Questions:

Assalamu Alaikum wa Rahmatullah wa Barakatuh,

Our beloved Shaykh, may Allah (swt) help you in your cause and guide you to that which pleases Him.

Whilst reading in the book, The Islamic Personality Volume III about the topic of Qiyas (analogy), I noticed that the Hizb infers that Qiyas is a Sharii source through definitive evidences and others indefinite, though when the Hizb rejected the sayings of those who use the Consensus of the Righteous Khulafa' as a Shari'i source, it used to say that their evidences are indecisive and are hence unsuitable for inference. It could be said that the indefinite evidences can be (used) يستأنس بها (to elicit from). If so, why not refer to this matter especially since new editions of this book have been printed?

I have also seen - and I think I'm wrong - that inferring to Qiyas with definite evidences is not explicit in meaning, but it is a deduction from the evidence itself, i.e. as long as the definitive text has a ‘Illa (legal reasoning) which is conductive to the ruling then this is enough to say that Qiyas is permissible. I feel that this inference is not done with explicit wording.

Another question:

Some people give the baker at the main bakery a bag of flour and in return take a specific amount of bread daily for a month; is this permissible? Does this matter enter into the context of hiring or selling, although none of the two parties proclaim any of this?

Please be quick in responding if that is possible. May Allah swt support you, give you success and grant you victory and succession, and may He (swt) unite us with you in the Dar of Islam, Wassalamu alaikum wa rahmatullah wa barakatuh.

Answer:

Wa Alaikum Assalam Wa Rahmatullah Wa Barakatuh,

Firstly: regarding Qiyas, its evidence is the text in which ‘Illah (legal reasoning) exists, so if ‘Illah existed in the Quran, then the evidence is the Quran, and if it was in the Sunnah, then the evidence is the Sunnah...

This is considered explicit speech, so how can you say: "I feel that this inference is not done with explicit utterance"?

Look at the evidences of the ‘Illah, you will find the answer:

• Take for example the speech of Allah (swt):

((كَيْ لَا يَكُونَ دُولَةً بَيْنَ الْأَغْنِيَاءِ مِنْكُمْ))

"In order that it may not (merely) make a circuit between the wealthy among you." [TMQ 59:7]

Now answer the question: Is it permissible for the Khaleefah to give the poor from the State's possessions and not give to the rich?

The nature of the answer is: yes. Now continue the question: What is the evidence to this? Isn't the answer what Allah (swt) says:

((كَيْ لَا يَكُونَ دُولَةً بَيْنَ الْأَغْنِيَاءِ مِنْكُمْ))

"In order that it may not (merely) make a circuit between the wealthy among you." [TMQ 59:7]

• Take as another example the Hadith:

«... وفي سائمة الغنم إذا كانت أربعين، ففيها شاة...»

"On grazing sheep and goats, if they come to forty or more - one ewe." (Reported by Abu Dawood)

Now answer the following question: Is Zakah applied on the sheep that are fed at home and do not graze?

The answer as the nature of the case is: No Zakah is applied. Now continue the question: What is the evidence for this?

Isn't the answer the Hadeeth of the Prophet (saw): «... وفي سائمة الغنم إذا كانت أربعين، ففيها شاة...» 'On grazing sheep and goats, if they come to forty or more - one ewe.' (Reported by Abu Dawood)

Thus you see that the evidences are explicit in the subject.

As for if what you meant by what you said "with explicit utterance" that the ‘Illah stated in the texts which is the topic of Qiyas is not always explicit, but explicit and implicit "Dalala (extraction from the implicit meaning), Istinbatiya (extraction by way of inference), Qiyasiya (extraction through analogy)". Then this is correct, for example:

"إِنَّـمَـا جُعِلَ الاسْـتِـئْذَانُ مِنْ أَجْلِ الْبَصَرِ"

"Indeed, permission has been made obligatory because of (min ajl) sight." [Bukhari 5772]

Here, the reasoning is explicitly pronounced in the text by saying ‘because of'. As for "The grazing..." it is a Dalalah (indication) because it is linked to a casual attribute (wasf mufhim).

If this is what you meant, then this is correct, but this is another topic related to the detailed evidence, as for the overall Usuli evidence, it is extracted through proving that the Qur'an is definitive, and proving that the Sunnah is definitive, Qiyas is therefore also definitive because it is referred back to the Qur'an and Sunnah, this is different to the detailed evidence. This is how the detailed jurisprudential evidence to the ‘Illah which is explicit and implicit is extracted, and this is different to that.

As for your observation to what was mentioned in the book: "Qiyas has been proven to be a Shar'I evidence through definite evidence, and indefinite evidences.", your comment has truth in it, because despite the fact that evidence is called for in both Usool and Fiqh, its indication however differs in terms of being definitive and indefinite, and because the topic here is about the evidences of Usool, then it is preferred that they are confined to definite evidences rather than indefinite, accordingly, it is best to correct it, and we will correct it insha'Allah. For your information, I have mentioned in my book "Tayseer al-Wusool ila al-Usool" (The Facilitation of Access to Usool) the following:

"The authenticity of Qiyas comes from the authenticity of the evidences which contain ‘Illah, i.e. the Qur'an, Sunnah and Ijmaa' As-Sahaba, and since the authenticity of the Qur'an, Sunnah and Ijma' has been established as we have mentioned earlier, then the authenticity of Qiyas is also established.

The Messenger of Allah (saw) demonstrated Qiyas, when he (saw) was asked about fulfilling the Hajj of someone else..." End.

Secondly: As for your second question regarding selling bread with flour,

This issue, my brother, is not a new one, the Jurists (Fuqahaa') have discussed it in their early ages, and have thus differed in its matter as they have differed in their answers to this question:

If the usurious (ribawi) materials changed through the manufacturing process, such as grain being fried, or grain that turns into flour, dough or baking... and so on, would it be considered the same type which means that the term "wheat" is applied to all of it, and therefore it cannot be sold unless it is conducted hand to hand and equal in amount? Or will it become a different type? And is the different type usurious, thus it is allowed to sell it unequally but hand to hand? Or is the different type not usurious hence can be sold by credit (as a debt)? The following shows the different opinions on the matter:

1. Those who considered it as (all being) the same type had one problem, which is that likeness cannot be drawn between them. How can wheat be weighed or measured against bread, or flour weighed against dough, or with transaction ... etc. therefore they concluded that it is not permissible to sell wheat with bread or flour because of the impossibility of drawing similarities.

2. Others said they are of different types, but they are usurious, i.e. wheat is a usurious item, flour is a usurious item, bread is a usurious item... they therefore concluded that since they are not of the same type, then it is allowed to sell it, i.e. it is allowed to sell wheat with flour or bread, however you like, as long as it is done hand to hand.

3. Another group who said that they are different classifications, and the changeable classification of the wheat is not considered usurious, but something else, therefore, bread, or dough, or ........, are not usurious items, and therefore, it is permissible to sell wheat with bread and flour however you like and by credit too, because they are not considered usurious items, i.e. wheat is sold with a different item that is not usurious...

• Accordingly, the opinions of the Mujtahideen (fiqhi scholars) differed on this matter... and I will present to you the valid opinions of some of the Fuqahaa':

a) The opinion of Shafi'i in the impermissibility of selling:

It was mentioned in the Al-Majmoo' for Nawawi Al-Shafi'I (deceased 676 AH): "it is not permissible to sell flour through baking it because he has entered it into the fire and mixed it with salt and water which prevents likeness to occur, and because the bread is weighed and the wheat is measured, it would not be possible to know the equality between them".

b) Abu Hanifa's opinion in the impermissibility of selling:

It was mentioned in Al-Binaya Sharh al-Hidayah for Badru-Din Al-‘Ayni Al-Hanafi (deceased: 855 AH)... "it was mentioned by Abu Hanifa that there is no good in it i.e. in the selling of bread with wheat and flour, which means that it is impermissible".

c) The opinion of the friends of Abu Hanifa (Abu Yousuf and Mohammad) of the permissibility of selling unequally (in measurement and weigh) hand to hand:

It was mentioned in Al-Binaya Sharh Al-Hidaya: "It is permissible to sell bread with wheat and flour unequally as long as it is done hand to hand", and he added: "selling bread with bread unequally (in amount and/or weigh) is permissible according to Abu Yousuf and Mohammad may Allah swt have mercy on them, (done) hand to hand".

It was also mentioned in Al-Binaya Sharh Al-Hidaya "the Fatwa regarding the first" i.e. "on the permissibility of selling bread with wheat and flour".

d) The opinion of Abu Yousuf in the permissibility of selling with credit, i.e. with debt:

It was mentioned in Al-binaya Sharh Al-Hidaya: "if the wheat was a debt then it is also permissible, and if the bread was by debt then it is permissible according to Abu Yousuf, and the Fatwa is passed accordingly".

In any case, you can follow in this matter whichever Mujtahid whose Ijtihad reassures you, and may Allah be with you.

Your brother,
Ata Bin Khalil Abu Al-Rashtah

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