Question

Assalamu Alaikum wa Rahmatullah

It is mentioned in your esteemed book Taysir al Wusul ila Ilm al-Usul (Facilitation of Gaining Knowledge in the Legal Methodology) in the research on the evidences of legal conditions (Illah), that the letter "ف" in the Messenger's (saw) saying "ملكت أمرك فاختاري" "You possess your matter so choose" serves as a Illah, because it is a particle of multiplication. Whereas the letter "ف" in the Almighty's saying "فاجلدوا ..." "...So lash" is causal in the restrictive sense, not open to multiplication.

Upon reflection of the two, I could not find the difference.

Please clarify ... May Allah help you to establish His Deen on earth. Wassalamu Alaikum.

Answer

Wa Alaikum Assalam wa Rahmatullahi wa Barakatahu

There are letters in the language that - through their linguistic status, i.e. their expression - serve as a legal condition, such as the letter "ل" and the particle "كي".

The letter "ل" as in the Almighty's saying:

لِئَلاَّ يَكُونَ لِلنَّاسِ عَلَى اللَّهِ حُجَّةٌ بَعْدَ الرُّسُلِ

"so that mankind will have no argument against Allah after the messengers" [An-Nisa: 165]

The particle "كي" as in the Almighty's saying:

كَيْ لا يَكُونَ دُولَةً بَيْنَ الأَغْنِيَاءِ مِنْكُمْ

"so that it will not be a perpetual distribution among the rich from among you." [Al-Hashr: 7]

There are letters that cannot serve as a legal condition through their linguistic status, i.e. their expression, but through their implicit meaning, i.e. their indication. From these letter is "ف." It does not serve as a legal condition by way of its expressed meaning, i.e. its linguistic status. The Arabs have not determined it as a legal condition. Rather it comes as particle that expresses the plural, or an order, or an immediate consequence or a linguistic condition serving for an indicated legal causation or a linguistic condition serving for an indicated non-legal causation.

If it comes as a particle for a plural, or for an order, or an immediate consequence, then there occurs no confusion as to its understanding. The problem arises when it comes for causation and expounding, i.e. what comes after it is a cause of what came before it. In other words: It expounds what came before it. This is where confusion arises as to determine whether the particle is a mere cause or a legal condition. Of course what is meant here is technical term in the methodology of jurisprudence (Usul al-Fiqh).

To distinguish between the two, there are characteristics of the legal condition and the non-legal cause. Hence it is looked at the implied meaning of the usage of the "ف", i.e. its necessary indication. If the characteristics of the legal condition (Illah) are applicable, then it serves for legal qualification. But if the characteristics of a non-legal cause are applicable to it, then it serves merely for causation.

As to not dive too deep into the characteristics of the legal condition (Illah) and the non-legal cause (Sabab) and the difference between the two, we will suffice with a simple difference that is open to more detail. From this difference it can be deduced whether the "ف" with its indicated meaning hints at a legal condition or a mere cause. This difference is the association of the legal provision (Hukm) with the issue at hand. If an association exists between the legal provision and the issue, then the "ف" denotes a legal condition. On the other hand, if the issue comes before the legal provision, meaning that it precedes it without associating with it, then the "ف" denotes a mere cause.
In light of this, your question on the confusion of the difference between "ملكت أمرك فاختاري" "You possess your matter so choose" and

الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلَّ وَاحِدٍ مِنْهُمَا مِائَةَ جَلْدَةٍ

"The [unmarried] woman or [unmarried] man found guilty of sexual intercourse - lash each one of them with a hundred lashes" [An-Nur: 2]

...has to be studied. Before I begin, I will clarify to you the meaning of "You possess your matter so choose". This saying is contained in a number of books on the Islamic Methodology of Jurisprudence (Usul), such as Al-Amidi's Al-Ihkam fi Usul al-Ahkam or Kamal Bin Muhammad Al-Ma'ruf's (better known as Bin Al-Hamam) Fath al-Qadeer. The saying, according to the Scholars of Usul, is a reference to the Hadeeth of the Prophet (saw) where he gave Bareerah a choice. Bareerah was married to a slave, when she herself was released and therefore became free, the Prophet (saw) let her choose whether she would remain married to her husband or not, because she became a free woman that owns her choice. The Hadeeth was reported by al-Bukhari and Muslim.

Al-Bukhari reported from Aisha (ra), who said: "I bought Bareerah, and then set her free. The Prophet (saw) called her

«فَخَيَّرَهَا مِنْ زَوْجِهَا، فَقَالَتْ: لَوْ أَعْطَانِي كَذَا وَكَذَا مَا ثَبَتُّ عِنْدَهُ، فَاخْتَارَتْ نَفْسَهَا»

"He gave her the choice as to her husband. She said: ‘If he gave me such and such, I would not stay with him.' So she chose herself."

Muslim reported from Aisha (ra) that she bought Bareerah from some people of the Ansar...

«وَخَيَّرَهَا رَسُولُ اللهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ وَكَانَ زَوْجُهَا عَبْدًا»

"The Messenger of Allah (saw) gave her the choice and her husband was a slave."

So now that the meaning of the first example has been clarified and as the meaning of the second example is clear, let us have a further look at the two examples:

1. The first example demonstrates the choice of possessing oneself. Once she was liberated, she possessed the choice over her matter. Therefore, there is an association with the legal provision: As soon as she was liberated, she owned the right of choice immediately. Hence we say that the "ف" indicates an Illha, for the association between the legal provision and the issue at hand. This is a characteristic of the Illah.

2. As for the second example, adultery is not associated with lashing, rather it precedes it. Hence we say that the "ف" serves as a cause, because the issue precedes the legal provision. Adultery precedes lashing, as is the case with any cause. Another example is the Hadeeth reported by al-Baihaqiy in his Sunan al-Kubra from Khabbab Bin al-Aratt, who said: "We complained to the Messenger of Allah (saw) about the severe heat of the sun, He did not complain and said:

«إِذَا زَالَتِ الشَّمْسُ فَصَلُّوا»

"If the sun recedes, then pray."

Here the "ف" indicates a cause, meaning that the recession of the sun is the cause for prayer. It is obvious that the recession of the sun precedes prayer.

Based on this, if someone is confused over the indication of the letter "ف" - whether its indicated meaning hints at a legal condition or at a cause - he can have a look at the association between legal provision and the underlying issue. If the two are associated, then it is a legal condition (Illah), but if the legal provision follows the issue, then it is a cause. Of course this pertains to the chapter on the indication of the letter "ف", but not to the other varieties of the legal condition (Illah).

Your Brother,
Ata Bin Khalil Abu Al-Rashtah

 

The link to the answer from the Ameer's Facebook page