Series of Answers by the Eminent Scholar, Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut Tahrir, to the Questions of Visitors to his Facebook Page "Fiqhi"
To: Yeni Camii
Question:
Assalamu Alaikum Wa Rahmatullahi Wa Barakatuhu,
I pray to Allah, the Almighty, the All-Powerful, that this message reaches you while you are in good health, well-being, and under the pleasure of Allah, and that He grants you success and guidance in word and deed.
While I was preparing from the book The Islamic Personality, Volume 1, I found difficulty in understanding certain matters regarding the subject of Ijtihad. I hope you would be kind enough to provide me with an answer, and may you have a great reward and many thanks:
First: In the book The Islamic Personality, Vol. 1, p. 203, the following phrases appeared regarding Ijtihad: "Because Ijtihad is the extraction of a ruling from the text, whether that is the extraction of a universal ruling from universal evidence—such as extracting that a looter (nahib) is subject to punishment from the Legislator making the cutting of the hand a hadd (prescribed penalty) for theft—or whether it is the extraction of a particular ruling from particular evidence, such as extracting the ruling of Ijarah (leasing/hiring) from the fact that the Prophet ﷺ hired a laborer..."
In the book The Islamic Personality, Vol. 3, p. 445, regarding the subject of Universal Rules: "The universal rules and Shari'ah definitions are universal rulings, whereas the Shari'ah ruling (itself) is a particular ruling." The question is:
- What is universal evidence and particular evidence? Why was the evidence for cutting the thief's hand called universal evidence, while the evidence for the permissibility of Ijarah was called particular evidence? (Can a Shari'ah ruling be both a universal ruling and a particular ruling as described in the subject of Ijtihad, or is it only a particular ruling and not called universal except in Shari'ah definitions and universal rules, as understood from The Islamic Personality, Vol. 3?)
Second: Regarding the conditions of Ijtihad, p. 213: "The faculty (malakah) means the power of understanding and linking. This may result from excessive intelligence along with some knowledge of Shari'ah and linguistic sciences, and it does not require a comprehensive grasp of Shari'ah and linguistic knowledge."
In a question and answer dated 08/08/2017, it stated: "What is meant by the faculty in Fiqh is not the innate nature or the natural predisposition that varies from one person to another. Rather, what is meant is the faculty acquired through learning, study, deep investigation, and practice... although natural predispositions can contribute to the generation and rapid development of the Fiqh faculty, these natural predispositions are not the intended faculty."
- The question is: Does what was mentioned in the answer contradict what was mentioned in the book regarding the relationship between natural predispositions and the formation of the faculty? The book made the basis of the faculty the power of understanding and linking, while the answer made the basis acquired knowledge.
May Allah bless you and reward you with goodness.
Answer:
Wa Alaikum Assalam Wa Rahmatullahi Wa Barakatuhu,
You are asking about several matters... here are the answers:
First: Universal Evidence and Particular Evidence: This matter is detailed in The Islamic Personality, Vol. 3—Chapter on Universal Rules, as well as The Islamic Personality, Vol. 1, and The Booklet. You may refer to them... but I will summarize the answer for you:
If it is possible to extract a Shari'ah rule from a piece of evidence (or multiple evidences) under which other Shari'ah rulings fall—rulings other than those explicitly mentioned in the text or evidences, and not by way of Qiyas (analogy) (meaning the new rulings are not compared to what is mentioned in the text, but rather fall as particulars under that rule)—then the rule is universal (kulli) and the ruling falling under it is universal. Often, there is something resembling a cause (bimathabati 'illah) or sometimes a real cause ('illah haqiqiyyah) between the rule and the ruling falling under it. It states in The Islamic Personality, Vol. 3, Chapter on Universal Rules, p. 455: "From this, it becomes clear that the universal rule makes the ruling as a cause for a universal ruling because it is a reason for it, meaning it is a result of it or arranged upon it, or it makes it a real cause for a universal ruling. Thus, it is a universal ruling that applies to its particulars. Therefore, it is applied to every ruling it fits just as the evidence that brought it is applied, and it is not reasoned by analogy, but rather its particulars fall under it—that is, they are included within its concept or wording exactly as they are included under the indication of the evidence, and the reasoning with it is like the reasoning with the evidence. Thus, the universal rule is treated like Qiyas... however, universal rules are not, like Qiyas, a Shari'ah evidence, nor a source from the sources of Shari'ah. Rather, they are a Shari'ah ruling extracted like all other Shari'ah rulings; thus, they are not evidence."
Second: To clarify this, we mention two examples from The Islamic Personality, Vol. 3, pp. 454-455; one regarding the "resemblance of a cause" and the other regarding the "cause":
- For example, His saying (swt):
وَلَا تَسُبُّوا الَّذِينَ يَدْعُونَ مِنْ دُونِ اللَّهِ فَيَسُبُّوا اللَّهَ عَدْواً بِغَيْرِ عِلْمٍ
"And do not insult those they invoke other than Allah, lest they insult Allah in enmity without knowledge." (QS. Al-An'am [6]: 108)
The "fa" in ﴿فَيَسُبُّوا﴾ indicated that your insulting their idols leads to their insulting Allah, and this is haram. Consequently, your insulting their idols in this case is haram, as if it were a cause. The prohibition of insulting those who disbelieve is the evidence of the ruling. Along with its indication of the ruling, it indicated something else arranged upon it when He said: ﴿فَيَسُبُّوا اللَّهَ﴾. Thus, from this verse, the rule was extracted: "The means to the haram is haram..."
- Another example is the Prophet's ﷺ saying:
الْمُسْلِمُونَ شُرَكَاءُ فِي ثـَلاَثٍ: فِي الْكَلإِ وَالْمَاءِ وَالنَّارِ
"Muslims are partners in three things: herbage, water, and fire." (Reported by Abu Dawood).
It was also established that the Prophet ﷺ approved individual ownership of water for the people of Ta’if and Madinah. It was understood from the state of the waters he allowed for individual ownership that the community had no need for them. Thus, the cause for people being partners in these three things was "their being of the community's utilities." The evidence indicated the ruling and indicated the cause, meaning it indicated the ruling and something else that was the reason for the legislation of the ruling. From this, the rule was extracted: "Whatever is of the community's utilities is public property..."
After that, the book adds:
"From this, it becomes clear that the universal rule makes the ruling as a cause for a universal ruling; because it is a reason for it, meaning it is a result of it or arranged upon it, or it makes it a real cause for a universal ruling. Thus, it is a universal ruling that applies to its particulars; therefore, it is applied to every ruling it fits, just as the evidence is applied to the ruling it brought. It is not reasoned by analogy, but rather its particulars fall under it; meaning they are included within its concept or wording exactly as they fall under the indication of the evidence, and reasoning with it is like reasoning with the evidence. The universal rule is treated like Qiyas, and everything the rule applies to takes its ruling, unless a Shari'ah text comes contrary to what is in the rule; in that case, the text is acted upon and the rule is cancelled, as is the case in Qiyas—if a Shari'ah text appears, the text is taken and Qiyas is cancelled. However, universal rules are not, like Qiyas, a Shari'ah evidence, nor a source from the sources of Shari'ah. Rather, they are a Shari'ah ruling extracted like all other Shari'ah rulings; thus, they are not evidence. Because of this, what it applies to is considered a branch of it or as a branch. Similar to the universal rule is the universal definition; everything it applies to takes its ruling, unless a Shari'ah text appears, then the text is taken..."
Third: Now we come to your first question about theft and Ijarah (leasing/hiring):
Allah (swt) said:
وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا جَزَاءً بِمَا كَسَبَا نَكَالاً مِنَ اللَّهِ وَاللَّهُ عَزِيزٌ حَكِيمٌ
"As for the male thief and the female thief, cut off their hands in recompense for what they committed as a deterrent from Allah. And Allah is Exalted in Might and Wise." (QS. Al-Ma'idah [5]: 38)
From this evidence, a universal rule can be extracted that (aggression against people's property is prohibited and carries a punishment). This is because it can be said that the text on theft carries what resembles a cause or is like a cause, which is the link between cutting the hand and theft... The cutting of the hand was arranged based on theft with the fa (ف), which here indicates causality. There is a link between the ruling ﴿فَاقْطَعُوا أَيْدِيَهُمَا﴾ and the requirement for cutting, which is theft in His saying ﴿وَالسَّارِقُ وَالسَّارِقَةُ﴾. Cutting the hand is specifically for theft, but the existence of this link between the ruling and its reason enables the mujtahid to formulate a universal ruling that includes cases falling under it. Thus, it is said: "Aggression against the property of others is prohibited and necessitates a punishment." Under this ruling falls the fact that a looter (nahib) is subject to punishment, even though the ruling for the looter was not mentioned in the verse. Therefore, the verse indicated that the thief's hadd is cutting, and besides that, based on its linguistic structure, it indicated that the one who aggresses against others' property deserves a punishment. For this reason, the evidence for cutting the thief's hand was universal evidence that provides a universal ruling...
As for the ruling on Ijarah taken, for example, from the fact that he ﷺ:
اسْتَأْجَرَ رَجُلاً مِنْ بَنِي الدِّئْلِ هَادِياً خِرِّيتاً
"He hired a man from the tribe of Bani Ad-Dail as a professional guide." (Reported by Al-Bukhari)
There is nothing universal in this, nor is there an arrangement of one thing over another. Rather, it is evidence from which the permissibility of Ijarah is benefited. Thus, it is a particular evidence providing a particular ruling... In other words, the evidence for Ijarah does not relate to anything other than the laborer, nor can other contracts fall under it—meaning contracts other than Ijarah. Therefore, it is particular evidence... This is naturally different from the definition of Ijarah, because a definition is described as universal, so different types of Ijarah fall under the definition. From this perspective, the definition has the attribute of universality, but the evidence for Ijarah itself is not described as universal because it does not include matters other than the subject of Ijarah.
Fourth: Regarding your second question: (Can a Shari'ah ruling be both a universal ruling and a particular ruling as described in the subject of Ijtihad, or is it only a particular ruling and not called universal except in Shari'ah definitions and universal rules, as understood from The Islamic Personality, Vol. 3?)
My brother, the universal rules, Shari'ah definitions, and the Shari'ah ruling itself are all Shari'ah rulings. However, if the ruling is attributed to a universal term by virtue of a cause or something resembling a cause (like a cause), then it is a universal ruling. If you say, "The means to the haram is haram," you have attributed the prohibition to "the means to the haram," which is a universal term. Therefore, the extracted ruling is a universal ruling, and particulars fall under this rule (the universal Shari'ah ruling)... for it includes every means that leads to the haram.
And if you define a Shari'ah ruling as "The speech of the Legislator related to the actions of the servants by way of requisition, optionality, or enactment," you have made the definition focus on a universal term ("The speech of the Legislator related to the actions of the servants..."). Thus, the definition is universal, and particulars fall under it... for it includes everything related to the actions of the servants, whether it is an obligation... or a reason... or permissible... etc.
But if you say, "Dead meat is prohibited," as in the noble verse:
حُرِّمَتْ عَلَيْكُمُ الْمَيْتَةُ
"Prohibited to you is dead meat." (QS. Al-Ma'idah [5]: 3)
This text does not apply except to dead meat. It is not understood from it that wine is prohibited, meaning no particulars fall under it. Therefore, it is described as particular... In other words, the ruling does not go beyond what is mentioned in the text, so it is described as particularity.
However, the universal rule, universal Shari'ah definitions, and particular rulings are all Shari'ah rulings because they are extracted from Shari'ah evidence. For the purpose of jurisprudential classification, the terms "universal" were applied to rules and definitions, and "particular" to Shari'ah rulings that do not apply to anything other than what is mentioned in the text, even though they are all Shari'ah rulings. The conclusion is that if a Shari'ah ruling is not a universal rule or a Shari'ah definition, then it is a particular ruling...
Therefore, there is no contradiction between what was mentioned in The Islamic Personality, Vol. 1, pp. 207-208: "Because Ijtihad is the extraction of a ruling from the text... whether that is the extraction of a universal ruling from universal evidence—such as extracting that a looter is subject to punishment from the Legislator making the cutting of the hand a hadd for theft—or whether it is the extraction of a particular ruling from particular evidence, such as extracting the ruling of Ijarah from the fact that he ﷺ: ﴿اسْتَأْجَرَ رَجُلاً مِنْ بَنِي الدِّئْلِ هَادِياً خِرِّيتاً﴾" and what was mentioned in The Islamic Personality, Vol. 3, p. 451: "The universal rules and Shari'ah definitions are universal rulings, whereas the Shari'ah ruling (itself) is a particular ruling."
Fifth: For your information, universality and particularity are attributes of a single word, but metaphorically, they are applied to a composite structure, as mentioned in The Islamic Personality, Vol. 3, p. 451:
"In order to grasp universality and particularity in a Shari'ah ruling, it must be noted that this usage is metaphorical and not literal. For universality and particularity are indications of a single word, not a composite indication. They have no place in the indication of a structure. A Shari'ah ruling is a composite sentence, not a single noun, whether it is a ruling, a rule, or a definition. Your saying, 'The meat of dead animals is prohibited,' is a composite sentence; your saying, 'Leasing is a contract over a benefit for a compensation,' is a composite sentence; and your saying, 'The means to the haram is haram,' is a composite sentence. Thus, universality and particularity do not enter them because they are indications of a noun, i.e., indications of a single word.
However, since the universal in a noun is what can be shared in its concept by many—such as 'animal,' 'human,' and 'writer'—and since a definition is what can be shared by many, as the definition of Ijarah applies to the leasing of a private employee, a public employee, the leasing of a house, a car, land, etc., the term 'universal ruling' was applied to it metaphorically. The same applies to the universal rule.
And since the particular in a noun is what cannot be shared by many—such as 'Zaid' as a name for a man, 'Fatimah' as a name for a woman, and pronouns like 'he' and 'she'—and since the Shari'ah ruling is what cannot be shared by many—such as 'the meat of dead animals is prohibited,' 'drinking wine is prohibited,' and the like, for it only applies to dead meat or to wine—it was called a 'particular ruling' metaphorically. So, in terms of its indication of individuals or lack thereof, it is called universal or particular metaphorically. But in terms of its reality, it is a Shari'ah ruling extracted from Shari'ah evidence. There is no difference between a rule, a definition, and a ruling."
Sixth: Regarding your question about the subject of the faculty (malakah), here is the following:
- The faculty discussed in the answer to the question dated 16 Dhul-Qi'dah 1438 AH, corresponding to 08/08/2017, is not a general faculty but specifically the Fiqh faculty. It relates to the definition of a Faqih (jurist). A Faqih in technical terms is one who has attained the faculty in Fiqh. The intended faculty for a Faqih, as we mentioned in the answer to the question, is: "What is meant by the faculty in Fiqh is not the innate nature or the natural predisposition that varies from one person to another. Rather, what is meant is the faculty acquired through learning, study, deep investigation, and practice... although natural predispositions can contribute to the generation and rapid development of the Fiqh faculty, these natural predispositions are not the intended faculty in a Faqih..."
As for the faculty for a Mujtahid, it is as stated in The Islamic Personality, Vol. 1, p. 213:
"...And because the faculty means the power of understanding and linking. This may result from excessive intelligence along with some knowledge of Shari'ah and linguistic sciences, and it does not require a comprehensive grasp of Shari'ah and linguistic knowledge."
The conclusion is that the essential matter for a Faqih is the faculty acquired through learning, study, and encompassing Shari'ah knowledge... and natural predispositions contribute to achieving this quickly.
As for the essential matter for a Mujtahid, it is the power of understanding, linking, excessive intelligence, and the ability to extract rulings... along with some knowledge of Shari'ah and linguistic sciences, without requiring a comprehensive grasp of these sciences.
Therefore, there is no contradiction between the faculty mentioned in the answer to the question, as it is for the Faqih, and the faculty mentioned in the book The Islamic Personality, Vol. 1, as it is for the Mujtahid.
I hope the matter has become clear.
Your brother, Ata Bin Khalil Abu Al-Rashtah
25 Jumada al-Akhirah 1444 AH Corresponding to 18/01/2023 CE
Link to the answer from the Ameer’s page (may Allah protect him) on Facebook