Fiqh of the Objectives of Shari`ah
The Fiqh of the Objectives of Shari'ah is one of the cornerstones of Civilized Fiqh on the one hand, the Traditional Fiqh deals with the details and forms of subsidiary Islamic Laws. On the other hand, Civilized Fiqh deals with their goals, meanings and interpretations that is to say, the laws and the ultimate objectives for which Allah ordained the laws, obligations, the lawful, the unlawful and the punishment. Undoubtedly, Allah did not ordain anything at random, in jest or in vain as those who possess minds say:
Among the most magnificent Names of Allah is Al-Hakim, The Ever-Wise which means that there is wisdom in everything He has created or ordered regardless of our knowledge or ignorance of it. He is Ever-Wise in every thing that He ordained and destined.
The Qur'an goes so far so as to state the purpose and message of the worship rites, when Allah says that: "Prayer refrains from shameful and evil deeds" (29:45) Zakah is meant to: "Purify and sanctify them." (9:103)
Fasting: "That ye may learn self-restrain." (2:183)
And Pilgrimage: "That they may witness the benefits (provided) for them, and celebrate the Name of Allah." (22:28)
The Sunnah emphasized the importance of the purpose and message of these rites. If these goats are not achieved, these rites will turn into superficial and empty rites and the Muslim who performs worship rites without adhering to their purpose and message, will be denied the reward of his worship. Many Hadiths stress this meaning; Abu Hurairah narrated the Prophet (Peace be upon him) said: "Whoever does not give up false statements (i.e., telling lies), and evil deeds, and speaking bad words to others, Allah is not in need of his (Fasting) leaving his food and drink." [Note: Reported by Al-Bukhari on the authority of Abu Hurairah in the Book of Fasting (Sawm)]
"Perhaps, a man who fasts in this world may come out with nothing more than hunger from his Fasting whereas, perhaps a man who gets up for Tahajjud Prayer in this world may come out with nothing more than staying up all night from his Tahajjud." [Note: Reported by lbn Majah on the authority of Abu Hurairah, Sahih Al-Jami' Al- Saghir (3488)]
Since worship rites have moral and social purposes and messages besides their spiritual aims, then it is only natural that all the Islamic Laws have their respective messages particularly the ones that deal with family, community and state affairs.
Some of these objectives are stated quite clearly in the Qur'an and Sunnah preceded by the familiar conjunctions. One of these objectives is the induction of subsidiary laws. Moreover, there are subsidiary as well as general collective objectives for some of these laws. For instance justice is a general objective, in fact, it is the objective of all Divine messages as the Qur'an states: "We sent aforetime Our messengers with Clear Signs and sent down with them the Book and Balance (of right and wrong), that men may stand forth injustice." (57:25)
Sufficiency and security are general objectives. Allah bestowed on Quraish and ordered them to worship Him as a sign of their thankfulness when He says: "So let them worship the Lord of this House, Who provides them with food against hunger, and with security." (106:3-4)
The division of the spoils of war that Allah bestowed on Muslims, among people is a general objective. Therefore the Qur'an explained the reason for the distribution of the spoils by the Prophet among the weak, orphans, needy and the wayfarers by saying: "In order that it may not (merely) make a circuit between the wealthy among you." (59:7)
Jurists maintained that the objectives of Shari `ah are general and diverse.
These objectives are spiritual or, in other words, religious. The first objective of Shari `ah is the survival of religion whether in creed or worship because religion is the essence and spirit of life.
Moreover, they are moral objectives, which are stated in the verse that order Muslim to perform major worship, and in the hadith of the Prophet: "I was sent to perfect the noblest of virtues." [Note: Reported by lbn Sa'd and Al-Bukhari in Al-Adab Al-Mufard, and also by Al-Hakim and Al-Baihaqi after Abu Hurairah in Al-Shu'ab as mentioned in Sahih Al-Jami AI-Saghir]
For virtue is inseparable from religion.
They are human objectives as it preserves the sanctity of man's blood, money, honor, mind, dignity, and freedom. They are economical objectives for it places money among the necessary needs that must be protected in every possible way.
Finally, they are future objectives for it does not only takes care of man in the present but also in the future time as it places reproductive health among its essential interacts.
A. The Companions` Adherence to the Objectives of Shari`ah:
Whoever ponders the Fiqh of the Companions, will soon realize that they preceded the nation in grasping the precepts of the Fiqh of the Objectives of Shari`ah. They bore it in mind in their Fatwas - juristic judgments - jurisdiction and teaching.
For instance, `Umar refrained from distributing the spoils of a rural area of Iraq caring about the succeeding generations of the Muslim Nation arguing: "If it is not for my concern for the future generations of Muslims, I would have distributed the spoils of every village I conquer among those who participated in its conquest as the Prophet did in Khaibar." [Note: Reported by Al-Bukhari in the Book or Al-Maghazi Al-Mudhana`h and AI-Khums]
Similarly, `Uthman has allowed catching the astray camels, in contrary to the custom of the Prophet's (Peace be upon him) time due to change in people's mores and circumstances that imposed new attitude. Moreover, he ordered the Second Adhan of the Friday Prayer outside the Mosque so as to call Muslims to the Prayer time as the boundaries of Medina extended and the need necessitated this procedure.
`Ali, as another example, gave a guarantee to pay the debts of the manufacturers.
The Successors, in the same course, said that pricing of goods is allowed when necessity arises although the Prophet (Peace be upon him) abstained from it in his time saying, "Allah is the One Who determines the price and He is the Restrainer (Al-Qabid) and the Outspreader (Al-Basit)." [Note: Reported by Abu Dawud on the authority of Anas in the Book of Al Buyu` (3451) and also reported by Ahmad. Al-Tirmidhi, lbn Majah, lbn Kibban and Al-Baihaqi, Sahih Al-Jami Al-Saghir.]
A group of jurists agreed that it is allowed. Sheikh of Islam Ibn Taymiyah in his book Al-Hisbah and Ibn Al-Qaiyim in his book (Al-Tunuq Al-Hukmiy'ah) said that its being allowed is most probable.
The research scholars of the Four Schools all agreed on this glorious golden rule namely, the Fatwa (Legal Ruling) changes in respect of time, place, circumstances, and custom. They feared that a group of scholars may cling to certain statements said at a certain time under certain circumstances, notwithstanding the fact that they could no longer meet the objectives of Shari'ah due to the change of time, place and people. I have proven the authenticity of this rule guided by proofs from the Qur'an, Sunnah and the history of the Companions in my book "The Factors of Collectiveness and flexibility in Islamic Shari`ah".
For instance, Ibn Al-Qajyim, the research scholar, wrote at the beginning of his useful chapter about (Change of Fatwa) in his book (I'lam Al-Mawaqi'n) and stressed the fact that the Shari'ah in its basis for judgment, concerns people and life. For the Shari`ah is just, merciful, useful and wise. Every judgment that deviates from justice to oppression, from mercy to ruthlessness, from usefulness to corruption, and from wisdom to folly, notwithstanding the different interpretations of it, is definitely not Shari `ah-oriented. [Note: See I`lam Al-Muwaq'in, vol.3, p.14, Al-Sa'dah]
One the great afflictions that appeared on the Islamic area is a group of people who do not have any idea concerning the Fiqh of Objectives. They offer a golden opportunity for the secularists and prowesterners to attack Islam. Moreover, they stigmatize the straight Islamic thought and the constructive Islamic activity, they are captivated by the words and form. I called them "The New Group of Zahiriyyah", although they are not well-learned or cultured as the old group of Zahiriyyah were in fact, they did not take anything from Ibn Hazm, the most erudite of Al-Zahiriyyah, but his occasional inflexibility and rudeness.
They read some of the masterpieces of the two Imams: Ibn Taymiyyah and Ibn Al-Qayim, but unfortunately, they misinterpret them and failed to understood their message. Moreover they neither followed in the footsteps of the two Sheikhs, nor those who followed them. Instead, they indulged in imitating some of the contemporary thinkers and followed their to the letter. As a result, we heard about some people who call for abandoning the Zakah on (banknotes) and claim that the prohibition of usury does not apply on banknotes! They seemed to have overlooked the fact that banknotes are the coins of our time, the basis of transitions and exchange, and core of property. Other people called for abolishing the Zakah of merchandise imposed on traders, claiming that there are no authentic hadith concerning its being obligatory. They seemed to have, voluntarily or involuntarily forgotten that the evidences of its being obligatory in both the Qur'an and Sunnah. Moreover, there are the objectives of Shari`ah, the narrations of the Companions which majority of jurists upheld as consensus. [Note: See my refutation of this statement with legal proofs in my book (The Primary Recourse is to the Qur'an and Sunnah) (Al-Marji'yah Al-`uliyah Lil Qur'an Wa Al-Sunnah), chapter of (Understanding Specific Texts in the Light of General Texts)
In addition to this, some people make a great commotion about dropping the paying of equivalent value as a Zakatul Fitr just although `Umar Ibn `Abdel-'Aziz, Abu Hanifah and his followers and a group of the late scholars of the Nation have have upheld it. [Note: See the proofs of this opinion in our book (Fiqh Al-zakah) vol.2, p. 952, 956, published by Maktabat Wahbah, and my book (Kaifa Nat'amal Ma' AI-Sunnah) (How to Behave Towards the Sunnah ) p. 135, 137] Yet this equivalent value payment of Zakatul-Fitr, the best way to pay Zakatul-Fitr in the big cities such as Cairo.
Therefore, we can, safely presume that many of this group of people are sincere servants of Allah yet they, simply, do not have adequate knowledge concerning the Fiqh of Objectives. Being sincere is not enough to survive and support the religion of the Nation.
The Kharijites were also sincere servants of Allah, as Imam Ahmad narrated in many authentic Hadiths which praise them. For instance "Their perfection of worship rites in Prayer (Tahajiud) and recitation of Qur'an is incomparable with anyone else. Yet their vulnerability lies in their mentality and superficial understanding of Fiqh. The Prophet (Peace be upon him) described them as the people who: "Do not go beyond sounds, syllables. and vowels in their understanding of Quran."
Consequently, they did not grasp the deep meaning of the Qur'an and were not able to reveal its mysteries, thus they were described as a group that: "Killing the people of Islam, and leaving those who worship idols unbothered." [Note: Agreed upon on the authority of Abu Sa'id Al-Khudri Al-Lu `Lu Marjan (639)]
B. Protection of Interests:
The Shari'ah seeks to protect and maximize the interests on the one hand and to prevent and minimize corruption on the other hand. It also allows good and useful things, forbids evil and harmful things, eases the effort of Allah's slaves and lessen the difficulty that they might encounter. Allah says: "And has imposed no difficulty on you in religion." (22:78) "Allah intends every facility for you; He does not want to put you to difficulties." (2:185) Also, the Prophet states: "No harm is inflicted or reciprocated in Islam." [Note: Reported by lbn Majah and it is a Sound hadith]
The Companions, the most well-learned in Shari'ah, exerted their utmost effort to meet its objectives and message.
Therefore, they often acted according to what is best and what comes within the interest of Muslims.
Firstly, Abu Bakr had the interest of Muslims in mind, when he ordered togather the scrolls, on which the Qur'an was written, so as to compile them into one book. This was a thing that the Prophet himself (Peace be upon him) did not do, yet Abu Bakr thought it over, then decided to act upon `Umar's advice because it aimed at doing what was in the best interest of Islam.
Secondly, he also had the best interest of Muslims in mind when he chose `Umar as his successor in the Caliphate after his death, notwithstanding the fact that the Prophet himself did not nominate a successor.
Thirdly, when `Umar took over the Caliphate, he had the best interest of Muslims in mind when he enacted the system of Khiraj (taxes paid on the newly conquered lands), registered the numbers of the armed forces and the needy people in accounts and books of the treasury, built cities, establish prisons, used various ways of punishing evil doers through Ta'zir (punishments lesser than Hadd) e.g. spilling mixed-with-water milk, and confiscated the money of the governors who trade while in post.
Fourthly, `Uthman too had the best interest of Muslims in mind when he compiled the Qur'an into one Book, spread copies of it everywhere and burnt unauthorized copies. moreover, he gave an order to allow the divorced woman to inheriting deceased husband if he divorced her on his deathbed to deprive her of inheritance.
Fifthly, `Ali had the best interest of Muslims in mind when he gave an order to Abu Al-'Aswad AI-Du'ali to write down the basics of Arabic grammar, and issued a decree that manufacturers must guarantee to repay the amounts of lost money which people have given them in order to invest, if they did not prove that they were not, in any way, responsible for this loss. Later, `Uthman commented: "This decree will make people stand stead fast." [Note: See "Tanqih Al-Fusoul" and its explanation by Al-Qarafi, p.198, 199, and "Masader Al-Tashri Fima La Nassa Fihi"," Sources of Lgislation in Matters About Which There Are No texts Available" by Knallaf p.85, 88]
Sixthly, Mu' adh Ibn Jabal had this interest in mind when he took Yemeni textiles instead of the Zakah on plants and fruit saying: "I will take Khamis and Labis - local textiles- instead of the actual plants and fruit for this will ease things for you and will be more useful to the poor in Medina." [Note: See our book "Fiqh Al-Zakah", vol.2, p.810. published by Maktabat Wahbah, No.16]
Abu Hanifah agreed to `Uthman's opinion. Ibn Taymiyah, the Sheik of Islam, and AI-Bukhari recommend these actions on condition that they are in the best interest of Muslims.
Seventhly, Mu'awiyah had this interest in mind when he took half of a Sa' (approximately 1.50 Kilogram) of wheat instead of one Sa' (approximately 3 Kilograms) of dates as Zakatul-Fitr. The Companions at that time, agreed to what he did except Abu Sa'id AI-Khudri (May Allah be pleased with both) [Note: "Fiqh Al- Zakah", vol.2, p.932 and pages following it]
This interest was always there. It made those who followed the Rightly Guided Caliphs establish mail service, use Arabic in the accounts of the treasury, establish the mint and attend to the rest of the state affairs without objection from the scholars of the Muslim Nation.
Also it made Imam Abu Hanifah adopt the opinion that the Mufti, ignorant doctors, and bankrupt building contractors must all be announced as legally incompetent, not with standing the fact that his School (May Allah be pleased with him) does not approve of announcing the legal incompetence of the sane adults even if they were dissolute, out of respect to them as human beings.
He announced the legal incompetence of them lest they should harm people. [Note: See "Al-Ikhtiyar", vol. 4, p.92]
In addition, the Maliki School of thought and others issued a Fatwa allowing the imposition of taxes for those who could afford it, in case that there was insufficient money in the treasury (Bait AI-Mal) and there was the necessity of collecting money so as to keep the possession of certain properties. AI-Ghazali in "Al-Mustasfii" and Al-Shatibi in " All'tisam" and others supported his opinion. [Note: Fiqh Al-Zakah, vol.2, p.986, 987]
Also, the majority of scholars allowed the killing of a Muslim, if the disbelievers took him as a shield and there was no other choice but to fight there. [Note: See, Al-Ghazali, Al-Mustasfa, vol. I, p.294, 295, also, "Al- ikhtiyar Lita'lil Al-Mukhtar", vol.4, p. 119, published by Halab, and "Matalib `uli Al-Nuha", vol.2, p. 518, 519]
The Scholars of Hanafi, Shafi'i, a group of Maliki and Hanbali Juristic Schools allowed the performance of a Cesarean operation to save the life of the fetus if the mother had died and if the trustworthy physicians were of the opinion that he is alive notwithstanding the lawful inviolability of the dead. A group of scholars are of the opinion that it is obligatory because it means saving the life of someone by cutting a part of the body of a dead person. The author of "Al-Muhadhab" of the Shafi'i School likened this to eating dead meat at the time of famine. [Note: See "Al-Muhadhab" and its explanation (Al-Majmu'), vol.5, p.301, 302, and also "Hashiyyat Al-Sawi", vol.1, p.205] For if it was a matter of choice then the interest of a living person is far more important than respecting the dead. Similarly, the interest of saving the life of a fetus is a first priority and violating the sanctity of his dead mother is of a secondary importance. Thus, the physicians' choice adhered to the rule of choosing the less harmful and more beneficial measure.