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"
Answer to a Question
Adoption (Tabanni) and Analogy (Qiyas) in Usul al-Fiqh
To: Yahya Abu Zakariya
Question:
Assalamu Alaikum Wa Rahmatullahi Wa Barakatuh.
May Allah protect you, our Sheikh, help you carry the trust, and support you with His near victory, by His permission, the Almighty.
Allow me, our Sheikh, this question—may Allah protect you and increase you in knowledge and health.
A question regarding Usul al-Fiqh (Principles of Jurisprudence).
It was mentioned in the book The Islamic Personality (Ash-Shakhsiyyah), Volume 1, under the topic of Ijtihad: "From the Ijtihad is the saying of Ali (ra) regarding the punishment (hadd) for drinking: 'Whoever drinks raves, and whoever raves slanders, so I see that he should receive the punishment of a slanderer.' This is an analogy (qiyas) of drinking to defamation (qadhf) because it is a pretext (muzinnah) for defamation, considering that the Lawgiver (Ash-Shari') sometimes treats the pretext of a thing as the thing itself. This is similar to how sleep was treated as a state of ritual impurity (hadath), and how sexual intercourse, in the obligation of the waiting period ('iddah), was treated as the actual occupation of the womb. All of this is Ijtihad from the Sahaba (ra) and a consensus (ijma') from them on Ijtihad." End quote.
The question is: We adopt that Qiyas does not apply to fixed punishments (hudud), expiations (kaffarat), dispensations (rukhas), and acts of worship ('ibadat).
So, how can we compare the punishment for wine to the punishment for defamation based on the reasoning ('illah) that drinking is a pretext for defamation?
Furthermore, if the Lawgiver has made sleep a nullifier of wudu and treated it as a state of ritual impurity because it is a pretext for it, is it possible to apply Qiyas to it for fainting, drunkenness, and insanity because they are also pretexts for ritual impurity? Even though these are considered matters of worship. Baraka Allahu Feekum.
Answer:
Wa Alaikum Assalam Wa Rahmatullahi Wa Barakatuh,
First: Yes, there are matters in which we do not adopt analogy:
*1. It is stated in the book Concepts of Hizb ut Tahrir (Mafahim), pages 36-41 (Word file):*
"The Islamic systems are Shari'ah rulings related to worships, morals, foodstuffs, clothing, transactions, and punishments.
The Shari'ah rulings related to worships, morals, foodstuffs, and clothing are not rationalized (they have no 'illah). The Prophet ﷺ said:
حُرِّمَتِ الخَمْرَةُ لِعَيْنِهَا
'Alcohol was prohibited for its essence.'
As for the Shari'ah rulings related to transactions and punishments, they are rationalized, because the Shari'ah ruling in them is based on a reason ('illah) which was the motive for legislating the ruling... Thus, what has been mentioned in the text as rationalized, it is rationalized and analogy is applied to it; and what has been mentioned in the text as not rationalized, it is not rationalized at all and consequently, analogy is not applied to it." End quote.
2. It is stated in the book The Islamic Personality, Volume 3, chapter "Conditions for the Ruling of the Original Case (Hukm al-Asl)", pages 346-347 (Word file):
"Fifth: That the ruling of the original case should not be deviated from the patterns of Qiyas. Deviations from the patterns of Qiyas are of two types:
First: That whose meaning is not rationally perceived; it is either an exception to a general rule or an original legislative start. An exception to a general rule is like the acceptance of the testimony of Khuzaymah alone, as narrated by Bukhari; for despite its meaning not being rationally perceived, it is an exception to the general rule of testimony. An original legislative start is like the number of rak'ahs, the estimation of the nisab (minimum amount) for Zakat, and the amounts of Hudud and Kaffarat. For despite their meanings not being rationally perceived, they are not exceptions to a general rule. In both cases, Qiyas is prohibited in them..." End quote.
Second: As for how the Adoption (Tabanni) occurs, to clarify this, we mention the following points:
1. It is stated in the explanation of Article 3 of the Introduction to the Constitution:
"...That is because the Shari'ah rulings, which are the Address of the Legislator related to the actions of the servants, came in the Quran and Hadith, and many of them carried several possible meanings according to the Arabic language and the Shari'ah; therefore, it was natural and inevitable that people would differ in understanding them...
For this reason, it was obligatory for every Muslim to adopt a specific Shari'ah ruling when taking rulings for action, whether he is a mujtahid or a muqallid (follower), a Khalifah or other than a Khalifah..."
2. It is stated in the explanation of Article 4 of the Introduction to the Constitution:
"However, it appeared from the events of Al-Ma'mun during the trial of the 'Creation of the Quran' that adoption in ideas related to creeds ('aqā'id) created problems for the Khalifah and fitnah among the Muslims. For this reason, the Khalifah sees fit not to adopt in creeds and worships to avoid problems and out of concern for the satisfaction and tranquility of the Muslims. But the lack of adoption in creeds and worships does not mean that it is forbidden for the Khalifah to adopt in them; rather, it means that the Khalifah chooses not to adopt in them. He has the right to adopt and the right not to adopt, so he chose not to adopt. Therefore, the expression 'does not adopt' came in the article and not 'it is not permissible to adopt', which indicates that he chooses not to adopt."
3. It is stated in the Leaflet of Adoption (Nashrat al-Tabanni) issued on 14/07/1998:
"...The party being based on the idea with all its differences in the foundations (usul) and branches (furu') is not possible, and does not apply to the linguistic definition of a party (hizb); for a person's hizb linguistically are his companions who hold his opinion. From here, the idea of adoption was necessary for the party, and for this reason, one of the primary characteristics of Hizb ut Tahrir as an ideological party is adoption. This adoption is what made it a party, because a party does not become a party until it has one opinion in every thought, or opinion, or Shari'ah ruling that concerns it. Because if it does not have unity of thought, it will not be a cohesive entity... 20 Rabi’ al-Awwal 1419 AH – 14/07/1998 CE."
Third: As you see from the above, a Muslim may adopt in everything that concerns him, whether he is a Khalifah, a head of a party, or an individual. This is the origin of every matter, according to the Shari'ah rulings regarding his powers and the limits of adoption allowed for him... However, the party decided after the events of Al-Ma'mun not to adopt in creeds and worships with some exceptions... Then it established adoption in some matters and did not adopt in others for the reasons mentioned.
Fourth: Your question about the Ijtihad of Ali regarding the punishment for the wine drinker was during the era of the Sahaba, and they used to perform Shari'ah Ijtihad in every matter. When Umar consulted them regarding the maximum limit for drinking wine, these Ijtihads were presented, including the aforementioned Ijtihad of Ali... We clarified this issue in The Islamic Personality, Volume 1, where it states: "...And this is what has reached us through recurrent transmission (tawātur) from them without doubt. Among this is the saying of Abu Bakr when he was asked about Kalālah; he said: 'I speak about it with my opinion; if it is correct, it is from Allah, and if it is wrong, it is from me and from Satan, and Allah is innocent of it. Kalālah is what is other than the child and the parent.' His saying 'I speak about it with my opinion' does not mean this opinion is from himself, but rather it means: 'I say what I understand from the word Kalālah in the Ayah.'
Among the Ijtihad is what was said to Umar, that Samurah took wine from the Jewish merchants as tithes, turned it into vinegar, and sold it. He said: 'May Allah fight Samurah! Did he not know that the Prophet ﷺ said:
لَعَنَ اللَّهُ الْيَهُودَ حُرِّمَتْ عَلَيْهِمُ الشُّحُومُ فَجَمَلُوهَا فَبَاعُوهَا
"May Allah curse the Jews; fats were forbidden to them, so they melted them and sold them."' (Narrated by Muslim via Ibn Abbas). Thus, Umar compared wine to fat, and that the prohibition of it is a prohibition of its price.
Among the Ijtihad is the saying of Ali (ra) regarding the punishment for drinking:
مَنْ شَرِبَ هَذَى وَمَنْ هَذَى افْتَرَى فَأَرَى عَلَيْهِ حَدَّ الْمُفْتَرِي
'Whoever drinks raves, and whoever raves slanders, so I see that he should receive the punishment of a slanderer.'
This is an analogy of drinking to defamation because it is a pretext for defamation, considering that the Lawgiver sometimes treats the pretext of a thing as the thing itself, just as He treated sleep as ritual impurity, and treated intercourse in the obligation of the waiting period as the actual occupation of the womb. All of this is Ijtihad from the Sahaba (ra) and a consensus from them on Ijtihad..." End quote.
As you see, a person may adopt in everything that concerns him... But based on our understanding of the events during the time of Al-Ma'mun, we decided not to adopt in some matters and to adopt in others... The issue of Ali's Ijtihad (ra) that you are asking about was in the era of the Sahaba, i.e., before the events of Al-Ma'mun.
As for the issue of the punishment for the wine drinker, there are evidences from the Sunnah and Consensus that the punishment is either 40 or 80 lashes, and these are established by authentic evidences. It was even authentically reported from Ali (ra), as mentioned by Ibn Abi Shaybah from Abu Abdul Rahman al-Sulami from Ali, who said: "A group of people from Sham drank wine and misinterpreted the noble Ayah. He (meaning Umar) consulted regarding them, and I said: 'I see that you should ask them to repent; if they repent, lash them eighty times, otherwise strike their necks because they permitted what was forbidden.' So he asked them to repent, and they repented, so he lashed them eighty each."
Likewise, Muslim narrated in the Hadith of Hudayn bin al-Mundhir regarding the flogging of Al-Walid, that Ali bin Abi Talib (ra) said:
جَلَدَ النَّبِيُّ ﷺ أَرْبَعِينَ، وَأَبُو بَكْرٍ أَرْبَعِينَ، وَعُمَرُ ثَمَانِينَ، وَكُلٌّ سُنَّةٌ
"The Prophet ﷺ lashed forty, Abu Bakr forty, and Umar eighty; and all of that is Sunnah." (Narrated by Muslim)
These two limits are the punishment for the wine drinker, and any other limit is absolutely impermissible because it was not reported from the Prophet ﷺ nor from the Sahaba (ra) that he lashed other than forty or eighty... However, it is permissible for the Khalifah to obligate one of them, meaning it is permissible for him to order one of them as a binding obligation. For if he obligates eighty, the forty established by the Sunnah is included within it, along with the permissible increase by the estimation agreed upon by the Sahaba, which is eighty. If he obligates forty, it is established by the Sunnah, and anything beyond it is permissible for the Imam and not obligatory upon him; so there would be nothing against him for obligating forty only.
Fifth: As for your other question: ("And if the Lawgiver made sleep a nullifier of wudu and treated it as a state of ritual impurity because it is a pretext for it... is it possible to apply Qiyas to it for fainting, drunkenness, and insanity because they are also pretexts for ritual impurity, even though these are considered matters of worship?"): The answer is that we do not apply analogy here, but rather we answer as stated in the Rulings of Prayer (Ahkam al-Salah): "A nullifier of wudu is also sleep and the loss of consciousness by other than sleep... As for the loss of consciousness by other than sleep, it is when one becomes insane, faints, becomes intoxicated, or falls ill such that his consciousness is lost, so his wudu is nullified... The evidence for that is the consensus (Ijma'), as narrated by Ibn al-Mundhir." End quote.
This is what I find most weighted in these issues, and Allah is most Knowing and most Wise.
Your Brother, Ata bin Khalil Abu Al-Rashtah
27 Rabi' al-Awwal 1443 AH 03/11/2021 CE
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