The only evidences to be considered as sources for the Ahkam Shar'iah are: Qur'an, Sunnah, Ijma' as Sahabah and Qiyas.
The Daleel (evidence or proof) which establishes something as a SOURCE of Ahkam Shar'iah must be qata'i (decisive) and not thanni (non-definitive) because this daleel deals with 'Usul-ul Fiqh and not with its branches. Since the source of legislation must emanate from the Wahi (revelation), the issue of what constitutes a source of Ahkam Shar'iah is part of the 'Aqeedah. Therefore, the Daleel that proves that a source of Ahkam is brought by Wahi must be qata'i because issues related to the 'Aqeedah are based only upon definite proofs.
After thoroughly investigating all of the evidences, the only sources which are proven conclusively from the Wahi are the four sources mentioned in the article.
As for the Qur'an being from Allah in utterance and meaning within its capacity, it is an affirmed evidence. The miraculous linguistic style of the Qur'an is an evidence that it is the speech of Allah and not the speech of human beings. Furthermore, many ayat in the Qur'an affirm that it is Wahi that was revealed to the Messenger of Allah (saaw):
"With it came down the Truthful Spirit to your heart that you may admonish." [Ash-Shu'araa 26: 94]
"And this Qur'an was revealed to me." [Al-Anam 6: 19]
"I merely warn by the revelation" [Ta-Ha 20: 2]
"And you receive the Qur'an" [An-Naml 27: 6]
"We revealed the Qur'an to you" [Al-Insan 76: 23]
"We revealed to you an Arabic Qur'an" [Yusuf 12: 2]
These are affirmed evidences that the Qur'an was brought from Allah via Wahi.
As for the Sunnah, Allah revealed the meaning and the Messenger (saaw) expressed it in his own words:
"Nor does he speak of his own desire. It is no less than inspiration sent down to him" [An-Najm 53: 3-4]
"We have revealed to you as we revealed to Noah and the prophets after him" [An-Nisaa 4: 163]
"I merely follow that which is revealed to me" [Al-Anam 6: 50]
"I only follow that which is revealed to me" [Al-Ahqaf 46: 9]
"I only warn you by revelation" [Al-Anbiyaa 21: 145]
Also, Allah (swt) says:
"So take what the Messenger gives you, and refrain from what he prohibits you." [Al-Hashr 59: 7]
These are clear evidences that whatever the Messenger (saaw) spoke of from the Sunnah was delivered by Wahi. Also, they are clear evidences that Allah ordered the Muslims to adhere to whatever the Messenger (saaw) ordered and to refrain from whatever he (saaw) prohibited. Thus, the Daleel that the Sunnah is brought by Wahi is an affirmative one which the Qur'an establishes.
Ijma' as Sahabah is defined as their agreement that a certain rule is a Hukm Shari', or their consensus regarding the rule for a certain issue. If they all agree that a certain rule is a Hukm Shari', then that consensus is a legal evidence. Two proofs establish this as a legal source of rules. First, Allah complemented them in the Qur'an, a text that is definite in existence and in meaning:
"The vanguard (of Islam) - The first of those who forsook (their homes) and of those who gave them aid, and (also) those who follow them in (all) good deeds - well-pleased is Allah with them, as are they with Him. For them He has prepared Gardens under which rivers flow, to dwell therein forever. That is the supreme triumph." [At-Tauba 9: 100]
In this ayah, Allah compliments the Muhajireen and Ansar and those who followed them with good faith in migration and support. This compliment is confined to the Sahabah. Any group of people whom Allah complements in this manner is unquestionable in the truthfulness of their consensus.
Second, the Sahabah transmitted the Qur'an from the Prophet (saaw) to future generations. If an error is possible in their consensus regarding any issue, then an error is possible in the Qur'an, which would imply an error in the entire Deen of Islam. Although as human beings they could agree on an error, this possibility, which applies to any group of human beings, cannot be applied to the Sahabah as a group from a Shari' perspective. Allah (swt) says:
"We have, without doubt, sent down the Message and We will assuredly Guard it (from corruption)." [Al-Hijr 15: 9]
Allah (swt) promised to protect the Qur'an. Since those who transmitted the Qur'an constitute this protection, this is a proof for their truthfulness in gathering and passing down the Qur'an. If it were possible for them to agree on a mistake, then an error would be possible in transmitting the Qur'an, which would contradict the concept of a protected Qur'an. The above mentioned ayah is an affirmative proof that eliminates the possibility of the Qur'an containing an error. As a result, the occurrence of error in the consensus of the Companions passing down the Qur'an, gathering it, and protecting it is impossible. Consequently, it is impossible for them to have a consensus on an error. This is a definite proof that the consensus of the Companions is a legal evidence.
It must be clear that Ijma' as Sahabah merely indicates the existence of a legal evidence from the Prophet (saaw), and that the Sahabah passed down the rule without its Daleel. Thus, their passing of the rule reveals that there is a Daleel for this rule. Their consensus does not mean that their personal opinions agreed with one another because their opinions are not a revelation nor were any of them infallible. None of their opinions constitutes a legal evidence because the legal evidence must be brought by the Wahi to be considered legal. Thus, taking the Consensus of the Companions does not mean taking their personal opinions, but only reflects an evidence that they understood from the Prophet (saaw).
Qiyas constitutes the fourth source of Ahkam Shar'iah. Linguistically, Qiyas means estimation. In the convention of 'Usul-ul Fiqh, Qiyas is a process to deduce a rule for a new issue that has a common Illah (motive or cause) with a known rule. The Illah of a Hukm Shari' of a known issue is compared to a new issue, and if they both share the same Illah, then Qiyas can be carried out.
The Prophet (saaw) demonstrated Qiyas in the following Hadeeth:
The Messenger (saaw) said to Al-Khathamiah, "If your father owed a debt and you paid it for him, would that suffice?" She said, "Yes." He said, "The same is for the Debt of Allah."
In order to instruct the Muslims, the Prophet (saaw) showed the Muslims how to compare the debt owed to Allah to that owed to a human being, such that paying it back fulfills the obligation. Thus, the rule confirms the acceptance of the settlement of the debt. On the other hand, the rule of the known Hukm may be one of negation. For example, 'Umar (raa) asked the Prophet (saaw) regarding whether or not the kiss of a fasting person would break the fast. The Messenger (saaw) said, "What if you rinse your mouth, does that break the fast?" The Prophet (saaw) showed 'Umar (raa) how to perform Qiyas by comparing the kiss of the fasting person to the rinsing of the mouth and showing that neither breaks the fast.
The existence of an Illah constitutes the common matter upon which comparisons take place. The following Hadeeth is another illustration of the concept of Illah in Qiyas:
When the Messenger was asked about the trading of mature dates with dry dates, he asked, "Do the mature dates become lighter (in weight) if they dry up?" They said, "Yes." He said, "Then, no."
When the Messenger (saaw) was informed that the Illah that exists in Riba, which is the increase, exists in trading mature dates with dry dates, he taught the Muslims that the rule of Riba would be applied to the rule of trading the dates. Based upon the Illah for Riba, the Prophet (saaw) demonstrated Qiyas by extending the rule of riba to trading mature dates with dry dates.
The legal definition of Qiyas is taken from the Ahadeeth of the Messenger (saaw):
Ibn Abbas narrated, "A woman said, 'O Messenger of Allah, my mother died owing a vow to fast; should I fast for her?' He said, 'What if your mother owed a debt and you paid it back for her, would that settle it?' She said, 'Yes.' He replied, 'Then, fast for your mother.'"
Also, 'Abdullah narrated, "A man from Khath'an (a tribe) came to the Messenger of Allah (saaw) and said, 'My father embraced Islam at an old age, and he cannot ride the camel and at the same time he is obligated to perform Hajj. Should I perform Hajj for him?' The Prophet (saaw) said, 'Are you the eldest son?' He said, 'Yes.' The Messenger (saaw) replied, 'What if your father owed a debt and you paid it back, would that settle it?'' He said, 'Yes.' The Prophet (saaw) said, 'Then perform Hajj for him.'"
In both Ahadeeth, the Messenger instructed the Muslims how to draw the analogy between the debt of Allah in fasting and Hajj and the debt to a human being. Both of them share the same Illah, which is the existence of a debt that must be paid. As the definition of Qiyas is derived from the Ahadeeth of the Prophet (saaw), the definition is considered a Hukm Shari'. The rule that is extracted through Qiyas is a Hukm Shari' that must be followed as any other Hukm Shari' extracted from other legislative sources. The definitions and general rules which are extracted from the Daleels are themselves considered Ahkam Shar'iah.
Qiyas is established upon an Illah, which is the common motive between any two issues. If there exists an Illah, then Qiyas can be performed. Otherwise, Qiyas is not possible. The Illah must be stated or derived from a Shari' text. If this is the case, this Qiyas would be Shari' because the Illah has been stated by a Shari' text. If this Illah has not been stated or derived from a Shari' text, the Qiyas cannot be considered valid from a Shari' perspective nor can it be considered a valid Daleel.
The Daleel that Qiyas is a source of Shar'iah is that the Illah is based upon or derived from a Shari' text. These Shari' texts are the Qur'an, the Sunnah, or Ijma' as Sahabah. These three have been proven as sources by Qata'i Daleels. Therefore, the Daleel that the Illah exists in the text in general is Qata'i, and this is the same for Qiyas. The Prophet (saaw) demonstrated Qiyas and considered it as a Shari' Daleel. The Sahabah followed him in this regard, and they also considered Qiyas as a Shari' Daleel to extract rules. The Prophet (saaw) said to Mu'adh and Abu Musa al-Ashari when he appointed them as judges in Yemen, "What will you judge with?" They said, "If we do not find the rule in the Book or the Sunnah, we will compare the unknown issue with the known issue, and we will apply it."
Thus, the Sahabah clearly stated that they will use Qiyas, and the Prophet (saaw) approved it. This example, along with other previously mentioned ones, demonstrates the use of Qiyas, the explanation of the rules of Qiyas, and the teaching of Qiyas by the Prophet (saaw).
It is documented that the Sahabah used Qiyas in many instances. When Abu Bakr (ra) gave inheritance to the maternal grandmother and not the paternal one, some of the Ansar told him, "You have given inheritance to a woman (the maternal grandmother) from a dead person (the grandson) who, if she were the dead person, he would not inherit her. On the other hand, you left out a woman (the paternal grandmother) who, if she died, this person will inherit her. So give them the one-sixth of the inheritance." When Abu Bakr heard this Qiyas, he changed his rule and established the new rule. In another example, Umar (ra) doubted applying the death penalty for the group that kills a person. Ali (ra) told him, "O Ameer al Mu'mineen. If a group stole, would you cut their hands?" Umar said, "Yes," and Ali replied, "This is the same." Thus, Ali made Qiyas for the death penalty of a group based upon the penalty of theft for a group.
All of these examples establish that Qiyas is a Shari' Daleel through the Sunnah and Ijma' as Sahabah. However, this Ijma' has been narrated through the method of Ahad, which means that it is Thanni. Therefore, the Qata'i Daleel that Qiyas is a Shar'iah source is what was previously mentioned, that it is based on the Illah being stated in the text of the Qur'an, the Sunnah, or Ijma as-Sahabah. These three sources are the qata'i Daleel for Qiyas as a legislative source because they are the Daleel for the Shari' Illah.2
These four sources - the Qur'an, the Sunnah, Ijma' as Sahabah, and Qiyas - have been conclusively proven to have come by Wahi from Allah (swt). Any other source has not been conclusively proven that it came by Wahi from Allah. Furthermore, these other sources have not been established to be applicable on their issues. Those who use other than the four mentioned sources, such as the consensus of the Muslims, consensus of the 'ulema, al Masalih al Mursalah, and Istihsan, do not claim that there is a Qata'i Daleel for them.
Invalid Sources of Ahkam Shar'iah (which there is difference of opinion on)
a) Ijma' al Ummah (Consensus of the Muslims)
Those who say that Ijma' al Ummah is a legal source use the following Hadeeth in which the Prophet (saaw) said, "My Ummah does not gather upon a Dalalah (misguidance)." This Hadeeth, however, does not justify the claim that Ijma al Ummah constitutes a legislative source. The "Dalalah" as mentioned in the Riwayah applies to apostasy from the Deen and not just any mere error. The Hadeeth only indicated that the Ummah of Islam will not collectively agree to abandon Islam. The Muslim Ummah might collectively commit an error, such as abandoning a Fard or committing a Haram. For example, the Muslim Ummah has collectively abandoned the Fard of establishing Islam for several decades. Also, the Ummah collectively approved the systems of Kufr being applied upon it, which is a consensus upon an error.
b) Conferring benefit and preventing harm as an Illah
Regarding those who use the idea of conferring benefit and removing harm as an Illah for all of the Shari' rules and perform Qiyas accordingly, they provide the following saying of Allah (swt):
"Verily We have sent you as a mercy to mankind." [Al-Anbiyaa 21: 107]
They claim that Allah's designation of the Prophet (saaw) as a mercy is an Illah for the entire Islamic Shar'iah. It is argued that the Prophet (saaw) cannot be a mercy except by conferring benefit and preventing harm, these two attributes constitute the Illah for the Islamic laws.
This understanding is wrong for two reasons.
First, the subject of the ayah is the Prophet (saaw) being sent as a Messenger and not the Shar'iah. Even if the purpose of sending him is his message, the topic of the ayah would be the entire Shar'iah, including both the Aqeedah and the Ahkam and not the Ahkam alone. Second, the Prophet (saaw) being sent as a mercy to humanity is merely a Hikmah3, which is the consequence and not an Illah.
Allah (swt) mentions Hikmah in other ayat:
"I merely created Jinn and humans to worship Me." [Az-Zariyat 51: 56]
Thus, the consequence of the creation of Jinn and humans is their 'ibadat. Their worship of Allah is the Hikmah of their creation and not the Illah. Regarding the Hajj, Allah (swt) mentions its Hikmah:
"To accomplish some benefits for them." [Al-Hajj 22: 28]
Therefore, benefit is a consequence of Hajj. Also, Allah (swt) mentions the Hikmah of the prayer:
"Prayer keeps one away from the Shaytan and vice." [Al-'Ankabut 29: 45]
Thus, keeping away from the Shaytan and vice is a consequence which could occur as a result of praying. The ayat do not give the meaning of Illah because it is the cause that makes the rule exist and not just a result or consequence of a rule. Whereas the Hikmah may or may not exist, the Illah will always exist with its corresponding Hukm (ruling), as in a cause-effect relationship.
Although the saying "mercy to mankind" is descriptive and contains those letters that would give the meaning of Illah, the context does not imply an Illah. The rule mentioned in the context might not happen consistently, and also the objective of legislation was not made for this alone. The Islamic Shar'iah may signal mercy for those who believed in and acted upon it, such as the early Muslims, but it may be viewed as a disgust to those who disbelieved in it, such as the Disbelievers who opposed them. Thus, sending the Messenger was a torment to the Disbelievers who are undeniably a part of humanity. Furthermore, the message of Islam exists today, yet the Muslims, who believe in the message, are in misery. The mere sending of the message and the mere presence of the Shar'iah does not make it a mercy. Consequently, the mercy does not constitute an Illah for bestowing Islam. Thus, realizing benefit and removing harm is not a legal Illah and should not be taken as a basis for Qiyas.
c) The Human Intellect ('Aql)
Regarding those who say that the human intellect or 'Aql is one of the legal sources, it must be made clear that the Hukm Shari' is the subject at hand. The Hukm Shari' can only emanate from sources that came by Wahi. The mind does not emanate from the Wahi. Consequently, there is no Thanni Daleel, let alone Qata'i Daleel, that the mind is one of the legal sources from which the Ahkam Shar'iah can be taken. Therefore, the mind is not considered a source of Ahkam Shar'iah.
d) Ijtihad of a Single Sahabi
Those who say that the Madhab (opinion) of a single Sahabi is one of the legal sources cite proofs used to validate the consensus of the Sahabah as proofs for the Madhab of a single Sahabi. They argue that complementing all of them is the same as complementing one of them. They also argue that, because error cannot occur in information they pass down as a group, it cannot exist in information transmitted by one of them. Furthermore, they claim that the saying of the Messenger (saaw), "My Sahabah are like the stars, whomever you follow, you will be guided," supports the opinion that the Madhab of one Sahabi is a source of Shar'iah.
Such an understanding is wrong because it is not just the Prophet's complement to the Sahabah that made their consensus a Daleel. Also, the fact that the Sahabah transmitted the Qur'an by itself does not suffice to make their consensus a legal source. Allah (swt) complemented the Sahabah as well as those who followed them. This complement alone does not give the followers of the Sahabah the status of being a legislative source. The Daleel that Ijma' as Sahabah is a source of legislation is both the complement they received in addition to their consensus that a certain rule is a Hukm Shari'. These conditions do not exist for the individual Sahabi. Also, transmitting the Qur'an by someone, even if he is among those complemented by Allah, does not make the speech of that person a legal source.
In addition, the individual Sahabi's report as well as his narration of Hadeeth is not considered Qata'i but Thanni. What is reported as an ayah of "And the elderly man or woman, if they commit adultery, stone them" is not considered from the Qur'an because it is narrated by an individual Sahabi and not by Ijma' as Sahabah. Similarly, the Ahadeeth narrated by the Sahabah from one person (Khabar Ahad) are not considered qata'i but thanni. In contrast, their Ijma' as a group that a specific ayah is from the Qur'an is what has merit in determining what is from the Qur'an and what is not. Anything that they considered unanimously as a group to be from Qur'an is definitely Qur'an. Similarly, their report of the Hadeeth in a Mutawatir manner is what is considered conclusive.
There exists a great difference between that which the Sahabah have consented upon and that which is narrated by an individual Sahabi. Since their consensus is definite, whoever rejects it is become a Kafir. However, the narration of an individual Sahabi is non-definitive, and whoever rejects it is not a Kafir. Consequently, Ijma' as Sahabah is a legal source while the opinion of an individual Sahabah is not. Moreover, it is possible for the individual Sahabi to make a mistake because he is not infallible. This is contrary to Ijma' as Sahabah, in which the existence of an error is not possible. Furthermore, the Sahabah disagreed on various issues, and each of them followed an Ijtihad which disagreed with the Ijtihad of others. If the Madhab of an individual Sahabi were considered a qata'i Daleel, then the Daleels of Allah (swt) would contradict each other, which invalidates the opinion of the individual Sahabi as a legal source.
e) Shar'iah of Previous Prophets and Nations
Those who say that the Shar'iah of the previous nations is a Shar'iah for the Muslims provide the following sayings of Allah (swt) as Daleels:
"We have sent you Wahi, as we sent it to Nuh" [An-Nisaa 4: 163]
"He set for you from the Deen what He advised for Nuh" [Ash-Shura 42: 13]
"Then We revealed to you, 'Follow the millah of Ibrahim.'" [An-Nahl 16: 123]
They claim that the above Ayat address the Muslims by the Shar'iah of the previous prophets. They also state that Allah (swt) orders the Muslims to abide by everything the Messenger (saaw) conveyed, except for issues specific to him and others or issues that were abrogated. Based upon this understanding, they claim that the Muslims are addressed by the Shar'iah of previous nations because the Qur'anic text contains neither an exception nor an abrogation.
This argument stems from an incorrect understanding of the Ayat. The first ayah means that Allah (swt) revealed the Wahi to Muhammad (saaw) in the same manner that he revealed the Wahi to previous prophets. The second ayah means that Allah (swt) revealed to Muhammad (saaw) the same Tawheed and fundamental beliefs that Nuh (as) was ordered to follow, and the third ayah orders Muhammad (saaw) to follow the fundamentals of Tawheed because the word "Millah" refers to the Tawheed. Similarly, Ayat like, "Follow the guidance they received," refer exclusively to the Tawheed, which is the core of the Deen that all prophets and messengers shared, but it does not refer to the Shar'iah that came with each message. As for the saying of Allah (swt),
"It was We who revealed the Torah: therein was guidance and light by which the prophets ruled," [Al-Maidah 5: 44] it is addressing the prophets of Bani Israel, not Muhammad (saaw), because the Muslims have no prophets but one. Regarding the narration of Abu Hurairah in which the Messenger of Allah (saaw) said, "The prophets are brothers. Their mothers are different and their Deen is one," the expression "their Deen is one" refers to the Tawheed or 'Aqeedah, which all the messengers have. This does not mean that the entire message or Shar'iah prescribed to each nation is alike because Allah (swt) says:
"To each among you We have prescribed a Shar'iah and a method."
[Al-Maidah 5: 48]
Thus, the evidences that are used for justifying the Shar'iah of previous prophets and nations as a legal source are invalid. Furthermore, there are evidences that prohibit following the previous Sharaa'i whether they are mentioned by the Qur'an and Hadeeth or otherwise.
Allah (swt) says:
"If anyone chooses a Deen other than Islam, never will it be accepted of him" [Al-i-Imran 3: 85]
"Verily the only Deen that is accepted by Allah is Islam." [Al-i-Imran 3: 19]
Both texts state that any Deen other than Islam is not accepted from anyone. Thus, it is not possible that Allah (swt) would require the Muslims to follow them. Allah (swt) also says:
"To you We sent the Book with the truth, verifying the Book that came before it, and dominating it." [Al-Maida' 5: 48]
The domination of the Qur'an over previous books cannot mean the verification of them because Allah (swt) used the word "verification" in the same ayah. Thus, it means that the Qur'an abrogates them all. Also Ijma' as Sahabah on this matter indicate that the Islamic laws abrogated all previous ones.
In addition, Allah (swt) says:
"Were you witnesses when death appeared before Ya'qoob? Behold he said to his sons, 'What will you worship after me? They said, 'We will worship your God and the god of your fathers, of Ibrahim, Isma'eel and Ishaq-the one true God: to Him do we submit.' That was an Ummah that passed away. They shall reap the fruit of what they did, and you of what you do. You shall not be asked about what they did." [Al-Baqarah 2: 133]
Allah (swt) states that the Muslims will not be questioned regarding the actions of the prophets. Conveying the Shar'iah and acting upon it is a part of their actions which Muslims are not questioned for and the Muslims are not addressed by it, and it is not binding upon them. Also, Jabir narrated that the Messenger of Allah (saaw) said, "I have been given five things which none before me was given: each prophet was sent specifically to his people while I have been sent to every red & black."
Abu Hurairah narrated that Allah's Messenger (saaw) said, "I have been preferred over other prophets with six things," one of which was that "I am sent to all of creation." The Prophet (saaw) says that each prophet before him (saaw) was sent only to his people, which means no one else but their own people are responsible for their Shar'iah. None of the previous prophets were sent to the Muslims. Therefore, their Sharaa'i are not a Shar'iah for the Muslim Ummah.
This is supported by what is clearly mentioned in the Qur'an:
"To Thamood, We sent their brother Saleh" [Hud 11: 61]
"To 'Ad, we sent their brother Hud" [Al-Araf 7: 65]
"To Midian, We sent their brother Shu'ayb" [Al-Araf 7: 85]
The above show that the previous Sharaa'i are not Sharaa'i for the Muslims for three reasons. First, the Daleels that are used refer only to the Tawheed and 'Aqa'id, and not the Shar'iah. Second, there are legal texts that prohibit following any Shar'iah except the Islamic Shar'iah. Third, each prophet was sent specifically to his people. The Muslims are not part of previous nations, the previous prophets were not sent to the Muslims, and the Muslims are not addressed by their Sharaa'i and consequently not responsible for them. Thus, the Sharaa'i of previous nations is not considered as a source of rules.
Regarding the claim that Muslims have to follow everything that the Messenger (saaw) mentioned, Allah (swt) ordered the Muslims to follow what the Messenger (saaw) brought. The Messenger (saaw) narrated the affairs of previous nations to learn and take lessons from the morale of their stories, and not to abide by their laws. The Messenger (saaw) narrated to the Muslims the stories of the previous prophets as well as information about other nations. He (saaw) explained their situations and rules they were following just as a reminder, not as an order to follow their laws. The news about the nations' affairs and rules they were following were all mentioned as mere narrations to take lessons from and not as laws to follow. Those stories are mentioned only to explain the affairs of the previous prophets and nations.
Moreover, many of those rules contradict the Islamic Shar'iah in their details. If the Muslims were addressed by these laws, they would be addressed by two different Sharaa'i, which is impossible.
For example, Allah (swt) says regarding Sulayman:
"And he took an account of the birds; and he said, ' Why is it I do not see the Hud? Or is he among the absentees? I will certainly punish him with a severe punishment, or execute him, unless he brings me a clear reason.'"
[An-Naml 27: 20]
There is no disagreement among Muslims that there should be no punishment for birds, and all animals for that matter, even if they cause some harm. The clear text from the Messenger (saaw) states, "The transgression of animals is not accounted for." Thus, the transgression of animals as well as the birds is not compensated for.
Also, Allah (swt) addressed Musa (as):
"We forbade every (animal) with undivided hoof, and We forbade them the fat of the ox and the sheep, except what adheres to their backs of their entrails, or is mixed up with a bone." [Al-Anam 6: 146]
In the Islamic Shar'iah, Allah (swt) made all of this Halal to the Muslims by saying, "And your food is made halal for them." The fat mentioned in the Ayah is part of the Muslims' food. Thus, it is allowed for them. The people of Zakariah also had their own Shar'iah as mentioned in the Qur'an.
Maryam's mother said:
"I vowed what is in my womb for you." [Al-i-Imran 3: 35]
This is Haram in Islam. Also, Allah (swt) addressed Ya'qoob:
"All food was lawful to the Children of Israel, except what Israel made unlawful for himself" [Al-i-Imran 3: 93]
In Islam it is Haram for anyone to make anything Haram if Allah (swt) did not make it Haram:
"Why do you make unlawful that which Allah made lawful for you."
[At-Tahrim 66: 1]
Similarly the Qur'an mentions the Shar'iah of the Kitabyeen during the days of the People of the Cave:
"Those who prevailed over their affair said, 'Let us surely take a place of worship over them.'" [Al-Kahf 18: 21]
This is Haram in Islam because the Prophet (saaw) said, "Those, once a good man died among them, used to build a place of worship on his grave. They are the worst of creation."
In another Ayah, Allah (swt) addressed the people of Musa:
"We ordained upon them: 'Life for a life, eye for an eye, nose for a nose, ear for an ear, tooth for a tooth, and wounds equal for equal.'" [Al-Maidah 5: 45]
Muslims do not follow this order. Instead, Islam obligates Muslims in this case to take al Qawad, or the capital punishment against murder (within specific rules). Furthermore, Islam established the monetary compensation for any crime below this, as Allah (swt) says:
"If then anyone transgresses against you, transgress likewise against him."
[Al-Baqarah 2: 194]
"And if you punish, let your punishment be proportional to the wrong that has been done against you." [An-Nahl 16: 126]
"And the punishment for a wrong deed is likewise." [Ash-Shura 42: 40]
Also, the meaning of the ayah, "And wounds equal for equal," differs from the Qisas in Islam. Qisas in Islam is called Irsh, which is the monetary compensation for crimes against any part of the body. The Torah does not contain the acceptance of Irsh. Since many rules that applied to the previous prophets and nations contradict the Islamic laws, the Muslims cannot be addressed by them.
It should not be said that only those rules mentioned above are abrogated by their corresponding Islamic rules. The reason for this is because the Islamic rules did not come to abrogate the previous rules on a case-by-case basis but rather came as a complete Shar'iah for humanity that has no relationship with the previous ones. Thus, the claim of case-by-case abrogation is invalid.
Moreover, abrogation is invalidation of an existing rule in the text by a new text. For example, the Messenger (saaw) says, "I had ordered you not to visit graves, but now you can." The invalidation of an old rule by a new text is termed abrogation. In abrogation, the abrogated rule must have been revealed before the new rule, and the new rule must also contain a Daleel that it is abrogating the previous rule. If both conditions are not met, there is no abrogation. The mere disagreement or contradiction between two rules does not make one of them abrogate the other. Therefore, the rules mentioned regarding the previous Sharaa'i are not abrogated by their corresponding Islamic ones that conflict or contradict them. There is no Daleel for such a claim. Also, there is no relationship between the Islamic legislation and these rules. However, these rules are abrogated as part of the abrogation of the previous Sharaa'i as a whole. Thus, they do not need specific rules to abrogate them.
All of these evidences clearly illustrate the invalidity of the notion that the Muslims are responsible for everything that the Messenger (saaw) conveyed. The Muslims are responsible and obligated to follow only the Shar'iah of Islam. The Muslims are not addressed with stories and affairs of the previous prophets, nor are they addressed with the rules that the previous nations followed. Therefore, the Shar'iah of previous nations is neither a Shar'iah for the Muslims nor a legal source of legislation.
However, if there is another text that came with statements which includes a rule from the previous Sharaa'i indicating that Muslims are addressed by them, then this rule becomes a part of the Islamic Shari'ah. Thus, Muslims are obliged to follow this rule because it is part of the Islamic Shari'ah, not because Muslims are obligated to follow the previous Sharaa'i. Muslims are obliged to apply the rule because Allah (swt) stated the text that indicates this rule is addressed to the Muslims.
Scrutinizing the rules mentioned in the Qur'an and the Sunnah which are addressed to the previous prophets indicates that the Muslims are also addressed by these rules in three situations:
1) If the ayah which contains the rule begins by addressing the Muslims. For example, in the ayah addressing the issue of treasuring wealth, Allah (swt) says,
"O you who believe! There are many rabbis and priests who eat the wealth of people unjustly and they yasudun (keep people away from) Allah's Path, and there are those who treasure the gold and silver and do not spend it in the cause of Allah. Promise them a severe punishment." [At-Tauba 9: 34]
Allah (swt) in this ayah has addressed the Muslims, therefore, the rules that came in the ayah are a part of the Islamic Shari'ah. Based on this ayah, treasuring wealth is Haram in the Islamic Shari'ah, even though the rule came as part of an ayah which explains the status of priests and rabbis.
2) If the ayah which includes the rule has one of the words that imply a general connotation, such as the ayat of ruling with other than Allah's rules. Allah (swt) says,
"Waman (whoever) rules by other than what Allah has revealed, then those are the Kafiroon." [Al-Maidah 5: 44]
The word "Mann" in Arabic establishes a general connotation. Thus, the Muslims are addressed by this ayah. Other examples are when Allah (swt) says,
"Waman (whoever) rules by other than what Allah has revealed, then those are the Dhalimoon (oppressors)," [Al-Maidah 5: 45]
"Waman (whoever) rules by other than what Allah has revealed, then those are the Fasiqoon (transgressors)." [Al-Maidah 5: 47]
3) If the ayah which includes the rule ends with something that directs the attention of Muslims to the rule. For example, in the ayat of Surat al-Qasas, which alludes to the position and practices of Qaroon, the ayat start by saying:
"Qaroon was from the people of Musa; however he transgressed over them. And We gave him of the treasures, that of which the keys would have been a burden to a body of strong men. When his people said to him, 'Do not be glad (with ungratefulness to Allah's Favors). Verily! Allah likes not those who are glad (with ungratefulness to Allah's Favors).' But seek, with that (wealth) which Allah has bestowed on you, the home of the Hereafter, and forget not your portion of legal enjoyment in this world, and do good as Allah has been good to you, and seek not mischief in the land. Verily, Allah likes not the Mufsidoon.'
"He said, 'This has been given to me only because of knowledge I possess.' Did he not know that Allah had destroyed generations before him, men who were stronger than him in might and greater in the amount they had collected? But the Mujrimoon will not be questioned of their sins (because Allah knows them well, so they will be punished without account). So he went forth before his people in his pomp. Those who were desirous of the life of the world said, 'Ah, would that we had the like of what Qaroon has been given. Verily! He is the owner of a great fortune.' [Al-Qasas 28: 76-77]
"But those who had been given knowledge said, 'Woe to you! The reward of Allah is better for those who believe and do righteous good deeds, and this none shall attain except those who are patient.' So We caused the earth to swallow him and his dwelling place. Then he had no group or party to help him against Allah, nor was he one of those who could save themselves. And those who had desired his position the day before began to say, 'Know you not that it is Allah Who enlarges the provision or restricts it to whomsoever He pleases of His slaves. Had it not been that Allah was Gracious to us, He could have caused the earth to swallow us up (also)! Know you not that the disbelievers will never be successful.'" [Al-Qasas 28: 78]
In those ayat, Allah (swt) is talking about Qaroon, and they are immediately followed by the ayat which state:
"We will grant the Hereafter to those who do not seek arrogance or mischief in the earth, and the good end is for the Mutaqeen. He who comes with the Hasana will be rewarded better than it..." [Al-Qasas 28: 83]
The last two ayat started addressing the Prophet (saaw) and the Muslims, which means that they direct the attention of the Muslims to Qaroon and to the rules mentioned in the ayat discussing him. Qaroon was from those who sought arrogance in the earth. Thus, the Muslims are addressed by the same rules.
In these three situations, the rules mentioned in these ayat are a part of the Islamic Shari'ah because there are texts indicating that the Muslims are addressed by it. Therefore, Muslims adopt these rules as part of the Islamic Shari'ah, not as a part of the previous Sharaa'i.
Those who say that Istihsan (application by discretion) is one of the legal sources of Shar'iah have no Daleel, Qata'i or Thanni. Those who adopt Istihsan as a legal source define it as a Daleel that suddenly materializes in the mind of the Mujtahid but he is unable to explain it. It is also defined as abandoning one conclusion of Ijtihad (derivation of rules) that is not comprehensive to a new Ijtihad, or changing a judgment on an issue for a reason that necessitates a change. Istihsan has also been defined as isolating an issue from its precedents.
Those who take Istihsan as a legislative source made it of two types: Al Istihsan ul Qiyasi (Analogical Istihsan), and Al Istihsan ul Daroorah (Istihsan of Necessity). Al Istihsan ul Qiyasi is done when the established Qiyas is abandoned for a hidden Qiyas that is supposed to be more accurate and has a stronger evidence.
An example of Al Istihsan ul Qiyasi is when an individual purchases a car owned by two people on the condition of paying them at a later time. At the time of payment, the buyer pays part of the amount. The partner who received the money cannot receive this payment as his exclusively, and his partner has the right to demand his share based on the partnership arrangement. The partner who received the money received it as part of the price of a jointly owned product (the car) in a single deal. Thus, when one of the partners receives the price of a sold product that is owned by both people, the company receives the money and not one of the partners exclusively. This is the rule applied in this situation regarding receipt of money rendered on a sold product. Furthermore, according to Qiyas itself, if there is a loss, it should be shared by both partners, regardless of who actually received the payment.
However, according to Istihsan, if the amount received by one of the partners is lost or misplaced while in his possession, and before this money is shared with the second partner, this loss is only incurred upon the receiver. Istihsan does not consider the second partner liable because he could leave his share with the first partner and demand his debt directly from the debtor.
Istihsan ul Daroorah is done by abandoning the rule reached by Qiyas because of a pressing need or a need to satisfy a benefit. This type is practiced when a hardship or problem in some issues can potentially arise upon practicing Qiyas. To avoid the emerging problem, and because of Istihsan, another rule will be taken to remove the hardship. An example of this is the hired person who does not guarantee the product he is hired to handle as long as the damage did not occur due to neglect or mishandling, which is similar to the rule of a trust. If a person is privately employed to sew clothes for someone, and the clothing is damaged in his possession without any mishandling on his part, he is not held responsible for the damage because he is entrusted with the product but is not liable for it. Also, if a tailor chose to sew clothes in his shop for someone while sewing for other people as well, and the cloth is damaged in his possession without any mishandling on his part, he is not responsible for the damage because he is also entrusted with the product but is not liable. In Istihsan, however, the private employee is not liable for the damage, while the public employee is. They say he should not take more jobs than he can handle because he will ruin the property of others.
The above is a summary of the concept of Istihsan with its Daleels. It is obvious that they are nothing but rationalizations which have no relation to proofs. The mentioned evidences for Istihsan as a legal source are neither from the Qur'an nor from the Sunnah. They cannot even be Thanni Daleels, let alone Qata'i Daleels. Furthermore, the reasoning itself is invalid.In addition, the definitions of Istihsan that are used are all false. The definition which states that a Daleel suddenly materializes in the Mujtahid's mind that he cannot explain would be unacceptable as a Daleel because he neither knows the Daleel nor has the ability to explain it. The inability to explain the Daleel reflects indecisiveness and the lack of knowledge in that particular issue. Thus, it cannot be a source of legislation.
The other definitions call for abandoning a rule that would have been given to a similar issue for a stronger Daleel. This is abandoning Qiyas for a stronger Daleel. If the stronger Daleel is from the Qur'an or the Sunnah, then it is not called Istihsan, but rather choosing the Daleel that carries more weight. Thus, it is actually utilizing the Qur'an or the Sunnah as a Daleel and not Istihsan! However, if the stronger Daleel is meant to ensure a benefit which is perceived by the mind, and this is actually what they mean, then this is void and invalid because Qiyas is based on a Shari' illah that was established by the text. Thus, the personal reasoning and perceived benefit have no legislative basis since they are not part of the Islamic texts nor an Illah. Therefore, abandoning the rules which are established by a valid Qiyas for Istihsan is invalid.
As for the types of Istihsan, the invalidity of Istihsan ul Qiyasi is apparent due to the invalidity of abandoning an established Qiyas based on the Shari' text for a hidden Qiyas based on reasoning or benefit. As for the example of the rule of selling a jointly owned product in one deal, there can be no other rule regarding the loss of the received payment by one of the partners. Since the property, be it the sold car or its received payment, is the property of the partnership and not one of the partners, then the loss is incurred by both partners. Consequently, the loss of the received payment is a loss on the part of the company because when the partner received it, he did so for the partnership and not on a personal basis. Abandoning this rule on the basis of benefit is baseless and contradicts the Shar'iah.
The invalidity of Istihsan ul Daroorah is obvious because it places the mind and its perception of benefit as a reference instead of the divine text. It also places the mind above the Illah that is taken from the Shari'ah. Also, making the public employee liable for the damage while exempting the private one is baseless and contradicts the divine text. The Messenger (saaw) says, "The one who is entrusted with a trust holds no liability." Thus, the entrusted person is not liable for what he was entrusted with at all, because the word "Laa" is a general word which includes any entrusted person, whether he was hired privately or publicly (as long as there was no negligence).
Therefore, Istihsan cannot be a legislative source because there is no Qata'i or Thanni Daleel from the Qur'an, Sunnah or Ijma' as Sahabah to lend it legislative authority. In addition, all rational proofs used are invalid and some of their application actually contradicts the divine texts.
g) Al Masalih Al Mursalah
Those who claim that Al Masalih Al Mursalah is a legal source of Shari'ah cannot provide a Daleel to support their claim. However, since they claimed that the Illah of the entire Shari'ah is to ensure benefit and to prevent harm, they subsequently claimed that this Illah also serves as an Illah for legislating each Hukm Shari'. Some of those who hold this opinion established a condition that a legal text must exist to validate any Maslahah, whether the specific Maslahah (benefit) is mentioned explicitly by name or the category of Maslahah is approved in general by the text.
Others did not make these conditions and considered maslahah as a legal source itself, even if these benefits do not emanate from any legal text. This view stems from the general idea that the Shari'ah was revealed to ensure benefit and prevent harm. They defined Maslahah as every benefit that has no legal text to consider it as a benefit in itself or as a part of a category, because the meaning of Mursalah is having no Daleel. They also said that if the Maslalah emanates from a legal text, whether the text confines the benefit to a specific meaning such as teaching, reading and writing, or is a general text with a general meaning such as commanding all kinds of good and forbidding all kinds of evil, then the benefit is not considered part of the topic of Al Masalih Al Mursalah. They claim that Al Masalih Al Mursalah are those benefits that have no Daleel and are taken from the general idea that the entire Shari'ah was revealed to ensure benefit and to prevent harm.
However, they differentiate between the legitimate and illegitimate interests. The legitimate benefits are those that are in line with the purposes of the Shari'ah, whereas the illegitimate interests conflict with them. Al Masalih Al Mursalah that do not conflict with the Shari'ah's purposes are the ones which are considered a legal source, but those that conflict with them are not taken as legal evidences. In line with this argument, Al Masalih Al Mursalah are those which are considered by the text in general. And from the general meaning, the detailed rules addressing specific situations are derived in the absence of the text and considered Maslalah as the Daleel. Al Masalih ul Mursalah is invalid for two reasons:
1. The legal texts from the Qur'an and Sunnah address a specific action performed by the human being. They do not address benefit nor do they carry a Daleel for defining each action as a benefit. Allah (swt) says in the following ayat:
"Take a Rahin," [Al-Baqarah 2: 283]
"But take witness whenever you make a commercial contract," [Al-Baqarah 2: 282]
"When you deal with each other in transactions involving future obligations in a fixed period of time, reduce them to writing." [2: 282]
In these ayat, Allah (swt) is stating the rule of the Rahin, writing debts, and ensuring that there is a witness when engaging in commerce. Allah (swt) in these ayat is not stating what is and what is not beneficial, neither explicitly nor implicitly. The text does not reflect that the rule is designed for people to derive benefit or not. Thus, the text of the Shar'iah cannot be taken as an evidence to approve the benefit because they do not address benefit.
Furthermore, the Shari' illah came like the other legal texts related to the actions of human beings and as a Daleel indicating that the rule manifests itself in a particular situation. The Shari' illah did not come to explain a benefit or to explain a Daleel for benefit. Allah (swt) says in the following ayat:
"In order that it may not (merely) make a circuit among the wealthy among you." [Al-Hashr 59: 7]
"In order that (in the future) there may be no difficulty for the Believers in (matters of marriage) with the wives of their adopted sons." [Al-Ahzab 33: 37]
"for those whose hearts have been (recently) reconciled (to the truth)." [At-Tauba 9: 60]
In the first ayah, Allah (swt) is giving the Illah for the distribution of wealth to the poor as preventing its exclusive circulation among the wealthy. In the second ayah, Allah (swt) gives the Illah for the Messenger's marriage to Zaynab, or the permission of marrying the ex-wife of one's adopted son. In the third ayah, Allah (swt) gives the Illah for giving those who do not have firmness of faith part of the State's wealth, which is the need of the State to soften their hearts towards Islam. However, He (swt) does not mention them as benefits. He (swt) only gives the Illah for a specific rule regardless of the presence or absence of benefit.
Since the texts of the Shari'ah do not indicate that they are revealed to achieve benefit, neither directly nor in the Illah of the rule, it cannot be said that the Maslalah is a Daleel, whether the Maslalah is specifically mentioned by name or mentioned in general. Consequently, Maslalah is not a Daleel. If the above applies to the benefit that has a text, as they claim, then it would also apply to the benefit that has no Daleel from the Shari'ah text.
2. Al Masalih Al Mursalah has no Daleel and no Shari'ah text exists to consider it as benefit. The condition for these benefits is not to have a specific Daleel from the Shari'ah but to be understood as a Maslalah from the goals of the Shari'ah. The absence of a Daleel to prove it as a benefit is enough to invalidate this claim because the rule that is sought is that of the Shari'ah, not that of the mind. For it to be considered part of the Shari'ah, a Daleel brought from Wahi (the Qur'an or Sunnah) must exist. Having put the condition of not having a Shari' Daleel is enough to negate its legitimacy.
Regarding the claim that Al Masalih Al Mursalah is understood from the purposes of the Shari'ah, the goals of the Shari'ah are not defined by a clear text. Whatever is understood from them is not considered as a Daleel and, consequently, has no value relative to the Hukm Shari'. Moreover, if what is meant by the Shari'ah goals is the meanings given by the texts, such as, the prohibition of fornication, theft, the killing of a human being, intoxicants, and apostasy, then these are not the Shari'ah goals. They are rules that address the actions of human beings, and no conclusion can be established on them other than the rule derived from them. Since the rule derived from the text is a Hukm Shari' and not a legal source, then it is incorrect to consider the understanding of the Shari'ah goals as a legislative source.
However, if the Shari'ah goals are meant to be the understanding of the entire Shari'ah's consensus (the consequences of sending the Messenger [saaw], meaning the Messenger [saaw] as a mercy to mankind), this is Hikmah and not the motive for the mission. The Hikmah may or may not be achieved and therefore it cannot be considered as a legal source. Thus, no legal evidence from the Qur'an or Sunnah, Qata'i or Thanni, exists to support the claim that Al Masalih Al Mursalah can be a legislative source.
In conclusion, the only legislative sources definitely proven to be revealed by Allah (swt) are four: The Qur'an, the Sunnah, Ijma as Sahabah, and Qiyas with its Shari' Illah. There is no Qata'i Daleel for any other source. However, it should be clear that any rules derived from any source accepted by any scholar other than the four definite sources are also Hukm Shari' because there is Shubhat Daleel 6 for them. Those who consider Ijma' al Ummah a legislative source must adopt the rules derived from Ijma' al Ummah as a Hukm Shari', and they are not allowed to follow any other rules. For their opponents, they are not allowed to follow them, yet they can study the rules derived from Ijma' al Ummah as Hukm Shari'. Similarly, the rules taken from the Sharaa'i of previous prophets, Al Masalih Al Mursalah that have no Daleel, the 'Aql, and Istihsan, follow this principle. Each rule derived from these sources is considered a Hukm Shari' from the point of view of those who adopt them as legal sources, but their opponents are not bound by the rule although they also view it as a Hukm Shari'. However, the rules derived from such sources are for those who adhere to such legislative sources and not for those who oppose them (i.e. they are not binding rules for them).
This principle is the same principle that applies to the rules derived from a direct text. The difference in understanding the text does not make the derived rule a Hukm Shari' for those who adhere to it and a non-Shari' rule for their opponents. Rather, any derived rule from any text is considered a Hukm Shari' for both sides, as long as the text has the capacity of producing those different understandings, meaning that there exists Shubhat Daleel (i.e. as long as each Mujtahid follows what he thinks is most correct). However, following any rule is only restricted to those who derived it and their followers, not their opponents. In any case, the derived rule is a Hukm Shari'. Similarly, the rule which is derived from what is deemed a source is similar to the rule derived from a text. Is should be viewed as a rule by all Muslims, by both those who view it as a source and those who do not.
Taken from the draft translation of 'The Introduction to the Constitution' by Sheikh Taqi ud-deen an-nabhani