Saturday, September 17, 2011

Legal Reasoning with Maslahah - Part 1

In our times, many views and fatwas have been presented in the name of Islam opposing the law and contradicting the legal texts, which are used by its proponents as a justification of them with maslahah being at the forefront. Whenever legal texts are offered in response to this matter, proponents of maslahah argue by saying that maslahah necessitates this. Therefore, what is the position of maslahah within deriving legislation (al-tashric) and is it valid to accept it as a legal evidence? Moreover, have any of the scholars reasoned with maslahah?
The sources for deriving legislation are agreed to be the Qur’an and the Sunnah and with very little exception, Ijmac[i] and Qiyas.[ii] There are disagreements amongst scholars regarding the details and principles of these sources as well as the methodologies employed in reasoning with each source. However, the broader details and the greater disagreements are found regarding Qiyas which is defined as linking the new case (al-farc) of the original case (al-asl) in order to affirm the ruling of the original case for the new case through a connecting factor between them and this connecting factor is known as the ratio (cillah). The cillah is the foundational element of Qiyas; if there is no cillah, there cannot be Qiyas. All those who espouse Qiyas agree that the cillah must be established by the law just like the Islamic rulings (al-hukm al-sharci) whose method is based solely upon the law (al-sharc).[iii]
Moreover, there is a real disagreement between the scholars over establishing the cillah. So, evidence for the cillah according to some is not considered as evidence for others. The indications of the cillah are the methods by which it is established and identified.
The cillah has conditions so if it comes with a legal evidence (dalil sharci)[iv] or with a valid identification by a Mujtahid,[v] then it will only be considered an cillah for the original case of theQiyas if its conditions are fulfilled. There is also a real disagreement amongst scholars over the conditions pertaining to the cillah. We will mention only one of those conditions here for the purposes of our analysis which is the condition of the suitability (al-munasib) of the cillah. So, what is this suitability?
We do not wish to include the various linguistic definitions in our attempt to ascertain the meaning of the suitability of the cillah for this is itself a lengthy study. However, the most widespread, common and practical usage is that the suitability of the cillah is defined as: ‘that which if it presents itself to people is met with acceptance’, i.e. if the intellect perceives a benefit (maslahah) or a wisdom (hikmah) as a result of the ruling (al-hukm) on the basis of a specific cillah, specific reality or a specific attribute (wasf mucayyan). Alternatively: ‘that the intellect accepts the causative relationship between the attribute and the ruling.’ Thus, in the hadith “Seeking permission has come on account of seeing”, the causeis clear due to the letter ‘lam[vi] which is also suitable and appropriate in that the intellect can accept the connection between the requirement of seeking permission and between its cause of seeing that which is not permitted to be seen. Therefore, seeing is valid as a cause.
And in His (Most High) saying: (Establish the Prayer when the Sun sets…)[vii] the people of Usul say that the Grammarians state that here in the verse, the letter ‘lam’ denotes the causative sense. However, it does not denote the causative sense for the original case of the Qiyas. [al-]Amidi[viii]and Fakhr al-Din al-Razi[ix] have said that the letter ‘lam’ here denotes the causative sense linguistically and is one of its clear forms and when it occurs, the causative sense must be accepted except if evidence indicates that the causative sense was not intended whereupon it will be considered metaphorical (majazan) as in the example of the poet’s saying:
 لدوا للموت وابنوا للخراب
And another example of this is His saying (Most High): (Then Pharaoh’s household picked him up that he might become an enemy and cause of grief for them)[x] where the letter ‘lam’ is in the causative sense although it is not valid to make Musa’s enemies of Fircawns’ household an cillahfor their casting him out. The intellect can neither accept nor find any wisdom for assigning the Sun’s cessation as the reason[xi] for the legislation of the Zuhr Prayer or for Fircawns’ household in casting out Musa [as].
In addition, we want to say in clarification of this condition that if we intend to assign the cause for the prohibition of alcohol (al-khamr) then that through which the cause is assigned must be sound, i.e. it must be suitable and proper (al-munasib). For the attributes of alcohol are many such as its smell, or the fact that it emits foam and fizzes or that it is preserved in jars or that it intoxicates. As for its smell, this cannot be a suitable attribute for being the cillah for its prohibition nor it is said can the fact that it foams and fizzes or that it is preserved in jars. However, the intellect can accept the connection between its prohibition and the property of intoxication because it can perceive a benefit or wisdom in prohibiting something that intoxicates. Therefore, the property or attribute of intoxication is the cillah for the prohibition of alcohol for those who assign it as one.
After adherence to the schools of law was established due to the support of their Imams and their schools as well as their many different methodologies in some of the subsidiaries and its evidences, the science of Usul al-Fiqh[xii] expanded and developed. In that, there were some who held the opinion through other ways for affirming the cause (taclil) and it was held that identifying themunasabah or deduction (al-ikhalah)[xiii] was part of identifying the cause. As a result of this, some held identification and evidence as being part of the cillah and stipulated it as a condition whereas others held that munasabah was one of the conditions related to something else and therefore is not considered an evidence for the cause.
Those who rejected this view firmly held that this was pure fantasy and thus rejected. Speculation over it was not a sharcspeculation. Those who [disagreed] responded by saying that if we do not assign an cillah to the ahkam, they will be devoid of any reality and relevance. They used the evidence that the norm of the ahkam is that they have causes. Moreover, if the Law has indicated ancillah, then it is [the cillah], but if it has not indicated [an cillah] then it upon us to search for the most correct attribute for affirming the cause. And the most correct [attribute] is in most cases the most suitable one; the condition being as long as the law has not indicated to [the attribute] being rejected or disregarded.
Those who uphold identifying munasabah, i.e. affirming the taclil of the ahkam with the wisdom (al-hikam) behind it or by affirming those attributes that have the most perceived benefit (al-awsaf al-maslahiyyah), stipulate conditions for the suitable attribute such as the fact that the law has affirmed it or that no text exists that rejects it or nothing in the law evidently disregards it. From this, they divide the suitable attributes into three types: that which is recognised (muctabar); that which is rejected (mulgha) and that which is unrestricted (mursalah).[xiv]
1. al-Muctabar:
The word ‘al-muctabar’ has two parallel meanings. The first is that it is an attribute or meaning that is indicated by a dalil sharci. This type of attribute or meaning is affirmed by a text or dalil sharci and so is recognised. This is not the meaning of the word ‘al-ictibar’ intended here.
The second meaning is where the word ‘al-muctabar’ is an attribute or meaning which is affirmed by a hukm but is not affirmed by a text or dalil [sharci] or in other words: ‘al-muctabar’ is that regarding which a hukm or ahkam has come. al-Shawkani says: “what is meant by that which is recognised (al-ictibar) is the hukm related to it and not that there is a text for it. Moreover, the cilla is not derived from the munasabah. This is what is intended by their saying that there is a specific basis for it.”[xv] As an example, in the hukm of the prohibition of khamr, a text exists indicating its prohibition but no text exists indicating its cause as being intoxication.
If we take the hukm of the prohibition of khamr along with the view that the norm for all ahkam is that they have causes, the investigator of the hukm will search for a suitable attribute for the cause, then he will find that intoxication is a suitable attribute and so will take it as an cillah as the intellect will judge intoxication to be something harmful and that it prevents some maslahah. However, this is ahukm that is based upon reason and by agreement no consideration is given to the intellect [as a basis] of deriving legislation. The law coming with the hukm for the prohibition of khamr means that the law has considered this a maslahah, i.e. that this rational maslahah comes with a hukm that it is in accordance with it. Therefore, with this meaning, this maslahah becomes recognised (muctabarah) and hence this meaning or attribute is recognised.
And with another example, the Prophet (Allah bless him and give him peace) said: “the killer will not inherit”.[xvi] The text indicates the absence of any inheritance for the killer. Any researcher might perceive a specific meaning contained in the hukm which is the action between two contradictories (al-mucamalah bi-naqid al-maqsud). For the killer kills in order to be the inheritor and to acquire the inheritance or obtain it but the hukm [in the hadith] prevents him from doing so. If someone were to claim that the punishment of the assailant or the criminal being contrary to what he intended is a suitable punishment as a basis applicable in some instances of tashric without any evidence or a hukm for it that considers this meaning, then this is rejected by all. However, thehukm sharci has come affirming this meaning, i.e. that this meaning is muctabar since a hukm has come affirming it. Thus, it is said that it is muctabar with a hukm to affirm it but no text or evidence affirming it. (In other words, it is from the implications of the meaning and not from the implication of the evidence).
This is the meaning of ‘al-ictibar’ intended with the wording ‘suitable attribute’ (wasf munasib), or ‘recognised’ (muctabar) or ‘recognised benefit’ (maslahah muctabarah). With this meaning, themuctabar divides according to how much and how little ahkam there are that affirm the attribute and according to whether the attribute is general or specific.
As another example, they say regarding the prohibition of khamr: the attribute of intoxication is a suitable and recognised attribute (wasf munasib muctabar) and also say that the hukm for the prohibition of khamr is affirmed through consideration of the essence of the attribute (li-cayn al-wasf)[xvii] which is intoxication. Regarding the very same hukm,[xviii] it is possible to argue that thehukm affirms [another] attribute which is ‘harming the intellect’ (idhhab al-caql) and therefore it is harming of the intellect that is the recognised attribute. However, harming the intellect is more general than intoxication and so [the former attribute] of harming the intellect includes the [latter attribute] of intoxication and includes becoming senseless and tipsy as well as other [effects]. Thus, harming the intellect is a genus (al-jins) whereas intoxication is one of its ‘types’ (ahad anwaciha) or intoxication is related to the harming of the intellect like the specific (al-khusus) is related to the general (al-cumum). The consideration given to the attribute of intoxication found within the hukm is what they have designated as the consideration of the essence of the attribute in the essence of thehukm. And the consideration of harming the intellect is a species of the genus of the attribute in thehukm. Whenever the recognised attribute (wasf muctabar) is more specific, the stronger the consideration will be.[xix]
Another example is the hukm related to shortening the Prayer and the hukm of combining the Prayer while travelling. It is said that hardship (al-mashaqqah) is the suitable attribute for the cause of these exemptions. It also said that the essence of the hukm – which is shortening or combining of the prayers – is affirmed by the essence of the attribute which is the hardship in travelling. If it is said that the hukm affirms the genus of hardship regardless of whether it is hardship in travelling or in something else like hardship of a baker (al-farran) or a porter (al-hammal), then this is a genus of the attribute in the hukm. This is the weakest form of consideration because the hukm is specific to the traveller and no one else so it does not have the generality given to it. Regarding the genus of the hardship, those who have this opinion strengthen their argument by saying that these ahkam, i.e. the exemptions of shortening and combining of the Prayer, have affirmed the consideration of hardship in travelling and the exemption for the sick person from observing the Fast has been affirmed by the hardship in illness and the exemption for the woman on her menstruation from Prayer and Fast have both been affirmed by the hardship in the menstruation. So, the sharciconsideration is established for the genus of the hardship since the genus of the hardship includes the different types of hardship. This is the consideration of the genus of the attribute in the hukm.
In addition to that, if it is said that it has established the consideration of the genus of the hardship in shortening of the Prayer, the combining of the Prayer, exemption from difficulties (as in the exemption from Prayer for the woman in menstruation), exemption regarding the Fast as when travelling, the one who is sick and the one menstruating, then these ahkam are the types of ease (takhfif) within the difficulties and so combine the genus of ease with them. Similar to this is the sort of consideration of the genus of the attribute (which is the generality of the hardship) within the genus of the hukm which is the generality of the ease.
This division of this consideration is that which is termed the unrestricted suitability (al-munasib al-mursal) or the unrestricted benefit (al-masalih al-mursalah). Their calling it ‘unrestricted’ (mursal) is because the application of the genus and generalisation of the attribute or the hukm is [extended and] completed without evidence.
If the hardship in travelling is recognised (muctabarah) how then can the generalisation be [extended or] completed in order to include all the types of hardship? If the hardship in travelling, illness and menstruation is recognised, how then can the generalisation be [extended or] completed in order to include the attribute in the rest of the types of hardships? Likewise, it is said regarding consideration of the genus of the hukm that if the hardship is recognised in the shortening of the Prayer or in combining two Prayers or such like, then how can the generalisation be [extended or] completed so as to say that the hardship is recognised in the genus of the ease from difficulties?[xx]
The lack of evidence that indicates the generality or the genus of the attribute or the [genus] of thehukm is the meaning of maslahah mursalah or ‘unrestricted suitability’ (munasib mursal). That is why this type of the consideration – which is the consideration of the genus of the attribute in the genus of the hukm which is al-masalih al-mursalah – is not that from which the investigator forms amaslahah from his reckoning and his wisdom then makes it an evidence for the hukm; rather it is that the consideration of the type of this maslahah or types of it in the entirety of the ahkam is evident such that the opinion is valid by it according to the proponents of al-maslahah al-mursalah.
As for the opinion of the specific maslaha (maslahah mucayynah) as well as deriving legislation based upon it without its consideration being evident in the hukm or in the ahkam, then this is incorrect and rejected by consensus as will be explained.
2. al-Mulgha:
This is a suitable [and appropriate] attribute or an attribute that has benefit rationally; sometimes considered in the hukm or elsewhere and sometimes its consideration not being evident although in all these cases it is rejected. It has two effects:
The first: That it cancels the nass. This is like in the case of the fatwa issued by one of the jurists to one of the rulers who had sexual intercourse within the Month of Ramadan[xxi] that he fast for two consecutive months even though the hukm sharcfor this reality is [firstly] to free a slave and if one is not able to do that then [secondly] to fast for two consecutive months and failing this, to feed sixty needy persons – in order. When the jurist came out, the other jurists questioned him: How can the ability to free a slave be modified to fasting? [The Jurist] replied to them: ‘If I had said to [the ruler] to free a slave, then he would have dismissed that with contempt and freed a slave again and again. Hence, that would not have been a [suitable] punishment for him whereas fasting is a punishment for him.’
Here, there is suitability in that harsh punishment is a suitable attribute and recognised within the general punishments (al-cuqubat) and penances (al-kaffarat) but is nevertheless rejected by consensus because it opposes the nass[xxii] which is the hadith of the Prophet (Allah bless him and give him peace) where it indicates the order of the kaffarah beginning with the manumission of a slave as narrated by a number of hadith collectors that:
A man came to the Prophet (Allah bless him and give him peace) and said: I’m ruined,[xxiii] O Messenger of Allah! He asked: “what has ruined you?” [The Man] said: I had sexual intercourse with my woman during Ramadan. [The Prophet] asked: “Are you able to free a slave?” He replied: no. [The Prophet] asked: “are you able to fast two consecutive months?” He replied: no. [The Prophet] asked: “are you able to feed sixty poor persons?” He replied: no. [The narrator] said: Then [the Prophet (saw)] sat down and was brought a basket of dates. [The Prophet] said: “take this and give it in charity.” The man said: are there any who are poorer than us? There is no household more in need than us. The Prophet laughed until his molar teeth were showing and said: “go and feed your family.”[xxiv]
And this type of suitability is rejected (mulhga).

The second: where the attribute itself is rejected without evidence but with the presence of a hukmor other that contradicts the attribute. For example, if it said that hardship is a suitable attribute for the ahkam related to exemptions for the Prayer and Fast, then the answer will be that this contradicts the journey of the comfortable [and relaxed] king and contradicts the fact that no exemption exists for the porter or the baker or for any one within the hazardous industries in the cities.[xxv] [continued…].

Original by Shaykh Abdul Karim Hasan, translated by Ustadh ibn Kemaludeen al-Hanafi

[i] See al-Nabhani, al-Shakhsiyyah al-Islamiyyah, 3:293-317. See also al-Amidi, al-Ihkam, 1:196; al-Shawkani, Irshad al-Fuhul, p.71 and Abu Zahrah, Usul al-Fiqh, p.156.
[ii] See al-Nabhani, al-Shakhsiyyah al-Islamiyyah, 3:318-364 cf. al-Shawkani, Irshad al-Fuhul, p.198.
[iii] See for example, al-Amidi, al-Ihkam, 3:183-197; al-Ghazali, al-Mustasfa min cIlm al-Usul, 2:54-64; al-Shawkani, Irshad al-Fuhul, pp.198-222 and Abu Zahra, Usul al-Fiqh, pp.180-204.
[iv] Cf. al-Nabhani, al-Shakhsiyyah al-Islamiyyah, 3:64-68.
[v] A mujtahid is an individual who exerts h/her utmost effort (aqsa juhd) to understand the sharcitexts from the Qur’an and Sunnah unable to exert further in order to discover a ruling for a particular issue. See al-Nabhani, al-Shakhsiyyah al-Islamiyyah, 3:207; 194-237. Refer also to al-Amidi, al-Ihkam, 4:162-187; al-Shawkani, Irshad al-Fuhul, pp.250-261 and Abu Zahra, Usul al-Fiqh, pp.301-314.
[vi] The letter ‘lam’ is grammatically a harf (‘particle’) and can take various grammatical meanings as deduced by classical jurists such as:

  1. The ‘causative’ sense (al-taclil) denoting the origin and reason for something, e.g. Allah (swt) says in surat al-Nahl:44 (We have revealed to you the reminder so that you may explain to the people), i.e. ‘for the reason that…’
  2. ‘Deserving’ of something (al-istihqaq).
  3. The ‘specific qualification’ of something/someone (al-ikhtisas).
  4. The absolute ‘Possession’ of something (al-milk) as in surat al-Nisa’:132 where Allah (swt) says: (to Allah [alone] belongs whatever is in the heavens and the earth).
  5. ‘Likeness’ (al-shibh) as in surat al-Nahl:72 where Allah (swt) says: (and he has made for you spouses of your own kind).
  6. ‘Emphasising the negation’ (tawkid al-nafy) as in al-Anfal:33 (And never will Allah punish them while you are amongst them).
  7. The ‘emphatic’ sense (li ’l-ta’kid) as in Allah (swt) saying in surat Hud:107: (Indeed your Lord does whatever He wishes).
  8. The meaning of various prepositions such as:

i) ‘ila’ (‘to’, ‘towards’, etc) as in surat al-Acraf:57 (…and then We drive it to a land that is dead…);
ii) ‘cala’ (‘on’, ‘over’, ‘upon’, etc.) as in surat al-Isra’:107 (and when it is recited upon them they fall down in prostration…);
iii) ‘fi’ (‘in’, ‘into’, etc) as in al-Anbiya’:47 (And We shall set up the Balances in the Day of Judgement…);
iv) ‘cinda’ (‘when’, ‘at’, ‘to’, etc.) as in surat Qaf:5 (nay, they rejected the truth that came to them) and
v) ‘can’ (‘regarding’, ‘on’, ‘for’, etc.) as in surat al-Ahqaf:11 (those who disbelieve say regarding those who believe, ‘had it been a good thing, it would not have preceded us…). See Taj al-Din al-Subki,Jamc al-Jawamic, pp.36-37. cf. al-Nabhani, al-Shakhsiyyah al-Islamiyyah, 3:171, 173 and 175.
[vii] See surat al-Isra’:78. The letter ‘lam’ here can also linguistically take the meaning of ‘subsequent to’ or ‘after’ (bacda). So, on this reading, the verse would state: (establish the Prayerafter the sun sets…). See al-Subki, Jamc al-Jawamic, p.37.
[viii] In his book al-Ihkam fi Usul al-Ahkam, 3:222-223.
[ix] See al-Mahsul, 5:140.
[x] See surat al-Qasas:8. The letter ‘lam’ here can also linguistically take the meaning of the ‘effect’, ‘result’ or ‘outcome’ sought of some thing (al-caqibah/al-sayrurah). See al-Subki, Jamc al-Jawamic, p.37.
[xi] ‘Reason’ here means that which the intellect cannot ascertain a definitive cause for. Thus, the declining of the Sun that occasions the Maghrib Prayer has no rationally conceivable reason.
[xii] The purpose of usul al-Fiqh is to discover the rulings pertaining to actions (afcal) through a developed and systematic set of principles that constitute a methodology. See for example, al-Sarakhsi, Kitab al-Usul, 1:10 and al-Shirazi, al-Lumac fi Usul al-Fiqh, p.4. It is defined by the classical scholars as: “knowledge of the sharicah rulings relating to actions derived form the detailed evidences (al-cilm bi ’l-ahkam al-sharciyyah al-camaliyyah al-mustanbatah min adillatiha al-tafsiliyyah).” Al-Nabhani, al-Shakhsiyyah al-Islamiyyah,3:11.
[xiii] The term ikhla means to investigate and extract the cillah contained within an established text or an established ijmac.
[xiv] For a discussion, see al-Nabhani, al-Shakhsiyyah al-Islamiyyah, 3:427-443 and al-Zaydan, al-Wajiz fi Usul al-Fiqh, pp.236-244.
[xv] See al-Shawkani, Irshad al-Fuhul, p.217.
[xvi] Narrated by Abu Dawud in his Sunan (no. 4564); Ibn Majah, Sunan (no. 2646); Ahmad in theMusnad, 3/452 and Malik in the Muwatta’ (no. 1667).
[xvii] i.e. that concrete property which is inseparable from the thing itself.
[xviii] Which is the hukm of the prohibition of khamr.
[xix] See Fakhr al-Din al-Razi, al-Mahsul, 5:165 and al-Amidi, al-Ihkam, 4:248-249.
[xx] These examples and others are found in [the books] Shifa’ al-GhalilIrshad al-Fuhul [of al-Shawkani] and Fawatih al-Rahmut bi-Sharh Musallam al-Thubut of al-Ansari. Author’s note.
[xxi] Meaning conjugal relations with his wife during the day.
[xxii] See al-Zaydan, al-Wajiz fi Usul al-Fiqh, p.207.
[xxiii] The expression ‘I’m ruined!’ (halaktu) is metaphorical for ‘disobedience’ (cisyan).
[xxiv] Narrated Bukhari, Sahih (no. 1936); Muslim, Sahih (no. 2590); Abu Dawud, Sunan (no. 2390); Ibn Majah, Sunan (no. 1671) and al-Daraqutni, Sunan, 2:190. Cf. al-Shawkani, Nayl al-Awtar, 1:869-871. This example recurs in the books of Usul; see for example al-Ictisam of al-Shatibi, 2:66. Author’s note.
[xxv] See cAbd al-cAziz al-Bukhari, Kashf al-Asrar, 3:514.

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