(Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut-Tahrir, to the Questions of the Followers of his Facebook Page "Fiqhi")
Answer to a Question
The Legal Reason ('Illah) for the Ruling
To: Abu Nizar Ash-Shami
Question:
Assalamu Alaikum, may Allah bless you. Our Sheikh, the question is: Is a legal reason ('illah) for the ruling derived from the following verse?
ذَلِكَ أَدْنَى أَنْ يُعْرَفْنَ فَلَا يُؤْذَيْنَ
"That is more suitable that they will be known and not be abused." (Surah Al-Ahzab [33]: 59)
Answer:
Wa Alaikum Assalam Wa Rahmatullahi Wa Barakatuh.
The noble verse mentions the wisdom (hikmah) for the obligation of the jilbab, and it is not the legal reason ('illah) for the ruling. Here is the clarification:
As we mentioned in the answer to a question on 10/07/2018, the reason for the revelation (sabab al-nuzul) of the verse was to distinguish free women from slave-women. The jilbab was not an obligation for slave-women. Some of the hypocrites used to harass slave-women with improper speech, believing that the punishment for flirting with slave-women was light, unlike the punishment for free women. When such behavior was directed at a free woman and brought before the judiciary, the perpetrator would say, "I thought she was a slave-woman," so that his punishment might be lightened.
Thus, the noble verse was revealed to cut off this excuse for them. It obligated the free believing women to distinguish themselves from slave-women by wearing the jilbab and draping it down to the feet. Consequently, those people could no longer say "we thought she was a slave-woman," and their punishment would not be lightened because they would have no argument. Ibn Sa'd narrated in Al-Tabaqat from Abu Malik who said: "The wives of the Prophet (saw) used to go out at night for their needs, and some people from the hypocrites used to harass and harm them. When the hypocrites were questioned, they said, 'We only do this to the slave-women.' Then this verse was revealed:"
يَا أَيُّهَا النَّبِيُّ قُلْ لِأَزْواجِكَ وَبَنَاتِكَ وَنِسَاءِ الْمُؤْمِنِينَ يُدْنِينَ عَلَيْهِنَّ مِنْ جَلَابِيبِهِنَّ ذَلِكَ أَدْنَى أَنْ يُعْرَفْنَ فَلَا يُؤْذَيْنَ
"O Prophet, tell your wives and your daughters and the women of the believers to bring down over themselves [part] of their outer garments. That is more suitable that they will be known and not be abused." (Surah Al-Ahzab [33]: 59)
Accordingly, the meaning of the verse is to recognize the free woman from the slave-woman, and the draping of the jilbab is for this recognition: "That is more suitable that they will be known and not be abused"... meaning, it is not so that she is recognized as a specific person. It is stated in the Tafsir of Al-Qurtubi (14/244): "(The Almighty's saying: 'That is more suitable that they will be known and not be abused') meaning the free women, so that they are not confused with slave-women... so that base desires for them are cut off. The meaning is not that the woman is recognized so it is known who she is specifically."
There is a difference between the legal reason ('illah) and the wisdom (hikmah). The 'illah is the motive (bā'ith) for the legislation, and it is derived from the text—as we have previously explained. However, there are texts in which the sense of causality appears according to the linguistic tools of causation used or the structure, but other context clues (qarā’in), whether within the text or elsewhere, nullify the meaning of causation and provide another meaning, which is the "end" (ghāyah) that the Legislator aims for through the legislation, rather than the "motive" for legislating it. It has become conventional to call this "end" or "result" that clarifies the Legislator's objective for the ruling as "wisdom" (hikmah) and not an 'illah, because it is not the motive for the legislation.
The ruling (ma'lūl) revolves with the 'illah in existence and non-existence and does not fail to manifest. As for the hikmah, it is not like that. For example:
لِيَشْهَدُوا مَنَافِعَ لَهُمْ
"That they may witness benefits for themselves." (Surah Al-Hajj [22]: 28)
وَمَا خَلَقْتُ الْجِنَّ وَالْإِنسَ إِلَّا لِيَعْبُدُونِ
"And I did not create the jinn and mankind except to worship Me." (Surah Adh-Dhariyat [51]: 56)
إِنَّ الصَّلاَةَ تَنْهَى عَنْ الْفَحْشَاءِ وَالْمُنْكَرِ
"Indeed, prayer prohibits immorality and wrongdoing." (Surah Al-Ankabut [29]: 45)
The forms of the previous texts, along with their context clues—whether from the text itself or others—show that they do not provide causality in the sense of the motive for legislation. If they were motives, they would never fail to manifest, for the ruling does not deviate from its 'illah; it revolves with it in existence and non-existence because it was legislated for its sake. However, the hikmah might be realized in some cases and not in others; i.e., it might sometimes fail to manifest:
- "That they may witness benefits for themselves" [Al-Hajj: 28]... yet many perform Hajj and do not witness these benefits.
- "And I did not create the jinn and mankind except to worship Me" [Adh-Dhariyat: 56]... yet many of the creation do not worship Allah.
- "Indeed, prayer prohibits immorality and wrongdoing" [Al-Ankabut: 45]... yet there are those who pray but do not abstain from vice.
Therefore, such examples are called hikmah (wisdom) and not 'illah (legal reason) because the intended result might fail to manifest, and this applies to everything that is correctly termed as wisdom.
Now, let us reflect on the noble verse that is the subject of the question:
a- The Sharia ruling comes from: "to bring down over themselves [part] of their outer garments (jilbābihinna)" [Al-Ahzab: 59]; this is the evidence.
b- It is clear that "That is more suitable that they will be known and not be abused" [Al-Ahzab: 59] is not the motive for the legislation; i.e., it is not the evidence for the obligation of the jilbab. Thus, it is not an 'illah, but rather the result that follows the wearing of the jilbab, i.e., it is the "end" aimed for by the Legislator.
c- This result might fail to manifest; a free woman might wear the jilbab even when there are no slave-women to be distinguished from so that she is not harmed...
d- Thus, "That is more suitable..." [Al-Ahzab: 59] is a hikmah in the terminology of Usul (principles of jurisprudence) and not an 'illah.
This is what I see, and Allah is All-Knowing and Most Wise.
Your brother, Ata Bin Khalil Abu Al-Rashtah
07 Jumada al-Ula 1440 AH Corresponding to 13/01/2019 CE
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