Undang-Undang Dasar Negara Khilafah

UUD / Hukum-hukum Umum §1-15

Pasal 12: Sumber undang-undang

Undang-Undang Dasar Negara Khilafah, berdasarkan metode kenabian: Pasal 12: Al-Kitab (Al-Quran), As-Sunah, Ijma’ Sahabat dan Qiyas merupakan dalil-dalil yang diakui bagi hukum syara’. 

Article 12: The Book, the Sunnah, the Ijmaa’ of the Sahabah and the Qiyas (analogy) are the only evidences considered in Shari’ah laws, and it is not permitted to adopt any legislation from other than these evidences.

This article does not imply that the State will adopt a method of Ijtihad; it rather means that the State will follow a specific method when adopting the Shari’ah rules. This is because the adoption of the Shari’ah rules could either be obligatory in some cases or, in other cases, permitted for the State. If this adoption were to be conducted in two contradictory methods, it would lead to a contradiction in the basics upon which the adoption has been conducted. Therefore, the State ought to adopt a specific method in adopting the Shari’ah rules.

Three reasons prompted the adoption of such a method in the adoption of rules:

  •  Firstly, the rule by which the Muslim should proceed is a Shari’ah rule and not a rational rule; in other words, it is the rule of Allah in the matter and not the rule laid down by man. Therefore, the evidence from which this rule is deduced must be what the Revelation has brought.
  • Secondly, the confirmation that the evidence - from which the rule has been deduced - has been brought by way of Revelation must be conclusive. In other words, it is imperative that the evidence, from which the Shari’ah rule has been deduced, has conclusive and decisive, not indefinite, evidence that it has been brought by way of Revelation. This is because it is part of the Usul (foundations) and not part of the branches; thus, to be most likely or probable is not sufficient since it is part of the 'Aqeedah matters and not part of the Shari’ah rules. This is so because the evidence required to deduce the rule from is evidence which has come by way of Revelation, not just any evidence. Therefore, it is imperative to decisively confirm that it has been brought by way of Revelation and the process of confirming that it has been brought by Revelation is an 'Aqeedah matter not a Shari’ah rule. Therefore, it is imperative to establish that the evidence has come by way of Revelation by definite evidence because matters of 'Aqeedah can only be taken conclusively.
  • Thirdly, what is conclusive is that man’s behaviour in life proceeds according to his concepts about life. Although the viewpoint about life has the 'Aqeedah as its basis, it is nevertheless formed of a host of concepts, criteria and convictions which are existent in the Ummah. Not all of these thoughts, which are reflected in this host of concepts, criteria and convictions are part of the matters of 'Aqeedah. Rather, some of them are from the matters of 'Aqeedah and others are part of Shari’ah rules, and since rules are deduced with the least amount of doubt it is ,therefore, feared that if the origin of the rules has not been conclusively confirmed as being brought by way of Revelation, then some of the non-Islamic thoughts may creep into the Ummah due to the presence of Shari’ah rules deduced from a foundation which Revelation has not brought in the first instance. If it is widespread and used over a long period of time it will influence the viewpoint about life held by the Ummah and consequently affects its behaviour. Accordingly, it is imperative to confirm that the evidences, upon which rules to be implemented by the State are deduced, must be those evidences brought by Revelation.

 It is for these three reasons that the adoption of a specific method, according to which the Shari’ah rules are adopted, is imperative. As for the fact that the evidences are confined exclusively to the four general evidences mentioned above, this is confirmed through study. We have studied and scrutinised the evidences that have been confirmed by a conclusive evidence to have been brought by way of Revelation and we have not found anything other than these four at all.

The Quran

As for the Quran, the evidence about the fact that it has been brought by way of Revelation from Allah (swt) in letter and spirit is conclusive. The miracle of the Quran serves as conclusive evidence that it is indeed the Word of Allah (swt) and not the word of man. Therefore, the conclusive evidence has been established that the Quran is the Word of Allah (swt). The Quran itself, which has been conclusively confirmed as being the Word of Allah by the evidence of the miracle, states that it is Revelation that descended upon the Messenger of Allah صلى الله عليه وآله وسلم ; Allah (swt) says:

 (( نَزَلَ بِهِ الرُّوحُ الْأَمِينُ (193) عَلَى قَلْبِكَ لِتَكُونَ مِنَ الْمُنْذِرِينَ (194)))

 The Trustworthy Spirit has brought it down;Upon your heart, [O Muhammad] - that you may be of the warners.(TMQ 26:193-4);

 (( وَأُوحِيَ إِلَيَّ هَذَا الْقُرْآَنُ))

 And this Quran has been revealed to me.” (TMQ 6:19);

 ((قُلْ إِنَّمَا أُنْذِرُكُمْ بِالْوَحْيِ ))

 Say, "I only warn you by revelation."(TMQ 21:45);

 ((مَا أَنْزَلْنَا عَلَيْكَ الْقُرْآَنَ لِتَشْقَى))

 We have not revealed the Quran to you that you may be unsuccessful (become distressed).” (TMQ 20:1);

 ((وَإِنَّكَ لَتُلَقَّى الْقُرْآَنَ ))

 And indeed, [O Muhammad], you receive the Qur'an.(TMQ 27:6);

 ((نَحْنُ نَزَّلْنَا عَلَيْكَ الْقُرْآَنَ))

 Indeed, it is We who have sent down to you, [O Muhammad], the Qur'an progressively.(TMQ 76:23)and

 ((أَوْحَيْنَآ إِلَيْكَ قُرْءَانًا عَرَبِيًّۭا))

 We have revealed to you an Arabic Qur'an.” (TMQ 42:7).

 These are conclusive evidences establishing the fact that the Quran has been brought by way of Revelation from Allah (swt).

The Sunnah

As for the Sunnah, the conclusive evidence about the fact that it is Revelation which has come from Allah (swt) in meaning, and that the Messenger of Allah صلى الله عليه وآله وسلم expressed it by his own words is what came clearly indicated in the Verses of the Quran. Allah (swt) says:

 (( وَمَا يَنْطِقُ عَنِ الْهَوَى (3) إِنْ هُوَ إِلَّا وَحْيٌ يُوحَى (4)))

 Nor does he speak from [his own] inclination; It [the Quran] is nothing but revelation sent down to him.(TMQ 53:3-4);

 ((إِنَّا أَوْحَيْنَا إِلَيْكَ كَمَا أَوْحَيْنَا إِلَى نُوحٍ وَالنَّبِيِّينَ مِنْ بَعْدِهِ))

 We have revealed to you, [O Muhammad], as We revealed to Noah and the Prophets after him.(TMQ 4:163);

 (( إِنْ أَتَّبِعُ إِلَّا مَا يُوحَى إِلَيَّ))

 I only follow what is revealed to me from my Lord.” (TMQ 6:50); Say,

 ((قُلْ إِنَّمَآ أَتَّبِعُ مَا يُوحَىٰٓ إِلَىَّ مِن رَّبِّى))

 "I only follow what is revealed to me." (TMQ 7:203); “Say,

 ((قُلْ إِنَّمَآ أُنذِرُكُم بِٱلْوَحْىِ))

 "I only warn you by revelation."(TMQ 21:45)And Allah (swt) says

 ((وَمَا آَتَاكُمُ الرَّسُولُ فَخُذُوهُ وَمَا نَهَاكُمْ عَنْهُ فَانْتَهُوا))

 And whatever the Messenger has given you - take; and what he has forbidden you - refrain from.(TMQ 59:7)

 These are clear evidences denoting that whatever the Messenger of Allah صلى الله عليه وآله وسلم has uttered in terms of the Sunnah has come by way of Revelation; they also serve as clear evidences denoting that Allah (swt) has explicitly ordered us in the Quran to abide by what the Messenger of Allah صلى الله عليه وآله وسلم ordered us and to abstain from what he صلى الله عليه وآله وسلم prohibited for us. This command is general. Hence, the evidence about the fact that the Sunnah has come by way of Revelation is conclusive because it has been established by a conclusive Quranic text that is definite in its intended indication.

The Ijma’

As for the Ijma’ of the Companions, which is considered a Shari’ah evidence, it means the general consensus of the Companions that such rule is a Shari’ah rule, or their general consensus that the rule pertaining such and such matter is so and so. Hence, if they unanimously consented about a certain rule as being a Shari’ah rule, their Ijma’ (general consensus) would be considered a Shari’ah evidence.

 The evidence for this is reflected in two matters: firstly, Allah (swt) praised them in the Quran through a text that is conclusive and definite in meaning. Allah (swt) said:

 ((وَالسَّابِقُونَ الْأَوَّلُونَ مِنَ الْمُهَاجِرِينَ وَالْأَنْصَارِ وَالَّذِينَ اتَّبَعُوهُمْ بِإِحْسَانٍ رَضِيَ اللَّهُ عَنْهُمْ وَرَضُوا عَنْهُ وَأَعَدَّ لَهُمْ جَنَّاتٍ تَجْرِي تَحْتَهَا الْأَنْهَارُ خَالِدِينَ فِيهَا أَبَدًا ذَلِكَ الْفَوْزُ الْعَظِيمُ))

 And the first forerunners [in the faith] among the Muhajireen and the Ansar and those who followed them with good conduct - Allah is pleased with them and they are pleased with Him, and He has prepared for them gardens beneath which rivers flow, wherein they will abide forever. That is the great attainment.(TMQ 9:100)

 This praise by Allah (swt) of the Muhajirin (emigrants), the Ansar (Helpers) and those who followed them with righteousness, due to their emigration and their support, is a praise of the Companions because those praised are the Companions and the meaning of the verse is confined to them. This praise is for all of them and the truthfulness of those whom Allah (swt) praises in such a way is conclusive.

 The second matter is that we have taken our Deen from those Companions since they are the ones who transmitted to us the very Quran that had descended upon our master Muhammad صلى الله عليه وآله وسلم . Hence, if we assumed that a flaw were to creep into one single matter from among what they had agreed upon, this means that the flaw could creep into the Quran; in other words, the flaw could creep into the Deen which we had taken from them and this is impossible from the angle of Shari’ah. Therefore, although it would not be rationally impossible for the Companions to unanimously agree upon an erroneous matter - for this could happen since they are only human - however, this could not possibly happen to them from the Shari’ah point of view since if this were possible, it would then be possible for error to creep into the Deen. In other words, it would be possible for error to creep into the fact that this Quran that we have today is the very same Quran that descended upon our master Muhammad صلى الله عليه وآله وسلم , and this is impossible from the Shari’ah point of view; thus, it would be impossible for them to generally consent on something erroneous.

 This serves as a conclusive proof that the Ijma’ of the Companions is a Shari’ah evidence. In addition, Allah (swt) says:

 ((إنَّا نَحْنُ نَزَّلْنَا الذِّكْرَ وَإِنَّا لَهُ لَحَافِظُونَ))

 Indeed, it is We who sent down the Qur'an and indeed, We will be its guardian.(TMQ 15:9). Therefore, Allah (swt) has promised to protect the Quran and he who transmitted this Quran is he who protected it; thus, this serves as evidence about the truthfulness of their Ijma’ in transmitting and compiling the Quran. Hence, it serves as proof about the soundness of their general consensus because if it were possible for their consensus to be flawed, it would be possible for the transmission of the Quran to be flawed and it would be possible for it to be unprotected. Therefore, since the non-protection of the Quran is impossible, as indicated by the Verse, then it is impossible for error to creep into its transmission or its compiling or its protection. Hence, the Ijma’ of the Companions is a conclusive evidence.

However, what should be made absolutely clear is that the Ijma’ of the Companions stipulating that such and such rule is a Shari’ah rule is simply uncovering an evidence; in other words, there exists for this rule an evidence derived either from the action, words or silence of the Messenger of Allah صلى الله عليه وآله وسلم and that the Companions transmitted the rule but did not transmit the evidence. Hence, their transmission of the rule discloses the fact that there exists an evidence for that rule. Therefore, their general consensus does not mean that their personal opinions are in agreement over a specific matter for their personal opinions are not Revelation and each one of them is not infallible; thus, a companion’s opinion cannot be regarded as a Shari’ah evidence. This is because the Shari’ah evidence must be brought by way of Revelation in order to be considered as Shari’ah evidence, and the Companions’ opinions are not like that; therefore, they cannot be considered as Shari’ah evidence whether these were the opinions upon which they agreed or the opinions over which they disagreed. For this reason, the Ijma’ of the Companions does not mean their agreement upon one single opinion, it rather means their general consensus about the fact that a rule is a Shari’ah rule, or such and such rule is a Shari’ah rule; in this case, it is not their opinion but rather a general consensus that it is from Shari’ah; hence, the Ijma’ of the Companions is simply uncovering an evidence.

The Qiyas

As for Qiyas, it is also Shari’ah evidence. Linguistically it means estimating and in the Usul terminologyit is the making of analogy between a known matter upon another known matter in order to either confirm a rule for both of them or to disclaim it for both of them due to a mutual factor between them. Thus, it is comparing the rule of a known matter to another known matter due to their association in the ‘Illah (the reason) of the rule. Accordingly it is the extending of the root to the branch or in other words, the joining of the branch to the root. The meaning of carrying a known fact upon a known fact means that one of them shares the same rule with the other, so the rule of the root is established for the branch, and the branch shares the same rule as the root. This rule of the root could be a confirmation; Al-Bukhari reported from Ibn Abbas

 «أَنَّ امْرَأَةً مِنْ جُهَيْنَةَ جَاءَتْ إِلَى النَّبِيِّ صلى الله عليه وآله وسلم فَقَالَتْ: إِنَّ أُمِّي نَذَرَتْ أَنْ تَحُجَّ فَلَمْ تَحُجَّ حَتَّى مَاتَتْ، أَفَأَحُجُّ عَنْهَا؟ قَالَ: نَعَمْ، حُجِّي عَنْهَا، أَرَأَيْتِ لَوْ كَانَ عَلَى أُمِّكِ دَيْنٌ أَكُنْتِ قَاضِيَةً، اقْضُوا اللَّهَ فَاللَّهُ أَحَقُّ بِالْوَفَاءِ»

A woman from the tribe of Juhaina came to the Prophet صلى الله عليه وآله وسلم and said, "My mother had vowed to perform Hajj but she died before performing it. May I perform Hajj on my mother's behalf?" The Prophet صلى الله عليه وآله وسلم replied, "Perform Hajj on her behalf. Had there been a debt on your mother, would you have paid it or not? So, pay Allah's debt as He has more right to be paid.'”Here the Messenger of Allah صلى الله عليه وآله وسلم compared the debt to Allah to the debt of the human and stated that its settlement would suffice. In this instance, the rule is a confirmation that the settlement of the debt would suffice.

 The rule of the root that is compared with could also be a disaffirmation as is the case in what is reported on the authority of Umar (ra) who asked the Prophet صلى الله عليه وآله وسلم about the kiss of the one who is fasting and whether it breaks the fast. The Prophet صلى الله عليه وآله وسلم then asked,

 «أَرَأَيْتَ لَوْ تَمَضْمَضْتَ، أَكَانَ ذَلِكَ يُفْسِدُ الصَّوْمَ؟ فَقَالَ: لاَ»

 “What do you think if you rinsed your mouth (while you were fasting), would that break your fast?” He replied “No” authenticated by Al-Hakim and confirmed by Al-Dhahabi.Here the Messenger of Allah صلى الله عليه وآله وسلم compared the kiss of a fasting person to the rinsing out of one’s mouth in that it does not invalidate the fast. Hence, the rule in this context is a disaffirmation, in this case the non-invalidation of the fast.

The meaning of this analogy being based upon a common factor between the two matters is that the ‘Illah (Shari’ah reason) of the root is also found in the branch. It is on the basis of this ‘Illah that the carrying over takes place and this ‘Illah is the common factor between the compared and the compared with or in other words, between the root and the branch. An example of this is reflected when the Messenger of Allah صلى الله عليه وآله وسلم was asked about the purchase of dates by ripened dates. He said:

«أَيَنْقُصُ الرُّطَبُ إِذَا يَبِسَ؟ فَقَالُوا: نَعَمْ، فَقَالَ: فَلاَ، إِذَنْ»

Do the dates (Rutab) diminish in size when they become dry?' They said: (yes) they did. He said: in this case, no (He forbade that). (reported by Abu Ya’la with these words from Sa’d Bin Abi Waqqas and authenticated by Al-Hakim and Ibn Hibban). Here, the Messenger of Allah صلى الله عليه وآله وسلم asked about the ‘Illah that exists in the usurious money, which is the increase, and whether it was also found in the sale of Rutab for dates, and when he صلى الله عليه وآله وسلم knew of its presence, he confirmed the rule of Riba (usury) for such as type of sale, and so he (said)

«فَلاَ، إِذَنْ»

“in this case, no”. In other words, it is forbidden to exchange such commodity as it is because it decreases in weight once it is dried; thus, the Messenger of Allah صلى الله عليه وآله وسلم asked about the mutual factor which is the Shari’ah ‘Illah of Riba.

This is the definition of Qiyas according to the Shari’ah. This definition has been obtained from the narrations of the Messenger of Allah صلى الله عليه وآله وسلم . Ibn Abbas narrated:

«جَاءَتِ امْرَأَةٌ إِلَى رَسُولِ صلى الله عليه وآله وسلم فَقَالَتْ: يَا رَسُولَ اللَّهِ، إِنَّ أُمِّي مَاتَتْ وَعَلَيْهَا صَوْمُ نَذْرٍ، أَفَأَصُومُ عَنْهَا؟ قَالَ: أَرَأَيْتِ لَوْ كَانَ عَلَى أُمِّكِ دَيْنٌ فَقَضَيْتِهِ أَكَانَ يُؤَدِّي ذَلِكِ عَنْهَا؟ قَالَتْ: نَعَمْ، قَالَ: فَصُومِي عَنْ أُمِّكِ»

A woman came to the Messenger of Allah صلى الله عليه وآله وسلم and said: Messenger of Allah, my mother has died and there is due from her a fast of vow; should I fast on her behalf? Thereupon he said: You see that if your mother had died in debt, would it not have been paid on her behalf? She said: Yes. He صلى الله عليه وآله وسلم said: Then observe fast on behalf of your mother.(reported by Muslim). It is narrated by ‘Abd Allah Bin Al-Zubair that a man asked the Messenger of Allah صلى الله عليه وآله وسلم

«جَاءَ رَجُلٌ مِنْ خَثْعَمٍ إِلَى رَسُولِ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَقَالَ إِنَّ أَبِي أَدْرَكَهُ الْإِسْلَامُ وَهُوَ شَيْخٌ كَبِيرٌ لَا يَسْتَطِيعُ رُكُوبَ الرَّحْلِ وَالْحَجُّ مَكْتُوبٌ عَلَيْهِ أَفَأَحُجُّ عَنْهُ قَالَ أَنْتَ أَكْبَرُ وَلَدِهِ قَالَ نَعَمْ قَالَ أَرَأَيْتَ لَوْ كَانَ عَلَى أَبِيكَ دَيْنٌ فَقَضَيْتَهُ عَنْهُ أَكَانَ ذَلِكَ يُجْزِئُ عَنْهُ قَالَ نَعَمْ قَالَ فَاحْجُجْ عَنْهُ»

“O Messenger of Allah, my father was an old man when he became Muslim, and could not ride an animal, do I perform Hajj on his behalf?” He صلى الله عليه وآله وسلم said: “You see if your father had died in debt, would it not have been paid on his behalf?” He said: “Yes.” So he صلى الله عليه وآله وسلم said: “Then do perform Hajj on behalf of your father” (reported by Ahmad with a chain authenticated by Al-Zain, and reported similarly by Al-Darimi).

In these two narrations, the Messenger of Allah linked the debt to Allah (swt) in fasting and in Hajj onto the debt to the human and they are both the linkage of a known matter upon another known matter, i.e. the association of the debt to Allah with the debt to the human in confirming that their settlement on one’s behalf would suffice. This is so because both of these matters are debts; thus the mutual factor between them is the debt and this is the ‘Illah and the rule that has been confirmed for both of them is the sufficing of the settlement. This is the reality of Qiyas according to the Shari’ah from the Shari’ah text. Therefore, this definition is a Shari’ah rule that must be implemented and it is the binding rule of Allah upon the one who deduces it and upon the one who imitates it either as a Muttabi’ (a Muqallid who queries the evidence) or as an ‘Ammi (a Muqallid who did not query the evidence). It is like any other Shari’ah rule, deduced from a Shari’ah evidence, because the Shari’ah definitions and principles deduced from the Shari’ah evidences are Shari’ah rules like all other Shari’ah rules.

This Qiyas is based upon the ‘Illah or in other words, upon the common factor between the known linked matter and the known matter it is linked to; that is, between the root and the branch. Hence, if the ‘Illah is found, that is if the mutual factor is found between the compared and the compared with, then Qiyas can be done; otherwise, Qiyas does not take place at all. This ‘Illah would be considered a Shari’ah evidence if it were mentioned in a Shari’ah text or if it were analogous with what is listed by a Shari’ah text because the ‘Illah upon which the Qiyas is based has been mentioned by Shari’ah.

By contrast, if this Illah were not mentioned in a Shari’ah text and it were not analogous with that which is listed in a Shari’ah text, such a Qiyas would not be considered a valid Qiyas, nor a Shari’ah evidence. This is because the reason upon which it is based has not been mentioned by a Shari’ah text; thus such Qiyas could not be from Shari’ah and consequently it cannot be a Shari’ah evidence.

Evidence about this Qiyas being a Shari’ah evidence is reflected in the fact that the Shari’ah text in which the ‘Illah is mentioned or analogous with what is mentioned in the Shari’ah text could either come from the Book, the Sunnah or from the Ijma’ of the Companions. These three evidences have been confirmed as being Shari’ah evidences through conclusive proof; thus, the evidence of the Shari’ah ‘Illah is conclusive and that is the evidence of Qiyas. This is so because the Shari’ah reason found in the rule that is mentioned by the text, which acts as the root, is what makes the rule in the branch a Shari’ah rule and it is what makes Qiyas feasible for without it Qiyas would not have existed in the first place. Therefore, its evidence will also serve as evidence for Qiyas.

This Shari’ah Qiyas has been demonstrated to us by the Messenger of Allah صلى الله عليه وآله وسلم and he صلى الله عليه وآله وسلم considered it a Shari’ah evidence. The Companions also proceeded according to it and adopted it as a Shari’ah evidence when they deduced the Shari’ah rules. It has been reported that the Messenger of Allah صلى الله عليه وآله وسلم said to Mu’ath and Abu Moussa Al-Ash’ari when he was about to dispatch them to Yemen:

«بِمَ تَقْضِيَانِ؟ فَقَالاَ: إِنْ لَمْ نَجِدِ الحُكْمَ فِي الكِتَابِ وَلاَ السُّـنَّةِ قِسْنَا الأَمْرَ بِالأَمْرِ، فَمَا كَانَ أَقْرَبَ إِلَى الـحَـقِّ عَمِلْنَا بِهِ»

“What will you judge by?” They said: “If we don’t find the rule in the Book or in the Sunnah, we will make analogy (Qiyas) between things; whichever (according to our judgement) is closer to the right is adopted.” (mentioned by Al-Amidi in Al-Ahkam and Abu Al-Husain in Al-Mu’tamad)Here Mu’ath and Abu Moussa explicitly stated that they would use Qiyas and the Messenger of Allah صلى الله عليه وآله وسلم approved this; ,therefore, this serves as proof that Qiyas is a Shari’ah evidence.

It is reported on the authority of Ibn Abbas that:

«أَنَّ امْرَأَةً مِنْ جُهَيْنَةَ جَاءَتْ إِلَى النَّبِيِّ صلى الله عليه وآله وسلم فَقَالَتْ: إِنَّ أُمِّي نَذَرَتْ أَنْ تَحُجَّ فَلَمْ تَحُجَّ حَتَّى مَاتَتْ، أَفَأَحُجُّ عَنْهَا؟ قَالَ: نَعَمْ، حُجِّي عَنْهَا، أَرَأَيْتِ لَوْ كَانَ عَلَى أُمِّكِ دَيْنٌ أَكُنْتِ قَاضِيَةً، اقْضُوا اللَّهَ فَاللَّهُ أَحَقُّ بِالْوَفَاءِ»

A woman from the tribe of Juhaina came to the Prophet and said, "My mother had vowed to perform Hajj but she died before performing it. May I perform Hajj on my mother's behalf?" The Prophet replied, "Perform Hajj on her behalf. Had there been a debt on your mother, would you have paid it or not? So, pay Allah's debt as He has more right to be paid.(reported by Al-Bukhari). Here the Messenger of Allah صلى الله عليه وآله وسلم wanted to teach this woman so he joined the debt to Allah to the debt of the human in the obligation of settling the debt and its sufficing, and this is exactly Qiyas itself. It is reported on the authority of Umar Bin Al-Khattab (ra) who asked the Prophet صلى الله عليه وآله وسلم about the kiss of the one who is fasting and whether it breaks the fast. The Prophet صلى الله عليه وآله وسلم then asked,

«أَرَأَيْتَ لَوْ تَمَضْمَضْتَ، أَكَانَ ذَلِكَ يُفْسِدُ الصَّوْمَ؟ فَقَالَ: لاَ»

“What do you think if you rinsed your mouth (while you were fasting), would that break your fast?” He replied “No” (authenticated by Al-Hakim and confirmed by Al-Dhahabi).Here the Messenger of Allah صلى الله عليه وآله وسلم rejected the rule of invalidating the fast for the act of kissing while fasting by comparing it with the act of rinsing out the mouth while fasting, which does not invalidate the fast, because neither of them enters the belly. Thus it was an explanation of the rule through the use of Qiyas.

 In these three texts, the rule was not only given an ‘Illah, as in the case in many texts that denote Qiyas, rather, Qiyas itself was also approved, taught and explained through them and this serves as a valid argument stipulating that Qiyas is a Shari’ah evidence.

 This is as far as the Messenger of Allah صلى الله عليه وآله وسلم is concerned. As for the Companions, it is reported that they used Qiyas as Shari’ah evidence in several matters. One example is what has been narrated by Said Bin Mansur in his Sunan from Al-Qasim Bin Muhammad

"أن رجلا مات وترك جدتيه أم أمه وأم أبيه فأتوا أبا بكر فأعطى أم أمه السدس وترك أم أبيه فقال له رجل من الأنصار: لقد ورثت امرأة لو كانت هي الميتة ما ورث منها شيئا وتركت امرأة لو كانت هي الميتة ورث مالها كله فأشرك بينهما في السدس."

A man died and left behind his two grandmothers, his mother’s mother and his father’s mother, and so Abu Bakr came and gave the mother of his mother a sixth and left the mother of his father, and so a man from the Ansar said to him: “You gave the inheritance of a dead man to a woman who if she had died, the same man would not have inherited her; and you excluded the woman whom the man would have inherited all her legacy had she been the one who died”, and so he divided the sixth between them” . This event was also mentioned by Al-Ghazali in Al-Mustasfa and Al-Amidi in Al-Ihkam. Here, the Companions compared the inheritance of the living from the dead with the inheritance of the dead to the living by assuming that the dead was living and the living was dead; thus, concluding that the mutual factor - the kinship between the two persons - is the same in both instances. When Abu Bakr heard this Qiyas, he submitted to it, implemented it and retracted from his own opinion.

 Similar to this is what was reported that Umar (ra) wrote to Abu Musa Al-Ash’ari saying:

 "اعرف الأشباه والأمثال، ثم قس الأمور برأيك"

 “Realize the likeness, similarity, and comparison in things and make analogy between the matters according to your judgement” (This was mentioned by Al-Shirazi in Tabaqat Al-Fuqaha’ and was narrated by Al-Bayhaqi in Al-Ma’rifa Min Kitab Adab Al-Qadi).Umar (ra) was the Amir of the believers while Abu Musa was a judge in this instance. Similarly, it was said to Umar (ra) that Samra had taken wine from Jewish traders as tithe which he then turned into vinegar and sold so Umar (ra) said:

 "قاتَلَ اللَّهُ سَمُرَةَ! أَمَا عَلِمَ أَنَّ رَسُولَ اللَّهِ صلى الله عليه وآله وسلم قال: لَعَنَ اللَّهُ اليهودَ، حُرِّمَتْ عليهِمُ الشُّحومُ فَجَمَلُوها وباعوها وأَكَلُوا ثَمَنَها"

 May Allah destroy Samura; does he not know that Allah's Messenger صلى الله عليه وآله وسلم said: Let there be the curse of Allah upon the Jews that fat was declared forbidden for them, but they melted it and then sold it and ate its money. (reported by Muslim).Here, Umar (ra) compared wine with fat and concluded that its prohibition stipulates the prohibition of its sale. Another example is when Umar (ra) was not sure about the penalty of the seven who took part in the killing of one man so ‘Ali (ra) said to him:

 "يا أمير المؤمنين، أرأيت لو أن نفراً اشتركوا في سرقة، أكنت تقطعهم؟ قال: نعم. قال: فكذلك"

 “O Amir of the believers! What if a group of people were to take part in a theft, would you cut their hands?” He said: “Yes.” So ‘Ali said to him: “So likewise” (mentioned by ‘Abd Al-Razzaq in Al-Musannaf).This is a Qiyas between the killing and the theft, and all this indicates that Qiyas is Shari’ah evidence deduced from the Sunnah and the Ijma’ of the Companions. Hence, what has been confirmed through the Messenger of Allah صلى الله عليه وآله وسلم is the Sunnah and what has been confirmed through the Companions is considered an “Ijma’ Sukuti” (Silent Consensus)because the Companions who utilised Qiyas did so in the presence and the full knowledge of the rest of the Companions, and none of them condemned it; therefore, it was a general consensus.

However, the Sunnah and the Ijma’ of the Companions have both been reported by way of individual report (Ahad narrations), thus they are considered as indefinite evidence. Therefore, the conclusive evidence about the fact that Qiyas is a Shari’ah evidence is reflected in what we mentioned with regard to the Illah being mentioned in the Shari’ah text, that is, in the Book and the Sunnah or in the Ijma’ of the Companions. These three evidences have been confirmed as being Shari’ah evidences by way of conclusive evidence. Therefore, they act as the evidence for Qiyas because they are the evidence for the Illah.

 

It has been conclusively established that these four evidences, the Book, the Sunnah, the Ijma’ of the Companions and Qiyas have come by way of Revelation from Allah (swt). Apart from these four, no other evidence has been established through conclusive evidence. The fact that they are not established by conclusive evidence is clear since those who use them as evidence do not claim that the proof that they are Shari’ah evidences is a definitive proof. The fact that they are not confirmed as (decisive) Shari’ah evidences is clear from the lack of conformity of the evidences which they bring forward – in their consideration as Shari’ah proofs – upon the issue that they are trying to establish the evidence upon. In other words, it is clearly apparent that there is a mistaken inference in what they present from the evidences upon what they are claiming, such as: the consensus of the Muslims, Al-Masalih Al-Mursalah or Al-Istihsaan and similar to them from the Shari’ah evidences.

 

So, those who claim that the consensus of the Muslims is a Shari’ah evidence draw their conclusion from the words of the Prophet صلى الله عليه وآله وسلم

 «لاَ تَجْتَمِعُ أُمَّتِي عَلَى ضَلاَلَةٍ»

“My Ummah will not gather upon a misguidance”. Ibn Hajr mentioned the narration as being Mashhur with many different paths, though all of them have debate around them, and in any case, this does not contain a proof since the misguidance here means apostasy from the Deen and not mistakes and with this meaning it was mentioned in the narration:

 «لَنْ تَجْتَمِعَ أُمَّتِى عَلَى ضَلاَلَةٍ، فَعَلَيْكُمْ بِالْجَمَاعَةِ، فَإِنَّ يَدَ اللَّهِ عَلَى الْجَمَاعَةِ»

“My Ummah will not gather upon a misguidance (Dalalah), and so stick to the group (Jama’at); the Hand of Allah is with the group” (reported by Al-Tabarani with a chain whose men are all trustworthy through Ibn Umar). This is correct since the Islamic Ummah would never unite upon apostasy from Islam. However, they could possibly unite upon a mistake and the simplest evidence for that is that the Islamic Ummah united upon leaving behind the work to establish the Khalifah for a long period and that was consensus upon a mistake.

 With respect to those who say that seeking the benefits and repelling the harms is a Shari’ah Illah for the Shari’ah rules and apply Qiyas accordingly, they infer this by the words of Allah (swt):

 ((وَمَا أَرْسَلْنَاكَ إِلَّا رَحْمَةً لِلْعَالَمِينَ (107)))

And We have not sent you, [O Muhammad], except as a mercy to the worlds ( all mankind). (TMQ 21:107). So, they consider the fact that he صلى الله عليه وآله وسلم is a mercy as a Shari’ah Illah, and there cannot be mercy except through the attainment of the benefits and the repulsion of harm, and therefore, it is a Shari’ah Illah for the legislation. This inference is incorrect from two angles; the first is that the subject was his صلى الله عليه وآله وسلم being sent, or in other words, the fact he صلى الله عليه وآله وسلم was a Messenger, and not the Shari’ah laws. If we submit that the intention of sending him صلى الله عليه وآله وسلم was his message i.e. the Shari’ah, the subject would be the whole of Shari’ah from the matters of 'Aqeedah and rules collectively and not the Shari’ah rules alone. The second issue is that the fact that sending him صلى الله عليه وآله وسلم as a mercy for the universe is only a clarification for the Hikma (wisdom) behind sending the Prophet صلى الله عليه وآله وسلم in other words, what would occur as a consequence of sending him. In the same manner, the words of Allah (swt):

 (( وَمَا خَلَقْتُ الْجِنَّ وَالْإِنْسَ إِلَّا لِيَعْبُدُونِ (56) ))

And I did not create the jinn and mankind except to worship Me.(TMQ 51:56), in other words, the result of creating them would be the worship so it is the Hikma of their creation and not the ‘Illah for their creation. Likewise His (swt) words:

 ((لِيَشْهَدُوا مَنَافِعَ لَهُمْ))

That they may witness benefits for themselves.(TMQ 22:28). The verse describesthe Hikma from the Hajj, that is, the result that may be gained from the Hajj. His Words,

((إِنَّ الصَّلَاةَ تَنْهَى عَنِ الْفَحْشَاءِ وَالْمُنْكَرِ))

Indeed, prayer prohibits immorality and wrongdoing.(TMQ 29:45), describe the Hikma for the prayer; in other words, the result that may be reached from prayer and so on. So, the verse here is not in the context of specifying an Illah because the Illah is the thing that due to its presence the rule is found or, in other words, is legislated. In order to understand the underlying Illah in the text, it is imperative that it must be an attribute and this attribute must indicate the underlying ‘Illah, in that it is the Sabab (reason/cause) for the legislation or in other words, that the legislation was for its sake, and in such a circumstance it is an inseparable attribute which is never absent, since the cause always results in the effect and ,therefore, if the Illah is found then the effect is found.

 The words

((رَحْمَةً لِلْعَالَمِينَ))

Mercy to the worlds (all mankind)(TMQ 21:107)and the rest of the previous verses, even if they are considered as attributes and within the verses are the letters that would indicate an underlying Illah, the context of the words does not indicate the existence of an Illah because they could be absent and because the legislation was not for its sake. Accordingly, the Islamic Shari’ah could be a mercy for the one who believes in it and who acts according to it, such as: the first generations of Muslims, and it could be an affliction for whoever disbelieves in it, such as the disbelievers. So, the sending of the Messenger صلى الله عليه وآله وسلم is an affliction upon the disbelievers and they are from the ‘Aalameen. Additionally, the Islamic message is present today. This is since the sending has practically taken place and with that the Muslims who themselves believe in that message are today in hardship. So, it is not the sending alone, that is the existence of the Shari’ah alone, that is a mercy, and for that reason it is not an Illah for it. Based upon that, attaining the benefits and repelling the harms is not a Shari’ah Illah; so, it is not taken as a basis for Qiyas.

As for those who say that rationality is from the Islamic evidences, we say that the discussion is about the Shari’ah rule or what is considered, with the most probability, as the rule of Allah. This is not present except in what came by Revelation, and the Revelation did not mention the rationality, and for that reason, there is no evidence whether conclusive or inconclusive to be found that states that rationality is from the Shari’ah evidences for the Shari’ah rules; so it is not considered to be from the Shari’ah evidences at all.

 With respect to those who say that the opinion of the companion is from the Shari’ah evidences, they deduce this by saying that the two evidences for the Ijma’ of the Companions are evidences for the single companion as well, since the praise for them (collectively) is also praise for one of them. In the same manner, since there cannot be shortcomings in their conveyance (of the Deen) collectively, there can be no doubt with respect to the conveyance of one person from amongst them. Additionally, the words of the Messenger of Allah صلى الله عليه وآله وسلم

«أَصْحَابِي كَالنُّجُومِ، بِأَيِّهُمُ اقْـتَدَيْـتُمُ اهْـتَدَيْـتُمْ»

“My companions are like stars, whoever you follow you follow guidance”, support the opinion of a companion being an evidence. This deduction is incorrect since the praise of the Prophet ((أَوْحَيْنَآ إِلَيْكَ قُرْءَانًا عَرَبِيًّۭا))for the companions collectively not individually is a proof that the Ijma’ of the Companions is a Shari’ah evidence and the fact that the Companions did not convey the Quran individually is a proof that their consensus is a Shari’ah evidence. Rather, the Shari’ah evidence is the praise upon them and the fact that they collectively agree that a rule is the Shari’ah rule. So the evidence is two matters, praise and consensus and these are not found in the individual companion. In which case, the issue of praise and the conveyance of the Quran are not suitable to be proofs that the words of whoever conveyed the Quran from those whom Allah (swt) praised are Shari’ah evidences because in the same manner that Allah (swt) praised the Companions, He (swt) also praised those who followed them, and since the conveyance of the Quran even if by those whom Allah (swt) has praised does not make the words of the one who conveyed it a Shari’ah evidence, and due to that the inference made is invalid. What indicates the invalidity of this inference is that what an individual companion conveyed and what he narrated from the narrations is not considered to be definite – rather it is indefinite. Therefore, When the old man and the woman commit fornication then have them stoned.” is not considered to be a verse from the Quran even though it was conveyed by a companion since there was no Ijma’ upon it. In the same manner, the narrations that are transmitted by the Companions from the singular reports are not considered definite - rather they are indefinite.

This is different from the Ijma’ of the Companions since what they agreed upon unanimously as being from the Quran is considered to be Quran and to be definite, and what they agreed upon unanimously in terms of narrations and were transmitted from them by Mutawatir (successive multiple chains) are considered to be definite evidences. Accordingly, the difference is vast between what the Companions agreed upon unanimously - where there is no disagreement, meaning it is definite and the one who denies it is a disbeliever - and what the single companion narrated which is indefinite and the one who denies it is not considered to be a disbeliever. Therefore, Ijma’ of the Companions is Shari’ah evidence whereas the opinion of the individual companion is not considered to be from the Shari’ah evidences. In addition to that, contrary to the Ijma’ of the Companions who do not agree upon a mistake, the individual companion can make mistakes and he is not free from them. The Companions used to differ over issues and each of them adopted a different opinion from the other; so, if the opinion of the companion were a proof then the proofs of Allah (swt) would be in disagreement and contradictory. Therefore, the opinion of a companion is not considered to be Shari’ah evidence.

As for those who say “the Shari’ah of those before us is Shari’ah for us”, they use the following words of Allah (swt) as evidence:

 ((إِنَّا أَوْحَيْنَا إِلَيْكَ كَمَا أَوْحَيْنَا إِلَى نُوحٍ ))

Indeed, We have revealed to you, [O Muhammad], as We revealed to Noah.(TMQ 4:163),

 (( شَرَعَ لَكُمْ مِنَ الدِّينِ مَا وَصَّى بِهِ نُوحًا))

 He has ordained for you of religion what He enjoined upon Noah.(TMQ 42:13) and His (swt) words

 ((ثُمَّ أَوْحَيْنَا إِلَيْكَ أَنِ اتَّبِعْ مِلَّةَ إِبْرَاهِيمَ))

Then We revealed to you, [O Muhammad], to follow the religion of Abraham (Millat of Ibrahim) .” (TMQ 16:123).

These verses indicate that we are addressed by the legislation of the previous Prophets. In addition, the very duty of the Messenger صلى الله عليه وآله وسلم is that he came to inform about what Allah (swt) has obliged us to adhere to. Due to that, every letter in the Quran and every action that emanated from the Prophet صلى الله عليه وآله وسلم any word that he pronounced or any confirmation from him must be adhered to except what was mentioned as being specific to him or other than him. So we are ordered by everything that is mentioned by the Quran or by narration except when a Shari’ah text comes to explain that it is specific to the Companions of the previous Shara’ih (plural of Shari’ah), and we are ordered by whatever has not mentioned in such a manner since Allah did not mention it in the Quran without reason and, therefore, we must be addressed by it.

This inference is incorrect. With respect to the verses, the intention of the first verse is that revelation is sent to him صلى الله عليه وآله وسلم in the same way it was sent to other Prophets, and the purpose of the second verse is that the basis of Tawheed (belief in Oneness of Allah(swt)) was legislated and that was what Nuh was ordained with. The intended meaning of the third verse is to follow the root of Tawheed since the word “Millat” means: the root of Tawheed. All the verses from this type are in this manner, such as His (swt) words:

 ((فَبِهُدَاهُمُ اقْتَدِهِ))

 So from their guidance take an example.” (TMQ 6:90)and other verses. As for His (swt) words

 ((إِنَّا أَنْزَلْنَا التَّوْرَاةَ فِيهَا هُدًى وَنُورٌ يَحْكُمُ بِهَا النَّبِيُّونَ ))

 Indeed, We sent down the Torah, in which was guidance and light. The Prophets who submitted [to Allah] judged by it.(TMQ 5:44), Allah (swt) by this meant the Prophets of the Tribe of Israel and not Muhammad صلى الله عليه وآله وسلم and the Muslims only have one Prophet. As for what is narrated from Abu Hurayrah that the Messenger of Allah صلى الله عليه وآله وسلم said:

 «الأَنْبِيَاءُ إِخْوَةٌ مِنْ عَلاَّتٍ، وَأُمَّهَاتُهُمْ شَتَّى، وَدِينُهُمْ وَاحِدٌ»

 Prophets are brothers in faith, having different mothers. Their religion (Deen) is, however, one .” (reported by Muslim),the meaning of “their Deen is one” is the Tawheed which is the basis that none differed upon. It does not mean what was sent from the Deen is one with all of them since we understand the opposite from His (swt) words:

((لِكُلٍّ جَعَلْنَا مِنْكُمْ شِرْعَةً وَمِنْهَاجًا ))

To each among you have we prescribed a law and an open way.(TMQ 5:48). From this, it becomes clear that these evidences are not suitable to be inferred from, and the inference from them to prove that the Shari’ah from before us is a Shari’ah for us is incorrect.

On the other hand, there are evidences that decisively forbid the following of the Shari’ah of those before us whether it came in the Quran, the Sunnah or not in both. Allah (swt) said:    

 ((وَمَنْ يَبْتَغِ غَيْرَ الْإِسْلَامِ دِينًا فَلَنْ يُقْبَلَ مِنْهُ))

 And whoever desires other than Islam as religion - never will it be accepted from him.(TMQ 3:85)and Allah (swt) said:

(( إِنَّ الدِّينَ عِنْدَ اللَّهِ الْإِسْلَامُ))

 Indeed, the religion in the sight of Allah is. (TMQ 3:19). So, when there is a Shari’ah text stating that for anyone to embrace any Deen other than the Deen of Islam is conclusively not accepted, then how can it be requested from the Muslims to follow it? Allah (swt) says:

((وَأَنْزَلْنَا إِلَيْكَ الْكِتَابَ بِالْحَقِّ مُصَدِّقًا لِمَا بَيْنَ يَدَيْهِ مِنَ الْكِتَابِ وَمُهَيْمِنًا عَلَيْهِ ))

 And We have revealed to you, [O Muhammad], the Book in truth, confirming that which preceded it of the Scripture and as a criterion over it (guardian over it).(TMQ 5:48), the supremacy of the Quran over the previous Books does not mean that it was a confirmation for them since it is said in the same verse

 ((مُصَدِّقًا ))

 Confirming and so it rather means that it is an abrogation of them. Also, there is an Ijma’ that the Shari’ah of Islam is an abrogation for all the previous Shara’ih. More than that, Allah (swt) says:

(( أَمْ كُنْتُمْ شُهَدَاءَ إِذْ حَضَرَ يَعْقُوبَ الْمَوْتُ إِذْ قَالَ لِبَنِيهِ مَا تَعْبُدُونَ مِنْ بَعْدِي قَالُوا نَعْبُدُ إِلَهَكَ وَإِلَهَ آَبَائِكَ إِبْرَاهِيمَ وَإِسْمَاعِيلَ وَإِسْحَاقَ إِلَهًا وَاحِدًا وَنَحْنُ لَهُ مُسْلِمُونَ (133) تِلْكَ أُمَّةٌ قَدْ خَلَتْ لَهَا مَا كَسَبَتْ وَلَكُمْ مَا كَسَبْتُمْ وَلَا تُسْأَلُونَ عَمَّا كَانُوا يَعْمَلُونَ (134)))

Or were you witnesses when death approached Jacob, when he said to his sons, "What will you worship after me?" They said, "We will worship your God and the God of your fathers, Abraham and Ishmael and Isaac - one God. And we are Muslims [in submission] to Him."; That was a nation which has passed on. It will have [the consequence of] what it earned, and you will have what you have earned. And you will not be asked about what they used to do.(TMQ 2:133-4). So, Allah (swt) informs us that He will not ask us about what those Prophets did, and if we are not accounted about their actions, then we will not be accounted about their Shari’ah since conveying it and working according to it is from their actions. What we are not accountable for, we are not commanded with it and it is unnecessary for us. Additionally, it is narrated from Jaber that the Prophet صلى الله عليه وآله وسلم said:

«أُعْطِيتُ خَمْسًا لَمْ يُعْطَهُنَّ أَحَدٌ قَبْلِي: كَانَ كُلُّ نَبِيٍّ يُبْعَثُ إِلَى قَوْمِهِ خَاصَّةً وَبُعِثْتُ إِلَى كُلِّ أَحْمَرَ وَأَسْوَدَ»

 “I have been conferred upon five (things) which were not granted to anyone before me (and these are): Every Prophet was sent particularly to his own people, whereas I have been sent to all the red and the black (all mankind).(Reported by Muslim) and from Abu Hurayrah that the Prophet صلى الله عليه وآله وسلم said

 «فُضِّلْتُ عَلَى الأَنْبِيَاءِ بِسِتٍّ»

 “I have been honored over the Prophets with six (things)” (reported by Muslim), and then he صلى الله عليه وآله وسلم mentioned them and amongst them was

 «وَأُرْسِلْتُ إِلَى الْخَلْقِ كَافَّةً»

 “And I have been sent to all mankind”. Hence, the Prophet صلى الله عليه وآله وسلم has narrated that every Prophet before our Prophet صلى الله عليه وآله وسلم was only sent specifically to their people; so, he was not sent to other than his people and they were not obliged by the Shari’ah of a Prophet other than their own. Therefore, it is confirmed that no one from the Prophets were sent to us and so their Shari’ah cannot be a Shari’ah for us. This is supported by what is mentioned clearly in verses from the Quran

 ((وَإِلَى ثَمُودَ أَخَاهُمْ صَالِحًا))

 And to Thamud [We sent] their brother Salih.”,

 ((وَإِلَى عَادٍ أَخَاهُمْ))

 And to 'Aad [We sent] their brother”,

 ((وَإِلَى مَدْيَنَ أَخَاهُمْ شُعَيْبًا))

 And to Madyan [We sent] their brother .(TMQ 11:50, 61, 84).

From all this, it is clear that the Shara’ih of those who came before us is not Shari’ah for us for three reasons: the first of them being that the proofs used as evidence only indicate the basis of Tawhid and do not indicate that all of the Shara’ih of the Prophets is one. Secondly, the Shari’ah texts which mention the prohibition of following any Shari’ah other than the Shari’ah of Islam, and thirdly every Prophet was sent to his people specifically and we are not from his people so he is not a Messenger for us. We are, therefore, not addressed by his Shari’ah and are not bound by it. In that case, the Shari’ah of those before us is not considered from the Shari’ah evidences.

This is with regards to their use of the verses as proof. However, with respect to their inference that the Messenger صلى الله عليه وآله وسلم came to convey from Allah everything that must be adhered to, this is correct as to what he informed us that we must adhere to from Allah which is the Shari’ah that he came with. However, it is not correct (their inference) with respect to what he صلى الله عليه وآله وسلم did not order us to adhere to. So, the Prophet conveyed to us from Allah (swt) about the circumstances of those before us from the previous nations, but he informed us of that for the sake of example and admonition and not for us to be bound by their Shari’ah. So, the stories of the Prophets, as well as their affairs and the affairs of their nations, were narrated to us and their circumstances and what rules they used to follow were made clear to us. In addition, all of that was only for the sake of example and admonition and nothing else and it was not in order to be bound by their Shari’ah.

With respect to the stories and to the news (Akhbaar), it is apparent that they came for admonition and lessons and this does not need any proof, and as for the conditions of the nations and what they used to follow in terms of rules, this was mentioned in way of reports about them and they were not mentioned from the perspective of being bound by them. They are like stories that came to explain the circumstances of the previous Prophets and the previous nations.

Above and beyond this, several of these rules contradict the Islamic Shari’ah in their details; therefore, if we were addressed by them, we would have been addressed by two different Shara’ih and this is not possible. As an illustration from the legislation of Sulayman, Allah (swt) said:

((وَتَفَقَّدَ الطَّيْرَ فَقَالَ مَا لِيَ لَا أَرَى الْهُدْهُدَ أَمْ كَانَ مِنَ الْغَائِبِينَ (20) لَأُعَذِّبَنَّهُ عَذَابًا شَدِيدًا أَوْ لَأَذْبَحَنَّهُ أَوْ لَيَأْتِيَنِّي بِسُلْطَانٍ مُبِينٍ (21)))

And he took attendance of the birds and said, "Why do I not see the hoopoe - or is he among the absent?; I will surely punish him with a severe punishment or slaughter him unless he brings me clear authorization."(TMQ 27:20-1) and there is no difference amongst the Muslims regarding the prohibition of the punishment of the bird and even if it was disobedient; rather, there is no difference even regarding the invalidity of punishing any animal and there are Shari’ah texts that came regarding this. The Prophet (saw) said:

«الْعَجْمَاءُ جَرْحُهَا جُبَارٌ»

The injuries caused by the beast are without liability(agreed upon through Abu Hurayrah); it is mentioned in Al-Muheet dictionary: The Jubaar is like the cloud which destroyed the cowardly, and Jubaar is loss and invalid. Therefore, the damage caused by livestock, as well as the bird, is not indemnified (i.e. the owner is not liable).

With respect to the Shari’ah of Musa, Allah (swt) says:

((حَرَّمْنَا كُلَّ ذِي ظُفُرٍ وَمِنَ الْبَقَرِ وَالْغَنَمِ حَرَّمْنَا عَلَيْهِمْ شُحُومَهُمَا إِلَّا مَا حَمَلَتْ ظُهُورُهُمَا أَوِ الْحَوَايَا أَوْ مَا اخْتَلَطَ بِعَظْمٍ))

And to those who are Jews We prohibited every animal of uncloven hoof; and of the cattle and the sheep We prohibited to them their fat, except what adheres to their backs or the entrails or what is joined with bone.(TMQ 6:146),and in the Shari’ah of Islam all of that has been made permitted for the Muslims by His (swt) word:

((وَطَعَامُكُمْ حِلٌّ لَهُمْ))

And your food is lawful for them.(TMQ 5:5),and this fat is from our food so it is permitted for them. The words of Umm Maryam in the Quran,

((إِنِّي نَذَرْتُ لَكَ مَا فِي بَطْنِي))

[Mention, O Muhammad], when the wife of 'Imran said, "My Lord, indeed I have pledged to You what is in my womb, consecrated [for Your service].(TMQ 3:35), are part of the Shari’ah of the people at the time of Zakariyyah and this is not permitted in Islam in origin. The words,

(( كُلُّ الطَّعَامِ كَانَ حِلًّا لِبَنِي إِسْرَائِيلَ إِلَّا مَا حَرَّمَ إِسْرَائِيلُ عَلَى نَفْسِهِ))

All food was lawful to the Children of Israel except what Israel had made unlawful to himself.(TMQ 3:93),are part of the Shari’ah of Ya’qub and in Islam it is not permitted to prohibit oneself from what Allah (swt) allowed; He (swt) says:

(( لمَ تُحَرِّمُ مَا أَحَلَّ اللَّهُ لَكَ ))

O Prophet, why do you prohibit [yourself from] what Allah has made lawful for you. (TMQ 66:1). The Shari’ah of the People of the Book at the time of the companions of the Cave includes,

((قَالَ الَّذِينَ غَلَبُوا عَلَى أَمْرِهِمْ لَنَتَّخِذَنَّ عَلَيْهِمْ مَسْجِدًا (21)))

The ones who won said “we shall build a place of worship over them”.” (TMQ 18:21),and this is prohibited in Islam; the Prophet صلى الله عليه وآله وسلم said

«إِنَّ أُولَئِكَ إِذَا كَانَ فِيهِمُ الرَّجُلُ الصَّالِحُ فَمَاتَ بَنَوْا عَلَى قَبْرِهِ مَسْجِدًا وَصَوَّرُوا فِيهِ تِلْكَ الصُّوَرَ، فَأُولَئِكَ شِرَارُ الْخَلْقِ عِنْدَ اللَّهِ يَوْمَ الْقِيَامَةِ»

When a pious person amongst them (among the religious groups) dies they build a place of worship on his grave, and then decorate it with such pictures. They would be the worst of creatures on the Day of judgment in the sight of Allah.(agreed upon).

Part of the Shari’ah of Musa are the words

(( وَكَتَبْنَا عَلَيْهِمْ فِيهَا أَنَّ النَّفْسَ بِالنَّفْسِ وَالْعَيْنَ بِالْعَيْنِ وَالْأَنْفَ بِالْأَنْفِ وَالْأُذُنَ بِالْأُذُنِ وَالسِّنَّ بِالسِّنِّ وَالْجُرُوحَ قِصَاصٌ))

And We ordained for them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution. But whoever gives [up his right as] charity, it is an expiation for him. And whoever does not judge by what Allah has revealed - then it is those who are the wrongdoers.(TMQ 5:45), while we do not take from this because we are not ordered with it and only other than us were ordered by it. Islam only obligated us with retaliation from all of these and in other issues by His (swt) words:

((فَمَنِ اعْتَدَى عَلَيْكُمْ فَاعْتَدُوا عَلَيْهِ بِمِثْلِ مَا اعْتَدَى عَلَيْكُمْ))

So whoever has assaulted you, then assault him in the same way that he has assaulted you.” (TMQ 2: 194), His (swt) saying,

(( وَإِنْ عَاقَبْتُمْ فَعَاقِبُوا بِمِثْلِ مَا عُوقِبْتُمْ بِهِ))

And if you punish, O believers, punish with an equivalent of that with which you were harmed.” (TMQ 16:126) and His (swt) words

(( وجَزَاءُ سَيِّئَةٍ سَيِّئَةٌ مِثْلُهَا))

And the retribution for an evil act is an evil one like it.(TMQ 42:40).In addition, His (swt) words

((وَالْجُرُوحَ قِصَاصٌ))

And for wounds is legal retribution. (TMQ 5:45) conflicts with Qisas (recompense) in Islam since the Qisas in Islam is the fine, and there is nothing in the Torah about accepting the fine. Rather, the fine is only in Islamic law and the fine is the blood money; so, the blood money for what falls short of life is called the fine. Likewise, many rules about Qisaas in the stories that have been narrated about the previous Prophets and nations, explaining their circumstance and what they used to follow from laws, contradict the laws of Islam; so how can we be addressed by them?

It cannot be said that these laws have been abrogated by the Islamic Shari’ah since they were narrated without restriction and the laws which have come to us did not come as abrogation for laws before us. Rather they came as a Shari’ah for us and there is no relationship between these laws. Accordingly, the issue of abrogation is not found and the call regarding it is a claim that has no backing since abrogation is the nullification of the rule which is understood from a previous Shari’ah text by a subsequent one, such as the words of the Messenger صلى الله عليه وآله وسلم

«نَهَيْتُكُمْ عَنْ زِيَارَةِ الْقُبُورِ، فَزُورُوهَا»

I forbade you to visit graves, but you may now visit them.(reported by Muslim through Buraydah), and the report of Al-Rabi’ in his Musnad through Ibn Abbas,

«كُنْتُ نَهَيْتُكُمْ عَنْ زِيَارَةِ القُبُورِ، أَلاَ فَزُورُوهَا»

“(In the past) I forbade you from visiting graves, but visit them now.;therefore, the nullification and raising of the previous rule by a subsequent Shari’ah text is abrogation. Therefore, for abrogation to take place there must be an abrogated rule that was revealed before the abrogating rule, and for an indication to be present in the abrogating text that it is an abrogation for that rule, and anything other than this is not considered to be abrogation. The mere difference between two rules or contradiction between them does not make one of them an abrogation for the other; rather, there must be an indication in the abrogating text which indicates that it is an abrogation for a specific rule. Accordingly, these rules, narrated from the previous Shara’ih, are not abrogated by the rules of Islam which differs with them or contradicts them since there is nothing which indicates that. Furthermore, there is no relationship between them and the rules of Islam in legislation; so, they are abrogated by the abrogation of the previous Shara’ih by the Shari’ah of Islam and not by laws specific to them that came to abrogate them. With this, it is clear that the inference that we are addressed by what the Messenger صلى الله عليه وآله وسلم came with and are restricted by it as being an invalid inference since we are addressed by what came to us with him صلى الله عليه وآله وسلم from the legislation of Islam and restricted by that, and we are not addressed by what he related to us from the stories of the previous Prophets and their narrations, and neither are we addressed by what he explained to us from the circumstances of the previous nations and what laws they used to follow. Accordingly, it has become apparent with clarity that the legislation of those before us is not legislation for us and the invalidity of considering it being from the Islamic evidences is also apparent.

However, if another Shari’ah text is found with the laws from the Shari’ah of those before us which indicates that we are addressed by them, then, in that case, this rule would become found in the Book or in the Sunnah, and alongside it a Shari’ah text would be found that indicates that we are addressed by it in our Shari’ah and the address of the Legislator (swt) for us existed there which indicates that it is for us and so it would be obligatory to take action upon it then. However, this would not be because it was a Shari’ah of those before us but because of the address found in the same rule that is for us; in other words, because Allah (swt) addressed us by it and the Messenger صلى الله عليه وآله وسلم informed us that it was from the Shari’ah which he had come with, i.e. the laws of Islam.

It becomes apparent to the one who follows the laws that have come in the Book, the Sunnah and the previous Shara’ih that the text that comes indicating that we are addressed by it, that it is from our Shari’ah, could come in three circumstances:

Firstly, when the verse which the rule came with begins by directing the address towards us such as the verse regarding Kanz (hoarded wealth), Allah (swt) says:

(( يَا أَيُّهَا الَّذِينَ آَمَنُوا إِنَّ كَثِيرًا مِنَ الْأَحْبَارِ وَالرُّهْبَانِ لَيَأْكُلُونَ أَمْوَالَ النَّاسِ بِالْبَاطِلِ وَيَصُدُّونَ عَنْ سَبِيلِ اللَّهِ وَالَّذِينَ يَكْنِزُونَ الذَّهَبَ وَالْفِضَّةَ وَلَا يُنْفِقُونَهَا فِي سَبِيلِ اللَّهِ فَبَشِّرْهُمْ بِعَذَابٍ أَلِيمٍ (34)))

O you who have believed, indeed many of the scholars and the monks devour the wealth of people unjustly and avert [them] from the way of Allah. And those who hoard gold and silver and spend it not in the way of Allah - give them tidings of a painful punishment.(TMQ 9:34). Allah (swt) has addressed us with this verse; so, whatever it mentioned is a Shari’ah for us. Accordingly, Kanz is prohibited in our Shari’ah even though part of the verse that prohibited it was explaining the circumstances of the rabbis and monks.

Secondly, when the verse which came with the rule has come with a word which indicates generality, such as the verses which mention ruling by other than what Allah has revealed. Allah (swt) says

(( وَمَنْ لَمْ يَحْكُمْ بِمَا أَنْزَلَ اللَّهُ فَأُولَئِكَ هُمُ الْكَافِرُونَ))

And whoever does not judge by what Allah has revealed - then it is those who are the disbelievers.(TMQ 5:44).So, the word “whoever” indicates generality and this means that it encompasses us and thus we are addressed by it. Similarly, Allah (swt) says:

((وَمَنْ لَمْ يَحْكُمْ بِمَا أَنْزَلَ اللَّهُ فَأُولَئِكَ هُمُ الظَّالِمُونَ (45)))

And whoever does not judge by what Allah has revealed - then it is those who are the wrongdoers.” (TMQ 5:45),and in the same way

(( وَمَنْ لَمْ يَحْكُمْ بِمَا أَنْزَلَ اللَّهُ فَأُولَئِكَ هُمُ الْفَاسِقُونَ))

And whoever did not judge by what Allah revealed, those are they that are the transgressors.(TMQ 5:49).

Thirdly, if the verse ends with something that draws our attention to the laws which are within it, such as the verse of Qisas where Qarun was mentioned; Allah (swt) says:

(( إِنَّ قَارُونَ كَانَ مِنْ قَوْمِ مُوسَى فَبَغَى عَلَيْهِمْ وَآَتَيْنَاهُ مِنَ الْكُنُوزِ مَا إِنَّ مَفَاتِحَهُ لَتَنُوءُ بِالْعُصْبَةِ أُولِي الْقُوَّةِ ))

Indeed, Qarun was from the people of Moses, but he tyrannized them. And We gave him of treasures whose keys would burden a band of strong men.” until His (swt) words:

((وَيْكَأَنَّهُۥ لَا يُفْلِحُ ٱلْكَـٰفِرُونَ))

Oh, how the disbelievers do not succeed!(TMQ 28:76-82). This verse is followed directly afterwards by His (swt) words:

(( تِلْكَ الدَّارُ الْآَخِرَةُ نَجْعَلُهَا لِلَّذِينَ لَا يُرِيدُونَ عُلُوًّا فِي الْأَرْضِ وَلَا فَسَادًا وَالْعَاقِبَةُ لِلْمُتَّقِينَ (83) مَنْ جَاءَ بِالْحَسَنَةِ فَلَهُ خَيْرٌ مِنْهَا ))

That home of the Hereafter We assign to those who do not desire exaltedness upon the earth or corruption. And the [best] outcome is for the righteous; Whoever comes [on the Day of Judgement] with a good deed will have better than it.” (TMQ 28:83), and so the verses became an address to the Messenger and to the believers. This draws attention to the laws which came (within them) when it is said:

(( لَا يُرِيدُونَ عُلُوًّا فِي الْأَرْضِ))

Those who do not desire exaltedness upon the earthand these were rules regarding Qaroon who wanted grandeur in the land but there is what indicates that we are addressed by these laws.

In these three circumstances, laws of the verses of previous people will be considered as laws from the Islamic Shari’ah since there is something that indicates that we are addressed by them and we adopt them in their characteristic as laws from the Islamic Shari’ah and not from the characteristic that they were from a Shari’ah of those before us since the Shari’ah of those who came before us is not a Shari’ah for us.

With regards to those who say that Istihsaan (application of discretion in a legal decision) is from the Shari’ah evidences, they are not able to come with single or even indefinite evidence from the Shari’ah that supports their claim. Istihsaan can be explained by those who take it as a Shari’ah evidence that: it is evidence which occurs to the Mujtahid when he or she is unable to make it apparent due to the lack of help to express it. It is also explained that it is to leave an aspect from amongst the aspects of Ijtihad without the completeness of the words for another aspect which is stronger than it and which would be like an unexpected factor on the first. In the same manner, it is explained that it is in an issue to abandon the rule comparable to it to another rule due to a stronger aspect that necessitates this move. Additionally, it is explained that it is to cut off an issue from comparable ones.

Istihsaan is divided into two categories; the first is Istihsaan Qiyasi and the second is Istihsaan of necessity. Istihsaan Qiyasi is to abandon the rule of an apparent Qiyas that comes to fore for a different rule by another Qiyas which is more subtle and hidden, but is a stronger proof, with a more satisfying viewpoint and a more correct derivation. An example of this is: if a person bought a car from two people in one agreement as a loan from them. Then, one of the two creditors was given part of this debt. However, he didn’t   have the right to take it specifically; rather, his partner in the debt has a right to claim his part of the receipt since he (the first creditor) has appropriated it from the combined sale price in the single sale. Moreover, the appropriation of either of the two partners from the price of the combined sale between them is the appropriation of both the partners, in other words, it is an appropriation for the partnership and it is not for either of them to take specifically. So, if whatever was taken is destroyed while it is in the possession of the one who received it before the second partner took his share from it, then the deduction from the Qiyas is that it would be taken away from the total sum of the two, or in other words, from the total sum of the partnership. However, in Istihsaan the loss would be considered to be taken only from the one who had received it and the loss would not be counted against the second partner according to Istihsaan since in origin he is not inseparable from the partnership of the one who received it; rather, he is able to leave what is received by the appropriator and become attached to the debtor by himself specifically. The other examples follow in the same manner. This is Istihsaan Qiyasi.

As for Istihsaan of necessity, it is what contradicts the rule of Qiyas by taking into account an incumbent necessity or a required benefit in order to fulfil the need or prevent the hardship. This occurs when the rule from the Qiyas leads to a hardship or a problem in some issues and so it is abandoned at that time by Istihsaan for another rule which would remove the hardship and repel the problem. This is like the example of the employee since his possession with respect to what he is employed upon is considered to be an Amanat (trust); so there is no liability (to be paid) if it is damaged while it is with him as long as he was not negligent. Therefore, if someone employed a person to work in his house to sew clothes for someone else for one month, he is considered a private employee. Then, if the clothes were damaged while they are in the employee’s possession without any transgression from him, there is no payment of liability because he possessed it as a trust. Additionally, if someone employed someone to work in his shop to sew clothes for others and he used to sew clothes for all the people, then he is a general employee. So, if the clothes are destroyed while they are in this employee’s possession without any transgression from him then there is no liability since he held them as a trust in the same manner. However, according to Istihsaan, there is no liability upon the private employee while there is for the general employee so that he (the general employee) would not accept more work than he is able to do since he might destroy the peoples’ wealth.

This is the summary of Istihsaan and its evidences. It is apparent that they are not evidences; rather, they are simply rational amendments that are neither from the Book nor from the Sunnah. They do not even reach the level of being considered indefinite proofs let alone conclusive proofs that Istihsaan is from the Shari’ah evidences. This is from one angle and from another angle; whatever comes about from rational amendment is void.

With respect to the explanations of Istihsaan, all of them are invalid. As for the first explanation that the evidence is sensed in the mind of the Mujtahid and that he or she does not know what it is, it is not permitted to consider something an evidence as long as it remains unknown since the lack of ability to make it clear and apparent proves that it is not clear to the Mujtahid and that he or she lacks knowledge of it; so, it is not correct to be from amongst the Shari’ah evidences. As for the other explanations, all of their meanings are the same, i.e. to abandon similar issues to the issue at hand for another stronger view, in other words, to abandon Qiyas for stronger evidence. If these explanations intend by the “stronger evidence”, a text from the Book or the Sunnah, then this is not Istihsaan; it is rather preference of the text, so it is deducing from the text which would be deduction by the Book or the Sunnah and not deduction by Istihsaan. If the “stronger evidence” is the mind by what it considers as benefit and this is the intended meaning, then this is invalid since Qiyas is built upon the Shari’ah ‘Illah which is determined by the text and it is the address of the Legislator (swt) to us. The mind and the benefit are not Shari’ah texts and nor are they another ‘Illah stronger than the text; rather, there is no relationship between the mind and benefit with the Shari’ah text (i.e. what came as Revelation). For that reason, this abandonment is invalid.

This is regarding the explanations. As for the categorisation of Istihsaan, the invalidity of Istihsaan Qiyasi has become clear from the invalidity of the second explanation, which was to abandon the similar issues to the issue. Also, their consideration that it is a hidden Qiyas is invalid because it has no relationship with Qiyas; rather, it is simply reasoning by benefit (making the benefit an ‘Illah). Regarding the example of the price of a combined sale which was sold in one agreement, it is not correct to differ in the rule, theloss of the wealth which one of the two partners appropriated, that it is a loss from the wealth of the partnership, for what one of the two partners appropriated from the wealth is from the appropriation of the partnership. Because the wealth, irrespective of whether it was the sold car or its price, is the wealth of the partnership and not the wealth of one of the partners; so its loss is the loss of the wealth of the company just like its appropriation is an appropriation of the wealth of the company. So, this beneficial (Maslahi) abandonment has no place and it contradicts the Shari’ah.

As for the Istihsaan of necessity, its invalidity is clear in that it is ruled by the mind and what the mind perceives as benefit; it is not a Shari’ah text and the adopted reason (‘Illah) is preferred to the Shari’ah text (that is, the comprehension of Shari’ah text). All of this is invalid without any necessary discusssion. Then, to make the shared employee liable and the private employee not liable is to prefer something without evidence to make it preferred and it contradicts with the Shari’ah text. It was reported by Al-Bayhaqi in Sunan Al-Kubra from ‘Amr B. Shu’ayb from his father from his grandfather that the Messenger صلى الله عليه وآله وسلم said:

«ثُمَّ لاَ ضَمَانَ عَلَى مُؤْتَمَنٍ»

“then there is no liability upon the one who takes a trust”. Similarly, through Al-Qasim Bin Abdul Rahman that ‘Ali and Ibn Mas’ud said: “there is no liability upon the one who takes a trust”, and in his Sunan Al-Bayhaqi reports from Jaber that Abu Bakr ruled that a deposit which had been kept in a bag, which was burnt and so was destroyed, was not to receive any liability in exchange; so, there is no liability upon anyone given a trust at all since the expression of the narration “no” is a negation of the genus

"لا ضَمانَ"

no liability/responsibility” which indicates generality, and so it encompasses every one holding a trust whether they were a private employee or a general employee.

By this it is apparent that Istihsaan is not from the Shari’ah evidences, and it is not correct to consider it from the Shari’ah evidences since there is no proof at all, definite or indefinite, whether from the Quran, from the Sunnah or from the Ijma’ of the Companions that indicates that it is from the evidences. This is besides the fact that it is using the mind as evidence which makes it invalid and that some of its examples contradicts Shari’ah texts.

As for those who say that Al-Masalih Al-Mursalah are from the Shari’ah evidences, in the same manner they are also unable to bring any proof for it; however, they consider the reasons behind the whole of the Shari’ah to be the obtaining of interests and the repulsion of harms. In the same way, they consider the reason behind each specific Shari’ah rule to be the obtaining of the interest or the repulsion of the harm. However, some of them make it a condition that the consideration that something is itself a benefit needs to be found mentioned in a text from the Shari’ah or mentioned that it is a type of interest but some of them do not make this a condition; rather, they consider the Maslahah (benefit) a Shari’ah evidence even if there is no mentioning of the consideration of it or its type in a Shari’ah text. This is because it comes under the general Masalih by which the benefits are sought and the harms are avoided.

Al-Masalih Al- Mursalah may be defined as: every interest which has no text narrated in the Shari’ah with respect to it or its type. So, the meaning of Mursalah is that it is not mentioned in evidence. They said that if the Maslahah was itself mentioned in a specific text, such as teaching, reading and writing, or was from a general text which mentioned its type which confirmed its consideration, such as the enjoining of every type of good and the forbiddance of all the acts of evil, then in these two situations it is not considered to be from Al-Masalih Al-Mursalah. Rather, Al-Masalih Al-Mursalah is forwarded from the evidence, in other words, there is no evidence found upon it; instead, it is derived from the generality of the Shari’ah being sent to gain the interests and repel the harms. However, there is a difference made between the Shari’ah interests and those which are not legitimate since the Shari’ah interests are those that agree with the intentions (Maqasid) of the Shari’ah, and the interests that are illegitimate are those which contradict the intentions of the Shari’ah. So, Al-Masalih Al-Mursalah that are considered to be a Shari’ah evidence are those which agree with the intentions of the Shari’ah, and those which contradict with the intentions of the Shari’ah are not considered to be from Al-Masalih Al-Mursalah; consequently, it is not a Shari’ah evidence. Hence, Al-Masalih Al-Mursalah are those that the Shari’ah texts indicate its consideration in a general manner, and accordingly, specific Shari’ah rules are built upon its basis when there is no Shari’ah text regarding the event or anything which is comparable to it, in which case the interest would be the Shari’ah proof.

This is the summary of Al-Masalih Al-Mursalah and it is invalid from two angles:

Firstly: the Shari’ah texts from the Quran and the Sunnah are connected to specific actions of the worshipper; so, they are the Shari’ah evidence for the rule of the Shari’ah in that action, and they are not connected with the interests and no evidence came for the interest. When Allah (saw) said:

(( فَرِهَانٌ مَقْبُوضَةٌ))

And if you are on a journey and cannot find a scribe, then a security deposit [should be] taken.” (TMQ 2:283), and when He (swt) said:

(( يَا أَيُّهَا الَّذِينَ آَمَنُوا إِذَا تَدَايَنْتُمْ بِدَيْنٍ إِلَى أَجَلٍ مُسَمًّى فَاكْتُبُوهُ))

O you who have believed, when you contract a debt for a specified term, write it down.(TMQ 2:282), and when He said:

((وَأَشْهِدُوا إِذَا تَبَايَعْتُمْ))

And take witnesses when you conclude a contract.” (TMQ 2:282),He (swt) was explaining only the rules of mortgaging, writing down debts and witnessing the sale. He (swt) did not make it evident whether this was an interest or not, neither by expression nor by indication, and the text does not convey whether this rule was an interest or not, neither from close nor far or by any aspect from its various angles. So, from what angle is it said that these interests are indicated by the Shari’ah in order for this interest to be considered and subsequently to be considered as Shari’ah evidence?

Additionally, the Shari’ah Illal (plural of Illah) came in the same manner as the Shari’ah texts; connected to the actions of the worshipper and as evidence upon the indication of the Shari’ah rule in that action, and did not come to explain the interest nor the indication of the interest. So, when Allah (swt) says:

((كَيْ لَا يَكُونَ دُولَةً بَيْنَ الْأَغْنِيَاءِ مِنْكُمْ))

So that it will not be a perpetual distribution among the rich from among you.” (TMQ 59:7),

((لِكَيْ لَا يَكُونَ عَلَى الْمُؤْمِنِينَ حَرَجٌ فِي أَزْوَاجِ أَدْعِيَائِهِمْ))

In order that there not be upon the believers any discomfort concerning the wives of their adopted sons.(TMQ 33:37)and when He (swt) says:

((وَالْمُؤَلَّفَةِ قُلُوبُهُمْ))

And those whose hearts are to be conciliated.” (TMQ 9:60),He (swt) is only clarifying the ‘Illah distributing the wealth amongst the poor rather than the rich in order to prevent the circulation of the wealth amongst the rich, and clarifying that the ‘Illah of marrying the Messenger صلى الله عليه وآله وسلم to Zaynab is to be an explanation of the permissibility for someone to marry his adopted son’s wife, and clarifying that the Illah for giving (money) in order to attract the hearts is the need for the State to bind the hearts together. So, He (swt) did not explain that this was benefit; rather, the explanation was that a specific issue was the Illah of a specific rule without any regard given to the interest or its absence and absolutely without any consideration to it. So, from what angle then, can it be said that the Shari’ah indicates these reasons such that the interests can be considered Shari’ah evidence? If the Shari’ah texts did not indicate that the Shari’ah came for the interest, neither in its indications upon the rule nor in its indications for the Illah of the rule, then it is not possible for it to be said that the texts indicate specific interests or by their type since nothing at all came regarding this in the Shari’ah texts. Accordingly, the invalidity of the claim that the Shari’ah texts came as a proof for specific interests or by their type has become clear, and from greater reasoning, the interests that were not mentioned by a text from the Shari’ah that indicates that they are from the Shari’ah evidences are also not considered.

Secondly, they made a condition for Al-Masalih Al-Mursalah that for them to be Mursalah, there must be no narration of a text in the Shari’ah that indicates that they are considered, neither specifically nor by their type, and so their stipulation is that there should not be a specific proof for it from the Shari’ah and it is rather understood from the intentions of the Shari’ah. This alone is enough to make it void in the view of the Shari’ah because the lack of a proof which indicates it is enough to reject it since the rule sought is the rule of the Shari’ah and not the rule from the mind. Therefore, in order to consider it as being from the Shari’ah, it is imperative that there is a proof which indicates that it is found in what came with the Revelation, i.e. the Book and the Sunnah. So, the stipulation that there is no text from the Shari’ah that indicates it is sufficient to reject it as being from the Shari’ah.

With respect to Al-Masalih Al-Mursalah being understood from the intentions of the Shari’ah, the intentions of the Shari’ah are not a Shari’ah text which can be understood such that what is understood from them can be considered a proof, and so there is no value in what is understood from them as far as using them as evidence for Shari’ah law. Furthermore, what is meant by the intentions of the Shari’ah? If what is intended by it is what the texts indicate, such as the prohibitions of fornication, stealing, murder, alcohol and apostasy from Islam, then this is not an intention of the Shari’ah; rather, it is the law for the actions of the worshipper and there is no looking beyond the indication of the text. So, there is no place to consider that this law which was understood from the text is Shari’ah evidence; rather, it is a Shari’ah rule. By greater reasoning, there is no account given to what the mind imagines from that law as being the purpose of the Shari’ah to be from the Shari’ah evidences. So, how would you consider that which is conceived from the mere imagination as a purpose of the Shari’ah to be a Shari’ah evidence?!! Based upon this, the validity of what is understood from the intentions of the Shari’ah is completely and utterly void.

As for what is intended by what is understood from all the wisdom (Hikma) of the Shari’ah, i.e. the wisdom behind sending the Messenger and the fact that he was a mercy for all creation, then this is a Hikma not an Illah, and the Hikma may or may not be attained. Accordingly, it is not taken as a basis used as evidence due to the possibility of its absence; therefore, by greater reasoning, what is understood from the Hikma cannot be taken as a basis that is used for evidence.

Due to this, it would be incorrect to consider that what is understood from what is known as the intentions of the Shari’ah as being from the Shari’ah evidences. It is also the case from this angle that the notion that what is understood to be from the purpose of the Shari’ah to be Shari’ah evidence is completely void. Accordingly, the invalidity of the notion that Al-Masalih Al-Mursalah is from the Shari’ah evidences has become clear.

This is from the angle of the causes that made them consider that Al-Masalih Al-Mursalah is Shari’ah evidence. As for the angle of the Shari’ah proof that they are from the Shari’ah evidences, there is absolutely no Shari’ah proof for that at all whether from the Book or the Sunnah; neither a conclusive proof nor an indefinite one. For this reason, it is incorrect to consider Al-Masalih Al-Mursalah as being from the Shari’ah evidences.

From all of this, it becomes clear that the evidence that the Revelation came with from Allah (swt), which are confirmed with definite proof, are the four evidences and nothing else, and they are: the Book, the Sunnah, the Ijma’ of the Companions and Qiyas whose Illah is from the Shari’ah, and other than these four evidences have no definite proof that indicates them. Accordingly, it has become apparent that the Shari’ah evidences are only these four alone.

However, it should be clear that the rules deduced from evidences other than these four, from amongst the rules that an Imam considered as Shari’ah rules, are Shari’ah rules in the eyes of those who advocate them and those who oppose them because there exists a vague evidence denoting that they are considered as evidences. Hence, the one who considers the general consensus of the Ummah as being a Shari’ah evidence and who then goes on to deduce from this a rule; consequently, this rule would become a Shari’ah rule in his or her eyes and a binding Shari’ah rule upon him or her, and he or she would be forbidden from taking another rule instead. The same rule also becomes a Shari’ah rule in the eyes of those who oppose it but it does not become a binding Shari’ah rule upon them. The same applies to 'the Shari’ah of those before us is a Shari’ah for us', Al-Masalih Al-Mursalah, Istihsaan and rationality.

Hence, every rule deduced from any of these evidences is considered a Shari’ah rule in the eyes of those who advocate that what the rule has been deduced from is part of the Shari’ah evidences and in the eyes of those who oppose it as well. However, it is only a binding Shari’ah rule upon the one who deduces it and not binding upon the one who holds a different understanding. This is like the rules deduced from the texts since the difference in understanding the text does not make the deduced rule a Shari’ah rule in the eyes of the one who deduced it and illegitimate in the eyes of the one that opposed him or her in this understanding. Rather, it is a Shari’ah rule from the viewpoint of all the Muslims as long as the possibility of reaching such understanding from the text is possible; in other words, as long as the doubted evidence (Shubhat Daleel) exists. However, it is not considered a binding rule upon all the Muslims but only binding upon the one who has deduced it and the one who has emulated it, and not binding upon the one who has opposed it. Nonetheless, in any case it is a Shari’ah rule. Likewise, the rule deduced from an evidence is exactly like the rule deduced from the text; it is considered a Shari’ah rule in the eyes of all the Muslims whether for those who considered it a Shari’ah evidence or for those who did not consider it a Shari’ah evidence, provided the doubted evidence is existent, such as in the case of the previous evidences which we refuted their consideration as the Shari’ah evidences.

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