9.4. THE EFFECTIVE CAUSE (‘ILLAH)
This is perhaps the most important of all the requirements of qiyas. `Illah has been variously defined by the ulema of usul. According to the majority, it is an attribute of the asl which is constant and evident and bears a proper (munasib) relationship to the law of the text (hukm). It may be a fact, a circumstance, or a consideration which the Lawgiver has contemplated in issuing a hukm. In the works of usul, the `illah is alternatively referred to as manat al-hukm (i.e. the cause of the hukm), the sign of the hukm (amarah al-hukm), and sabab. Some ulema have attached numerous conditions to the illah, but most of these are controversial and may be summarised in the following five.
1. According to the majority of ulema, the `illah must be a constant attribute (mundabit) which is applicable to all cases without being affected by differences of persons, time, place and circumstances. The Malikis and the Hanbalis, however, do not agree to this requirement as they maintain that the `illah need not be constant, and that it is sufficient if the ‘illah bears a proper or reasonable relationship to the hukm. The difference between the two views is that the majority distinguish the effective cause from the objective (hikmah) of the law and preclude the latter from the scope of the illah.
The `illah is constant if it applies to all cases regardless of circumstantial changes. To give an example, according to the rules of pre-emption (shuf`) the joint, or the neighbouring, owner of a real property has priority in buying the property whenever his partner or his neighbour wishes to sell it. The `illah in pre- emption is joint ownership itself, whereas the hikmah of this rule is to protect the partner/neighbour against a possible harm that may arise from sale to a third party. Now the harm that the Lawgiver intends to prevent may materialise, or it may not. As such, the hikmah is not constant and may therefore not constitute the `illah of pre-emption. Hence the `illah in pre-emption is joint ownership itself, which unlike the hikmah is permanent and unchangeable, as it does not fluctuate with such changes in circumstances.
The majority view maintains that the rules of Shari’ah are founded in their causes (`ilal), not in their objectives (hikam). From this, it would follow that a hukm shar’i is present whenever its `illah is present even if its hikmah is not, and a hukm shar`i is absent in the absence of its ‘illah even if its hikmah is present. The jurist and the judge must therefore enforce the law whenever its ‘illah is known to exist regardless of its hikmah. Hence it would be a mistake for the judge to entitle to the right of pre-emption a person who is neither a partner nor a neighbouring owner on the mere assumption that he may be harmed by the sale of the property to a certain purchaser.
The Malikis and the Hanbalis, on the other hand, do not draw any distinction between the ‘illah and the hikmah. In their view, the hikmah aims at attracting an evident benefit or preventing an evident harm, and this is the ultimate objective of the law. When, for example, the law allows the sick not to observe the fast, the hikmah is the prevention of hardship to them. Likewise the hikmah of retaliation (qisas) in deliberate homicide, or of the hadd penalty in theft, is to protect the lives and properties of the people. Since the realisation of benefit (maslahah) and prevention of harm (mafsadah) is the basic purpose of all the rules of Shari’ah, it would be proper to base analogy on the hikmah.
The Hanafis and the Shafi’is however maintain that the `illah must be both evident and constant. In their view the `illah secures the hikmah most of the time but not always. Their objection to the hikmah being the basis of analogy is that the hikmah of the law is often a hidden quality which cannot be detected by the senses, and this would in turn render the construction of analogy upon them unfeasible. The hikmah is also variable according to circumstances, and this adds further to the difficulty of basing analogy on it. The hikmah, in other words, is neither constant nor well-defined, and may not be relied upon as a basis of analogy.
To give an example, the permission granted to travelers to break the fast while traveling is to relieve them from hardship. This is the hikmah of this ruling. But since hardship is a hidden phenomenon and often varies according to persons and circumstances, it may not constitute the effective cause of an analogy. The concession is therefore attached to traveling itself which is the `illah regardless of the degree of hardship that it may cause to individual travelers.
To give another example, the ‘illah in the prohibition of passing a red traffic light is the appearance of the red light itself. The hikmah is to prevent traffic irregularities and accidents. Anyone who passes a red light is committing an offence even if no accident is caused as a result. The ‘illah and hikmah can as such exist independently of one another,
the latter being less easily ascertainable than the former. On a similar note, the `illah in awarding a law degree is passing one’s final examinations and obtaining the necessary marks therein. The hikmah may be the acquisition of a certain standard of knowledge in the disciplines concerned. Now it is necessary that university degrees are awarded on a constant and reliable basis, which is passing the exams. The acquisition of legal knowledge often, but not always, goes hand in hand with the ability to pass exams, but this by itself is not as readily ascertainable as are the exam results.
2. As already stated, the effective cause on which analogy is based must also be evident (zahir). Hidden phenomena such as intention, goodwill, consent, etc., which are not clearly ascertainable may not constitute the `illah of analogy. The general rule is that the `illah must be definite and perceptible to the senses. For example, since the consent of parties to a contract is imperceptible in its nature, the law proceeds upon the act of offer and acceptance. Similarly the `illah in establishing the paternity of a child is matrimonial cohabitation (qiyam firash al-zawjiyyah), or acknowledgement of paternity (iqrar), both of which are external phenomena and are susceptible to evidence and proof. Since conception through conjugal relations between the spouses is not an obvious phenomenon, it may not form the ‘illah of paternity. On a similar note, the law adopts as the ‘illah of legal majority, not the attainment of intellectual maturity, but the completion of a certain age, which is evident and susceptible to proof.
3. The third condition of ‘illah is that it must be a proper attribute (al-wasf al-munasib) in that it bears a proper and reasonable relationship to the law of the text (hukm). This relationship is munasib when it serves to achieve the objective (hikmah) of the Lawgiver, which is to benefit the people and to protect them against harm. For example, killing is a proper ground on which to exclude an heir from inheritance. For the basis of succession is the tie of kinship which relates the heir to the deceased, and is severed and nullified by killing. Similarly, the intoxicating effect of wine is the proper cause of its prohibition. An attribute which does not bear a proper relationship to the hukm does not qualify as an ‘illah. To give an example, murder must be retaliated for, not because the perpetrator happens to be a Negro or an Arab, but because he has deliberately killed another. Similarly, wine is prohibited not because of its colour or taste but because it is an intoxicant.
4. The `illah must be ‘transient’ (muta’addi), that is, an objective quality which is transferable to other cases. For analogy cannot be constructed on a ‘illah which is confined to the original case only. As the Hanafis explain, the very essence of ‘illah, as much as that of qiyas in general, is its capability of extension to new cases, which means that the ‘illah must be a transferable attribute. Traveling, for example, is the `illah of a concession in connection with fasting. As such, it is an ‘illah which is confined to the asl and cannot be applied in the same way to other devotional acts (ibadat). Similarly, if we were to confine the `illah in the prohibition of wine to that variety which is derived from grapes, we would be precluding all the other varieties of wine from the scope of the prohibition.
Transferability (ta’diyah) of the effective cause is not, however, required by the Shafi’is, who have validated qiyas on the basis of an `illah which is confined to the original case (i.e. ‘illah qasirah). The Shafi’is (and the Hanafi jurist, Ibn al-Humam) have argued that ta’diyah is not a requirement of the ‘illah: when the ‘illah is confined to the original case, it is probable that the Lawgiver had intended it as such. The probability may not be ignored merely for lack of ta’diyah. It is a requirement which is intellectually conceived without due regard for the precise terms of the law itself. The Shafi’is have further argued that the utility of the `illah is not to be sought solely in its transferability. There is thus no inherent objection to the possibility of an ‘illah being confined to the original case. The ulema are, however, in agreement that the textually prescribed causes must be accepted as they are regardless as to whether they are inherently transient or not.
The requirement of ta`diyah would imply that the `illah of analogy must be an abstract quality and not a concrete activity or object. To illustrate this, we may again refer to the foregoing examples. Traveling, which is a concession in connection with fasting, is a concrete activity, whereas intoxication is an abstract quality which is not confined in its application. Similarly in the Hadith, regarding usury (riba), the `illah of its ruling which prohibits quantitative excess in the sale of the six specified articles is the quality of such articles being saleable by the measurement of weight or capacity and not their particular species. The Hadith thus provides that ‘gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates and salt for salt must be equal for equal, hand to hand […]’ Transaction in these commodities must, in other words, be without excess on either side and delivery shall be immediate, otherwise the transaction would amount to usury, which is forbidden. The ‘illah of this prohibition is none of the concrete objects that are specified but an attribute or a concept which applies to all, namely their sale ability by capacity or weight.
5. And finally, the effective cause must not be an attribute which runs counter to, or seeks to alter, the law of the text. To illustrate this we may refer to the story of a judge, Imam Yahya of al-Andalus, who was asked by an Abbasid ruler as to the penance (kaffarah) of having conjugal relations during daytime in Ramadan. The judge responded that the kaffarah in this case was sixty days of fasting. This answer was incorrect as it sought to introduce a change in the text of the Hadith which enacted the kaffarah to be freeing a slave, or sixty days of fasting, or feeding sixty poor persons. The fatwa given by the judge sought to change this order of priority on the dubious assumption that freeing a slave (or feeding sixty persons) was an easy matter for a ruler and he should therefore be required to observe the fasting only. The `illah of the penance in this case is held to be the breaking of the fast itself and not any disrespect to the sanctity of Ramadan, nor having sexual intercourse with one’s wife, which might have occurred to the judge while formulating his fatwa. Our next discussion concerning the `illah relates to the question of how the ‘illah can be identified. Are there any methods which the jurist may utilise in his search for the correct cause/rationale of a given law?
by M. H. Kamali.
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