as Qiyas.
Although the subject may sound complex to some especially due to the various terminologies, it is important to realize that the impact of these misunderstandings are widespread and thus the subject needs to be explained. Some common examples of how these misunderstandings affect the normal Muslim on the street include how some answer questions posed by non-Muslims about the shari’ah rules. Questions such as ‘why are Muslim men allowed to marry up to four wives?’, ‘why do Muslim women have to wear khimar (headscarf) and jilbab (outer garment)?’, ‘why doesn’t Islam allow a woman to be a ruler?’, ‘why is pork prohibited?’ and ‘why is riba (usury) prohibited in Islam?’ are commonplace. Unfortunately a common mistake of many Muslims is to invent reasons from the mind for these rules which Allah (swt) did not state and attempt to justify them on this basis, instead of proving the Islamic belief as a basis to accept whatever rules have been revealed for us. Often we also hear people espousing that material benefit is the reason behind all the shari’ah rules and therefore justify violating clear prohibitions or obligations upon this pretext such as those who justify riba (usury), combining prayers during work or supporting Kufr political parties in elections. These examples demonstrate the need of understanding the subject of Illah (legal reason) and Qiyas in a correct manner.
In order to clarify the subject of Illah and Qiyas and dispel these misconceptions we must discuss the subject from the root to understand its definition, evidences, scope, process and conditions.
Definition and evidences
Qiyas constitutes the fourth source of Ahkam Shar'iah after the Quran, Sunnah and Ijma as-Sahaba (consensus of the companions). Literally, Qiyas means estimation, measuring or ascertaining the length, weight, or quality of something, which is why scales are called miqyas. Thus the Arabic expression, qasat al-thawb bi'l-dhira' means that ‘the cloth was measured by the yardstick’. [Amidi, Ihkam, III, 183.] Qiyas also means comparison, with a view to suggesting equality or similarity between two things. Thus the expression ‘Zayd yuqas ila Khalid fi `aqlihi wa nasabih’ means that ‘Zayd compares with Khalid in intelligence and descent’. [Ghazali, Mustasfa, II, 54.] Qiyas thus suggests an equality or close similarity between two things, one of which is taken as the criterion for evaluating the other.
In the convention of Usul ul-Fiqh, Qiyas is a process to deduce a rule for a new issue that has a common Illah (motive or cause) with a known rule. The Illah of a Hukm Shari' of a known issue is compared to a new issue, and if they both share the same Illah, then Qiyas can be carried out. [Shawkani, Irshad, p. 198.]
The majority of ulema have defined Qiyas in this manner as the application to a new case (far'), on which the law is silent, of the ruling (hukm) of an original case (asl) because of the effective cause ('Illah) which is in common to both. [Amidi, Ihkam, III, 186.]
The Hanafi jurist, Sadr al-Shari’ah, in his Tawdih, defines Qiyas as ‘extending the (Shari’ah) value from the original case over to the subsidiary (far`) by reason of an effective cause which is common to both cases and cannot be understood from the expression (concerning the original case) alone.’ [`Ubaydullah ibn Mas'ud Sadr al-Shari’ah, al-Tawdih fi Hall Ghawamid al-Tanqih, p. 444]
The Prophet (saw) demonstrated Qiyas in the following Hadith:
The Messenger (saw) said to Al-Khathamiah, "If your father owed a debt and you paid it for him, would that suffice?" She said, "Yes." He said, "The same is for the debt of Allah." [Ghazali, Mustasfa, II, 64; Shawkani, Irshad, p. 212; Ibn Qayyim, I`lam, I, 200.]
In order to instruct the Muslims, the Prophet (saw) showed the Muslims how to compare the debt owed to Allah to that owed to a human being, such that paying it back fulfills the obligation. Thus, the rule confirms the acceptance of the settlement of the debt. On the other hand, the rule of the known Hukm may be one of negation. For example: 'Umar (raa) asked the Prophet (saw) regarding whether or not the kiss of a fasting person would break the fast. The Messenger (saw) said: "What if you rinse your mouth, does that break the fast?" The Prophet (saw) showed 'Umar (raa) how to perform Qiyas by comparing the kiss of the fasting person to the rinsing of the mouth and showing that neither breaks the fast. [Ibn Hazm, Ihkam, VII, 100; Ibn Qayyim, I'lam, I, 200; Khallaf, `Ilm, p. 57.]
The existence of an Illah constitutes the common matter upon which comparisons take place. The following Hadith is another illustration of the concept of Illah in Qiyas:
When the Messenger was asked about the trading of mature dates with dry dates, he asked: "Do the mature dates become lighter (in weight) if they dry up?" They said, "Yes." He said, "Then, no." [Daraqtuni]
When the Messenger (saw) was informed that the reality that exists in Riba, which is the increase, exists in trading mature dates with dry dates, he taught the Muslims that the rule of Riba would be applied to the rule of trading the dates. Based upon the Illah, the Prophet (saw) demonstrated Qiyas by extending the rule of riba to trading mature dates with dry dates.
The legal definition of Qiyas is taken from the Ahadith of the Messenger (saw):
l. Ibn Abbas narrated, "A woman said, 'O Messenger of Allah, my mother died owing a vow to fast; should I fast for her?' He said:
«إِنَّ أُمِّي مَاتَتْ، وَعَلَيْهَا صَوْمُ نَذْرٍ، أَفَأَصُومُ عَنْهَا؟ قَالَ: أَرَأَيْتِ لَوْ كَانَ عَلَى أُمِّكِ دَيْنٌ فَقَضَيْتِيهِ أَكَانَ يُؤَدِّي ذَلِكِ عَنْهَا؟ قَالَتْ: نَعَمْ، قَالَ: فَصُومِي عَنْ أُمِّكِ»
"What if your mother owed a debt and you paid it back for her, would that settle it?" She said, 'Yes.' He replied, 'Then, fast for your mother.'" [Muslim]
2. Also, 'Abdullah ibn Zubair narrated: "A man from Khath'an (a tribe) came to the Messenger of Allah (saw) and said, 'My father embraced Islam at an old age, and he cannot ride the camel and at the same time he is obligated to perform Hajj. Should I perform Hajj for him?' The Prophet (saw) said, 'Are you the eldest son?' He said, 'Yes.' The Messenger (saw) replied, 'What if your father owed a debt and you paid it back, would that settle it?'' He said, 'Yes.' The Prophet (saw) said, 'Then perform Hajj for him.'" [Ahmad]
In both Ahadith, the Messenger instructed the Muslims how to draw the analogy between the debt of Allah in fasting and Hajj and the debt to a human being. Both of them share the same Illah, which is the existence of a debt that must be paid. As the definition of Qiyas is derived from the Ahadith of the Prophet (saw), the definition is considered a Hukm Shari'. The rule that is extracted through Qiyas is a Hukm Shari' that must be followed as any other Hukm Shari' extracted from other legislative sources. The definitions and general rules which are extracted from the evidences are themselves considered Ahkam Shar'iah.
Qiyas is established upon an Illah, which is the common motive between any two issues. If there exists an Illah, then Qiyas can be performed. Otherwise, Qiyas is not possible. The Illah must be stated or derived from a Shari' text. If this is the case, this Qiyas would be Shari' because the Illah has been stated by a Shari' text. If this Illah has not been stated or derived from a Shari' text, the Qiyas cannot be considered valid from a Shari' perspective nor can it be considered a valid daleel.
The evidence that Qiyas is a source of Shar'iah is that the Illah is based upon or derived from a Shari' text. These Shari' texts are the Qur'an, the Sunnah, or Ijma' as Sahabah. These three have been proven as definitive sources of shari’ah upon which no one can disagree. Therefore, the evidence that the Illah exists in the text in general is definitive (qata’i) and this is also the case for Qiyas. The Prophet (saw) demonstrated Qiyas and considered it as a Shari' Daleel. The Sahabah followed him in this regard, and they also considered Qiyas as a Shari' Daleel to extract rules. The Prophet (saw) said to Mu'adh and Abu Musa al-Ashari when he appointed them as judges in Yemen, "What will you judge with?" They said, "If we do not find the rule in the Book or the Sunnah, we will compare the unknown issue with the known issue, and we will apply it."
Thus, the Sahabah clearly stated that they will use Qiyas, and the Prophet (saw) approved it. This example, along with those previously mentioned, demonstrate the use of Qiyas, the explanation of the rules of Qiyas, and the teaching of Qiyas by the Prophet (saw).
It is documented that the Sahabah used Qiyas in many instances. When Abu Bakr (ra) gave inheritance to the maternal grandmother and not the paternal one, some of the Ansar told him:
(لقد ورَّثت امرأة من ميت لو كانت هي الميتة لم يرِثها, وتركتَ امرأة لو كانت هي الميتة ورث جميع ما تركت)
"You have given inheritance to a woman (the maternal grandmother) from a dead person (the grandson) who, if she were the dead person, he would not inherit her. On the other hand, you left out a woman (the paternal grandmother) who, if she died, this person will inherit her. So give them the one-sixth of the inheritance." When Abu Bakr heard this Qiyas, he changed his rule and established the new rule.
In another example, Umar (ra) doubted applying the death penalty for the group that kills a person. Ali (ra) told him:
(يا أمير المؤمنين، أرأيت لو أن نفراً اشتركوا في سرقة، أكنت تقطعهم؟ قال: نعم. قال: فكذلك)
"O Ameer al Mu'mineen. If a group stole, would you cut their hands?" Umar said, "Yes," and Ali replied, "This is the same." Thus, Ali made Qiyas for the death penalty of a group based upon the penalty of theft for a group.
Also when the Companions held a council to determine the punishment of wine-drinking, Ali b. Abi Talib (ra) suggested that the penalty of false accusation should be applied to the wine drinker, reasoning by way of analogy, 'When a person gets drunk, he raves and when he raves, he accuses falsely.' [Shawkani, Irshad, p. 223; Abu Zahrah, Usul, p.177]
All of these examples establish that Qiyas is a Shari' Daleel through the Sunnah and Ijma' as Sahabah. However, this Ijma' has been narrated through the method of Ahad, which means that it is non-definitive (Thanni). Therefore, the Qata'i (definite) Daleel that Qiyas is a Shar'iah source is what was previously mentioned, that it is based on the Illah being stated in the text of the Qur'an, the Sunnah, or Ijma as-Sahabah.
The evidence for Qiyas is the shari’ah texts which contain ‘Illah. The presence of an ‘Illah entails that we follow the rationale of the text (ma’qool an-nass) since the rationale is not from the mind but the text itself. So if the rationale of the text extends to a new matter then we are obliged to extend it, otherwise we would not have followed the text which is an obligation.
The Arguments of those who reject Qiyas
The arguments against Qiyas have been articulated mainly by the Zahiri (literalist) school, and some Mu'tazilah, including, Ibrahim al-Nazzam. In principle, the Shi'ah Imamiyyah do not recognise the validity of Qiyas, as they maintain that Qiyas is pure conjecture which must be avoided. In addition, the Qur'an, the Sunnah and the rulings of the Imams, according to the Shi'i ulema, provide sufficient guidance for conduct, and any reference to Qiyas is unnecessary and unwarranted. [Mutahhari, Jurisprudence, p. 21.] This is definitely the view of the Akhbari branch of the Twelve Shi'ah, whose refutation of Qiyas closely resembles that of the Zahiris. But the Usuli branch of the Shi'ah validate action upon certain varieties of Qiyas, namely Qiyas whose 'Illah is explicitly stated in the text (Qiyas mansus al-`Illah), analogy of the superior (Qiyas al-awla) and obvious analogy (Qiyas jali). These varieties of Qiyas, in their view, are not mere speculations; they either fall within the meaning of the text or else constitute a strong probability (al-zann al-qawi) which may be adopted as a guide for conduct. But they validate this through recourse to ijtihad and `aql rather than Qiyas per se. [Asghari, Qiyas, pp.119,139.]
However, those who rejected Qiyas like the Zahiris did not actually reject the principle of Qiyas because they accepted it when it came from the mantuq (uttered meaning). Being Zahiris i.e. literalists they did not take the ‘Illahs that were derived from the mafhum (implied meaning) for this would be following speculation and not certainty. And as for the ‘Illah taken from the mantuq they did not call this Qiyas because they considered it as simply following the literal (Zaahir) meaning of the text whilst Qiyas for them was a term used to mean a speculative (thanni) process in legislation which they found unacceptable. That is why they rejected the term Qiyas and some of its forms though in reality they accepted it in principle.
Ibn Hazm one of the most outspoken against Qiyas from the Zahiri scholars said: 'that God has assigned certain causes to some of His laws, but we say this only when there is a nass (text) to confirm it.' He then goes on to quote a Hadith of the Prophet to the effect that, “The greatest wrong-doer in Islam is one who asks about something, which is not forbidden, and it is then forbidden because of his questioning”.
Ibn Hazm continues: ‘we firmly deny that all the ahkam of Shari’ah can be explained and rationalised in terms of causes. Almighty God enacts a law as He wills. The question of `how and why' does not and must not be applied to His will. Hence it is improper for anyone to enquire, in the absence of a clear text, into the causes of divine laws. Anyone who poses questions and searches for the causes of God's injunctions 'defies Almighty God and commits a transgression'. [Ibn Hazm, Ihkam, VIII, 102; Muslim, Sahih Muslim, I, 423, Hadith no, 1599.]
The supporters of analogy, according to Ibn Hazm, proceed on the assumption that the Shari’ah fails to provide a text for every matter, an assumption which is contrary to the ayat of the Qur'an in his view. He quotes the following ayat to this effect:
“We have neglected nothing in the Book” [TMQ al-An'am, 6:89]
“We revealed the Book as an explanation for everything.” [TMQ al-Nahl, 16:89]
“This day, I perfected year religion for you, and completed My favour upon you” [TMQ al-Ma'idah, 5:4]
Since the ahkam of the Lawgiver are all-inclusive and provide complete guidance for all events, our only duty is to discover and implement them. In his view to consider Qiyas as an additional proof would be tantamount to an acknowledgement that the Qur'an fails to provide complete guidance. [Ibn Hazm, Ihkam, VIII, 18.]
Furthermore he argues that Qiyas derives its justification from an 'Illah which is common to both the original and the new case. The 'Illah is either indicated in the text, in which case the ruling is derived from the text itself and Qiyas is redundant; or alternatively, where the 'Illah is not so indicated, there is no way of knowing it for certain. Qiyas therefore rests on conjecture, which must not be allowed to form the basis of a legal ruling. This is, according to Ibn Hazm, the has been mentioned in the Qur'anic ayah:
“Conjecture avails nothing against the truth” [TMQ al-Najm, 53:28]
Identifying the 'Illah in Qiyas is an exercise in speculation, whereas the Qur'an enjoins us to “pursue not that of which you have no knowledge” [TMQ al-Isra', 17:36] [Ibn Hazm, Ihkam, VIII, 9.]
Lastly, Ibn Hazm holds that Qiyas is forbidden in the Qur'an. [Ibn Hazm, Ihkam, VIII, 9] Thus the verse:
“O you believers! Do not press forward before God and His Messenger, and fear God” [TMQ al-Hujurat, 49:1]
According to his interpretation means that the believers must avoid legislating on matters on which the lawgiver has chose, to remain silent. The same point is conveyed in the Hadith where the prophet ordered the believers as follows:
« دعوني ما تركتكم إنما هلك من كان قبلكم بسؤالهم واختلافهم على أنبيائهم فإذا نهيتكم عن شئ فاجتنبوه وإذا أمرتكم بأمر فأتوا منه ما استطعتم »
“Ask me not about matters which I have not raised nations before you were faced with destruction because of excessive questioning and disputation with their prophets. When I command you to do something, do it to the extent that you can, and avoid what I have forbidden.” [Ibn Hazm, Ihkam, VIII, 15.]
Thus in regard to matters on which the shari’ah texts are silent, according to the Zahiri’s it is incorrect for a Muslim to take the initiative in issuing a hukm, for he is ordered not to do so. Qiyas therefore violates the express terms of the Qur'an and the Sunnah in their view.
Their arguments are flawed for the following reasons:
a) The ayat that mention that the Deen is complete and that the Quran has an explanation of everything mean that the Islamic sources i.e. the Quran and the Sunnah have the capacity to deal with all issues. The majority of Ulema argue that either rules have come directly within these texts or through indications upon which Qiyas or Ijtihad is necessary. Making Ijtihad or Qiyas does not invalidate the meaning of these ayat in fact they are the revealed method in order to extract the rulings from the Quran and Sunnah.
b) With reference to some of the ayat that the opponents of Qiyas have quoted, especially on the use of speculative evidence in law, the ayat in question forbid speculation (zann) in matters of belief (Aqeeda) only. As for the practical rules of fiqh, most of them are from texts which are speculative in meaning (thanni al-dalalah). This does not necessarily mean that action upon them must be suspended, the conclusion of which would mean that there would be no difference of opinion allowed at all in Fiqh, which would be contrary to established evidences permitting difference of opinion in certain areas.
c) The ayat from the Quran that contain Illah and the aforementioned evidences from the Sunnah and Ijma of the Sahaba have established Qiyas as a source of Shari’ah.
The process of Qiyas
Qiyas is the extension of a rule to new matters by analogy based on a shared ‘Illah. So the hukm of the old matter is extended to a new matter when the new matter shares the same ‘Illah as the hukm of the old matter. Thus Qiyas is always built on the following four pillars:
i. Asl (old matter)
ii. fari’ (new matter)
iii. Hukm (rule)
iv. ‘Illah (effective reason)
Amidi (Ihkam, III, 193) is however of the view that the result of Qiyas, that is the ruling which is to be applied to the new case (i.e. hukm al-far`), should not be included in the essential requirements (arkan) of Qiyas. For the hukm is only arrived at the end of the process; it should therefore not be rukn (pillar). Isnawi has on the other hand included the hukm al-far` among the essentials of Qiyas. The disagreement is however mainly theoretical as the hukm of the new case is, for all intents and purposes, identical with the hukm of the original case. [Cf. Zuhayr, Usul, IV, 58-59.]
To make sense of these four pillars let us look at the following example:
“O you who believe! When the call is proclaimed for the Salah (prayer) on the Day of Friday (jummah prayer) come to the remembrance of Allah and leave trade.” [TMQ 62:9]
Here the asl (old matter) is trade. The hukm is to leave trade when the azaan has been called. And the ‘Illah is distraction from the salaah. If we suppose the new matter is studying then we can see it will take the same hukm as the old matter because it shares the same ‘Illah, which is that studying will distract from the salah and hence it will take the same rule. So studying when the azan is called is Haram due to Qiyas. Therefore every Qiyas is Ijtihad because it is a process where a shar’iah rule is derived. However, not every Ijtihad is Qiyas as many Ijtihad’s may not include an Illah therefore would only be classified as Ijtihad.
Why is Qiyas a source of Shari’ah?
Something is defined as a source in Usul when it serves as a source for new ahkams. Qiyas is a source because we can extract new hukms from it. By extending the original rule to new realities via a shared ‘Illah produces new hukms for new realities and hence Qiyas is a source. This is one of the reasons why we say Islam is applicable for all times and places since new ahkam can be deduced for new realities and problems.
For example Allah (swt) said:
“And make ready against them all you can of power including horses to threaten the enemy of Allah” [TMQ 8:60]
The hukm is to prepare. The old matter is horses. The ‘Illah is to terrify the enemy of Allah. As for the new matter; it is anything that will realize the Illah of the preparation, which is to terrify the enemy. So these days it would be obligatory to have tanks, fighter planes, and aircraft carries since they terrify the enemy. Not only that, the ‘Illah obliges the Islamic state prepare in the following areas:
a) The arms development and war industry must be the strongest of its age if it is to fulfill the ‘Illah of terrifying the enemy
b) The state cannot depend on others for its sources of power and hence it has to strive to develop its own weapons and armaments
c) It should have new sophisticated weapons which will strike fear in the hearts of the kuffar. Like the American’s stealth bombers and daisy cutters. Similarly the Khilafah state should have new weapons in order to terrify the enemy.
These are new ahkam which did not exist before but exist now in our time. We were able to extract these new rules because the Qiyas serves as a source for new ahkaam.
Why does the Illah have to be Shari’ and not from the mind?
This is because the ‘Illah is the daleel which allowed the extension of the rule to the new matter. For this rule to be a hukm shar’i i.e. a valid ruling of the Sharee’ah it must be taken from the speech (Khitaab) of the legislator since the definition of hukm sha’I is the speech of the legislator relating to man’s actions. Any rule which is not from the speech of the legislator is rejected because it is not revelation (wahy) and we are ordered only to follow the wahy in our actions. Thus, since it is the ‘Illah which allows the extension of the hukm to a new matter it must be from the text and not from the mind. If it is from the mind then it is the speech emanating from the mind and this is not the source of Hukm shar’i. To extend the rule without a textual ‘Illah would be like extending the prohibition of alcohol to vinegar just because vinegar comes from alcohol. Alcohol is one reality and vinegar is another. One cannot arbitrarily extend the hukm without the text allowing such an extension. If the text allows it via an ‘Illah then this is a valid hukm shar’I, if not then it is a rational judgment which has no value in the Sharee’ah.
This is notwithstanding the fact that man is unable to give judgment on that which he cannot sense. If the Creator did not provide us the reason (‘Illah) for the legislation of the rule then how can man judge. Thus, not only is the rational ‘Illah rejected from the viewpoint of hukm shar’i but it is practically impossible for man to give such a judgment in the first place.
Furthermore, the fact that the mind cannot make analogy without a shar’i ‘Illah is aptly demonstrated by the reality of the Sharee’ah rules themselves. For example, we find similar realities are given different ahkam while different realities are given the same hukm. The mind can normally make analogy between similar things but the text contradicts this principle: So in the absence of water, of all things dust is sufficient to make wudhu even though they are two different things. According to the Shari’ah rules if a baby girl urinates on clothes then the clothes must be washed but if a baby boy does the same then it is sufficient just to sprinkle some water on it. Thus, similarity does not mean the same hukm just as dissimilarity does not mean a different hukm. So how can the mind make analogy for the sake of new ahkam when even the existing ahkam cannot be rationalized without a shar’i ‘Illah?
The areas of Ahkam Shari’ah which do not contain Illah
No ‘Illah exists in the asl (origin) of food, clothing, morals and ritual worships (Ibadat) for two reasons:
a) By a scrutiny of the texts we found that they do not contain ‘Illah.
b) These rules are not related to achieving results in this life, the primary motive in following them is worship.
The divine rules related to ibadat, morals, food-stuffs, and clothing cannot be reasoned by Illah. The primary motive for these actions is worship and hence there are no tangible results that we seek since the results are in the Hereafter. They should be taken as they came in the text and should not be based upon an Illah. Thus, prayer, fasting, pilgrimage, Zakah, the method of praying (Salah), the number of its rak'at, the rites of pilgrimage (hajj), and the minimum amount of property liable to payment of Zakah (nisab of zakah), and the like should be taken, accepted and submitted to as they came in the text (tawkifiyyah) and no Illah is sought for them. The same thing applies to the prohibition of eating the meat of a dead animal, pork and the like. Seeking Illah for these rules is wrong and dangerous, because if an Illah was sought the result would be that if the Illah of the rule ceased to exist then the rule would no longer exist. This is because the Illah is connected to the rule in existence and absence. As an example, if we assumed cleanliness was the Illah for the wudu (ablution), and physical exercise as the Illah for prayer, and good digestion as the Illah for fasting etc., then in these situations whenever the Illah doesn't exist, the rule would not exist either, this would lead us to abandoning these shari’ah rules. For example if someone raised a clean pig whom they had fed with good food and kept in a hygienic manner, would we then be permitted to eat it?
Therefore seeking an Illah is dangerous for the rule and its performance. Thus, it is obligatory to take rules of ibadat as they are, without seeking an Illah for them.
Another example is the issue of alcohol, there is no Illah for its prohibition, it is well known that it used be permitted at one time, even Hamza (ra) died while there was alcohol in his stomach as the verses prohibiting alcohol were revealed later. There is no Illah contained in the verses prohibiting it, furthermore the Messenger (saw) said:
« حرمت الخمر لعينها »
“Wine (khamr) was forbidden for itself.”
However in the furu’ (branches) of worship ‘Illah’s may exist because certain tangible results are sought. For example; Jihad is worship but its performance entails certain tangible results and hence there is a propensity for ‘illlah’s to exist. So preparation for jihad is a tangible result which is sought and it does contain an ‘Illah which is to terrify the enemy.
The morals (akhlaq) are values for which rules have been established to illustrate the virtues and noble deeds and their opposite. They also result from ibadat, as well as being observed in mu'amalat. This is because Islam aims in its legislation to take man on the road towards perfection, so as to reach the highest achievable level. Therefore man has to work towards acquiring the supreme qualities and to maintain them. The good moral is a value which is intended to be achieved once man acquired it because it is one which Shar'a has stated, and its value is targeted when performing these virtues and acquiring them. Morals are a part of the Islamic Shari’ah, and a part of the commands and prohibitions of Allah, which must be achieved by every Muslim so that his performance of Islam becomes complete, and his undertaking of the commands and prohibitions of Allah is perfected. A Muslim neither acquires moral attributes for their sake, nor for their benefit. Rather he acquires them only because Allah commanded him with them and for no other reason. So, a Muslim is not characterised with truthfulness for the sake of truthfulness itself, nor for the benefit it has, rather because Shar'a ordered of it. As for the fact the Muslim does not acquire morals for the sake of morals, this is because of the description of the actions. An action which man performs might be by itself, qabeeh(unpleasant), but he thought it hasan(pleasant), so he performed it. The attribute, which he was characterised with, might be by itself, qabeeh, but he considers it a hasan attribute so he acquired it and thus errors would arise because man performed morals for their own sake. For example, someone may seek to be truthful for the sake of it, therefore when he is captured by the enemy he is truthful to them and gives them all the information regarding the position of the Muslim troops and their strategy even though the Prophet (saw) said:
« الْحَرْبَ خَدْعَة ٌ»
“War is deceit” and Islam prohibits giving information to the enemy that would lead to harming the Muslims.
Unless Islam defines the hasan attributes and the qabeeh attributes and unless the Muslim performs them according to this definition, then his acquiring of these attributes would not be in compliance with the Ahkam Sharai'ah. Therefore, the Muslim should not be characterised with truthfulness for the sake of truthfulness, nor should he be characterised with compassion for the sake of compassion, nor should he be characterised with all the morals for their own sake. Rather he should be characterised with them as commands from Allah, because the fundamental fact is that these morals are based on the Islamic aqeedah. Observing this issue would guarantee the self-possession of the morals in individuals, thus purifying the soul of any impurity and distancing it from any corrupting factors. Therefore, the best way to protect morals is to confine them to what is stated in the text (Qur'aan and Sunnah), restrict them in the spiritual basis, and build them upon the Islamic aqeedah. As for not acquiring morals for the sake of benefit, this is because benefit is not intended of the moral and should not be aimed at, lest it corrupts it and makes it revolve around the benefit. Hence, morals are attributes which man must be characterised with, freely and willingly, by the incentive of taqwa (the fear of Allah). A Muslim does not abide by morals simply because they benefit or harm him in life, he does so in response to the commands and prohibitions of Allah. This is the understanding, which makes characterisation with good morals constant and steadfast and does not revolve around benefit. Such morals built on the exchange of benefit would make the individual a hypocrite, revealing certain behaviour while concealing his true nature. For example, may only be nice to another person because he wants him to buy something from him, but if there is someone who he cannot obtain material benefit from then he would not be nice to him.
Therefore, morals are not reasoned, and Illah should never be invented for them. They must be accepted as they came in Shar'a, irrespective of any Illah. It is erroneous and dangerous to seek Illah for morals, so as not to abandon the characterisation with morals when their Illah has ceased.
Illah can be found in the mu’amalaat (transactions) and uqubat (punishments
As for the mu’amalaat and uqubat it is possible that the texts regarding them may contain Illah’s because they generally entail tangible results. For example, Allah ordered the Messenger (saw) to distribute the spoils of war amongst the orphans and the poor. This is a tangible result sought by the hukm which is open to having an ‘Illah. Even though the hukm is fulfilled for Allah’s sake the result is still tangible which means that there may be a reason aim why the poor should receive the booty. The reason here of course is stated in the text: “so that the booty does not become a commodity only between the rich among you.” [TMQ 59:7]
Of course many other texts relating to these areas do not include an ‘Illah at all such as:
“Allah has permitted bai’a (trading) and has forbidden Riba (interest).” [Al-Baqara:275]
The rules and evidences regarding the Muslim woman having to wear Khimar (headscarf) and Jilbab, the allowance for man to marry up to four wives at one time, the prohibition of women being rulers and many other rules have come without Illah.
The means of extracting the Illah
i. Saraahatan (extraction of the ‘Illah from an explicit utterance)
Saraahatan refers to a sareeh or explicit indication of the text. What we mean by explicit indication is that the reasoning (ta’leel) is in the mantuq or the pronounced meaning of the text as opposed to the mafhum, which is the inferred meaning of the text. This we can see in the use of certain expressions and prepositions that denote reasoning. For example the expression ‘min ajl’ in Arabic which means ‘because of/ in order to’, it is an explicit indication of causality and not something that is inferred or derived from the text.
For instance the Messenger (saw) said:
«إِنَّـمَـا جُعِلَ الاسْـتِـئْذَانُ مِنْ أَجْلِ الْبَصَرِ»
“Indeed, permission has been made obligatory because of (min ajl) sight” [Bukhari 5772]
Here, the reasoning is explicitly pronounced in the text by saying ‘because of’. Thus, the reason for legislating the rule of asking permission before one enters another persons house is because (min ajl) one might see that which is not lawful to see, such as a non-mahram woman whose ‘awrah is not completely covered because she is in her private space. The same goes for the following saying of Muhammad (saw):
« إِذَا كُنْتُمْ ثَلَاثَةً فَلَا يَتَنَاجَى رَجُلَانِ دُونَ الْآخَرِ حَتَّى تَخْتَلِطُوا بِالنَّاسِ أَجْلَ أَنْ يُحْزِنَهُ»
“If there are three of you, two should not whisper to each other in front of the third because (min ajl) that will upset him.” [Ahmad: 1/375]
So the reason (‘Illah) for not whispering between two people while a third is present is because that might cause the third to become upset.
Shawkani lists a number of other expressions such as kay-la (so as not to), li-ajli (because of), li-alla, la'allahu kadha, bi-sahab kadha, etc. all of which are associated with the idea of explaining the causes [Irshad, p. 211].
ii. Dalaalatan (extraction from the implicit meaning)
To understand the extraction of this type of ‘Illah one must have some background understanding of dalalaatul lafaaz (textual indications) since it is from the indications (dalaalah) that the ‘Illah is extracted. The shari’ah text has two levels of meaning. One is the Mantuq which is the understanding one gets directly from the expression (lafz) used. For example Allah (swt) says: “Do not say to them ‘Uff’” [TMQ Isra: 23]
So saying ‘Uff’ is prohibited because ‘Uff’ is from the mantuq (pronounced or uttered meaning). But what about beating ones parents? Clearly this is not uttered in the text since the word ‘beating’ is not mentioned. The prohibition of such an action is understood from the implicit meaning or the indication (dalalah) of the text. i.e. that meaning is acquired from the indication of the expression (madlul al-lafz) and not from the expression itself. So beating is prohibited by greater reason.
There are many types of dalaalat (textual indications) but the one which concerns us here in terms of extracting the ‘Illah is the ‘dalaatul imaa wat tanbeeh’ (the indication of notification). This is where the implicit meaning notifies (tanbeeh) us of an ‘Illah.
Generally, this happens in two ways:
1. When the hukm is linked to a causal attribute (wasf mufhim) such that it has a mafhum mukhalafah (divergent meaning) or mafhoom muwaafaqah (congruent meaning). In other words the text mentions an attribute which rationally has a link to the hukm it has mentioned. This linkage is not uttered but understood from the text. For example:
The Messenger (saw) said:
« فى الغنم السائمة زكاة »
“On the grazing sheep zakah is payable.” The attribute which brings the hukm into existence is grazing. Naturally one might ask; what is it about grazing that obliges Zakah? If we think about the meaning of grazing we understand that it means to let the animals graze from the open pastures which are public property. Since this is taking from the public resources then one should pay it back by paying zakat i.e. give back to the public. Hence the one who feeds his livestock in a pen, he has not used the public resources and therefore Zakah is not payable. This causality (ta’leel) between the attribute and the hukm is not explicitly stated and hence it is not from the category of sareeh. But since it is understood from the meaning of the word grazing and its linkage to the hukm then we can say this is an ‘Illah extracted form the indication of the text i.e. this ‘Illah is notified (tanbeeh) by the implied meaning (mafhoom) and not from the uttered expression (mantuq).
Let us look at another example:
The Prophet (saw) said:
«إِنَّهَا لَيْسَتْ بِنَجَسٍ، إِنَّهَا مِنَ الطَّوَّافِينَ عَلَيْكُمْ وَالطَّوَّافَاتِ»
“The saliva of the cat is not impure (najas) because it is constantly around you (i.e. domesticated)” [Tirmidhi, Ahmad, Abu Dawud, Nasa’i, and Ibn Majah]
Here the hukm of impurity or purity of the cat’s saliva is linked to whether it is domesticated or not. So if the cat is domesticated then the saliva is pure and if not the saliva is impure. Here the text did not say explicitly that the reason for cat’s saliva being pure is because it is domesticated. Rather we understand this from the indication (dalaalah) of the word ‘domesticated’ and its linkage to the presence or absence of the hukm i.e. when the cat is around the house it is not going to eat najas (impurities) and hence its saliva is pure, but if it is wild then it is likely to eat whatever it finds outside and so its saliva will not be pure. This ‘Illah is not stated but understood or notified from the meaning of domestication and hence the ‘Illah is extracted from the indication (dalalaah) of the attribute. Thus, we call this ‘Illah an implicit ‘Illah.
2. The second category of the implicit ‘Illah is taken from the usage of particles (adawaat) which linguistically in origin do not give the meaning of ‘Illah but it is taken from the meaning implied by their usage. In total there are five ways in which this can take place but for sake of brevity we shall give one;
He (saw) said: “Whosoever revives a land, it belongs to him (man ahya ardan fahiya lahu)”
Here the ‘fa’ of consequence (fa at-ta’qeeb) is used to say that a land belongs as a consequence to the one who revives it. Hence one can deduce an ‘Illah from it because what came after the ‘fa’ was a consequence of what came before it. However the ‘fa’ in the Arabic language is not in origin used to mean consequence but has other usages as well. E.g. it may be used as a conjunction (like a waw) or it may be used to indicate emphasis.
For example: Allah (saw) says: “And (faa) unto Us is the return (failayna marji’ukum)” [TMQ 10:46]
Here the ‘fa’ means ‘and’.
Or it may mean a period of time as understood from the word ‘afterwards’ For example:
“Verily I am forgiving to him who repents, believes and does good deed; and afterwards remains constant (inni laghaffarun liman taaba wa aama wa ‘amila saalihan thummahtada)” [TMQ 20:82]
However from the usage of ‘fa’ in the hadith we can see it does not mean ‘and’ or ‘certain time period’ rather the context indicates consequence which gives the meaning of justification or ‘Illah i.e. the land belongs to him because he revived it. So again the ‘Illah here is not explicitly stated but understood from the indication (dalaalah) of the particle ‘fa’. Hence this is another example of an implicit ‘Illah.
One might ask what is the difference between ‘fa’ and ‘laam at-ta’leel’ which is considered to be explicit? The difference is that whilst ‘laam at-ta’leel’ in origin gives the meaning of causality unless the qara`in indicate otherwise, the ‘fa’ however does not give such a meaning. Rather what it means has to be indicated and understood from the context and therefore it is implicit and not an explicit ‘Illah.
iii. Istinbaatan (extraction by way of inference)
This ‘Illah is not taken from any explicit prepositions or particles and nor is it taken from the indication (dalaalah) of the uttered expression, rather it is inferred from the structure or a scrutiny of one or more texts.
For example:
When ‘Umar b. al-Khattab came to the Messenger (saw) inquiring if he’s fast was still valid after kissing his wife: the Messenger (saw) said:
“If you had gargled would your fast had been broken?” He (‘Umar) said: ‘No’ The Messenger (saw) replied: “then the same goes for kissing.”
Here the ‘Illah is not explicitly stated and nor is there an indication (dalaalah) from the wording as no attribute was mentioned. Rather a comparison is made between gargling and kissing. And it is from this comparison that we deduce the attribute or ‘Illah. We know in gargling the fast is broken when the water goes through so that must be the attribute common to kissing as well. Thus, the ‘Illah deduced is inzaal i.e. when the water goes through.
Let us take another example:
The Prophet (saw) explained them in the ahadith by their description rather than by enumerating them. Ibn Abbas narrated that the Prophet (saw) said:
«الناس شركاء في ثلاث الماء والكلأ والنار»
"Muslims are partners (associates) in three things: in water, pastures and fire," reported by Abu Dawud. Anas narrated from Ibn Abbas adding: «وثمنه حرام» "and its price is haram (forbidden)."
Ibn Majah narrated from Abu Hurairah (ra) that the Prophet (saw) said:
«ثلاث لا يمنعن: الماء والكلأ والنار»
"Three things are not prevented from (the people); the water, the pastures and the fire."
This is an evidence that people are partners (associates) in water, pastures and fire, and that the individual is prohibited from possessing them. But it is noticed that the Ahadith mentioned them as three, and they are Jamid (non-derived/rigid) nouns, and there was no mentioning of Illah (reason) in the Ahadith.
The Ahadith did not include Illah (reason), and this could imply that these three things are the only ones which represent public property with no consideration given to their depiction for the community’s need for them. However, if one scrutinised the issue he would find that the Prophet (SAW) allowed the possession of water in At-Taif and Khaybar by individuals, and they actually possessed it for the purpose of irrigating their plants and farms. Had the sharing (association) of water been just because it is water and not because of the consideration of the community’s need for it, then he would not have allowed individuals to possess it. So from the saying of the Prophet (SAW), "Muslims are partners (associates) in three things: in water, pastures and fire” and from his permission to individuals to possess the water, it can be deduced that the Illah (reason) of association in the water, pastures and fire, is their being of the community utilities that are indispensable to the community. So the hadith mentioned the three (things) but they are reasoned as being community utilities. Therefore this Illah (reason) is related to the reasoned (rule) in existence and in absence. So anything that qualifies as being of the community utilities is considered a public property, whether or not it was water, pasture or fire i.e. whether it was specifically mentioned in the hadith or not. If it ceased to be of the community utilities, even if it was mentioned in the hadith like the water it would not be a community utility, it would rather be of the things which can be possessed individually. The criteria for determining things to be a public utility is that anything which, if it was not available to the community, whether the community was a group of bedouins a village, city, or a State, and would cause them to disperse in search of it, then it would be considered of the community utilities, like the water sources, forests of firewood, pastures of livestock and the like.
Hence the ‘Illah here is a derived ‘Illah (‘Illah istinbaatiyyah) because it is inferred through the scrutiny of texts and not through an explicit meaning or an implied meaning of expressions.
iv. Qiyasan (extraction through analogy)
This is when a new ‘Illah is extracted from an existing implicit ‘Illah by way of analogy to the effective link that both share. To help us grasp this let us look at the following road safety instruction:
‘Do not drive when tired’
The effective link between tiredness and driving is that driving when tired may cause us to have an accident. Hence, the attribute of tiredness is obviously the ‘Illah for the instruction not to drive. However, because there is an effective link between the original attribute and the hukm then it is possible to make analogy between the existing attribute and any new attribute which shares the same effective link. Hence driving when stressed is analogous to tiredness because it shares the same effective link which is that it may cause an accident and hence this would be an example of a new ‘Illah extracted though Qiyas. So driving when stressed would also violate the instruction jut like tiredness.
Now let us apply the same principle to the following hadith:
« لا يَقْضِي الْقَاضِي بَيْنَ اثْنَيْنِ وَهُوَ غَضْبَانُ »
“The judge should not pass judgment in a state of anger” [Abu Dawud, Sunan, III, 1018, Hadith no 3582]
Here the implicit ‘Illah for not passing judgment is anger because anger will effect the judgment. So the effective link between the attribute of anger and the rule is disruption to objective thinking. Due to the existence of an effective link we can make analogy between anger and other new attributes which share the same effective link and extract a new ‘Illah though Qiyas. For example hunger is analogous to anger because it shares the same effective link, which is that it will effect objectivity. Hence hunger is a new ‘Illah derived through analogy. The Companions have extended the ruling of this Hadith to anything which resembles anger in its effect such as extreme hunger and depression. [Sha`ban, Usul, p. 151.]
One might say what is the difference between the implicit ‘Illah (‘Illahtu dalaalah) and the ‘Illah of analogy (‘Illah Qiyasiyyah) with regards to the extension of the original rule? Are they not the same? The answer is that the implicit ‘Illah is a causal attribute (wasf mufhim) and the extension of the rule is achieved if the new matter shares that causal attribute. However in the Illah of analogy the new matter does not come under the causal attribute. Rather the extension of the rule is through the extraction of a new ‘Illah and not through extension of the causal attribute to new matters.
For example the Hadith:
“On the grazing sheep zakah is payable”
Here the ‘Illah or causal attribute is ‘grazing’ for the rule of paying Zakat. New ahkam are derived when the new matter has the same attribute as the old matter. So Zakah needs to be paid for example on grazing camels because it has the same attribute of grazing as the old matter. This is different to the ‘Illah Qiyasiyyah because the new matter does not come under the old matter. So the attribute of hunger is different to that of anger. Hunger effects the hukm not because it comes under the original attribute but because it shares the effective link of the old attribute. So the difference really is that in the implicit ‘Illah new ahkam are derived by extending the original attribute to new matters while in the analogous ‘Illah new ahkam are derived by extracting new attributes which share the same effective link.
The shuruut (conditions) of ‘Illah
In order to insure that an ‘Illah is truly wahy (revelation) and not the product of the mind the following conditions have been stipulated:
a) The attribute should be understood to be the baa’ith or cause of legislating the rule and not what introduces (mu’arrifan) its presence; otherwise this will be a sabab. For example the Hadith:
“Fast when the moon is sighted (sumu li ru`yatihi)”
This is a sign of the existence of the rule and not cause or baa’ith of the legislating the rule. There is no rational link between the moon and fasting and hence the mind cannot understand any causation from this. So the sabab (cause) shows the presence of a legislated rule while the ‘Illah shows the reason for legislation.
Another example is the verse:
“Perform the salah from the decline of the sun [li-duluk al-shams] until twilight at night.” [TMQ Sura al-Isra', 17:78] This verse establishes the sabab (cause) of this salah as the time when the salah is due. Since the cause of the ruling in this text is not discernable to human intellect, it is referred to as a sabab but not as an 'Illah.
Sometimes the word sabab has been used by some scholars as a substitute for 'Illah. They normally make the distinction that sabab is normally reserved for devotional acts (ibadat) whose rationale is not perceptible to the human intellect. From this distinction, they belive that every 'Illah is concurrently a sabab, but not every sabab is necessarily an 'Illah. [Khallaf, `Ilm, pp. 67-68.]
b) The attribute must be effective (mu`athirah). This is because an attribute cannot be the ‘Illah of the hukm if the attribute did not effect the hukm. If the hukm continues regardless of what the attribute is then that attribute is not an ‘Illah. For example in the verse relating to Hajj: “That they may witness things that are of benefit to them” [TMQ 22:28] Whether one sees something beneficial or not does not effect the hukm of Hajj. So the hukm of hajj remains regardless of what benefit one may or may not obtain.
c) The attribute must be a causal attribute (wasf mufhim) i.e. it is an attribute which is Zaahir (evident in meaning) and mundabit (stable in its application) and have a proper relationship (munaasib) to the hukm. When it fulfils these criteria we can say it is a causal attribute. The reason it must be evident in meaning is because the ‘Illah needs to be extended to new realities. This cannot be done if the ‘Illah itself is obscure (khafi). As for mundabit; it means the ‘Illah is constant and not subject to differences in person, time and place. For example: if someone says: ‘a good curry is when it has plenty of chilli’, hot cannot be a constant and stable reason why is curry is good because it differs from person to person and hence cannot be extended to other foods. Similarly the ‘Illah must be stable and constant otherwise it cannot be applied to new realities. As for munaasib, this means one can intellectually see a rational link between the ‘Illah and the hukm. So not judging when in a state of anger for example is munaasib because there is a rational link, without a rational link one cannot judge if an attribute is the cause of the hukm or just a sign of its presence.
d) The attribute must be muttaridah. This means there must be a cause effect relationship between the attribute and the hukm. So the Illah not only effects the hukm but its absence entails the absence of the hukm and its presence entails the presence of the hukm. This is the reality of a true cause, which is that the effect is always dependent on the existence of the cause, and so in the same manner the hukm is always dependent on the existence of the ‘Illah.
For example:
“O Prophet! Tell your wives and your daughters ad the women of the believers to draw their cloaks (Jilbaab) all over their bodies. That will be better, that they should be known and not be molested.” [TMQ 33:59]
Although this ayah has come in the form (seegha) of an ‘Illah, it cannot be considered as such because the attribute is not muttaridah i.e. the hukm of jilbab remained in the time of the Messenger (saw) regardless of whether the women were molested or not. So molestation cannot be the cause of the rule because there is no cause-effect relationship between molestation and wearing the Jilbaab.
e) The attribute must be muta’addiyah i.e. extendible to new realities otherwise Qiyas cannot take place. So the verse:
"As to the thief, male or female, cut of f his or her hands." [TMQ Al-Ma’idah:38]
It contains an ‘Illah which is theft. However, because the ‘Illah cannot be extended to new matters it is qaasira (deficient and non-extendible). Hence it is termed a sabab (cause) because it merely serves as a sign for the presence of the rule.
f) The ‘Illah should not be confused with the hikmah. ‘Illah is the reason for legislating the rule while the hikmah is the result sought from the hukm.
Allah alone knows it the Hikmah (wisdom) behind a law, since our mind cannot conceive the essence of Allah, and hence we cannot comprehend His Hikmah. Sometimes the Hikmah has been mentioned in the texts, such as the saying of Allah (swt), "Lo! Prayer (Salah) preserves from lewdness and iniquity", and Allah (SWT)'s saying:
“Fasting has been written for you as it was written for those before you so that you may gain Taqwa”
Here Taqwa is a result sought from the fasting and not the reason for its legislation. If it was the reason that would mean fasting is no longer obligatory on the one who has attained God-fearing and piety. Also keeping away from lewdness and iniquity is the result sought from Salah and not the Illah, if it were the Illah this would mean that you do not need to pray Salah if it didn’t keep you away from these things.
g) And finally the attribute should not contradict another text from the Qur’an, Sunnah or ijma’ Sahabah.
For example someone may think that we can make Qiyas from the rule of duress to the issue of transplanting organs from a dead body in order to save someone’s life. One of the evidences for the rule of duress is the following verse:
“He has forbidden you Al-Maytah (meat of a dead animal), blood, flesh of swine, and any animal which is slaughtered as a sacrifice for other than Allah. But if one is forced by necessity without willful disobedience and not transgressing, then there is no sin on him. Truly, Allah is Oft Forgiving, Most Merciful.”[TMQ Al-Baqarah:173]
So the person who is in dire need can eat of what he finds from these prohibited foods that which is enough to keep him alive. If he does not eat from what is prohibited and dies, he is sinful, and he has killed himself. Allah (swt)said, “And do not kill yourselves.”[TMQ An-Nisa:29]
Based on what was mentioned of the rule of duress, can the same rule be applied to transferring organs from a person who is dead to another per son who is in need of it to save his life by Qiyas?
This Qiyas would be invalid as it contradicts the prohibition of violating the sanctity of the dead body, hurting, or mutilating it which is established by the following texts:
Aisha (ra), the mother of the believers, may Allah bless her, narrated that the Prophet of Allah said:
“Breaking the bone of a dead person is just like breaking it when he is alive.”[Ahmad, Abu Dawud and Ibn Habban]
Imam Ahmad narrated that ‘Amir ibn Hazm al-Ansari said the Prophet of Allah saw me leaning on a grave and said;
“Do not harm the owner of the grave”
Abu Hurayrah narrated that the Prophet of Allah (saw) said:
“For someobody to sit on a burning piece of charcoal and burn himself is better for him than to sit on a grave” [Muslim and Ahmad]
These ahadith show clearly that the dead have a sanctity just like the living body. They also show that violating the sanctity of the dead body and hurting it, is like violating the living body and harming it. So the result of the aforementioned Qiyas would be invalid as it contradicts these texts.
Customs and traditions cannot be an Illah
The valid Illah is the Shar'ai Illah that is mentioned in the text from Qur'aan and Sunnah, for only these two are the Shar'ai texts. Therefore, the Illah upon which the reasoned hukm Shar'ai is built is a Shar'ai Illah and not a rational Illah. In other words, Illah must be mentioned in the text either explicitly or implicitly or by deduction or through Qiyas. This Illah is connected with the reasoned hukm in presence and absence. Thus the rules revolve with their Illahs. So we find a thing is prohibited in a situation due to the existence of a Shar'ai Illah, and if this Illah disappears that very thing becomes permissible. So the hukm Shar'ai revolves with the Illah in existence and in absence, thus when it exists the hukm exists, and if the Illah does not exist the rule doesn't exist either. However, the absence of the rule due to the absence of the Illah does not at all mean that the Hukm Shar'ia has changed, rather the hukm Shar'ai of the question remains as it is, without change. It is only the rule no longer applied due to the absence of the Illah, and will be applied once the Illah returned. The relationship of the rule with the Illah in existence and in absence does not mean that the rules change due to the change of the time and place, thus claiming that bringing about the benefit and preventing corruption is the Illah of the Hukm Shar'ai, which changes as the time and place change, so the Hukm Shar'ai changes accordingly. This is because bringing about benefit and preventing harm are not at all the Illah of the Akham, since no text came to denote that bringing about benefit and preventing corruption are Illah for all the Akham, nor to denote that they are a Illah for a specific rule. Thus, it cannot be taken as a Shar'ai Illah. Moreover, the Shar'ai Illah is that which is taken from a shar'ai text and therefore should be restricted to it and its meaning. The shar'ai text has neither indicated that bringing about a benefit nor warding off corruption as being the Illah. Thus, the shar'ai Illah would be that which the shar'ai text has brought, not the bringing about of benefit nor warding off corruption. That which is brought in the text is not indicated by the time or the place nor indicated by the action itself. It is rather indicated by the text in manifesting the Illah of the rule. This text never changes, so no consideration is given to the time and place in this context, nor is there a value to bringing about benefit and preventing corruption. Accordingly, Ahkam Shara'iah do not change with the change of time and place, they remain as such regardless of the change of times and places. As for the change of traditions and customs of people, this does not have an effect in changing the rule, for the tradition is not a Illah of the Hukm Shar'ai nor a source for it. The traditions may agree or disagree with the Shar'a. If they disagree with the Shar'a then the Shar'a has come to abrogate and change them, since the function of the Shar'a is to change the corrupted traditions and customs, because they are the factors that cause corruption of the society. Therefore, they are not taken as a source for the Hukm Shar'ai nor a Illah for it and the rule does not change because of it. However, if the traditions were in agreement with shar'a, then the rule is proved by its Shar'ai evidence and by its Shar'ai Illah and not by these traditions, even if these traditions do not contradict the Shar'a. Therefore, the customs cannot rule over the Shar'a, rather the Shar'a rules over the traditions and customs. Accordingly, the Ahkam Shara'iah have their own evidence which is the text and they have Shar'ai Illah and the traditions and customs are not a part of that at all.
Difference between Manatt al hukm (reality of the rule) and Illah
It would be wrong to say that the Manat-ul Hukm is the reason behind the Hukm (I’llatul Hukm). This cannot be said because the subject (Manat) of the verdict is different from the reason (Illah) of the verdict, in fact there is a big difference between the subject and the reason. The Illah is what induces the verdict to be initiated, i.e. it is the thing that indicates the intention of the Legislator behind the verdict. This, without any doubt, requires a Shari’ah evidence to indicate it clearly so that it is understood that it is the intention of the Legislator for initiating the verdict. As for the subject of the verdict, this is the subject upon which the verdict applies or to which the verdict is related. In other words, it is the issue which the verdict conforms and not its evidence nor its reason (Illah). It therefore, follows that the Manat (reality) is the thing which the verdict is attached to, i.e. the verdict is brought to deal with it, or solve it. It is incorrect to say that the verdict is brought because of it, so as to say that it is the Illah behind the verdict. The Manat of the verdict is the non-textual aspect of the Shari’ah verdict. To comprehend it would be other than to comprehend the Illah. As comprehending the Illah would be to understand the text or texts which had come to justify the Illah.
For example, alcohol is haram, the divine law is the prohibition of alcohol. The investigation that a certain drink is alcohol or not, so as to judge it as haram or not is a investigation of the manatt. It is necessary to study whether the drink is alcohol or not in order to state that it is haram. The investigation of the reality of the alcohol is a verification of the manatt. And if you said that the water allowed to use for wudu is the mutlaq (absolute, unrestricted) water then the divine law is that the mutlaq water is the one which is allowed for wudu. So the investigation that the water is unrestricted or restricted in order to judge upon it as allowed for wudu, is a verification of the manatt. Therefore, it is necessary to study the water to determine if it is free or restricted. This study of the reality of the water is the verification of the manatt. And if you said the person who made hadath (discharged something from back or front) has to make wudu for the prayer, then the verification that the person is mohdath or not mohdath is a verification of the manatt, and so on. The famous Maliki scholar Imam al-Shatibi (died 780A.H.) said in the book Al-Muwafaqat: ‘These subjects and the like which we necessitated to define the manatt must take the evidence about it according to the reality of every incident.’ And he further states: ‘Ijtihad could be connected with the verification of the manatt, and thus it does not require the knowledge of the aims of the law giver (Allah), nor does it require the knowledge of the Arabic language, because the aim of this ijtihad is knowing the subject as it is. So it requires the knowledge of what this subject can’t be recognised without. Therefore the mujtahid has to be knowledgeable and mujtahid from this aspect in order to apply the divine law according to the specific requirement.’
The investigation of the Illah is referred to the understanding of the text which came justified (provided with reasoning). And this is an understanding of the ayat or ahadith, and it is not of the manatt. So in order to verify the manatt such as the verification of whether a liquid is alcohol is the investigation of the thing that is the subject of the shari’ah. Accordingly, it is not a condition that the one who verifies the manatt be a mujtahid or a Muslim, but it is enough that he or she to be knowledgeable of the matter.
The classical confusion
The Maqaasid (aims) of the Sharee’ah
One of the classical confusions regarding the subject of ‘Illah is the claim that the maqaasid (aims) of the Sharee’ah are the reasons (‘Illah) for the ahkams. This stems form the view that the Sharee’ah has come for the benefit (maslahah) of man. This benefit then is categorized into the five maqaasids or aims of the Sharee’ah which are; the protection of: Deen, life, mind, lineage and property. So if the Sharee’h as a whole seeks these aims then, it is concluded, that they must be the ‘Illah of the individual ahkaams. This is also established from a scrutiny (istiqraa) of the ahkams themselves which show that they seek these aims. So upon scrutiny one can see this from the results of the ahkams, the hikmahs and ‘Illahs contained within the text that these aims are sought. Thus it is concluded that aims or maSlaHa of the Sharee’ah are the ‘Illah of ahkaam. Those who followed this method of ascribing ‘Illahs to ahkams put conditions for this process. i.e. giving ‘Illahs to ahkams because they either contained a hikmah or a maslahah consistent with the maqaasid. They said the Sharee’ah must either acknowledge the maSlaHa or a text must not explicitly cancel it or there should be no text which stops us from considering its benefit. Hence they divided the benefits (maSaaliH) into three types:
i. Maslaha mulgha
ii. Maslaha mu’tabarah
iii. Maslaha murslaha
The first category is where the maSlaHa is canceled by the text itself. So when the text ordered jihad, for example, naturally this entailed the loss of life which contradicts the aim or maSlaHa of preserving life, but this maSlaHa is cancelled because of the text. However actions which have ahkams that do not explicitly cancel the maSlaHa fall under the second category of mu’tabarah where, it is claimed, their benefit is acknowledged by the Sharee’ah. So for example the maSlaHa or aim in the prohibition of drinking alcohol is acknowledged (mu’tabar) because it’s prohibition has a daleel. As for what that maslaha is, that is determined by the maqaasid. One of the maqaasid is the preservation of the mind so that becomes the maSlaHa of prohibiting alcohol and intoxication becomes its ‘Illah because it realizes the aim of preserving the mind. Naturally, this ‘Illah is extended to prohibit things other than alcohol which also intoxicate the mind. As for the third category; maSaaliH mursalah, this is where there is no specific daleel for the action so we cannot say its benefit has been canceled or that it has been acknowledged. However this action will come under the comprehensive daleel (daleel kulli), which they say are the five aims of the sharee’h. So if it realizes one of the aims of the Sharee’h then that is the maSlaHa of the action and on that basis the action would be legitimized. This is because the aims are treated as ‘Illahs, so if an action fulfils the aim then it is legitimate. Advocates of this view cite the example of when the Sahabah compiled the Qur’an. Here they say there is no specific daleel for that action but the action fulfils the maSlaHa of preserving the Deen and hence the action is obligatory. This is because the action fulfils the ‘Illah, which is the preservation of the Deen. Since the maqaasid have been arrived at through istiqraa i.e. scrutiny of the texts then they serve as the comprehensive evidence (dalil kulli) for actions which lack a specific daleel.
Thus, the above method is treated by some scholars as one of the ways (maslak) of identifying the ‘Illah. However if we examine the arguments we find their understanding is mistaken for the following reasons:
i. The maqaasid are aims of the sharee’ah as a whole and not the aims of the individual ahkams
The premise that the aims (maqaasid) are the aims of individual ahkaams is not correct. This is because the benefit of man is the ghaayh or aim of the Sharee’ah not the ‘Illah. For example: when Allah (swt) says:
“We have not sent you except as a mercy”
Here the mercy is a description of the message as a whole or in other words the Sharee’ah as a whole has come for the maSlaHa or good of man. However this does not mean the individual ahkaams have come as maslahah because there is no indication in the text which gave any consideration to the subject of benefit in harm. Rather, the ahkaams have come regardless of what the benefit or harm is. So man has to fight jihad even though he may lose his life and the hand of the thief is cut even though he may not be able earn his own living.
ii. Maqaasid are results of ahkaam and not their ‘Illah
As for the five maqaasids they are the results of certain ahkam and not the ‘Illah of these ahkams. For example Islam permitted polygny without providing an ‘Illah. However the reality of applying the hukm of polgany is that certain problems are solved. For example if the wife cannot bear children or the number of women in society is greater than men; these problems can be solves as result of applying the rule of polygany. Hence the hukm of polygamy brings certain results but these are not the ‘Illah of the hukm. The same goes for the rest of the ahkaams from which the maqaasid are extracted.
iii. The Hikmah are the aims sought by the lawgiver and not the ‘Illah of ahkaam
This is because the hikmah is the result desired by the Lawgiver and not the Lawgiver’s reason for legislation of the rule. So when Allah (swt) said:
“That they may witness things that are of benefit to them” [TMQ 22:28]
The benefits here are the results sought after the rule of hajj has been legislated. They are not the reason why hajj has been legislated otherwise hajj would not be necessary after the benefits have been acquired, which is absurd.
It is worth pointing out that the results and hikmah of ahkaam have nothing to do with the process of legislation and extraction of ahkaam as they come after the legislation of the rule. Only the ‘Illah is of significance because it is what causes the legislation to come into existence. Thus, the subject of hikmah and maqaasid are irrelevant when it comes to legislating rules.
iv. Finally, the maqaasid are not daleel kulli (comprehensive rules) which can serve as Illah’s for actions which lack a specific daleel.
As for the argument of istiqraa i.e. because the maqaasid have been taken from a scrutiny of the texts and hence this is a daleel kulli (comprehensive rule) to cover actions which do not have a specific daleel. This is wrong from two perspectives. Firstly, the maqaasid are merely a description of the reality of the ahkams and not the dalil kulli. Secondly, the dalil kulli is not a description of the reality of ahkams but a principle contained in a single or collection of daleels. So the principle of hiring is taken from the ayah about suckling. This is not the same for the maqaasid. They are the results and aims of the specific ahkaams from which they have been deduced, these results and aims cannot be used as evidences for other actions because the hukm shar’I is taken from a daleel or collection of daleels but not from the results and aims of daleels. So the fact that drugs like cocaine and heroin are Haraam is taken from the daleel like the Hadith:
“Every intoxicant is khamr and every khamr is Haraam.” [Abu Dawud, Sunan, III, 1043, Hadith no. 3672.]
The daleel for their prohibition is not the aim of protecting the mind, which is merely a result of certain ahkaam and hence cannot serve as a daleel.
2. as-Sabr wat taqseem or tanqeeh al manaat
Another erroneous means of extracting the ‘Illah is the process known as sabr wt taqseem (examination and isolation of the attributes) or tanqeeh al-manaat (isolating the ‘Illah). This is when the mujtahid examines, isolates and then eliminates those attributes (awsaaf) which could serve as ‘Illah for the hukm. For example khamr has a number of attributes; grape juice, it is a liquid and it can intoxicate. So the mujtahid like a detective tries to isolate the attribute (wasf) which best fits the conditions of the ‘Illah. He dismisses the first attribute because it is not extendable i.e. it cannot be applied to other things. As for being a liquid this cannot be the ‘Illah because it is not mu’atthirah ie it does not effect the hukm ie there is no rational link between the prohibition and the fact that it is a liquid. In the end he will go for the last attribute ‘intoxicant’ because it is munaasib ie agrees with the aim (maqsad) of preserving the mind. This process is wrong for the following reasons: Khamar is a noun and not an attribute and so to isolate the attributes that khamar has without the text indicating their consideration is incorrect. The text did not indicate whether explicitly or implicitly that intoxication is the ‘Illah for prohibition. As for the maqaasid, as we said above they are but results and aims of certain ahkaam and cannot be used to determine whether a certain attribute is an ‘Illah or not. The only way to do this is if the text itself gives an attribute which has a causal link to the hukm. Otherwise, one would be merely shooting in the dark and the result would be arbitrary.
Contemporary confusion:
Some contemporary scholars who have either been influenced by the western ideas and ways of thinking or they are loyal employees of certain corrupt governments and have sought to justify stances and positions based on an erroneous expansion of the above principles. We find them mutilating the Deen of Allah all in the name of maSlaHa. So Ibn Baz (though reportedly he later retracted the opinion) once believed peace with Israel was allowed because it is a maSlaHa whilst working to change the rulers is an evil if it entails bloodshed. Fahmi Huwaydi thinks that it is allowed to change the Khaleefah every so-many years because the text, he claims, is silent on this matter and the highest Maslahah of the Ummah would be neglected if we did not do this. Whilst Yusuf al Qaradawi thinks participation in a kufr government is allowed because it is a way of removing harm. Maulana Mawdudi on the other hand surmised that ruler should be bound by all the decisions of the shura because past Khulafah were dictatorial but it is okay to vote for a woman leader because it is a lesser of two evils. In all of these views the criteria is unrestricted benefit (maSlaHa) which contradicted the understanding of the classical scholars in two fundamental ways:
a) The classical scholars only considered the maSlaHa which did not contradict the known text whiles the above scholars ignored the text. So peace with the occupiers of Islamic land such as with Israel, the participation in kufr government, appointing a woman as a ruler etc are Haraam due to clear Qati meaning in the texts and would have come under the cancelled maslahas (mulgha) if we follow the classical criteria.
b) Whenever a new issue or problem came up the classical scholars would study the Qur’an, Sunnah, Ijma’ and Qiyas. If they did not find the daleel they would make recourse to maSaaliH mursalah. Thus, maSaaliH mursalah would be the last resort. But for the above scholars it is the first resort as if they are applying the Usul backwards. So the first thing they would consider is the maSlaHa whilst the evidences from the primary sources are either interpreted away or ignored.
The above type of thinking is a disease which has affected the legislative thinking of the Muslims. It has opened the floodgate to kufr thoughts and solutions. Thus, it is important to understand the correct methodology for extracting the ‘Illah.
Discussing the consequences of rules
The absence of Illah in many of the rules does not mean that it is prohibited to discuss the consequences of applying the shari’ah rules upon the reality and how it will solve problems. This is permitted and useful especially when it comes to explaining the systems of Islam such as the social, economic, punishment and ruling systems. Explanation of the reality is not a justification for a hukm and we should be careful not to make consequences of applying the shari’ah rule as an Illah for the rule as it has no relationship to Qiyas.
For example we can discuss how the rules from the Islamic social system such as separation of men and women, the dress code, etc will create a society where there will be less agitation of the instinct of procreation and a society in which there will be less rape, molestation, fornication and the like as was the reality under the Islamic Khilafah in the past.
Another example is that of polygyny (marrying more than one wife), we can discuss how this shari’ah rule can solve problems in the reality. It us clear from the effect of polygyny/plurality of wives that in the community in which it is permitted there will not be a plurality of mistresses, and in communities which forbid the plurality of wives will have a plurality of mistresses. In addition, polygyny solves many other problems, which take place in a human community in its capacity as a human community, which depends on polygyny to solve them. The following are some examples of these problems:
1. There are some men with unusual dispositions, who are unable to satisfy themselves with one wife. Either such men will oppress or hurt their only wife or they will look at other women if they find the door shut in front of them to take a second, third or fourth wife. There is a danger of this happening in terms of the spread of indecency and fornication amongst people and the creation of suspicion and doubts within families. Therefore, it is essential that a person who possesses such a disposition should have the opportunity to satisfy his strong urge in a halal manner i.e. in a way that Allah (swt) has legislated.
2. It may be that a woman is barren and therefore cannot bear children but her husband still loves her dearly and vice versa, which makes them determined to continue with their happy married life. The husband may however desire offspring and have a love for children. If it is not permitted for him to marry another wife and he finds no options available to him he will have to either divorce his first wife, which would lead to the destruction of the stability of the household and the end of a happy marriage, or he is deprived from enjoying offspring. This will lead to the suppression of the aspect of fatherhood present in the procreation instinct. Therefore, it is essential that such a spouse is given the opportunity to marry another wife in addition to the existing wife so that he can have the offspring which he desires.
3. The wife may be ill with a disease, which excuses her from having conjugal relations or looking after the house and seeing to the husband and children. She might still be cherished and dearly loved by her husband who might have no wish to divorce her, although he cannot live his life properly with just her alone, and consequently without another wife. It is imperative that in such a situation the opportunity is given to him to marry more than one wife.
4. Wars and uprisings might take place which claim the lives of thousands, even millions of men which may upset the balance between the ratio of men and women, as has happened previously, especially in Europe, in the First and Second World War. If a man is not able to marry more than one wife what are the rest of the women supposed to do? They will be deprived from family life and the happiness of a home and the ease and comfort of married life, not to mention what the procreation instinct can lead to in terms of the danger to morality.
5. It may be that in a nation, people or region the number of males and females is not equal. The number of females may be higher than males so the numerical balance between men and women is upset. And this is in fact the case amongst many peoples and nations. In such a situation there is no solution to this problem except the permissibility of polygyny.
These are real problems faced in the human community among peoples and nations. The Islamic rules when applied practically solve these problems.
Abu Ismael
Comments
This article is really interesting. JazakumAllah kheir.
I am confused about one thing though. The issue of jilbab was explained by some to be not fard because they said that the reason to wear it was to distinguish between the free women and what-your-right-hand-posesses, and now all of us (or most) are free women so there is no need to wear the jilbab anymore.
The reason why I'm confused is because the verse itself mentions that the jilbab should be worn so that the free women would be recognized. So from the wording it seems as if that is the illah.
... that they should cast their outer garments "جَلَابِيبِهِنَّ " over their persons (when abroad): that is most convenient, that they should be known (as such) and not molested...(33: 59)
I have read the entire article, and about the part where it says that clothing is not subject to an illah. So I was wondering if u can explain this concept (with daleel) in greater detail, especially in terms of the jilbab issue.
I consider the jilbab fard, and was asked about this issue but was not able to answer properly because of this confusion.
Hope to hear from you soon
wa aleikum salam
Question: Is the opinion regarding jilbaab qat'I because qardawi says 'Illah is modesty. Therefore, so as long as one is modestly attired jilbaab is not necessary?
Answer: Wearing the jilbaab is a hukm shar’i. It is wajib. Its daleel is qat’I but the Fuqaha differed over the description of ‘Idnaa’ (draping) in the ayah: ‘..to draw (idnaa) their jilbaabs over their bodies.’ So the jilbaab is definitely mentioned in the ayah but with regards to ‘idnaa’ (drawing or draping): some said it means draping it from the top of the head to the face and some said draping down the jilbaab means to the floor such that it covers the feet. And this is the preponderant view for us. As for those who said the texts regarding wearing the jilbaab has a ‘illah which is modesty and what’s important is that the woman should be modestly attired whether with jilbab or not. This is wrong.
This is because the texts regarding this issue do not have an ‘illah. So the woman who asked the Messenger (saw): O messenger of Allah, what about the one who does not have a jilbaab? He said: Let her wear the jilbaab of her sister’ ie let her borrow her sister’s jilbaab so that she can go out.’ The mafhoom of this is she should not go out without the jilbaab. This is an explicit text which has no ‘illah. The Messenger (saw) did not allow her to go out unless she wore a jilbaab.
As for what was mentioned in the ayah:
ذلك أدنى أن يعرفن فلا يؤذين
‘that they should be known so as not to be annoyed’[ahzab:59] This is the cause of revelation and not the ‘illah, which is to distinguish the free women from the slaves.
Therefore, wearing the jilbaab in the public life is fard on women regardless of her state.
JazakumAllah kheir for your answer and your efforts.
As for the issue of the jilbab,it was argued that the illah is to differentiate between free women and what-your-right-hand-posseses.
Thinking more about it, I realized that since old women (with menopause and no wish to marry) do not have to wear the jilbab, regardless of whether they are free women or not, then the illah of ayat 33: 59 concerning the jilbab cannot be to differentiate between free and believing women.
Because if not, then the old women who are free would still need to wear jilbab to distinguish themselves from old women who are not free. Is this argument valid from an islamic point of view?
Also, I was just wondering if u can clarify why issues of food and clothing do not have an illah?
How did the fuqaha come up with that general rule? (i.e the reasons/ daleel as to how they came up with it)
JazakumAllah kheir for your efforts
wa aleikum salam