Legal Analogy and the Ratio Legis

However, it is neither the procedure of analogy itself nor the identification of the sign that leads to maslaha. Rather maslaha is connected to the ’Illa of the ruling only indirectly via obedience. As a sign that is effective on confirm­ing what the believer ought to do, the ratio legis, al-Basri maintains, is either a ground (wajh) for maslaha or it is a sign that accompanies the grounds for maslaha.94 In the same way as acting upon a sign is a rational requirement, so is analogizing on account of a sign. Worshipping God by acting upon the rul­ing in the analogous case is a maslaha.'^,r' The ’Illa by itself is not a maslaha but obeying God's injunctions on the basis of probable signs (illa s) likely leads to maslaha in form of divine reward in the Afterlife. By acting upon the analogi­cally derived ruling the obedient believer worships God. The ruling of analogy (hukm al-qiyas), thus, is an opportunity for the mukallaf to attain maslaha in the same way as the scriptural ruling (hukm al-asl). The prospect of maslaha motivates the person to act upon the analogically derived ruling. The practice of legal analogy (qiyas), thus, is a way to optimize one's opportunities to receive maslaha, divine reward.

Despite al-Basri's affirmation that in the process of analogy the ethical value of the ruling is transferred, he connects the ratio legis neither directly to mundane benefits nor to otherworldly maslaha. In contrast to tAbd al-Jabbar, al-Basri does not talk about the ^rilla as a motivating factor for God prohibiting or obliging something. He is almost Ash^tari in preserving the inscrutability of the divine purpose, or perhaps simply accepting the general notion that all of God's rulings are good. Al-Basri only refers to human motivation and objec­tives (gharad). In the scriptural source, the ratio legis functions as the motivat­ing factor (da^ciya) to perform (or omit) the act associated with the ruling. It is a sign for people to take advantage of God's assistance and as such the ratio legis motivates to act upon its ruling in order to attain, through obedience to God's decree, otherworldly maslaha. Presenting the hypothetical example of the obligation to eat sugar, al-Basri says:^{[391] [392] [393] [394]}

Were sugar obligatory to eat because it is sweet, and we say its sweet­ness is the ground of maslaha and of obligation, then it would not follow that the religiously responsible eats sugar because it is sweet and that the act [of eating] occurs due to this ground, rather it suffices that he eats it because it is obligatory.

As this example illustrates, al-Basri does not understand the ratio legis as moti­vator for a mundane goal but mainly as a factor that invites people to comply with a divine ruling in order to attain otherworldly reward. The ratio legis in the novel situation (far^e) is the indication (dalU) that obliges to transfer the revealed ruling to a new situation. It indicates that the divine decree regarding the original situation also encompasses this new situation. Al-Basri is quite clear that whenever the ratio legis is present in a new situation, barring pre­ventive factors, the ruling of the original case has to be applied.9⁷ Arguing against objectors to analogy, he says that “if somebody does an act due to an incentive (da^cι) and a facilitating factor (musahhil), then he does what is like that incentive unless something dissuades from that incentive.’^⁸ Referencing the example of the obligation to eat sugar, al-Basri argues that “when God expressly states (nassa) that the ^rilla of eating sugar is sweetness, then it is obvious (zahir) that its sweetness is a grounds of maslaha, unconditionally. Hence, it is not conceivable to obtain sweetness without it being a motivating factor to what the sweetness of sugar incites to.’99 Any sweetness found else­where is a motivating factor to comply with the original obligation. Hence, the religiously responsible person would be obliged to “eat every sweet whenever he can eat sugar insofar as it is sweet.”^{[395] [396] [397] [398] [399] We see that the motivation to act, or the rilla, is not connected to mundane considerations of benefit but it is the attainment of otherworldly benefit/maslaha that obliges to do so. Like tAbd al-Jabbar, al-Basri understands the ratio legis to be an instance of assistance (lutf) for reaping otherworldly maslaha. The function of analogy is to maxi­mize people's opportunities to take advantage of the maslaha that obedience to God's rulings provides. The rilla is a marker that confirms that a situation similar to the revealed legal instance may be such an opportunity.}

2.1 Identifying the Correct Ratio Legis

In contrast to tAbd al-Jabbar, al-Basri presents an elaborate taxonomy of meth­ods and criteria to identify rationes legis correctly, i.e., to confirm efficacy between the ratio legis and the ruling. All valid religio-legal illas, he empha­sizes, are based on Revelation (shar^f). They are identified either by utterance (la∕z) or by inference (istinbat).^wι The ratio legis is known with certainty (ma^clum) when it is based on a definite statement in the Qur’an or prophetic Hadith, or by recurrent report (mutawatir) of the community. Yet, as al-Basri points out, most rationes legis, even those found in Qur’an and Hadith, are only known with probability (maznun), since they are based on epistemologi­cally probabilistic signs (amarat maznuna), such as singular hadlths, textual implications (tanbih), or inferred conclusions.^ω2 Al-Basri divides rationes legis into two broad categories. They are either explicitly stated (sarlh) or implicitly inferred (munabbih). Into the first category, for which al-Basri uses formula­tions such as nassa, bi-sarlh al-qawl, and bi-sarlh. al-lafz, fall formulations such as ‘due to this ratio legis’ (li-4lla kadha) as well as other such idioms of causal­ity (e.g., li-ajlkadha or kaylayakuna kadhα).^w3 With regard to explicit rationes legis, it is obligatory to transfer the ruling of the original to a novel situation where the same ratio legis is found.^ω4

For the second category, al-Basri lays out a taxonomy of valid rationes legis that are known implicitly either based on syntactical or semantic consider­ations or inferential reasoning (istinbat). He distinguishes, in descending strength, four types of implications (tanblh). The first type of implication is when the ratio legis and its ruling are syntactically connected with idioms expressing this connection, such as the particle fa in the qur’anic statement (Q 5^: 38) that links thieves with cutting of their hands.^{[400] [401] [402] [403] [404] A second type of implication is when the Prophet knows a ruling's ratio legis and mentions it in response to a statement or question. As example, al-Basri refers to the story that a man came to the Prophet saying that he broke the fast, to which the Prophet responded that he had to do penance (kaffara). This implies, accord­ing to al-Basri, that breaking the fast is the ratio legis for doing penance. A third type of implication is when an attribute (sifa) is mentioned in connec­tion with a ruling that only makes sense to mention if it is the ratio legis. As example, al-Basri mentions that the Prophet, after he prohibited entering the house of people who have a dog, responded to a remark that he himself had entered a house with a cat by saying that the cat is not unclean (innaha laysat bi-najas) and belongs to those animals that wander freely around in houses (innaha min al-tawwdfin). Al-Basri points out that were ‘walking freely about the house' not effective on the cat's ritual cleanliness, there would have been no sense (fd,ida) in mentioning this attribute.Þ6 Similarly, the Prophet's state­ment that ‘the killer does not inherit' differentiates between inheritors and the killer in a fashion that one knows, according to al-Basri, that killing is effective on the denial of inheritance.È)7 This type of differentiating factor frequently is indicated by linguistic particles that express condition (shart) or excep­tion (istithnd,), such as idha, hatta, or illd,m* The fourth type of implication encompasses cases in which the ratio legis can be identified by another ruling mentioned in sequence to it, in particular when a prohibition follows an obli­gation. For example, al-Basri explains about the command to hasten to prayer and abstain from trade that the ratio legis of the prohibition of trade is that it prevents from the previously mentioned obligation to hasten to prayer.w9 The obligation to prayer indicates implicitly the reason for making trade to be pro­hibited at the same time. Similarly, al-Basri argues that the rilla of the prohibi­tion to say ‘fie' to parents is implicitly known from the obligation to show them respect (iczdm), as evident from the qur’anic statements immediately preced­ing and following the prohibition that one should treat parents with kindness and honor them (Q 17: 23). Saying ‘fie', he argues, is debasing and contrary to honoring and - as he says elsewhere - harmful. The same ratio legis is present in the case of hitting parents, which, hence, is prohibited in analogy.[405] [406] [407] [408] [409]}

When the ratio legis is not expressed or implied in the syntactical or seman­tic structure of the statement, its efficacy (ta^,thlr) on the ruling has to be inferred from the meaning and context in which it is embedded. For al-Basri, as mentioned above, efficacy is a relationship of co-presence and co-absence (tard wa-aks) between the effective characteristic and the ruling it brings about. Although al-Basri discusses a long list of methods to infer a ratio legis, he admits as valid only three ways, which correspond to different epistemo­logical degrees of a characteristic’s efficacy on the ruling. One way to validate the inferred ratio legis is by Consensus that it is the ratio legis in the original case.111 Another way is to reach overwhelming probability about the ratio legis by co-presence and co-absence of the ruling and one of its attributes (sifa). For such inferences to be admissible, al-Basri stipulates that no other attribute is effective on the ruling of the source text and that the ratio legis is specific to this ruling. 112 A third way that indicates the correctness of the inferred ratio legis is when a characteristic (wasf) is effective not only on a specific ruling (naw^e) but also on the general category or class of rulings.^π3 For example, when examining the ratio legis for the ruling to remove legal incompetence (raf al-hajar) in matters of marriage, two characteristics could potentially be effec­tive, namely reaching maturity (bulugh) and having previously been married (thuyubiyya).11⁴ Since reaching maturity (bulugh) is a characteristic that is also effective on removing legal restrictions in financial dealings, al-Basri deems it more appropriate to be the ratio legis for establishing legal competence in matters of marriage than the characteristic of being a divorced or widowed woman because the latter characteristic is not effective on the general category of removing legal limitations.^{[410] [411] [412] [413] [414] The characteristic’s correctness is inferred from its efficacy on a general class of rulings.}

On occasion, we find that al-Basri understands the concept of efficacy beyond syntactic-semantic relations or tangible characteristics that make sense. When he explains why maturity is the characteristic to remove legal incompetence, he points out that lifting restrictions on legal competence upon reaching maturity is established due to a purpose (li-gharad) that “we already know,” namely that prior to maturity one lacks the rational faculty (^caql) to know one’s maslahas due to the paucity of experience in such matters.^π6 In other passages in his work, al-Basri affirms that rulings have purposes. Moreover, he emphasizes that every ruling that is established due to some purpose necessarily ceases to be so with the disappearance of that purpose.^π7 However, when he mentions purposes, he usually refers only to human purposes and motivations, not God’s legislative intent as we saw in ^tAbd al-Jabbar’s work. He says that the purpose of rulings pertaining to worship is to discharge takllf and attain reward (thawab). Mundane objectives are pursued in rulings pertaining to civil transactions; the purpose of buying (bay^t) is attaining ownership, of repudiation (talaq) sever­ing the bond of marriage, and of manumission liberation.^π8

While al-Basri clearly subscribes to the view that action is driven by the moti­vation to attain benefit/maslaha and avert harm/mafsada, he does not employ consequentialist considerations in identifying the ratio legis of revealed rul­ings. The ratio legis is presented as the motivating factor (bd^cith) for obeying God’s command,^π9 not as a motivator for God to impose a ruling. Hence, it is not identifiable by looking at the maslaha that the obedient believer will receive. The ^rilla itself is only connected to maslaha insofar as when acting upon the ruling it may lead to otherworldly reward. Ethical considerations of mundane or otherworldly benefit and harm do not play a role in identifying efficacy. Al-Basri, thus, clearly conforms to the sign model of the ratio legis.

Employing considerations of this-worldly benefit and harm is, however, per­missible when Scripture is silent altogether (la nassfih), i.e., when no basis for analogies is found. Al-Basri insists that for every incident inevitably a ruling can be found.^{[415] [416] [417] [418] In the absence of revelatory rulings, harm and benefit are the signs that lead to determining acts to be prohibited, permissible and obligatory. 121 Attaining benefit and averting harm, thus, function as ratio legis to identify the correctness for purely rational rulings. Yet, as al-Basri emphasizes, such rulings are not religio-legal (sharT) rulings. They do not fall within a person's religious culpability, and do not factor into one's otherworldly fate. Rational consider­ations of benefit do not serve as ratio legis for scriptural rulings, because the maslaha associated with the latter is only known from Revelation.122 In this regard, Eissa is correct in saying that al-Basri limits the use of benefits, or rather of maslahas. Since God inevitably reveals all maslahas, the only maslahas that count for one's otherworldly fate are those acknowledged in Revelation.123 Acting upon rational considerations of benefit does not lead to otherworldly maslaha or reward.}