(Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Amir of Hizb ut-Tahrir, to the Questions of the Visitors to His Facebook Page "Fiqhi")
To: Ali Ghaith Abu Al-Hasan
Question:
In the Name of Allah, the Most Gracious, the Most Merciful. Peace be upon you and the mercy of Allah and His blessings.
It is stated in The Islamic Personality (Ash-Shakhsiyyah al-Islamiyyah), Vol. 3, p. 331: "His (swt) saying:
فَآتُوهُنَّ أُجُورَهُنَّ
'So give them their dues.' (Surah At-Talaq [65]: 6)
is a general term (lafzh 'amm), covering the hiring of a wet nurse, a worker, a house, a car, and so on."
Commentary: The text of the Ayah is not suitable to deduce from its mantuq (explicit meaning) anything other than the hiring of a wet nurse—meaning the hiring of a worker, a house, a car, etc. Here is the explanation:
The Shari'ah rule is: the generality of the wording is within the subject of the incident. The Ayah is general regarding every wet nurse, so every wet nurse deserves the wage for breastfeeding, and the subject of the Ayah is the wage for breastfeeding, nothing else.
His saying: ﴿فَآتُوهُنَّ﴾ means: give the divorced women who are breastfeeding; because the pronoun (هُنَّ) refers back to them, and the pronoun (هُنَّ) does not include the pronoun (هم), while the pronoun (هم) would include it. Thus, the payment of the wage is for the divorced breastfeeding woman, and it is general in including all women who fall under it. It is well known that addressing the female does not include the male.
For the Ayah to be a general term including the hiring of a wet nurse, a worker, a house, a car, and so on, it would have to be as follows: "If they breastfeed for you, then give the employees their wages," for the term "employees" (al-ujara') is general, including both males and females, and its subject is the wage, even if the incident was about breastfeeding.
His saying: ﴿فَآتُوهُنَّ أُجُورَهُنَّ﴾: We deduce from it a partial ruling, which is the hiring of a wet nurse. We deduce from it a universal ruling—based on the ma'qul an-nass (rational meaning of the text)—which is: any employee deserves the wage if they perform their work.
Ali Ghaith (Abu Al-Hasan)
Answer:
Walaikum Assalam wa Rahmatullahi wa Barakatuhu,
My brother, I appreciate your interest in the research of general applicability (al-umum) in language, but you have not pondered the subject well; you took one side of it and left others...
I wish you had improved the style of the question by asking an inquiry about the matter, but you did not; instead, you prefaced your words by saying, "Commentary: The text of the Ayah is not suitable to deduce from its mantuq anything other than the hiring of a wet nurse...", so you commented, answered, and decided! You left no room for questioning or inquiry!
Nevertheless, it is clear from your question that you are interested in the subject, and for this reason, I will overlook the lack of refinement in the phrasing of the question... and I will answer you, asking Allah (swt) to guide you to the right path:
The study of any issue in Usul (principles of jurisprudence) requires covering all its aspects, rather than taking one side and building a ruling upon it. If you had contemplated the types of umum, you would not have arrived at your conclusion. We discussed the types of umum in The Islamic Personality, Vol. 3, pages 235-237, under the title "Ways of Establishing General Applicability for a Term," and I will quote some of it for you:
"Generality established by the wording is either established linguistically, which is what is understood from the linguistic placement; or established by custom (urfan), which is what is understood from the custom, i.e., from the usage of the people of the language, not from their placement; or established rationally (aqlan), which is what is understood from deduction (al-istinbat) and not from the [pure] intellect. In other words, the generality of the word is either established for us through transmission—that the Arabs placed this word for generality, or used this word for generality—or it is established for us through deduction from the transmission...
Generality established through transmission is either understood from the linguistic placement or from the usage of the people of the language. As for the generality understood from linguistic placement, it has two states: one is that it is general in itself, i.e., without needing a context (qarinah), and the second is that its generality is understood from the linguistic placement but with a context...
As for the generality understood from the usage of the people of the language, which is the generality understood customarily (urfan), it is like His (swt) saying:
حُرِّمَتْ عَلَيْكُمْ أُمَّهَاتُكُمْ
'Prohibited to you are your mothers.' (Surah An-Nisa [4]: 23)
For the people of custom transferred this compound from the prohibition of the physical person to the prohibition of all forms of enjoyment; because that is what is intended from women rather than service. Similar to it is His (swt) saying:
حُرِّمَتْ عَلَيْكُمُ الْمَيْتَةُ
'Prohibited to you is dead meat.' (Surah Al-Ma'idah [5]: 3)
For it is understood as [prohibition of] eating due to custom, and this is part of the customary reality (al-haqiqah al-urfiyyah).
As for the generality established by way of deduction (al-istinbat), its rule is the arrangement of the ruling (al-hukm) upon the description (al-wasf) with the Fa of sequence and causality (fa' al-ta'qib wa al-tasbib), such as His (swt) saying:
وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا
'As for the male thief and the female thief, cut off their hands.' (Surah Al-Ma'idah [5]: 38)..." End quote.
This is how generality is understood in its various types, and based on this—specifically generality established via deduction—the answer is as follows:
Your question is about what appeared in the book The Islamic Personality, Vol. 3, p. 327 (and p. 331), which is:
"His (swt) saying: ﴿فَآتُوهُنَّ أُجُورَهُنَّ﴾ is a general term that includes the hiring of a wet nurse, a worker, a house, a car, and so on. It is not said that the hiring of a worker was compared (quuysat) to the hiring of a wet nurse, or the hiring of a car was compared to the hiring of a worker; rather, it is included under it and is one of its individual instances." End quote.
The generality intended in this place is the generality of the entitlement to a wage upon obtaining a benefit. This generality was taken from arranging the wage upon the fulfillment of the benefit of breastfeeding using the Fa of sequence and causality. The Ayah says:
فَإِنْ أَرْضَعْنَ لَكُمْ فَآتُوهُنَّ أُجُورَهُنَّ
"Then if they breastfeed for you, give them their dues." (Surah At-Talaq [65]: 6)
Meaning that the cause (sabab) for deserving the wage was the benefit obtained through breastfeeding. This indicates the generality of the entitlement to a wage for the general fulfillment of a benefit, whether it is the hiring for breastfeeding as in the mantuq of the Ayah, or the hiring for the benefit of a person like the hiring of a worker, or the hiring for the benefit of an object like the hiring of a car. All of this is taken from the last type of generality mentioned above, which is "generality established by way of deduction, and its rule is the arrangement of the ruling upon the description with the Fa of sequence and causality..." It was not taken by way of analogy (qiyas) by linking a branch to a root based on a common effective cause (illah).
That is to say, it is as if the Ayah said: (The fulfillment of a benefit results in the fulfillment of the wage). The generality in it was deduced, so the hiring of a worker and the hiring of a car were individual instances of this generality to which the generality applies and under which they fall. It is not a matter of linking the hiring of a worker and a car—as branches—to the hiring of a wet nurse—as a root—based on a common cause; meaning it is not a matter of acting upon the ma'qul an-nass, because the issue is the inclusion of an instance of generality under the general rule, and it does not fall under analogy (qiyas).
I hope that the answer to the issue has become clear to you, and that you have realized that what we mentioned in the book is correct.
For your information, this noble Ayah is among the fundamental evidences for leasing (ijarah) in Shari'ah, and none of the people of knowledge restricted it to breastfeeding, as far as I know. I will quote for you some of what has been mentioned in the relevant sources:
- It is stated in the book Bidayat al-Mujtahid wa Nihayat al-Muqtasid by its author Abu al-Walid Muhammad bin Rushd al-Qurtubi, famous as Ibn Rushd al-Hafid (d. 595 AH), published by Dar al-Hadith - Cairo, in the chapter on the Book of Leases (al-Ijarat):
"Leasing is permissible according to all the jurists of the cities and the first generation... The evidence of the majority is the saying of the Almighty:
إِنِّي أُرِيدُ أَنْ أُنْكِحَكَ إِحْدَى ابْنَتَيَّ هَاتَيْنِ
'I intend to wed you to one of these two daughters of mine.' (Surah Al-Qasas [28]: 27), the Ayah, and His saying:
فَإِنْ أَرْضَعْنَ لَكُمْ فَآتُوهُنَّ أُجُورَهُنَّ
'Then if they breastfeed for you, give them their dues.' (Surah At-Talaq [65]: 6)" End quote.
- It is stated in the book Al-Mughni by Ibn Qudamah in the chapter on the Book of Leases (al-Ijarat):
"The basis for the permissibility of leasing is the Book, the Sunnah, and Consensus (Ijma). As for the Book, it is the saying of Allah the Almighty:
فَإِنْ أَرْضَعْنَ لَكُمْ فَآتُوهُنَّ أُجُورَهُنَّ
'Then if they breastfeed for you, give them their dues.' (Surah At-Talaq [65]: 6)..." End quote.
Thus, this noble Ayah is quite famous as an evidence for leasing (ijarah).
Your brother, Ata Bin Khalil Abu Al-Rashtah
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