(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 Question
To Amjad Omar
Question:
Assalamu Alaikum, our virtuous Sheikh,
I have a question regarding what was mentioned about the legal cause ('illah) in the book The Islamic Personality (Ash-Shakhsiyyah al-Islamiyyah), Volume 3. It mentioned among the conditions of the 'illah that it must be consistent (muttaridah) and transitive (muta’addiyah). Could you please clarify the difference between them? Also, it was mentioned at the end of the topic "Bringing Benefits and Warding off Harms" (Jalb al-Masalih wa Dar’ al-Mafasid) that the cause for cutting the hand (for theft) does not signify causality ('illiyyah) and cannot be used for analogy (qiyas). Is there a connection between this and the two aforementioned conditions? Do we understand from the research as a whole that causality is of two types: analogical and non-analogical? May Allah bless you.
Answer:
Walaikum Assalam Wa Rahmatullahi Wa Barakatuh,
The meaning of the 'illah being transitive (muta’addiyah) is that it should not be a sabab (reason), because a sabab is considered a limited cause ('illah qasirah). That is, it does not go beyond the text in which it was mentioned and cannot be used for analogy. For example:
وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا
"As for the male thief and the female thief, cut off their hands." (QS Al-Ma'idah [5]: 38)
Here, theft is the sabab (reason) for the cutting...
وزنا ماعز فرجمه رسول الله صلى الله عليه وسلم
"Ma’iz committed adultery, so the Messenger of Allah (saw) stoned him."
Here, the adultery of a married person (muhsan) is the sabab for stoning...
Even though the letter Fa (ف) in these texts indicates causality (ta'lil), it is a limited causality that does not extend, and in this case, it is a sabab...
Accordingly, the meaning of "transitive" is as we mentioned above—that it is not a sabab, but rather extends to cases outside the text in which it was mentioned, allowing for analogy (qiyas) to be made upon it.
As for the meaning of it being consistent (muttaridah), it means that the ruling (hukm) must not be absent whenever the thing claimed to be the 'illah is present. For example, if those who justify the rukhsah (concession) for breaking the fast during travel say that the 'illah is "hardship" (mashaqqah), the objectors would respond that the concession to break the fast is not given to a laborer who faces hardship while at home (not traveling), even if his hardship exceeds that of a traveler, especially in comfortable conditions like traveling by plane or car and the like. Therefore, these and similar examples are not 'illal (causes) and are not suitable for analogy, because the ruling is absent despite the presence of what was claimed to be the 'illah, such as "hardship" in this example.
Regarding what was mentioned in the chapter of Dar’ al-Mafasid wa Jalb al-Masalih (Warding off Harms and Bringing Benefits)—that making theft against an individual's property a cause for legislating a punishment to protect private property is incorrect. This is because theft is the cause for cutting the hand, but it is not the cause for "protecting private property." The ayah says:
وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا
"As for the male thief and the female thief, cut off their hands." (QS Al-Ma'idah [5]: 38)
The term "thief" is a descriptive term that provides understanding (wasf mufhim), and it is appropriate for the punishment of cutting. Thus, the cutting is because of the theft, not because of the "violation of private property." For instance, looting (nahb) is a violation of private property but does not involve cutting the hand, and usurpation (ghasb) is a violation of private property but does not involve cutting the hand; rather, each has a different punishment... Thus, the hand of the thief is cut, and this cannot be used for analogy because theft is the sabab for the cutting and not an 'illah upon which analogy is made.
Your brother, Ata Bin Khalil Abu Al-Rashtah
06 Dhu al-Hijjah 1439 AH Corresponding to 17/08/2018 CE
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