9.5. IDENTIFICATION OF THE ‘ILLAH
The effective cause of a ruling may be clearly stated, or suggested by indications in the nass, or it may be determined by consensus. When the ‘illah is expressly identified in the text, there remains no room for disagreement. Differences of opinion arise only in cases where the ‘illah is not identified in the sources. An example of the ‘illah which is expressly stated in the text occurs in sura al-Nisa (4:43): ‘O you believers! Do not approach salah while you are drunk.’ This ayah was revealed prior to the general prohibition of wine-drinking in sura al-Ma’idah (5:93), but it provides, nevertheless, a clear reference to intoxication, which is also confirmed by the Hadith ‘every intoxicant is khamr [wine] and every khamr is forbidden.
In another place, the Qur’an explains the effective cause of its ruling on the distribution of one-fifth of war booty to the poor and the needy ‘so that wealth does not accumulate in the hands of the rich’ (al- Hashr, 59:7).
Instances are also found in the Hadith where the text itself identifies the rationale of its ruling. Thus the effective cause of asking for permission when entering a private dwelling is stated in the Hadith which provides that ‘permission is required because of viewing’.
The ‘illah of asking for permission is thus to protect the privacy of the home against unsolicited viewing. In these examples, the occurrence of certain Arabic expression such as Kay-la (so as not to), li-ajli (because of), etc.., are associated with the concept of ratiocination (ta’lil) and provide definite indication as to the ‘illah of a given ruling.
Alternatively, the text which indicates the `illah may be a manifest nass (al-nass al-zahir) which is in the nature of a probability or an allusion (al-ima’ wa’l-isharah). Indications of this type are also understood from the language of the text and the use of certain Arabic particles such as li, fa, bi, anna and inna, which are known to be associated with ta’lil. For example, in the Qur’anic text (al-Ma’idah,5:38): `as to the thieves, male and female, cut off [fa’qta’u] their hands,’ theft itself is the cause of the punishment. Instances of this type are also found in sura al-Nur (24:2 and 4) regarding the punishment of adultery and false accusation respectively. In sura al-Nisa’ (4:34) we find another example, as follows: `As for women whose rebellion [nushuz] you fear, admonish them (fa-`izzu hunna) and leave them alone in their beds, and physically punish them.’ In this text, nushuz is the effective cause of the punishment. The writers on usul give numerous examples of instances where the Qur’an provides an indication,however indirect, as to the `illah of its rulings. The text of a Hadith may allude to the `illah of its ruling, There is, for example, a Hadith which provides that the saliva of cats is clean ‘for they are usually around you in the homes’.
Their domesticity, in other words, is the effective cause of the concession. Thus by way of analogy, all domestic animals would be considered clean, unless it is indicated otherwise And lastly, in the Hadith which provides that `the judge who is in a state of anger may not adjudicate,’ anger itself is the `illah of the prohibition. By analogy, the companions have extended the ruling of this Hadith to anything which resembles anger in its effect such as extreme hunger and depression.
Sometimes the word sabab is used as a substitute for ‘illah. Although sabab is synonymous with `illah and many writers have used them as such, nevertheless, sabab is normally reserved for devotional acts (ibadat) whose rationale is not perceptible to the human intellect. The text may sometimes provide an indication as to its sabab. Thus we find in sura al-Isra’ (17:78) which enjoins, `Perform the salah from the decline of the sun [li-duluk al-shams] until twilight at night,’ the sabab (cause) of salah is 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. From this distinction, it would appear that every ‘illah is concurrently a sabab, but not every sabab is necessarily an illah.
Next, the effective cause of a ruling may be established by consensus. An example of this is the priority of germane over consanguine brothers in inheritance, the ‘illah for which is held to be the former’s superior tie with the mother. This ruling of ijma’ has subsequently formed the basis of an analogy according to which the germane brother is also given priority over the consanguine brother in respect of guardianship (wilayah). Ijma has also determined the ‘illah of the father’s right of guardianship over the property of his minor child to be the minority of the child. Once again this right has, by analogy, been acknowledged for the grandfather. No ijma can, however, be claimed to exist in regard to the illah of the father’s right of guardianship over the property of his minor daughter. While the majority of ulema consider the illah in this case to be minority, for the Shafi’s, the illah in ijbar is virginity. The right of ijbar thus terminates upon loss of virginity even if the girl is still a minor.
When the ‘illah is neither stated nor alluded to in the text, then the only way to identify it is through ijtihad. The jurist thus takes into consideration the attributes of the original case, and only that attribute which is considered to be proper (munasib) is identified as the ‘illah. For example, in the Hadith referred to above concerning the penance of conjugal relations during daytime in Ramadan, it is not precisely known whether the ‘illah of the penance is the breaking of the fast (iftar), or sexual intercourse. Although intercourse with one’s wife is lawful, it may be that in this context it is regarded as a form of contempt for the sanctity of Ramadan. But it is equally reasonable to say that intercourse in this context is no different to other forms of iftar, in which case it is the iftar itself that is the ‘illah of penance. The method of reasoning which the mujtahid employs in such cases is called tanqih al-manat, or isolating the ‘illah, which is to be distinguished from two other methods referred to as takhrij al-manat (extracting the ‘illah) and tahqiq al-manat (ascertaining the ‘illah) respectively. This process of enquiry is roughly equivalent to what is referred to by some ulema of usul as al-sidr wa’l-taqsim, or elimination of the improper and assignment of the proper ‘illah to the hukm.
Tanqih al-manat implies that a ruling may have more than one cause, and the mujtahid has to identify the one that is proper (munasib), as was the case in the foregoing examples. Literally, tanqih means ‘purifying’, whereas manat is another word for ‘illah. Technically, tanqih al-manat means ‘connecting the new case to the original case by eliminating the discrepancy between them’ (ilhaq al-far’ bi’l-asl bi-ilgha’ al-fariq).
Extracting the `illah, or takhrij al-manat, is in fact the starting point to the enquiry concerning the identification of ‘illah, and often precedes tanqih al-manat In all areas where the text or ijma’ does not identify the effective cause, the jurist extracts it by looking at the relevant causes via the process of ijtihad. He may identify more than one cause, in which case he has completed the step involved in takhrij al-manat and must move on to the next stage, which is to isolate the proper cause. To illustrate this, the prohibition of usury (riba) in wheat and five other articles is laid down in the Hadith. When the jurist seeks to draw an analogy between wheat and raisins-to determine for example whether one should apply the tax of one tenth by analogy to raisins-the ‘illah may be any of the following: that both of them sustain life, that they are edible, that they are both grown in the soil, or that they are sold by measure. Thus far the jurist has completed the first step, namely extracting the `illah. But then he proceeds to eliminate some of these by recourse to tanqih al-manat. The first `illah is eliminated because salt, which is one of the six articles, does not sustain life; the second is also eliminated because gold and silver are not edible; and so is the third as neither salt nor precious metals are grown in the soil. The `illah is therefore the last attribute, which comprises all the specified items in the Hadith of riba. The difference between the two stages of reasoning is that in takhrij al-manat the jurist is dealing with a situation where the `illah is not identified, whereas in tanqih al-manat, more than one cause has been identified and his task is to select the proper illah.
Ascertaining the `illah, or tahqiq al-manat, follows the two preceding stages of investigation in that it consists of ascertaining the presence of an `illah in individual cases. For purposes of drawing an analogy between wine and a herbal drink, for example, the investigation which leads to the conclusion that the substance in question has the intoxicating quality in common with wine is in the nature of tahqiq al-manat. Similarly, in the case of drawing an analogy between a thief and a pickpocket, the investigation as to whether or not the latter falls under the definition of theft is in the nature of tahqiq al-manat.
by M. H. Kamali.
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