Legal Analogy and God's Wisdom
Al-Dabbusi's discussion of legal analogy (qiyas) reflects his overall approach to the divine Law, characterized by a rationality that is based on language and that conforms to the divine wisdom.
Legal analogy, for him, is a rational activity because, in order to analogize, one needs the faculty of reason. As a mental activity, analogy only applies to matters that can be rationally comprehended.84 This mental activity is based on understanding the semantic meaning of the authoritative texts.85 However, al-Dabbusi stresses that despite being a rational endeavor, qiyas is not certain, but only probabilistic (ghalabat al-zann), and is epistemologically on the same level as speculation (nazar) and ijtihddw' Analogizing (qiyas al-ra,y) to sources whose rulings are textually established in order to transfer them to derivations, he says, is an authoritative proof (Juijja) by which God is worshipped.[502] [503] [504] [505] [506] [507] Like tAbd al-Jabbar and al-Basri, al-Dabbusi considers it obligatory to act upon the analogically extended ruling. He maintains “when [God] elucidates an appellation (ism) or an attribute (sifa), connecting it to one of His rulings, then it is obligatory to take it as an example (Ttibdr) in another location (asl akhir) and it is obligatory to establish the ruling that pertains to it whenever the characteristic (wasf) is found.”88 This obligation, al-Dabbusi claims, is based on Qur’an 59: 2 (Ttabard ultl-absdr), which he interprets according to linguistic usage as a command to attach something to its like.89 The purpose of analogy, thus, is to apply the rulings of the Law outside of the scripturally provided instances. The grounds on which this is done is the occurrence of the ratio legis (cilla) in instances other than those established in the sources of the Law. Let's look in more detail at how al-Dabbusi conceives of the cilla.2.1 The Ratio Legis (tIlla)
When al-Dabbusi elaborates on the concept of rilla, his reliance on linguistic conventions, part of the wisdom of establishing language (hikmat aTwadj, is again apparent. He states that linguistically the term cLlla designates “a state (hdl) of altering by its onset (huldl)9° the assessment of the state (hukm al-hdl). Or, it is a term for something that brings forth (ahdatha) something by its onset.”'9 Addressing the question of necessary causality between cLlla and its effect, al-Dabbusi emphasizes that the consequence of the occurence of the cLlla is not voluntary, yet the cLlla itself is not its causing agent. In illustration he says that the term cLlla is used to designate ‘disease', the onset of which alters the state of a person without her choosing to be ill. Likewise, a fatal wound is called the cilla of death, as opposed to the person who inflicted the wound[508] The way al-Dabbusi conceives of the relationship between the cLlla and its consequence reflects his view of God and His Law. For al-Dabbusi, the rillas of the Law are markers (acldm) and signs (dydt, amarat) for the divine rulings, and while they are indicating the rulings, there is no necessary causality between rilla and ruling, but God sets them as such.[509] In the same way that smoke is an indicant for fire but not its cause, a legal indicant is not necessitating its effect - though, al-Dabbusi admits, every indicant is a cause of knowledge about the indicated.9[510] While there is a stable relation between the ratio legis and its ruling, the ratio legis does not cause the ruling but only ‘involuntarily’ brings it about. The actual causing agent remains God, who, al-Dabbusi maintains, cannot be called the rilla of something, since He engenders voluntarily by choice and is not temporal, i.e.
He cannot be described as ‘occurring’ (hulul)?[511] [512] [513]In legal parlance, the term rilla, according to al-Dabbusi, is used to designate the meanings (maranin) deduced from the authoritative texts to which legal rulings are connected and based on which these rulings are transferred to derivations (Juruf), because “these meaning, by their occurrence in the textually explicit ruling, change, involuntarily, their rulings from the specific to the general."9θ Al-Dabbusi explicitly states that the material sources of the Law that display rationes legis are testimonies to God’s rulings that are not textually attested (la nass Jlha).f," The function of analogy, thus, is to generalize a specific textual ruling on account of the occurrence of the ratio legis outside of its specifically mentioned legal instance, thereby providing assessments for instances that are not directly addressed in Revelation^[514] [515] How does one recognize the rilla of a ruling? Al-Dabbusi says that by knowing (tacarruf) the meanings of the language (macanll-lugha), one affirms (athbata) the meanings and rulings of the divine Law.99 It is in this sense that rationes legis can be called indicants (adilla) because “those meanings indicate to us God’s rulings with regard to the derivations.”[516] That a meaning indicates the ratio legis of a ruling is known from God connecting a term (ism), an attribute (sifa), or a characteristic (wasf) to one of His rulings, the presence of which in other than the textually expressed location warrants to apply the same ruling there. This connection between the ruling and rilla is based on a ‘trace’ or ‘effect’ (athar).ιm “We do not designate one from among the totality of characteristics [of a ruling] to be [its] rilla unless its effect (athar) on that ruling is known by itself or by something like it. Al-Dabbusi’s reliance on the wisdom of establishing language also comes through in the way he discusses how to recognize efficacy. The efficacy of a characteristic, he states, is determined by thoroughly studying the meanings of the authoritative texts (macanll-nusus). Al-Dabbusi stresses the similarity between legal and linguistic analogies, comparing the former with recognizing metaphorical use of words and employing them outside of their literal meaning. In the same way as figurative usage of words is known only from those speaking that language, the efficacy of a characteristic, he says, is known only from the information provided by the Legislator.105 The meaning that is common to the source and the derivation is the evidence (shahada) for transferring the ruling of the source to the derivation.Þ6 The task of the jurist is to identify one or more indicants that distinguishes the ratio legis from non-effective characteristics.107 2.2 Identifying Efficacy Al-Dabbusi is slightly more concrete than tAbd al-Jabbar and al-Basri in describing what he means by efficacy, and we notice that he understands this concept quite differently from these two jurists. He vehemently rejects that one can identify the correct rilla by way of co-presence (qiyds al-tard), by co-absence (qiyds al-caks) or by concomitance (dawaran), arguing that none of these methods establishes the correctness of the ratio legis.[524] [525] [526] [527] [528] [529] [530] These method, for al-Dabbusi, do not constitute efficacy.109 Instead, he says that one analogizes based upon “the appropriateness (saldh) of the indicant to be the ratio legis, further its propriety (cadala) and the absence of invalidating factors.’4™ Although the term saldh, which I here translate as ‘appropriateness’, has connotations of ‘good’ or ‘good consequences’, when al-Dabbusi employs it with regard to determining the ratio legis of analogy, the ethical content of the indication is not his concern, but the congruence of a characteristic with known or established cases.m The terms saldh and radala are explained in the following manner. Although al-Dabbusi seems to champion efficacy as the main criterion to identify the ratio legis, many of his examples reveal that there is another, meta-ethical dimension to the 'illa. This dimension is born out of al-Dabbusi's commitment to the divine wisdom setting everything in its proper place. Similar to the way he understands the above discussed concept of jd,ida as an advantage connected to benefit or as purpose of meanings, he relates rilla to the wisdom or reason why God legislates. The divine legislative intent comes out clearly in Ahmed's analysis of al-Dabbusi's explanation of abrogation (naskh). As Ahmed puts it, “[b]ehind every command that God enjoins upon mankind is a higher purpose that leads people closer to God."π8 This higher purpose or wisdom behind the divine injunctions is sometimes more concrete than achieving closeness to God, and then is directed toward human well-being in the Hereafter as well as in this world. This is evident, for example, when al-Dabbusi delineates the term ‘occasion' (sabab) from ratio legis (cilla). He says that sabab is something that leads to something else; it leads to or is a tool for a ruling, or consequence, without necessitating it. God sending His messenger to His creation is the occasion of their guidance (huda). The fear of hellfire is the occasion that deters from committing acts of disobedience (macdsin), and the desire for paradise is the occasion for obedience.π9 Beyond the sabab may be a deeper meaning or, one may say, a rationale for establishing that particular ruling. When this is the case, al-Dabbusi says, the sabab necessitates (awjaba) the ruling and is the Illat al-rilla.[536] He mentions as example that travel is the occasion for granting license (rukhs a) to omit fasting, whereas the ratio legis for legitimate omission of this obligation is the hardship (mashaqqa) of travel. Hence, he says “hardship is the real ratio legis”[537] In a similar fashion, al-Dabbusi explains that the Law made ‘sleep’ the occasion for obligatory ablution (wudu,), instead of tying it to the actual occurrence of a ritual impurity, i.e., its Illa. Obliging ablution upon sleep is done in order to “make it easier on the worshippers by linking the ruling to an obvious occasion (sabab zahir).”[538] These examples illustrate that al-Dabbusi conceives of rationes legis not only as outwardly apparent criteria and signs for rulings, but that they are connected to the underlying wisdom behind God’s legislation. They have an ethical component that is aligned with God’s legislative wisdom; they attain benefit and avert harm. The divine legislative intent is also noticeable when al-Dabbusi argues that God does not prohibit engaging in any of the mundane matters that the intellect deems permissible unless the prohibition entails maslahas for humankind.12[539] A divine prohibition must mean that it was issued in order to attain a greater good (saldh) than would have been achieved by leaving the matter merely permissible.^[540] God’s rulings, being issued in accordance with His wisdom, lead to maslahas. In contrast to tAbd al-Jabbar and al-Basri, the ratio legis is not just an instance of assistance (lutf) for attaining otherworldly maslaha through obedience to God’s decree. The maslahas that al-Dabbusi refers to are attained also in people’s mundane existence. The mundane con- sequentialist perspective is evident in the examples al-Dabbusi presents for differentiating between sabab and rilla, but also in many of the legal cases he mentions throughout his work. For example, he says that the Law requires that sale items are free from defects in order not to deceive the buyer;[541] [542] he explains that being a minor is the ratio legis for guardianship (wilaya), which is instituted on account of the maslahas connected with this institution.^6 That al-Dabbusi conceives of divine legislative intent aiming at tangible mundane benefit and averting harm in this world is also expressed in the examples he lists as evidence that God is not senseless in His legislation - which bear (uncanny) resemblance to the five necessities (damrdt) as later formulated by al-Ghazali.[543] [544] [545] [546] [547] Al-Dabbusi list the following divine prohibitions: fornication (zina) to prevent neglecting to raise one's offspring (nasl); gluttony in eating due to the harm (darar) it contains; squandering wealth (amwdl) due to its stupidity (safah); drinking wine because it entails loss of intellect (naqs al-ruqul), neglect of remembering God, and committing crazy acts (afcdl al-majdnln); gambling (qimar) because it leads to hatred and aggression and wasting money; eating pork, as well as other beasts of prey, due to people's natural aversion against it;i28 transgressing against the property (mdl) of others to protect (siyana) the right of the owner and avert harm (darar) from him.129 Moreover, al-Dabbusi explains that God's wisdom also permits people to transgress a divine prohibition in case of necessity (damra) when thereby a greater harm is averted, such as eating carrion in case of starvation?30 These beneficial consequences of divine injunctions are rationally discernable. Al-Dabbusi expresses his confidence in human reason saying that an intelligent person does not, without any knowledge, blindly accept the maslahas he is ordered to pursue.i3i He, thus, confers some moral autonomy to evaluate the commanded action in terms of its mundane maslaha. We see that for al-Dabbusi God's legislative act is done not only with people's otherworldly destiny in mind, but also for its good consequences in this world. Yet, even though al-Dabbusi conceives of this divine legislative wisdom in terms of averting harm and bringing about something good and calls it maslaha, he shies away from linking the determination of the 'illa to the resulting beneficial mundane consequences. He insists that the ratio legis of a ruling can only be identified by its appropriateness (saldh), relevance (muld1ama), and conformity (muwafaqa) with rationes legis as identified and used in legal analogies by the early Muslim community, which, when present in totality, indicate that the ratio legis is effective. While al-Dabbusi's interpretation of the 'illa - in contrast to al-Basri's - is a clear step toward the motive model, he uses the underlying purpose of divine legislation primarily to explain the Law and individual rulings. He does not operationalize it in the procedure of analogy.[548] [549] The function of legal analogy is to generalize individual textual rulings outside of their specific mention in Scripture. It follows rational rules based on apparent signs, yet, for al-Dabbusi, the reach of the Law does not go beyond the semantic meaning attested in the textual sources of the Law. Cases for which no scriptural precedent can be found have to be regulated on the basis of the intellect (ra,y), which then, as al-Dabbusi says, constitutes proof (hujja)p3 though it does not establish religious obligations. 3