Allah (swt) sent Muhammad
(saw) with the Islamic Sharee’ah as a mercy for mankind. He (swt) said:
وَمَا أَرْسَلْنَاكَ إِلَّا رَحْمَةً لِّلْعَالَمِينَ
“And We have not sent
you, [O Muhammad], except as a mercy to the worlds” {Al-Anbiyaa’ : 107}
And Allah Ta’Aalaa said:
وَنُنَزِّلُ مِنَ الْقُرْآنِ مَا هُوَ شِفَاءٌ وَرَحْمَةٌ لِّلْمُؤْمِنِينَ ۙ وَلَا يَزِيدُ الظَّالِمِينَ إِلَّا خَسَارًا
“And we have revealed
from the Qur’an that which is a cure and mercy for the believers” {Al-Israa’ : 82}
Allah (swt) sent His
Messenger with Islaam, as a mercy to mankind, to bring them out from
worshipping other than Allah to worshipping Allah and He (swt) organised their
relationships with the best of systems.
The aim and purpose of
the Sharee’ah as a whole is therefore a Rahmah (mercy) for mankind. As the
Sharee’ah represents a Rahmah. This means that the Sharee’ah as a whole came to
bring and secure Masaalih (benefits/interests) and to repel Mafaasid
(unbeneficial and corrupting/bad elements) in relation to the people generally
when it is applied upon them. The Adillah (evidences) are explicit in respect
to the Rahmah (mercy) representing the overall aim or objective of the
Sharee’ah as a whole. That is whilst there isn’t any indication within these
general evidences to indicate that the Rahmah represents the aim or objective
of every single individual ruling in itself or of every text from amongst the
Sharee’ah texts.
Consequently, the overall
Maqsad (aim) of the Sharee’ah is the realisation or accomplishment of the
interests of the ‘Ibaad (servants/people) however these Masaalih
(interests/benefits) are not what the human views to be representative of a
Maslahah or benefit in accordance to his whims or desires but rather the
Maslahah is that which is a Maslahah according to the scale of the Shar’a and
not the scale of whims and desires. The ‘Ulamaa have classified these Masaalih
into three categories:
1 – Ad-Darooriyaat
(essentialities/necessities):
By these it is meant the
Masaalih upon which the life of the people, the establishment of the society
and its stability rests. If these Masaalih are not fulfilled or realised the
system of life will become flawed and chaos and corruption will prevail. They
will face hardship and suffering in this Dunyaa and punishment in the Aakhirah
(hereafter). These Darooriyaat (essential matters) number five: Hifzh ud-Deen,
Hifzh un-Nafs, Hifzh ul-‘Aql, Hifzh un-Nasl and Hifzh ul- Maal (preservation of
the Deen, life, mind, progeny/lineage and property). Islaam has legislated
Ahkaam for the preservation of each of these Darooriyaat (essential matters).
– Hifzh ud Deen:
The Islamic legislation
does not force or compel anyone to enter into Islaam. Allah (swt) said:
ۖلَا إِكْرَاهَ فِي الدِّينِ
“There is no compulsion
in (respect to) the Deen” {Al-Baqarah
256}
And this was applicable
after the Arab Mushrikeen entered into Islaam. However, in respect to the
Muslim that apostatises from Islaam, he is discussed with and his repentance is
sought for three days. Then, after that, if he persists upon his apostasy, he
is killed. The Messenger of Allah (saw) said:
Whoever changes his Deen,
then kill him (Al-Bukhaari)
That is because the
Islamic Aqeedah is in harmony with the Fitrah (intrinsic nature) of the human
being and built (or based) upon the mind (rationality). As such, the Murtadd
(apostate) from this
Aqeedah becomes like a
manifestation of sickness that must be uprooted so that it does not infect the
rest of the Islamic society. This relates to the preservation of the Deen.
Islaam has considered
Al-Fitnah (strife) in the Deen to be worse and more severe than killing. Allah
Ta’Aalaa said:
وَالْفِتْنَةُ أَشَدُّ مِنَ الْقَتْلِ
“Al-Fitnah is worse than
killing” {Al-Baqarah: 191}
As such Islaam has
legislated the following for the preservation of the Deen: The Da’wah
(invitation) to it, repelling the assault or aggression against it and the
obligation of Al-Jihaad against those who wish to negate it. Allah (swt) says:
ۖ وَقَاتِلُوهُمْ حَتَّىٰ لَا تَكُونَ فِتْنَةٌ وَيَكُونَ الدِّينُ لِلَّهِ
“And fight them until
there is no more Fitnah and the Deen is to Allah” {Al- Baqarah 193}
– Hifzh un-Nafs
(preservation of the life):
For the preservation of
the Nafs (life) Islaam legislated all that which is required for its
continuance or survival like food, drink and punishing the one who aggresses
against it. Allah (swt) says:
وَلَكُمْ فِي الْقِصَاصِ حَيَاةٌ
“And you have in Al-Qisaas
(law of retaliation) life” {Al-Baqarah:
179}
It has also prohibited
exposing the life to destruction by making suicide Haraam.
– Hifzh ul-‘Aql
(preservation of the mind):
For the preservation of
the mind Islaam has prohibited the drinking of Khamr or consumption of drugs
(intoxicants). At the same time, it has encouraged and urged the pursuit of
knowledge, contemplation and Ijtihaad, which are all matters that develop the
intellectual capability within the person. Islaam commends those who are
knowledgeable and attain knowledge:
هَلْ يَسْتَوِي الَّذِينَ يَعْلَمُونَ وَالَّذِينَ لَا يَعْلَمُونَ
“Say: Are those who know
and those who don’t know equal (or the same)” {Az-
Zumar: 9}
– Hifzh un-Nasl
(preservation of the progeny/lineage):
For its preservation Islaam
has legislated the prohibition of Zinaa and a punishment for its perpetrator.
It has also prohibited Al-Qadhf (accusations against chastity) and legislated
the punishment for the one who makes such accusations or claims (Al-Qaadhif).
It prohibited abortion for other than a Shar’iy ‘Udhr (excuse) and encouraged
marriage and the reproduction of many offspring.
– Hifzh ul-Maal
(preservation of the property):
Islaam has legislated the
prohibition of stealing and the Hadd (set punishment) for the thief in regards
to the preservation of the property. It has also prohibited the damaging of
property, provided restrictive legislation to safeguard the wealth of the
Safeeh (foolish) and Majnoon (not of sound mind), made (private) ownership
permissible and encouraged wealth growth.
2 – Al-Haajiyaat (the
needs):
These are the matters
that the people need to lift the hardship or difficulty (Haraj) from them and
to lighten the burdens of the Takleef upon them. Allah (swt) said:
يُرِيدُ اللَّـهُ بِكُمُ الْيُسْرَ وَلَا يُرِيدُ بِكُمُ الْعُسْرَ
“Allah intends for you
ease and does not intend for you hardship” {Al-Baqarah:
185}
So in relation to the
‘Ibaadaat the Takleef is in accordance to their capability whilst Rukhas
(special permissions) have been legislated for them as a lightening for them in
the case where there is a hardship upon them in respect to the ‘Azeemah (the
obligation before the Rukhsah). Consequently, it made the Iftaar (breaking of
fast) in Ramadhaan Mubaah for the traveller and the prayer sitting for the one
incapable of standing amongst other such rulings.
And in respect to the
foodstuffs, the Tayyibaat (good things) were made Halaal for them and the
Khabaa’ith (dirty/bad things) were made Haraam, whilst the one who is compelled
to (Mudtarr) has been permitted to eat that which has been made Haraam upon
him. Allah (swt) said:
فَمَنِ اضْطُرَّ فِي مَخْمَصَةٍ غَيْرَ مُتَجَانِفٍ لِّإِثْمٍ ۙ فَإِنَّ اللَّـهَ غَفُورٌ رَّحِيمٌ
“But whoever is forced by
severe hunger with no inclination to sin – then indeed, Allah is Forgiving and
Merciful” {Al-Maa’idah: 3}
Within the area of the
‘Uqoobaat’ (punishments/penal-code) the following principle has been
legislated:
‘Repelling the Hudood by
doubts’
And the Diyah (blood
money) has been legislated upon the ‘Aaqilah’ (relatives of the killer) in
relation to the unintentional killing as a lightening (of the burden) upon the
killer.
3 – At-Tahseenaat
(improvements/betterments):
These are the matters
that improve the condition of the people conforming with the requirements of a sense
of honour, dignity and noble virtuous morals.
Consequently, in respect
to the ‘Ibaadaat the purification of the body, clothing and place was
legislated in addition to legislating caution in respect to the Najaasaat
(impurities) and for the Muslims to pay attention to their adornment at every
Masjid (i.e. where nice clothing.)
In regards to the
Mu’aamalaat Al-Ghish (swindling/cheating), fraud, deceit, Israaf and stinginess
has been made Haraam. In addition, dealing with every kind of Najas (impurity)
and Daarr (harmful matter) is prohibited. The Shar’a forbade a person
conducting a trade over the trade of his brother and fixing prices amongst
other matters.
Similar to that applies
in respect to the ‘Uqoobaat (punishments/penal code) whilst the killing of
monks, children and women have been made Haraam in Al-Jihaad, just as
mutilation, treachery, killing of messengers (envoys) and burning the dead or
living has been forbidden.
In relation to the
Akhlaaq (morals) Islaam has demanded the person to be characterised with
truthfulness (honesty), trustworthiness, patience, perseverance and
righteousness whilst it has forbidden lying, cheating, deceiving, cowardice and
lewd speech. The Messenger of Allah (saw) said:
Verily, from those of you
are most beloved to me and sat the closest to me (in seating) on the Day of
Judgement are the best of you in Akhlaaq (morals/manners) (Al-Bukhaari and
At-Tirmidhi).
And the Messenger of
Allah (saw) was asked about that which most enters (its possessor) into
Al-Jannah (paradise) and he (saw) said:
The Taqwaa of Allah and
the good manners/morals
(At-Tirmidhi which he
classified as Saheeh).
The Akhlaaq Al-Hasanah
(good morals/virtues) as such are responsible for generating affection, respect
and trust or confidence amongst the individuals of the society.
The difference or
disagreement amongst the ‘Ulamaa in respect to the Ahkaam Ash-Shar’iyah being
Mu’allalah (reasoned) by Al-Maslahah (the interest/benefit)
The ‘Ulamaa differed in
respect to the Ahkaam Ash-Shar’iyah being Mu’allalah (reasoned) by the Maslahah
into a number of groupings:
1 – The first group:
This group denied the
Ahkaam Ash-Shar’iyah being reasoned by Al- Maslahah i.e. that the Maslahah is
the motive or reason for the Hukm Ash-Shar’iy. In accordance to their opinion
they say that it is possible for the Shaari’ (Legislator) to legislate a Hukm
Shar’iy that does not have a Maslahah (interest or benefit) within it. Those
holding this view are the Asha’irah (the followers of Abu-l-Hasan Al-Ash’ariy)
and the Zhaahiriyah (the followers of Daawood Azh-Zhaahiriy).
Despite that, they did
however establish that an examination (of the texts and rulings) affirms that
the Ahkaam Ash-Shar’i are all restricted to falling under a Maslahah from
amongst the five matters: the preservation of the Deen, life, mind, progeny and
property.
2 – The second group:
This group includes some
of the Shaafi’iyeen and some of the Hanafiyah and they affirmed that the
Maslahah is valid to be an ‘Illah (reason) for the Ahkaam Ash-Shar’iyah on the
basis that it represents the ‘Amaarah’ (sign) of the Hukm but not the motive
for the Hukm i.e. that it is closer to the Sabab than the ‘Illah.
3 – The third group:
This group includes the
Mu’tazilah, the Maatureediyah and some of the Hanaabilah and Maalikiyah. They
viewed that that Ahkaam Ash- Shar’i are reasoned by Masaalih without
restriction (to the will of Allah Ta’Aalaa) on the condition that the reasoning
does not demolish the text (i.e. go against it).
My opinion in respect to
the Ahkaam Ash-Shar’iyah being Mu’allalah (reasoned) by Al-Maslahah
1 – The deduction of some
of the ‘Ulamaa in respect to the bringing of interests (Jalb Al-Masaalih) and
the repelling of harms or corrupted matters (Dar’u l-Mafaasid) being
representative of an ‘Illah (Shar’i reasoning) for the Ahkaam Ash-Shar’iyah is
an invalid deduction.
The proof and evidence
for that is that the Aayaat that they used for evidence in their deduction do
not indicate ‘Illiyah (reasoning) whether in the form that they have come
(Seeghah) or in respect to the reality.
They used as evidence the
Qawl of Allah Ta’Aalaa:
وَمَا أَرْسَلْنَاكَ إِلَّا رَحْمَةً لِّلْعَالَمِينَ
“And We have not sent
you, [O Muhammad], except as a mercy to the worlds” {Al-Anbiyaa’: 107}
The Aayah indicates that
the sending of the Messenger (saw) represents a Rahmah (mercy) for mankind
which means that the objective and purpose of the Islamic Sharee’ah in its
overall description is to bring the Masaalih and repel the Mafaasid whilst the
Aayah does not mean that the bringing of the Masaalih and repelling of the
Mafaasid is representative of the ‘Illah of the Islamic Sharee’ah in its
overall description or that it is the ‘Illah for every single Hukm Shar’iy in
itself.
That is because the Aayah
guides to the result that comes as a consequence of the Sharee’ah which is the
bringing of benefit and the repelling of the Mafaasid whilst it does not
indicate that they represent the ‘Illah of the Shar’iyah. There is a difference
between the result and the ‘Illah as the result relates to the consequence of
the Hukm after its implementation whilst the ‘Illah is the reason or motive
(Baa’ith) for the ruling itself i.e. the reason for which the Hukm was
legislated. There is therefore a clear difference between the two.
They also used as
evidence the Hadeeth of the Messenger (saw):
There is not Harming and
reciprocation of harm in Islaam
The most that this
Hadeeth can indicate is the negation of the Mafaasid (corrupt and harmful matters)
from the Islamic Sharee’ah as a whole whilst it does not mean or indicate
Al-‘Illiyah (reasoning), whether it is in respect to the Sharee’ah (as a whole)
or to any specific Hukm Shar’iy.
Additionally, this
Hadeeth was related to repel the harm from the people whilst the wording ‘In
Islaam’ was not mentioned in it. Ibn ‘Abbaas (ra) said: The Messenger of Allah
(saw) said:
There is no harming and
no reciprocating of harm, and it is for a man to place a wooden peg in the wall
of his neighbour and if you dispute on the path then make it seven arm spans
(in width) (Ahmad)
The Hadeeth was therefore
not within the subject area of the Maqaasid of the Sharee’ah but was rather
related to preventing or repelling the harm (Darar). Consequently, there is no
Dalaalah (implied indication) within it in relation to the subject of bringing
the Masaalih and repelling the Mafaasid or to indicate that it represents an
‘Illah for the Ahkaam Ash-Shar’iyah.
Even if the texts of the
Qur’aan and the Sunnah have guided to the result that occurs from the
implementation of application of the Islamic Sharee’ah manifested in the
bringing of the Masaalih and repelling of the Mafaasid, they do not however
indicate that they represent an ‘Illah (reasoning) for the legislation of the
Sharee’ah or an ‘Illah for every Hukm Shar’iy in itself. As a result, the
deduction based upon these evidences is not valid and falls down in respect to
this subject area.
