Al-Waadih Fee Usool ul-Fiqh by Muhammad Hussein Abdullah

This is the reality upon which the Hukm is issued upon in the Aayah or the Hadeeth or the Ijmaa’. Therefore, the origin (Asl) in the first example is the steeds of war and the second example it is trading. As such the following is stipulated in respect to the Asl:

- The Asl upon which the Qiyaas is based must have been mentioned in a Nass (text) from the Kitaab, the Sunnah or be an Ijmaa’.

- Analogy is not made upon an origin where its Hukm has been established by Qiyaas. So in the example of the Jumu’ah prayer analogy is not made upon Ijaarah (renting/leasing) but rather Qiyaas is only undertaken upon the origin which is Al-Bai’ (trade).

It is the reality that the knowledge of its Hukm is sought after through making Qiyaas upon the origin.

It is stipulated in respect to this Far’u (branch):

- That the branch (Al-Far’u) does not have a text for its Hukm. If there was already a text for its Hukm then there would be no need for us to seek its Hukm by way of Qiyaas as there is no Qiyaas in the place of the text.

- That the ‘Illah is realised within the Far’u (branch) just as it is realised within the Asl. So in the case where the ‘Illah (reason) for the Tahreem (prohibition) of conducting trade at the time of the call to prayer for the Jumu’ah prayer is Al-Ilhaa’ (distraction), then if distraction was realised in the actions of leasing or practising a sporting activity then they would take the Hukm (legal ruling) of the Asl (origin) which is Tahreem. This is because if the ‘Illah of the Asl was not realised within the Far’u then it would not be possible to provide the Hukm of the origin to the branch.

It is the Hukm Ash-Shar’iy that is established for the Asl by the Kitaab or Sunnah or Ijmaa’ and the following is stipulated in regards to it:

1 – That it represents a practical Hukm Shar’iy that is established by the Kitaab or the Sunnah or Ijmaa’.

2 – That the Hukm is ‘Ma’qool Al-Ma’naa’ (the meaning can be understood and the rationale behind it) which means that it is built or based upon an ‘Illah that the ‘Aql (mind) can comprehend. That is because the basis of Qiyaas is perceiving the ‘Illah of the Hukm within the origin and perceiving its realisation within the branch. This is so that the Hukm of the Asl (origin) cane be extended to the Far’u (branch).

3 – That the Hukm possesses an ‘Illah that is possible to be realised within the branch. That is because if the ‘Illah was restricted to the origin whilst not possible to realise it within anything other than it, then Qiyaas is refrained from. This is like, for example, the cutting of the hand of the thief as taken from the Qawl of Allah Ta’Aalaa:

So ‘Saraqah’ (theft) is a restricted (Qaasirah) ‘Illah and does not extend to other than it. That is like ‘Al-Ikhtilaas’ (embezzlement/misappropriation) where the cutting of the hand does not apply to it. In this case, this restricted ‘Illah, is called a Sabab and Qiyaas is not made upon it.

4 – That the original ruling (Hukm ul-Asl) is not specific to the Asl (origin). This is because its specification to the origin (Asl) prevents making analogy with a branch upon it and as such there is no Qiyaas (in that case). This is like the specification of the permissibility for the Messenger of Allah (saw) to be married to more than four wives at the same time and the prohibition of marrying his wives after him.

Another example is the specification attached to Khuzaimah Bin Thaabit in respect to accepting his testimony alone and its consideration as being equal to the testimony of two. That is because this Hukm is Khaass (specific) to Khuzaimah which was established by the statement of the Messenger (saw): “What Khuzaimah gives testimony in regards to then that is sufficient for him” (Abu Daawood extracted it with the Lafzh (wording): “The Shahaadah (testimony) of Khuzaimah is (equal to) the Shahaadah of two men”). Consequently, analogy is not made to anyone else upon him irrespective of his level in terms of virtue and Taqwaa.

The ‘Illah is that thing (or matter) for the sake or purpose of which the Hukm came into being (i.e. why it was legislated) In other words, it is the motivating factor or reason (Baa’ith) for the Hukm. It is the rationale of the text, which means that it is what makes the ‘Aql (mind) pass judgement upon the branch with the same judgement of the origin due to their unity and commonality in respect to the ‘Illah (reason).

The following are its conditions:

It is necessary for the ‘Illah to be apparent (Zhaahir) and not concealed (or hidden) within the Asl (origin) so that its presence can be ascertained in the branch (Al-Far’u) in order to attach or link the branch to the origin in respect to the Hukm. The meaning of the ‘Illah being apparent is that it is comprehended or perceived through the senses or some of them.

So the intentional killing is the Sabab (cause or reason) for Al-Qisaas (law of retaliation) however deliberateness or the intentional nature of the act is not perceived by the senses and none but the one who undertook the action knows this. Therefore, the Shaari’ (legislator)

established a Zhaahir (apparent or evident) matter in its place linked to it and guiding to it. This is the tool that the killer used which from its nature is from that which kills like the sword, gun or rifle. These are limited things and so the ‘Ulamaa made Qiyaas upon them to heavy or bulky things that also kill from their nature like rocks and iron (bars).

This means that it does not differ in accordance to the difference of people, the difference of conditions or circumstances and the difference of places. So for example the killing (Qatl) mentioned in the statement of the Messenger (saw):

This killing is a Wasf Mundabit (consistent description) because it has a specific and limited reality that does not differ in accordance to the difference of the killer or the one who is killed. As such it is possible to make analogy upon the killer of the Waarith (one being inherited from) to the Mousaa Lahu (the one who takes from the will (Wasiyah) i.e. up to a third of the wealth that is left behind and allocated by choice) if he kills the Moosiy (the one who has made the will), and as such he (the killer) would be forbidden from taking the Wasiyah (the will).

As for hardship and difficulty (Mashaqqah) which is thought to be the ‘Illah for the permissibility of breaking the fast when travelling, then this is not Mundabit (consistent). That is because someone could travel and face hardship whilst he could be travelling and not face any hardship or difficulty in accordance to the differences of the people themselves, the means of transport used and the difference in the places and climates. Therefore, travelling (Safar) is not considered an ‘Illah nor is hardship considered an ‘Illah but rather Safar (travelling) is only considered to represent the Sabab (reason or cause) for the permissibility of breaking the fast whether the travelling entailed hardship or not. As such it follows that analogy is not made upon it because it is not an ‘Illah.

The Wasf Al-Munaasib is divided into two types or categories: AlWasf Al-Mu’aththir and Al-Wasf Al-Mulaa’im.

A – Al-Wasf Al-Mu’aththir for the Hukm and it has also been called Al-Munaasib Al-Mu’aththir:

It is the Wasf (description) that indicates that the Hukm is an effect from its effects and this is the highest type of the Munaasib. An example of this is the statement of the Messenger of Allah (saw):

The Hadeeth explains that the Messenger of Allah (saw) had forbidden the storage of the meat of the slaughters for the purpose of feeding the Arabs who were visiting or newcomers and were in need of food. This therefore is an explicit text in respect to the ‘Illah (reasoning) for the forbiddance of storing the meat and this ‘Illah is the travellers (Daaffah) who are the Arabs who were in need of food.

This ‘Illah is a Wasf Mu’aththir in respect to the Hukm of forbidding the storage of the meat from the sacrifices (i.e. there is a direct correlation between the ‘Illah and the Hukm).

However, had it been said for example: ‘I had forbidden you from storing due to the short men or for the white men’ then the Wasf (description) of ‘short’ and ‘white’ has no effect in respect to the Hukm. This is because the fact that they are short or white does not make them in need of the sacrificial meats which is opposite to that which was mentioned in the Hukm (in the Hadeeth) because the fact that they were in need of the food had an effect upon the forbiddance of storing the sacrificial meats away. That is because the ‘Illah is the motivating factor or reason (Al-Baa’ith) for the ruling and ‘the people in need’ is the motivating factor and reason (Al-Baa’ith)

for not storing away the sacrificial meats so that those in need can meet their needs.

This then is the meaning of the ‘Illah being a Wasf Mu’aththir in respect to the Hukm.

B – Al-Wasf Al-Munaasib Al-Mulaa’im Lil Hukm:

This is where the Wasf (description) is an ‘Illah for the Jins (kind/type) of the Hukm and not for the Hukm in itself. An example of that is the Qawl of Allah Ta’Aalaa:

The text has indicated that ‘Young age’ is the ‘Illah for taking guardianship (Wilaayah) over the wealth of the young. Some have made analogy of the ‘Wilaayah over the Nafs (person)’ upon the ‘Wilaayah of wealth’ and so they permitted the Waliy to not allow the girl whom he has Wilaayah (guardianship) over to marry without his permission.

As such the Arkaan of Qiyaas in this example are as follows:

Al-Asl (origin): Wilaayah (guardianship) over wealth (or property).

Al-Far’u (branch): Wilaayah over the Nafs (person).

Al-Hukm (ruling): Being able to dispose of wealth/property.

Therefore, the Wilaayah (guardianship) over wealth and the Wilaayah over the Nafs (person) are of the same kind or type (Jins) which is Wilaayah (guardianship). From this comes the ruling of the disposal over or conducting of marriage because it represents a Wilaayah over the Nafs.

The meaning of this is: That the ‘Illah is realised in the Far’u (branch)

just as it is realised within the Asl (origin). Therefore, being distracted (Al-Ilhaa’) from the performance of Salaat ul-Jumu’ah is realised in the branch like swimming or engaging in a sporting activity just as it is realised in the Asl of conducting trade. If the ‘Illah is not a Wasf Muta’addiy (i.e. it doesn’t extend to a reality beyond itself) then AlQiyaas does not take place. This is like when the Wasf (description) is restricted to the Asl (origin) like in the Aayah:

Here the ‘Illah of the Hukm, which is the obligation to lash the nonmarried fornicator with one hundred lashes, is restricted to the fornicator and it does not extend beyond that. Therefore, analogy is not made between homosexual acts and Zinaa and they do not take its Hukm. For that reason, Zinaa (fornication) is considered to be the Sabab for the lashing and not an ‘Illah.

This Shart (condition) means that the ‘Illah is mentioned or found within the text (Nass) like the Aayah of Qur’aan or the Hadeeth or located within the Ijmaa’.

If, however it was ‘Aqliyah (rational or based upon the minds reasoning), in the case where it is not based on a Shar’iy text, then it is not considered sound or valid for Qiyaas to be made upon it and the Hukm that is based upon it is not considered to be a Shar’iy Hukm.