Legal Analogy and the Function of the Ratio Legis

When the believer worships God by acting upon His impositions, he does so on account of motivations (dawaT). What motivates to perform an act is, for ^tAbd al-Jabbar, the ^rilla that brings about an effect by leading to a consequence, and in this sense the motivator is effective (mu^,aththir) on the outcome. He says that “[the] ^rilla is only an ^cilla on account of something that is attributable to motivating factors and maslahas^,.'^u° Since action depends on the accountable (mukallaf) choosing to act upon the incentive, ^cillas in the realm of religion do not always and consistently bring about their effects. Moreover, tAbd al-Jabbar does not envision a mono-causal explanation for what leads to the effect, but provides multi-tiered connections between the two. Hence, he designates as ^rilla not only what is in legal parlance the ratio legis of a ruling but uses the term to include God's assistance (luf) and any motivating factors for bring­ing about a consequence.141 As incentive, the ^rilla has to be analyzed from the perspective of the agent and what motivates her to action.

In tAbd al-Jabbar's scheme, the ruling (hukm) that prayer is obligatory is a reason (4lla) for acting. God imposing the ruling is the motivating factor (da^cι) for the mukallaf to act upon the assistance God thereby provides to discharge one's duty (pray) and attain otherworldly maslaha)⁴² As Emon says, it is the benefit that is resulting from the assistance God provides that “makes obliga­tion both justified and meaningful.”^ The very ruling that prayer is obligatory (hukm) is a motivation (Hlla) that brings about an effect, namely the act of praying. However, in contrast to rational causes there is no necessary connec­tion between the ^rilla and the ruling. For example, without valid ritual ablu­tion, the maslaha of prayer is void, even if performed with the motivation to discharge an obligation and receive reward.^{[259] [260] [261] [262] [263] [264] [265] Moreover, ‘Abd al-Jabbar hints at another dimension of the rilla as what motivates to perform the prayer. He says that when (matta) it is known that praying leads to avoiding sinful and reproachable acts (al-fahsha,wa-l-munkar) and, conversely, it is known that when a person does not pray, he engages in them - then the act of prayer is a motivating factor in order to abstain from sinful acts and avoid what is bad (al-qablh), i.e., avoid harm and blame from oneself.w5 Here, the relationship between rilla and hukm is one of correlation, not causation. The rilla is effec­tive, i.e., co-extensive and co-exclusive.}

That beneficial consequences in this world are connected to the ^rilla as motivator for a ruling is even more explicitly stated by ^tAbd al-Jabbar in the example of the prohibition of wine (khamr), where the same mechanism of cause/motivation and effect/ruling is at work. When looking at the prohibition of wine as an opportunity to discharge one's duties toward God, the human agent's motivation to choose not to drink wine, according to tAbd al-Jabbar, is because it is prohibited.^{[266] [267] [268] [269] The motivation for not drinking wine is the very ruling of prohibition and its associated threat of punishment upon disobedi­ence. As an instance of assistance (Lutf) for attaining otherworldly reward, it is the motivating factor (rilla) that prompts to follow this ruling. Like in the example of prayer, there is an additional dimension to the rilla of prohibiting wine. The ratio legis (rilla) for prohibiting wine, tAbd al-Jabbar says, is its ine­briation (iskdr'fr'2 The motivating factor (rilla) for this ruling is that inebriation leads to the harmful consequences of enmity, aggression, and the like. tAbd al-Jabbar maintains “were it not that drinking wine entails enmity and aggres­sion, it would not be prohibited, and were it not inebriating, it would not entail enmity and aggression.”^3}

We see here clearly that for tAbd al-Jabbar the divine legislative intent, i.e., the reason why God imposes a ruling, is discernable in the ^rilla. In this regard, tAbd al-Jabbar evidently follows the motive model of the ratio legis. God's jus­tice necessarily entails that God's legislative intent aims at human benefit. The beneficial consequences of prayer, as known to God, are motivating God to make it obligatory. The harmful consequences of inebriation constitute the motivation (Vila), on God's part, for prohibiting wine, though the characteris­tic of inebriation is the immediate sign or indication (^rilla) of the ruling.^⁴ The motivation (^rilla) for the human agent not to drink wine is, on the one hand, the mundane benefits attained by avoiding the harmful consequences that its inebriating character leads to, and, on the other hand, to obey God's command and thereby receive otherworldly reward.

There are, thus, several perspectives to the ^cilla as motivating factor. God acts only out of beneficence for His creation. Hence, the motivating factor (^rilla)

for God to lay down rulings is the benefit which He knows result from them. These consequences, on the one hand, pertain to these laws being a form of assistance for humans to attain otherworldly maslaha upon obedience. On the other hand, God sets rulings for the mundane benefits for people that He knows results from them. The same motivation pertains to the culpable believer. Given that God only acts for the beneficence of His creation, the rul­ings He imposes, by definition, must have benefits - and should be followed. Hence the mukallaf acts upon a ruling either for its concrete mundane benefit or the otherworldly maslaha associated with obedience, or both.

The mundane consequentialist perspective pertains to both God and humans. Although ‘Abd al-Jabbar is not explicit about it, it is obvious that the mundane benefits are often discernable from the indicants provided in Scripture. God prohibits drinking wine because of its inebriating, i.e., harm­ful, characteristic ('illa). For humans, the attribute of inebriation becomes the indication (^cIlla) for the ruling (Iiukm) prohibiting the consumption of wine to avert its harmful consequences. The ratio legis, thus, is tied to tangible char­acteristics or attributes that are connected to the ruling and that motivate humans to shun inebriation. Even purely rational investigation of drinking wine would lead to the realization that its attribute of inebriation results in enmity and aggression, i.e., is harmful, and should be prohibited. Revelation only confirms this assessment.

We see in ‘Abd al-Jabbar’s discussion of prayer and grape wine that the ^cilla has, from the perspective of the human agent, deontological as well as consequentialist dimensions. The deontic perspective, however, is premised on the knowledge that God’s laws are good and issued for their goodness. As assistance to the path of salvation, the imposed action prompts the religiously accountable to comply as an act of obligatory obedience but also as one for which reward is promised. The ^cilla is what prompts the accountable believer to follow God’s impositions, irrespective of whether she is motivated to act out of otherworldly reward or mundane benefits.

While the otherworldly consequences suffice as motivator to act on the divinely imposed ruling, the attributes and configurations associated with the ruling become the motivation/ratio legis for extending the ruling analogically to situations not directly addressed in Scripture. It is not unlikely, ‘Abd al-Jabbar says, that the attribute that motivates to act is operative in similar situations and serves as motivating factor (^cilla) in other than the divinely revealed ruling.^[270] The mukallaf, he says, does not distinguish between God connect­ing worshipping Him to the very names of actions (e.g., prohibition to drink wine) and between connecting it to their attributes (e.g., inebriation). Both provide the motivation for acting upon the ruling and are a gateway (madkhal) to maslahas (avoidance of enmity, attaining of reward).^{[271] [272] [273] [274] [275] [276] [277] [278] Therefore, tAbd al-Jabbar maintains, attributes can be made the ratio legis (cilla) and become motivations to act in similar situations.^7 In some divine rulings, the attri­bute may not be concretely connected to mundane benefits, as for example, with regard to the qur’anic ruling to halve the punishment of female slaves. The intellect can discern that its rilla, its motivating factor, is the attribute of enslavement (riqq), as opposed to the person's gender, because this is the only attribute that rationally makes sense (fd,ida).}

It is the tangible attributes of the ^rilla that, when known, prompt to extend the ruling to situations that resemble the scriptural ^rilla.i5⁸ Knowing that the characteristic of inebriation is the ratio legis of prohibiting drinking wine allows to transfer this prohibition also to date wine, which exhibits the same attribute and, thus, the same motivation. tAbd al-Jabbar argues that since the mukallaf acts upon the same motivating factors, legal analogy takes the place of an explicit scriptural statement (nass sam^cι).i5⁹ Acting upon the analogical conclusion, he emphasizes, is part of one's religious accountability and an act of worshipping God.i6° It would be considered wrong (istafsada) not to do so in the same way as if one were to ignore a textually explicit ruling.161 As part of worship, the ruling established by analogy, tAbd al-Jabbar says, is intended (murad) by God in the same way as the ruling expressed in the source.^lfi2 The aim of analogizing a religious ruling to a new case (qiyas sam^rι) is to know how to assess acts that the culpable believer chooses in situations not covered by Scripture.i6³ Analogizing is a way for the mukallaf to enlarge the gateway to maslahas.

In the discussion of analogy, we see that tAbd al-Jabbar understands the ^rilla primarily as a motivating factor for the ruling. It does not entail the ruling nec­essarily but rather, as incentive, the ^cilla has the effect to prompt the agent to choose to act upon the ruling, thus bringing it about. It is in this way that tAbd al-Jabbar conceives of the ^cilla as connected to maslaha. God is motivated to impose a ruling by its mundane beneficial consequences (its goodness) and the otherworldly maslaha connected to it for the obedient human agent. ‘Abd al-Jabbar does not explicitly differentiate between the mundane and other­worldly benefits, but given that he uses the term maslaha overwhelmingly to refer to otherworldly benefit, it seems fair to suggest that the mundane posi­tive results for humankind are only part of the ^rilla of rulings, and not always recognizable. Hence, it is primarily the assistance (lutf), which the ratio legis provides, that prompts action. For the believer, the otherworldly maslaha attainable by obedience is the primary motivator (4lla) to obey God's imposi­tion and, thus, receive reward or avoid punishment. The mundane beneficial consequences provide additional motivation - motivation that is rationally comprehensible from the information provided by Scripture. Whenever the same motivating factor is found outside of the scriptural incident, it offers the same motivation for assessing the situation and for action. Acting in accor­dance with divine impositions in analogous situations is part of a person's reli­gious accountability (takllf). In light of ‘Abd al-Jabbar's statements that the purpose of Revelation is to assist people with receiving reward/maslaha in the Afterlife, legal analogy is primarily a way to expand their opportunities to reap the rewards promised and avert divine punishment.^{[279] [280] We turn now to how ‘Abd al-Jabbar identifies the rilla, probing whether beneficial consequences (mundane or otherworldly) play a role in determining the correct ratio legis in order to employ it in the procedure of analogy.}

3.3 Methods OfIdentifying the Ratio Legis (‘Illa)

Although ‘Abd al-Jabbar understands the ^rilla of legal analogy as the incentive to act upon divine rulings, be that in order to attain maslaha in form of reward promised for obedience to God's rulings or to reap mundane benefits, the way he identifies the ratio legis is based primarily on the syntactic and semantic configuration of the ruling, not its consequences.

The most important criterion to identify the ^rilla is that it is effective (mu^,aththira) on the ruling, though, as Eissa also remarks, ‘Abd al-Jabbar never defines what he means by effective.^⁵ Something is only called the ^rilla of the ruling, ‘Abd al-Jabbar says, when it has efficacy (tafhlr) on it, be that known or presumed.^{[281] [282] [283] [284] [285] [286] [287] He holds that the efficacy of a ratio legis is known by an indicant (dalil) or sign (amara) that the ruling is connected to it or that makes con­necting the ruling to this ratio legis preferable than connecting it to something else.i67 We learn a little more about ‘efficacy’ when tAbd al-Jabbar discusses the ways to identify the correct ratio legis.}

tAbd al-Jabbar presents seven methods (turuq) to validate the ratio legis of scriptural rulings. The first, and epistemologically strongest is when some­thing is mentioned as a reason (^cilla) by the use of linguistic idioms (alfdz) that denote a causal relationship, such as the Arabic terms “li-ajl", “kayla”, “li-kayy”, and ⅛'^,,.i6⁸ A second way to identify the ratio legis is when the mention of a ruling is followed or preceded by something that were it not the ^rilla, the rul­ing would not make sense (la afdda). As example, tAbd al-Jabbar mentions the Prophet’s response to the question whether food touched by a cat (su^,ur al-hirra) is ritually clean, saying that cats belong to those that are wandering around people (min al-tawwdfin ^ralaykum wa-l-tawwdfdt). Mentioning the detail that cats walk freely around people only makes sense if it is the ratio legis for the ruling that they are ritually pure. According to tAbd al-Jabbar, this type of indication of the ratio legis takes the place of an explicit ratiocination (al-nass ^cald l-ta^clil).¹69 A third way to confirm a ratio legis is by invalidating (fasada) all other potential rationes legis present in the original source, thereby establishing the one that remains as the 'illa,^m tAbd al-Jabbar does not provide an example for this method, which later jurists often call classifying and elimi­nating (sabr wa-taqsim ).i7i The fourth method is to look at the characteristics (awsdf) of the original case and identify the one that is effective (mu^,aththira) on the ruling to the exclusion of the others, or the one that is strongest in its efficacy. 172 tAbd al-Jabbar lists as fifth method when an attribute (sifa) is found in close proximity and association with the ruling. A sixth way to identify the ratio legis is when the ruling is present with its presence and absent with its absence and no other factor shares this relationship.^{[288] [289] [290] [291] [292] The seventh and final method that ‘Abd al-Jabbar considers valid to determine the ratio legis is that whenever one attribute is made the ratio legis of the ruling, the ruling makes sense (afada), whereas with other attributes it does not. According to ‘Abd al-Jabbar, these seven ways of identifying the cilla are all the methods to do so. With the exception of the last method, he claims that there is no disagreement over their validity. 174}

‘Abd al-Jabbar’s presentation of how to identify a ruling's ratio legis correctly is rather unsatisfying; he spends barely two pages on the subject.^⁵ Apart from the first method, in which the ^rilla is explicitly indicated by idioms of causal­ity, the other methods all display what ‘Abd al-Jabbar calls efficacy,^⁶ namely that the case displays an indication (dalll) or sign (amara) that is connected to the ruling in a manner that without it, the ruling would not be operative - in short - by co-absence and co-presence (tardwa-^caks) between linguistic char­acteristics and the ruling. Additionally, ‘Abd al-Jabbar says that the effective connection (ta^calluq) can be found in attributes (sifdt) pertaining to the original ruling, which are validated to be a gateway (madkhal) to motivations (dcιwdT) or a ground for assistance (wajh al-lutf). 177 These motivations and instances of assistance, as mentioned above, are connected primarily to the otherworldly and less to the mundane beneficial consequences of divine rulings.

We see here that ‘Abd al-Jabbar has a notion that a ruling’s ratio legis dis­plays attributes that are connected to maslaha and benefits and that makes the ratio legis effective. He, however, does not articulate explicitly a connec­tion or provides a tangible definition of this connection. Most of the ways to identify the ratio legis of a ruling that ‘Abd al-Jabbar lists are intuitively understood, based on semantic connections - they make sense (Ja¹ida). Apart from learning that inebriation leads to harmful mundane consequences and prayer to positive results, there is little mention of consequences in this world associated with the Jllci that would motivate to act upon it. ^tAbd al-Jabbar does not spell out why, for example, enslavement is the reason (Jllcι) that leads to the ruling of halving the hadd-punishment, or why wandering around people makes the cat pure. These rulings are transferred to other cases on account of shared apparent characteristics, not due to shared beneficial consequences or a deeper meaning.

Despite calling the Jllei a ‘motivator’ to act upon the ruling and an instance of assistance, and seemingly adhering to what Zysow calls the motive model of the ratio legis, in the practical application of analogical reasoning, tAbd al-Jabbar adheres in law-finding to the sign model. He conceives of the Jllei primarily as an apparent attribute of the act under consideration that, when present in another situation, justifies to apply the same legal norm.^{[293] [294] The characteristic of inebriation or enslavement is enough to justify analogizing other instances that display the same characteristic to the respective rulings.}

Contrary to Eissa’s claim that tAbd al-Jabbar considers as valid ratio legis any attribute in the original case that leads to any benefit or averts harm and that is concomitant with the ruling, and that tAbd al-Jabbar allows benefit to validate rationes legis without restricting them to be textually acknowledged,^⁹ I argue that his methods to determine the ratio legis show that tangible, mundane benefit is not a criterion of identifying it. The ratio legis is connected (ta^callaqa) to benefit (i.e., Lutf or maslaha) on account of the otherworldly consequences that acting upon the ruling lead to. Eissa seems to mistake tAbd al-Jabbar’s use of the term maslaha with mundane benefit, for which, as mentioned, tAbd al-Jabbar usually uses the Arabic manfa'a. Even in the example of obligation of prayer and the prohibition of consuming wine, any mundane beneficial consequences are secondary. Since people’s maslaha is only knowable from Revelation, rational considerations alone cannot inform about such maslahas, though the earthly benefits of divine rulings can be grasped. In short, tAbd al-Jabbar does not operationalize the ethical dimension of the Jlleι, in particu­lar its mundane benefits, in the procedure of analogizing religious rulings to situations not covered by Scripture. Despite his emphasis on otherworldly con­sequences, when it comes to determining the ratio legis for legal analogy he adheres to the sign model. The motive model is reserved for God.

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