(Series of Answers by the Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut-Tahrir, to Questions from Visitors to His Facebook Page)
To Bashir of the Coming Khilafah
Questions:
Assalamu Alaikum Wa Rahmatullahi Wa Barakatuh,
Our beloved Sheikh, may Allah aid you in your matter and grant you success in what pleases Him.
While reading the book The Islamic Personality (Ash-Shakhsiyyah), Vol. 3, regarding the subject of Qiyas (Analogy), I noticed that the Party (Hizb) uses both definitive (qati’) and speculative (zanni) evidence to prove that Qiyas is a Shar’i evidence. However, when the book refutes those who claim the consensus of the Rightly Guided Caliphs (Khulafa ar-Rashidun), it describes their evidence as speculative (zanni) and unsuitable for foundational proof. One might say that speculative evidence is used merely for corroboration (isti’nas). If so, why is this not clarified, especially since new editions of the book have been printed?
Additionally, I observed—and I may be wrong—that the manner of using definitive evidence for Qiyas is not through an explicit statement (sarih), but rather through deduction from the evidence. This means that as long as a definitive text contains an illah (legal cause) that prompts the ruling, this is sufficient for the permissibility of Qiyas. I feel that this is not an evidence based on explicit wording.
Another question:
Some people give a sack of flour to a public baker and take a certain amount of bread daily in return for a month, for example. Is this permissible? Does this fall under the category of leasing (ijarah) or selling (bai’), considering that neither party explicitly states either of these?
I hope for a prompt reply if possible. May Allah aid you, grant you success, and make victory and empowerment your allies, and may He gather us and you soon in the Dar al-Islam. Wassalamu Alaikum Wa Rahmatullahi Wa Barakatuh.
Answer:
Wa Alaikum Assalam Wa Rahmatullahi Wa Barakatuh,
First: Regarding Qiyas (Analogy): Its evidence is the text in which the illah (legal cause) is mentioned. If the illah is mentioned in the Book (Quran), the evidence is the Book; if it is in the Sunnah, the evidence is the Sunnah...
This is based on explicit wording, so how can you say, "I feel that this is not an evidence based on explicit wording"?
Look at the evidence for the illah, and you will see the answer:
• Take, for example, the saying of Allah (swt):
كَيْ لَا يَكُونَ دُولَةً بَيْنَ الْأَغْنِيَاءِ مِنْكُمْ
"So that it will not be a perpetual distribution among the rich from among you." (QS. Al-Hashr [59]: 7)
Now, answer the question: Is the Khaleefah allowed to give from the state property to the poor and not to the rich?
The answer, naturally, is: Yes. Now, complete the question: What is the evidence for that? Isn't the answer the verse: "So that it will not be a perpetual distribution among the rich from among you"?
• Take, for example, the Hadith:
... وَفِي سَائِمَةِ الْغَنَمِ إِذَا كَانَتْ أَرْبَعِينَ فَفِيهَا شَاةٌ ...
"...and for grazing sheep (saimat al-ghanam), if they are forty, there is one sheep due..." (Narrated by Abu Dawood)
Now, answer the following question: Is there Zakat on sheep that are fed at home and do not graze?
The answer, naturally, is: No Zakat. Now, complete the question: What is the evidence for that?
Isn't the answer the Hadith of the Messenger (saw): "...and for grazing sheep, if they are forty, there is one sheep due..."?
Thus, you can see that the evidence is explicit on the subject.
However, if by "explicit wording" you mean that the illah mentioned in the texts (which is the basis of Qiyas) is not always explicit (sarih), but can be explicit or non-explicit (dalalah, istinbatiyyah, qiyasiyyah), then this is correct. For example:
إِنَّمَا جُعِلَ الِاسْتِئْذَانُ مِنْ أَجْلِ البَصَرِ
"Seeking permission has only been enjoined because of sight." (Narrated by Al-Bukhari)
Here, the illah is explicit (sarih) due to the phrase "because of" (min ajl). As for the word "grazing" (as-saima), it is an "indicative" (dalalah) illah because it is an informative description (wasf mufhim). If this is what you meant, then it is correct, but this is a different topic related to "detailed evidence" (dalil tafseeli). As for the "foundational evidence" (dalil ijmaali) in Usul, it is by proving that the Book is definitive (maqtu’ bihi), and the Sunnah is definitive, and consequently, Qiyas is definitive because it refers back to the Book and the Sunnah. This is different from the detailed evidence. Thus, the detailed jurisprudential evidence for the illah can be explicit or non-explicit, and one is distinct from the other.
As for your observation regarding what was mentioned in the book: "The fact that Qiyas is a Shar'i evidence has been established by definitive evidence and speculative evidences," your point has merit. Although the term "evidence" (dalil) is used in both Usul (Foundations) and Fiqh (Jurisprudence), its implication differs in terms of being definitive (qat') or speculative (zann). Since the subject here is the evidence for Usul, it is better to restrict it to definitive evidence without the speculative. Accordingly, it is better to correct it, and we will correct it, Allah willing. For your information, I mentioned the following in my book Taisir al-Wusul ila al-Usul:
(The authority of Qiyas comes from the authority of the evidences that contain the illah, namely the Quran, Sunnah, and Ijma’ (Consensus). Since the authority of the Book, Sunnah, and Ijma’ has been established as we mentioned previously, the authority of Qiyas is likewise established.
The Messenger (saw) guided toward the use of Qiyas; when he (saw) was asked about performing Hajj on behalf of another...) End.
Second: Regarding your second question about selling flour for bread:
This, my brother, is not a new issue. Rather, the jurists researched it in the early eras and differed regarding it based on their different answers to this question:
If Ribawi materials change through processing—such as wheat becoming roasted, or wheat becoming flour (daqiq), or dough, or bread, and so on—does it remain one genus? Meaning, does the term "wheat" (al-burr) still apply to it, such that it cannot be sold except hand-to-hand (yadan bi yad) and equal for equal (mithlan bi mithl)? Or does it become a different genus? If it is a different genus, is it still Ribawi, thus allowing sale with disparity (mutafadila) but only hand-to-hand? Or is the other genus non-Ribawi, thus allowing sale on credit (nasi’ah)? This is how the issue stood among them:
Those who considered it one genus faced a problem: equality is impossible. How can wheat be measured or weighed against bread, or flour against dough, or against parched grain (sawiq), etc.? Therefore, they said it is not permissible to sell wheat for bread or for flour because equality cannot be ensured.
Others said they are two categories, but both are Ribawi. That is, wheat is a Ribawi category, flour is a Ribawi category, and bread is a Ribawi category... Therefore, they said as long as they are not the same genus, they can be sold; meaning, it is permissible to sell wheat for flour or for bread however you wish, but hand-to-hand.
Another group said they are different genera, and what is transformed from wheat does not remain a Ribawi category but becomes something else. Therefore, bread, dough, or parched grain are not Ribawi categories. Accordingly, it is permissible to sell wheat for bread, and flour as you wish, including on credit, because they are not Ribawi categories—meaning, wheat is being sold for another non-Ribawi category.
• Based on this, the opinions of the mujtahids differed on the matter... I will relay to you the opinions of some reputable jurists:
A- The opinion of Al-Shafi'i on the impermissibility of the sale: It is stated in Al-Majmu’ by An-Nawawi Al-Shafi'i (d. 676 AH): "It is not permissible to sell flour for its bread because fire has entered it and salt and water have been mixed with it, which prevents equality; and because bread is weighed while wheat is measured, so the equality between them cannot be known."
B- The opinion of Abu Hanifa on the impermissibility of the sale: It is stated in Al-Binayah Sharh al-Hidayah by Badr al-Din al-Ayni al-Hanafi (d. 855 AH): "...And from Abu Hanifa, there is no good in it—meaning in selling bread for wheat and flour; meaning it is not permissible."
C- The opinion of the two companions of Abu Hanifa (Abu Yusuf and Muhammad) on the permissibility of sale with disparity hand-to-hand: It is stated in Al-Binayah Sharh al-Hidayah: "It is permissible to sell bread for wheat and flour with disparity if it is hand-to-hand." He added: "Selling bread for bread with disparity in number or weight is permissible in the view of Abu Yusuf and Muhammad, may Allah have mercy on them, hand-to-hand." It also states in Al-Binayah Sharh al-Hidayah: "And the fatwa is according to the first," meaning the permissibility of selling bread for wheat and flour.
D- The opinion of Abu Yusuf on the permissibility of sale on credit (debt): It is mentioned in Al-Binayah Sharh al-Hidayah: "If the wheat is on credit, it is also permissible; and if the bread is on credit, it is permissible according to Abu Yusuf, and the fatwa is based on this."
In any case, you may follow (taqlid) the mujtahid whose ijtihad you feel at peace with, and Allah is with you.
Your brother, Ata Bin Khalil Abu Al-Rashtah
Link to the answer from the Ameer's Facebook page