case, the jurist must pick up the unique quality as the effective cause
which is understood by intuition and acute perception. Thus, the
mujtahid would think that there is suitability between that particular
quality and the legal rule of the original case so that the maslahah (the
public interest) or avoidance of the mafsada (corruption) would be
realized. For example, the legality of qasr (shortening prayer) is a legal
rule, and the quality (upon which the rule is based) is travelling, which is
perceptible a sand quantifiable. What is legally considered travelling and
what is not, is established upon the relevant texts. Travelling is
considered as an effective cause because it involves hardship that invokes
ease (shortening the prayer). Thus, travelling is unmistakably an
objective matter, whose suitability to the legal rule becomes evident to
the jurist, while, shortening the prayer certainly help to alleviate
hardship. But if the jurist determines hardship as a basis (for his ruling),
then he would be dealing with a subjective quality, because what is
considered hardship or not is neither obvious nor constant as it is a
hidden quality and also varies from person to person. Consequently, the
more the jurist is far from the objective methodology, the closer he is to
committing error. So, contrary to what Dr. Shalabi maintains, ta’lil by
itself is not a subject matter of disagreement. The subject matter of
disagreement among jurists is the particular effective cause which forms
the basis of analogical reasoning. The opponents of ta’lil criticise its
exponents by saying that an evident and constant hikmah does not exist.
Thus, the opponents were realistic. As for the exponents (those who used
the hikmah as a basis of analogy) they were unrealistic, basing their stand
on unrealistic arguments or assumptions as illustrated above. Similar to
this is the reply of Imam Fakhr Al-Din al-Razi, when he maintained that
“ta’lil on the basis of legal rule (hukm) exists in many cases, such as
balancing establishment of the prescribed punishments between what
might be said to be lethal as opposed to being a mere deterrent”.
Moderation in the execution of the hadd (prescribed punishment) is not a
legal cause nor is it a basis for the prescribed punishment. But if the
prescribed punishment is not death penalty, the execution of the
punishment must not attain the level of severity that destroys life.
Thirdly, the effective cause must not invalidate the asl because a
prescribed injunction is established either by the revelation or by general
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