Al-Maṣāliḥ al-Mursalah (Unrestricted Interests)
An Analytical Study and a Jurisprudential and Usuli Discussion, with Practical Examples
Translated from the Arabic: المصالح المرسلة


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Al-Maṣāliḥ al-Mursalah (Unrestricted Interests)

An Analytical Study and Jurisprudential and Usul al-Fiqh Discussion
With Practical Examples

Authored by
Mahmoud Abdul Karim Hassan

Dar al-Nahda al-Islamiyya


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Al-Maṣāliḥ al-Mursalah (Unrestricted Interests)


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In the name of Allah, the Most Gracious, the Most Merciful.


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Al-Maṣāliḥ al-Mursalah (Unrestricted Interests)

Authored by
Mahmoud Abdul Karim Hassan

Dar al-Nahda al-Islamiyya


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All rights reserved
First edition
1415 AH - 1995 CE

A total of 2000 copies printed

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Dar An-Nahda Al-Islamiyya
P.O. Box 155199
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In the name of Allah, the Most Gracious, the Most Merciful
O you who have believed, obey Allah and obey the Messenger and those in authority among you. And if you disagree over anything, refer it to Allah and the Messenger if you should believe in Allah and the Last Day. That is the best [way] and best in result. {4/59} Have you not considered those who claim to have believed in what was revealed to you and what was revealed before you? They wish to refer legislation to Taghut (the tyrant), while they were commanded to disbelieve in it. And Satan wishes to lead them far astray. {4/60} And when it is said to them, "Come to what Allah has revealed and to the Messenger," you see the hypocrites turning away from you in aversion. {4/61} So how [will it be] when disaster strikes them because of what their own hands have earned, and then they come to you swearing by Allah, "We intended nothing but good conduct and accommodation." {4/62} Those are the ones of whom Allah knows what is in their hearts, so turn away from them but admonish them and speak to them a far-reaching word. {4/63}
Surah An-Nisa / 59 - 63


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In the name of Allah, the Most Gracious, the Most Merciful
Introduction
The study of the authority of public interest (maslaha mursala) is a foundational issue that has been debated both in the past and in modern times. However, there is a clear distinction between the disagreements among the imams and usulists in the early periods, which were characterized by a multitude of scholars, the flourishing of knowledge and jurisprudence, and the dominance of Islam, and the disagreements among contemporary scholars in the later periods, which are marked by a scarcity of scholars and their reliance on holding certificates.
In the early periods, the majority of scholars held that public interest is not a valid proof. In contrast, in the later periods—such as our own—you can hardly find anyone who engages in a proper legal discussion on this matter, nor can you find anyone who rejects it.
Moreover, in these recent times—characterized by the decline of Islam and the subjugation of Muslims to their enemies, as well as the replacement of Islamic concepts with Western or Eastern concepts derived from disbelief—you find scholars who are agents of disbelief and its rulers, who have taken prominent positions in knowledge and fatwa, altering the rulings of Allah and issuing fatwas declaring the unlawful as lawful, under the pretext of public interest and the changing times, and under the pretext that the objectives of the Sharia (maqasid al-sharia) must be preserved, regardless of how this preservation is achieved. Thus, you see usury becoming permissible, the rulings on punishments changing, and there being no issue with this as long as the goal is deterrence and prevention; we can deter in ways other than the old methods. Mixing between genders becomes widespread, seeking assistance from disbelievers to fight Muslims becomes a lawful act, and making peace with Israel and recognizing its sovereignty over Muslim lands becomes something encouraged by Islam, as it promotes peace.
For this reason, many of the certainties and fundamentals of Islam are obscured, and many foreign ideas are promoted as if they are legal principles, when they are not. Such as: "what has become widespread is accepted," and "the change of rulings with the change of times cannot be denied," and "wherever there is public interest, there is the law of Allah," and customary practices, among others. The truth is that what is unlawful remains unlawful even when it becomes widespread, and the rulings cannot be denied to change with the change of time, as...


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Revelation has ceased, and God's ruling on any given incident is established and can only be lifted by evidence from the Sharia. The Sharia of God is not where the public interest (maslaha) lies; if we wish, we can say: the public interest is where the Sharia is. Custom ('urf) has no value unless the Sharia indicates something from it; then it is taken as a proof of the Sharia and not because it is customary.
Due to this deviation in understanding Islam and the deliberate misguidance—often invoked under the pretext of public interest—I have undertaken a study of the topic of public interests in a legal and foundational manner, hoping that it may have an impact in preventing deviation and in raising the awareness of Muslims about the true nature of their religion.
I have divided the book into four chapters and a short conclusion:
The first chapter: On the science of usul al-fiqh (principles of jurisprudence) in terms of its definition and subject matter, and on the ruler and his uniqueness in determining good and evil, then on the sources of legislation, both agreed upon and disputed.
The second chapter: On the objectives of the Sharia (maqasid al-sharia) and clarifying that they are the goals of legislation and not reasons, the difference between the objectives of the Sharia and the objectives of rulings, and in bringing about benefits and averting harms, then on reasoning by analogy and the categories of analogy and the categories of public interests.
The third chapter: On public interests in terms of their definition, the evidence of those who advocate for them, and the scholars' positions on them, then a foundational discussion of them, and a jurisprudential discussion of examples from the actions of the Companions (may Allah be pleased with them). The discussion included evidence that public interests are not a legal proof and that the actions of the Companions are not considered public interests.
The fourth chapter: It includes an investigation into the intentions of the imams and scholars who spoke of public interests. It also includes a response to two doubts regarding the classification of interests into valid, invalid, and neither valid nor invalid, and regarding placing conditions on them that they do not contradict a text, consensus, or analogy.
The conclusion: On acting with the intention of public interest, and on the respected legal opinion even if it contradicts another ijtihad, and on the opinion that is rejected legally even if it is claimed to be derived from correct ijtihad.


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And in conclusion, I ask Allah, the Exalted, to grant me success in the methodology I have followed and in the opinion I have expressed. And may this effort be counted for me with Him.


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Chapter One
Principles of Jurisprudence
The Ruler
Sources of Legislation:
Introduction
Sources of Legislation must be definitive
Sources that are agreed upon

The first source: the Book
The second source: the Sunnah
The third source: consensus
The fourth source: analogy

Sources that are not agreed upon


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Principles of Jurisprudence

"Principles of Jurisprudence" is a compound term whose understanding depends on knowing its two components. The term "origin" in language refers to what is built upon, whether the building is physical, like the walls built on a foundation, or mental, like the effect (ma'lul) built upon its cause (illah) and the sign (dليل) built upon its indication. Thus, the origin is the rule, and the principles of jurisprudence (usul al-fiqh) are the rules upon which jurisprudence is built.

Jurisprudence (fiqh) in terminology is defined as: the knowledge of practical legal rulings derived from their detailed evidence. In contrast to the principles, these rulings are called subsidiary rulings (ahkam far'iyya). Jurisprudence is also used in terminology to refer to the legal rulings themselves, so we say: this is a book of jurisprudence, meaning it contains legal rulings.

As for the legal ruling, it is the address of the legislator (shari') concerning the actions of the servants - and it is said: the obligated (mukallaf) - by way of command, choice, or status. This excludes the rulings of beliefs because their subject is faith and not actions. Our statement: derived from their detailed evidence means that every ruling has its specific evidence. For example, His saying, Exalted is He: {And pilgrimage to the House is a duty upon the people} is a detailed evidence for a legal ruling, which is the obligation of pilgrimage, and His Messenger (peace and blessings be upon him) said: "I had prohibited you from visiting graves, but now visit them"(1) is a detailed evidence for a specific legal ruling.

Therefore, the principles of jurisprudence are: the rules upon which the knowledge of practical legal rulings derived from their detailed evidence is built, meaning the rules that are used to derive these rulings from their evidence. Its subject is the rulings and the evidence. That is, the definition of the ruling and its types, and knowing the ruler or legislator, meaning the one who has the authority to issue the ruling, and the sources of the ruling such as the Qur'an and the Sunnah and what they guide to from other sources, and the subject of the ruling, meaning the obligated person to implement the ruling. The general evidence and its indications, such as the absolute command and the absolute...

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(1) Narrated by Muslim, and Tirmidhi added: "For it reminds of the Hereafter," and Ibn Majah added: "And it dissuades from the world."


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The prohibition, the actions of the Prophet (peace and blessings be upon him) and his silence, and the condition of the one who derives evidence, meaning the knowledge of what ijtihad (independent juristic reasoning) is, and who the mujtahid (jurist) is, including the method of deriving evidence, such as balancing and weighing the evidence(2).
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(2) See: al-Ihkam by al-Amidi, pp. 5 - 8.


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The ruler

He is the one to whom the issuance of the ruling is referred, that is, the one in authority to command and prohibit. The ruling being discussed here is the legal ruling (hukm shar'i) upon which reward and punishment are based. It is not the ruling that a person finds pleasing either through his intellect or his desires, nor is it the ruling that is presumed to bring about benefit as perceived by a person. It is well known that the intellect is incapable of fully grasping the needs of humanity and is even more incapable of providing solutions for them. It is also known that a person's intellect may perceive something good as evil, and something evil as good. A person may find pleasing what others find repugnant, and his estimation of benefit lacks complete understanding of the realities of all people's issues, as well as knowledge of the outcomes and consequences of people's actions and behaviors. Allah, Exalted is He, said: “Fighting has been enjoined upon you while it is hateful to you. And perhaps you hate a thing and it is good for you, and perhaps you love a thing and it is bad for you. And Allah knows, while you do not know” {2:216}(3). The story of our master Moses (peace be upon him) with al-Khidr (peace be upon him) is clear in this regard, as our master Moses (peace be upon him) disapproved of and found repugnant the actions of al-Khidr, which were carried out by revelation from the Lawgiver(4).

It is true that minds may agree on finding some matters pleasing and others repugnant, such as finding truthfulness pleasing and falsehood repugnant, and finding justice pleasing and oppression repugnant. However, this approval or disapproval stems from an innate disposition in humans - that is how the Creator has fashioned them - they are inclined towards certain matters and repelled by others. Yet, this inclination or repulsion has no bearing on determining reward and punishment; it affects a person's stance as a human being - that is, with all the characteristics of humanity, including incapacity, deficiency, need, love, hatred, preference, and aversion, satisfaction and anger, knowledge and ignorance, intelligence and foolishness, forgetfulness and confusion, and so forth - and does not lead to reward or punishment. Rather, reward and punishment depend on obedience or disobedience to the one who rewards and punishes. Therefore, the approval or disapproval of the intellect regarding something or an action does not determine the reward or punishment.
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(3) Al-Baqarah: 216.
(4) The story is mentioned in Surah Al-Kahf.


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There is a matter concerning the entitlement to reward or punishment, and it does not define what is good and what is bad in the Sharia. The ruling that determines entitlement to reward or punishment is solely the ruling of Allah, so the ruler is only Allah. What is good is what Allah has commanded, and what is bad is what Allah has prohibited.
Therefore, we see that lying, which is naturally repugnant, can sometimes be good, as in war, or towards a wife, or for reconciliation. Similarly, injustice, as what may be perceived by reason as injustice could be justice, and vice versa, because reason in its judgments and taste in what it finds acceptable are greatly influenced by what they are accustomed to in their environment.
The Sharia has also indicated that the ruler is Allah, Exalted is He, alone. Allah, the Exalted, said: “Indeed, the judgment is only for Allah”(5). And He said: “And it is not for a believing man or a believing woman, when Allah and His Messenger have decreed a matter, that they should have any choice in their matter”(6), and He said: “Indeed, to Him belongs creation and command”(7).
Thus, the ruler is Allah, Exalted is He, alone. And if there is a disagreement among the theologians regarding the matter of good and bad by reason, there is no disagreement among them that sovereignty belongs to Allah alone.
What we have presented indicates that there is no ruling before the arrival of the Sharia, for before the arrival of the Sharia, there is no means to know the ruling of Allah. What reason may arrive at in terms of rulings, and what people may agree upon in terms of laws and customs, does not lead to reward or punishment, as obedience to them is not obedience to Allah, and disobedience to them is not disobedience to Allah; they are not rulings from Allah, Exalted is He. Al-Shatibi said(8): “The original ruling regarding actions before the arrival of the Sharia is the nullification of obligation, for there is no ruling upon him before knowing the ruling, as the condition for obligation according to the usul scholars is knowledge of what one is obligated to.”
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(5) Al-An'am / 57. And Yusuf / 40, 67.
(6) Al-Ahzab / 36.
(7) Al-A'raf / 54.
(8) Al-Muwafaqat, vol. 4, p. 200.


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Sources of Legislation

Introduction
Since Allah, Exalted is He, is the sole legislator, it is necessary for humans to know His legislation to understand what to believe in, how to worship Allah, how to fulfill their needs, address their problems, and establish their lives with others. Hence, throughout the ages, people have needed messengers to convey to them the laws of Allah, Exalted is He.
Muhammad (peace and blessings be upon him) was the last of the prophets, and his message was the final message. After delivering the message, he (peace and blessings be upon him) passed away and left us with the Qur'an and the Sunnah. He said: "... adhere to my Sunnah and the Sunnah of the rightly guided caliphs; cling to it tightly, and beware of newly invented matters..."(9). And Allah, Exalted is He, said: "And whatever you disagree about, its ruling is with Allah"(10). He also said: "O you who have believed, obey Allah and obey the Messenger and those in authority among you. And if you disagree over anything, refer it to Allah and the Messenger if you should believe in Allah and the Last Day. That is the best [way] and best in result"(11).
Thus, this message serves as legislation for all people until the Day of Judgment, containing rulings for every incident. Since human life is filled with ongoing incidents, events, issues, and problems, it is always necessary to have someone who knows Allah's ruling on every new matter, which necessitates the knowledge of the sources from which rulings are derived. These are legal rulings that were all revealed to the Messenger of Allah (peace and blessings be upon him) through revelation, "And he does not speak from [his own] inclination. It is not but a revelation revealed"(12). Therefore, the sources from which rulings are derived, that is, the sources of legislation or the principles of legislation, are those that are definitively proven(13) to be revelation from Allah.

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(9) Narrated by Abu Dawood in the Book of Sunnah.
(10) Ash-Shura / 10.
(11) An-Nisa / 59.
(12) An-Najm / 3-4.
(13) As we will clarify under the following title.


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Allah, to our master Muhammad (peace and blessings be upon him). Among these sources are those that are agreed upon by Muslims and those that are disputed.

The sources of legislation must be definitive.
The sources of legislation in Islam are the avenues in which Allah, Exalted is He, has deposited His commands and prohibitions. Therefore, researching the sources is one of the most important studies in the principles of jurisprudence (usul al-fiqh) after the study of the ruler, and the two topics are directly related.
The sources of legislation are among the fundamental principles, thus they are linked to beliefs in terms of being universal, and in terms of the necessity for them to be definitive. Just as beliefs cannot be derived from conjecture, and it is not permissible to rely on conjecture in acquiring them due to His saying, {And most of them follow not except assumption. Indeed, assumption avails not against the truth at all}(14) and other verses, likewise the principles of jurisprudence cannot be derived from conjecture, and nothing that is conjectural is considered among the principles.
If it were permissible to accept a source for legislation based on conjecture, this would mean that it is permissible to regard conjecture or predominant conjecture from any universal source as revelation. An example of this would be to say that the Gospel and the Torah are sources of legislation, because although they are distorted according to the text of the Qur'an, it is rationally and legally permissible that some of their texts are not distorted, and these texts could potentially be used as evidence for rulings by those who believe that the legislation of those before us is legislation for us, because some texts may be conjectured to be unaltered, just as the Sunnah is a source for rulings despite the existence of weak or fabricated hadiths within it. However, this is false, as it has been narrated that he (peace and blessings be upon him) saw a piece of the Torah with Umar ibn al-Khattab, and he became angry and said: "Did I not bring it to you white and pure? If my brother Moses were to come to me, he would have no choice but to follow me"(15).
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(14) Yunus /36.
(15) Narrated by Ahmad in his Musnad.


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And also, if we were to rely solely on conjecture in the principles, it would be necessary to consider seeing the Messenger (peace and blessings be upon him) in a dream as a source, due to his saying: "Whoever sees me in a dream, it is as if he has seen me while awake"(16), and other statements that convey the same meaning. However, no one whose opinion is respected has made such a claim(17).

Therefore, the principles, like the beliefs, must be certain. Just as beliefs are only taken from certainty, so too are the principles only considered with certainty, and conjecture is only accepted in the branches. Thus, the report of the singular (khabar al-ahad) is a proof in rulings but not in beliefs.

Al-Shatibi(18) said: "The principles of jurisprudence in religion are definitive, not conjectural, and the evidence for this is that they pertain to the universals of the Sharia, and whatever is thus is definitive." He also said(19): "If conjecture were permissible as a basis in the principles of jurisprudence, it would also be permissible as a basis in the principles of religion, which is not the case by consensus... because the relationship of the principles of jurisprudence to the foundation of the Sharia is like that of the principles of religion, and although they differ in rank, they are equal in that they are considered universals in every community." Al-Shatibi adds(20): "Some have said: There is no way to establish the principles of the Sharia through conjecture, because it is legislation, and we have only been commanded by conjecture in the branches." Imam Jamal al-Din Abdul Rahim al-Asnawi states in his book "Nihayat al-Sul" when discussing the indication of (do) in terms of the fact that conjectural evidence is not considered in the principles: "As for singular reports, they are invalid because the narration of singular reports, if it is beneficial, only provides conjecture, and the legislator has only permitted conjecture in practical matters, which are the branches, not in scientific matters such as the principles of religion and likewise the principles of jurisprudence, as conveyed by al-Anbari, the commentator on al-Burhan, from all the scholars."

Based on the above, the principles of jurisprudence, including sources of legislation, must be definitive.

Agreed-Upon Sources
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(16) Narrated by the two Shaykhs, and the wording is from al-Bukhari.
(17) Al-Ghazali mentioned in al-Mustasfa that the claim of visions as a source of legislation is attributed to some innovators. Vol. 2.
(18) Al-Muwafaqat, Vol. 1, p. 10.
(19) The previous source.
(20) The previous source.


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The usuliyyin (jurisprudential scholars) agreed on some sources of legislation, while they differed on others. Among what they agreed upon are: the Qur'an, the Sunnah, consensus (ijma), and analogy (qiyas), and this agreement is what the majority holds. The Qur'an alone is something that there is no disagreement about at all; however, the other three are associated with wide-ranging and impactful disagreements in deriving rulings. The definition of the Sunnah differs between the Twelvers and the Ahl al-Sunnah, and there is also disagreement regarding consensus: whether it is the consensus of the mujtahidin (jurists) in a particular era, or the consensus of the Companions, or the consensus of the people of Medina, or the consensus of the Ahl al-Bayt, or the consensus of the Ummah. As for analogy, there is disagreement regarding it and in determining the rationale (illah) and its pathways.

The first source: the Book
"The Book is the Qur'an revealed to our master Muhammad (peace and blessings be upon him). It is what has been transmitted to us between the covers of the mushaf in the seven letters through a continuous chain of narration"(21).
This is a definitive source, and there is no disagreement among Muslims about it. It has been established in creed that the Qur'an is the speech of Allah, and it is definitive and certain. Therefore, it is a source of legislation. As the usuliyyin say, it is the first evidence.

The second source: the Sunnah
In language, the Sunnah means the way, and in Sharia, it refers to the acts of worship that are voluntary and transmitted from the Prophet (peace be upon him). It may also refer to what the Messenger said, did, or approved. When discussing legal evidence, the Sunnah refers to the actions of the Messenger, his sayings, and his approvals; all of this is the Sunnah(22).
The Sunnah is a source of legislation, and it is the second evidence after the Book. It is exactly like the Book in terms of its authority, as Allah, Exalted is He, said: "Say, 'I only warn you by revelation'"(23). And He said: "And whatever the Messenger has given you, take it; and what he has forbidden you, refrain from it."
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(21) See in the verification of the meaning of the Book: al-Ihkam by al-Amidi, vol. 1, p. 159.
(22) The same source, vol. 1, p. 169.
(23) Al-Anbiya/45.


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"Therefore, refrain"(24). And He said: "And whoever obeys the Messenger has obeyed Allah"(25). And He said: "And if you disagree about anything, refer it to Allah and the Messenger"(26). Referring to the Messenger (peace and blessings be upon him) after his death means referring to his Sunnah, and there are many other pieces of evidence, which are definitive in their authenticity as they are from the Qur'an, and definitive in their indication, as is clear from their texts.
There is no disagreement among Muslims that the Sunnah is a binding legal proof. Those who oppose this are outside the faith. Therefore, the disagreement is not to be considered. The one who denies the authority of the Sunnah is certainly a disbeliever.
Limiting oneself to the Book is the opinion of those who have deviated from Islam. Allah, Exalted is He, said: "But no, by your Lord, they will not believe until they make you judge in that over which they dispute among themselves and then find within themselves no discomfort from what you have judged and submit in [full, willing] submission"(27). And the Prophet (peace and blessings be upon him) said: "Indeed, I have been given the Qur'an and something like it with it. A man reclining on his couch will soon say, 'You should adhere to this Qur'an; whatever you find in it as lawful, make it lawful, and whatever you find in it as unlawful, make it unlawful'"(28).

The third source: Consensus
The scholars have differed regarding consensus: Consensus of whom? Some say it is the consensus of the Ummah or the consensus of the scholars, while others say it is the consensus of the mujtahids in a particular era, and some say it is the consensus of the people of Medina. The Shia have attributed to their belief the consensus of the Ahl al-Bayt or the consensus of the progeny, and it has been said that it is the consensus of the Companions. There is discussion regarding the possibility of consensus occurring after the Companions, and it has been attributed to Imam Ahmad (may Allah be pleased with him): "Whoever claims consensus is a liar."
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(24) Al-Hashr/ 7.
(25) An-Nisa/ 80.
(26) An-Nisa/ 59.
(27) An-Nisa/ 65.
(28) Narrated by Abu Dawood.


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In the disagreement regarding consensus (ijma), Dr. Kamil Musa(29) states: "The Zahiris condition that consensus must be among the Companions; otherwise, it is not valid, due to their view that the statements of those in authority (ahl al-hall wa al-aqd) are only considered in relation to the Companions, and because they are well-known and limited in number in Medina. As for those after them, they have multiplied and spread across distant lands ... The consideration of consensus among the Shi'a is not because it is a consensus, but because it includes the statement of the infallible Imam, and his statement alone is a proof for them. The consensus among the Khawarij is the consensus of the Companions before the division occurred; as for after it, the consensus is only that of their sect, because the criterion is the statement of the believers, and no believer is recognized by them except one who adheres to their doctrine. The consensus of the Companions is a proof without dispute among those whose opinion is valued. As for the consensus after them, there is disagreement regarding its possibility of existence; the Zahiris denied it, as did Imam Ahmad ... Malik said: The consensus of the people of Medina is sufficient on its own, and the disagreement of others is not considered. The majority did not see this, while the Imami and Zaydi Shi'a stated: The consensus of the Ahl al-Bayt is a proof, and by Ahl al-Bayt is meant: Fatima, Ali, Hasan, and Husayn."
There has also been disagreement regarding the definitiveness of the proof of consensus. Al-Shatibi(30) said: "... Some usul scholars have argued that the status of consensus as a proof is speculative, not definitive, as they did not find in the individual proofs, when considered separately, anything that provides certainty."
There has also been disagreement on whether the denial of the authority of consensus constitutes disbelief or not. Sheikh Muhammad al-Khudari Bak(31) said: "Some usul scholars stated that denying the ruling of definitive consensus is disbelief, such as the consensus of the Companions based on explicit statements transmitted from them in a mutawatir manner, because denying it entails denying a definitive proof, which in turn involves denying the truthfulness of the Messenger (peace and blessings be upon him), and this is disbelief. A group said: It is not disbelief because the proof of the authority of consensus is not definitive, thus it is speculative and does not provide knowledge." He also quoted Imam al-Haramayn(32): "As for speculative consensus, the one who denies its ruling is not a disbeliever by consensus."
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(29) Introduction to Islamic Legislation, p. 201.
(30) Al-Muwafaqat, vol. 1, p. 16.
(31) Usul al-Fiqh, p. 287.
(32) The same source, p. 288.


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Consensus is the consensus of the Companions
Whoever examines the evidence will find that the decisive proofs indicate the consensus of the Companions, while the evidence for others is speculative. Therefore, there is a distinction between definitive consensus and speculative consensus, and for this reason, those who deny the authority of the consensus of the Companions are deemed disbelievers, while those who deny the authority of consensus in general are not deemed disbelievers. It has been established in the principles of jurisprudence (usul al-fiqh) that the evidence must be definitive, and the evidence for the consensus of the Companions is definitive. Allah, Exalted is He, said: “And the foremost (in faith) among the Muhajirin (emigrants) and the Ansar (helpers) and those who followed them in goodness—Allah is pleased with them and they are pleased with Him. And He has prepared for them gardens beneath which rivers flow, wherein they will abide eternally. That is the great success”(33). And He said: “For the poor emigrants who were expelled from their homes and their properties, seeking bounty from Allah and His pleasure and supporting Allah and His Messenger. It is they who are the truthful. And those who were settled in the abode and (in faith) before them love those who emigrated to them and find not in their breasts any need of what they were given, but give preference over themselves, even if they were in privation. And whoever is protected from the stinginess of his soul—it is they who will be the successful”(34). These are definitive proofs in their establishment and indication, as they praise the Companions in general, not as individuals. Thus, Allah's statement: “Allah is pleased with them and they are pleased with Him,” and His statement: “It is they who are the truthful,” and His statement: “It is they who will be the successful” are all definitive statements indicating the truthfulness of those praised.
Then the Companions, both the Emigrants (Muhajirin) and the Helpers (Ansar), are the ones who transmitted the Qur'an to us, and if the possibility of error in the Sharia were to affect their consensus, it would have been possible for error to affect the Qur'an, which is impossible. Therefore, it is necessary to affirm the impossibility of their consensus being based on error in religious matters.
The other consensus (ijma) are not proofs because there is no definitive evidence for them. Likewise, it is not accepted that they indicate what they have been used to support. Thus, every consensus that is not that of the Companions (sahaba) is not a legal proof, because there is no definitive evidence that it is a legal proof, and all that they have used as evidence are speculative proofs, and because the proofs
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(33) At-Tawbah / 100.
(34) Al-Hashr / 8, 9.


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which they used as evidence despite being speculative, and not definitive evidence, there is no basis for using them to claim that the consensus they assert is a legal proof.
There is no room in this discussion to exhaustively explore other types of consensus and debate them.

The fourth source: analogy (qiyas)
It is also one of the evidences agreed upon by the majority, but it is a subject of extensive acceptance and rejection and debate among its proponents, as is evident from its various definitions.
Analogy in language means estimation, and among the jurists, its definitions have varied(35), and the most accurate definition is: establishing a similar ruling for a known case in another known case due to their shared cause of the ruling according to the one establishing it(36). Its components are four: the branch that is to be measured, the original case that it is compared to, the specific legal ruling of the original case, and the common cause between the original and the branch. An example of this is the prohibition of leasing during the call to Friday prayer, analogous to the prohibition of selling during the same call due to the shared cause, which is distraction from the Friday prayer. The ruling of the original case and its cause are derived from Allah's saying: {O you who have believed, when the call is announced for the prayer on the day of Friday, hasten to the remembrance of Allah and leave off trade}(37).
Here, the branch is leasing and the original case is selling, and the specific legal ruling of the original case that is applied to the branch is prohibition, meaning the prohibition of selling during the call to Friday prayer, and the cause is distraction from the Friday prayer.
Most discussions on analogy revolve around the cause; if a cause is required for analogy, there is disagreement about whether this cause is the motivator for legislating the specific ruling, or the intent of the legislator behind the ruling, or the wisdom behind legislating the ruling. There is also disagreement about whether it should be derived solely from the text, as indicated by it, or whether reason has a role in deducing or determining it.
__________
(35) See al-Ihkam by al-Amidi, vol. 3, pp. 183-193.
(36) The previous source.
(37) Friday/9.


[Page 23]

Analogy (qiyas) as a principle of legislation is rejected by the Zahiri school and by the Imami Shia. Ibn Hazm vehemently rejected analogy. And although Ibn Hazm was mistaken in his rejection of analogy, he – and Allah knows best – was not mistaken in rejecting analogy that is based on any unifying reason.
The denial of analogy (qiyas) has only been attributed to the Zahiris, the Imami Shia, and some of the Mu'tazila.
In the context of the disagreement regarding the cause (illa), al-Amidi(38) says: "They differed on the permissibility of the cause in the original sense being merely an indication; the preferred view is that the cause in the original sense must be understood as a motivator, meaning it must include a valid wisdom that is intended by the Legislator in enacting the ruling."
Some have argued that it is permissible to provide a rationale based on any abstract description, even if the context of the description does not indicate causality. Al-Amidi (may Allah have mercy on him) said(39): "Most scholars have maintained that it is impermissible to justify a ruling based on a wisdom that lacks a defining criterion, while a minority have permitted it. Among them, some have distinguished between apparent wisdom that is self-evident and hidden wisdom that is ambiguous, allowing justification based on the former but not the latter, and this is the preferred view." Therefore, Sheikh Muhammad al-Khudari (may Allah have mercy on him) has stated that the rationale is applied in relation to two concepts:
"The first is the wisdom that motivates the legislation of the ruling, which is a benefit sought to be attained or completed, and a harm sought to be averted or minimized"(40). He means here that it is understood from the text.
The second: "What exists is a presumption for the existence of wisdom"(41), and this is when the wisdom is hidden. What is meant here is that there is nothing in the texts that indicates it, neither explicitly nor implicitly.
Others hold that the legal cause (illa) is derived only from the Qur'an, the Sunnah, and the consensus of the Companions (ijma'), and do not see any legal value in the cause unless it is indicated by the texts. "It becomes clear from the examination of the legal texts in the Qur'an and the Sunnah that the legal text indicates the cause either explicitly, implicitly, or through deduction."
__________
(38) Al-Ihkam, vol. 3, p. 202.
(39) The same source.
(40) Usul al-Fiqh, p. 298.
(41) The same source.


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Or by analogy, and there is no indication of the legal cause from the Sharia, that is, from the recognized texts as legal texts except for these four conditions and nothing else.
And the correct view – and Allah knows best – is that the cause, which is a pillar in analogy, is that which means the impetus for legislation – it is the address of the legislator either explicitly or implicitly; otherwise, the ruling that is justified by it would not be a legal ruling. It contains the meaning, or it is the meaning for which the original ruling was legislated, and if it is devoid of this meaning, then it cannot be the recognized cause for analogy, even if it is called so; rather, it would then be merely a statement identifying the ruling or indicating it without indicating the reason for which the ruling was legislated.
The cause is the reason for which the ruling was legislated, and it is not merely a wisdom or a mere objective of the ruling. The reason for which the ruling was legislated cannot be known by a person without the legislator informing about it. Therefore, the cause has two conditions:
It must be a reason for legislating the ruling of the original, and not merely a description within it, but a description that is understood to imply causation.
The legislator must specify the reason for legislation or the impetus, and this is derived from the texts and their indications. The statement of anyone saying: "This is the cause" without referring to legal evidence for the cause has no value.
And analogy is a definitive proof, and its evidence is its reality. For although the branch being analogized does not have a text, there is a text in its original, which is the one it is being compared to. If the ruling of the original was legislated for a specific cause, then if the branch contains the same cause, it is subject to the same ruling as the original, because the ruling in the original was legislated for the cause. However, if a text comes that clarifies the ruling of the branch, even if the cause exists, then there is no analogy in that case. It has been "agreed upon that there is no opinion in the presence of a text"(43). That is, there is no analogy.

Disputed Sources
"They are evidences that are not agreed upon by the majority of jurists," and among those mentioned are:
__________
(43) Introduction to Islamic Legislation, p. 204.


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1- The school of thought of the Companion, 2- public interest (maslaha), 3- presumption of continuity (istishab), 4- juristic preference (istihsan), 5- blocking the means (sadd al-dhara'i), 6- the law of those before us (shari' min qabluna), 7- customary practice (urf).
Some add three other sources to the seven mentioned above: 8- the consensus of the people of Medina, 9- taking the least that has been said, 10- inductive reasoning (istiqra). Al-Qarafi mentions other sources in addition to these ten.
Others have said: "As for the proofs that are thought to be evidence but are not, they are those for which there is evidence indicating that they are a proof but are either speculative evidence or not applicable to what they are being used to argue, and the most important of them are four: the law of those before us, the school of thought of the Companion, juristic preference, and public interest."
And about presumption of continuity: "Presumption of continuity is not a legal proof; otherwise, it would require a definitive proof for its establishment, and no definitive proof has been established for it. Rather, it is a legal ruling, and speculative evidence is sufficient for it."
It is clear from the definition of presumption of continuity – which is the affirmation of a matter in the second time based on its affirmation in the first time – that it is a method of understanding and reasoning, not a proof. It is necessitated by reason and sound judgment. Al-Amidi does not consider presumption of continuity an additional source beyond the four, nor does he categorize it among the illusory proofs in his view; rather, he associates it with legal rulings that are taken based on speculation. He says(46): "... what is confirmed to exist or not in a certain state necessitates a presumption of its continuity, and presumption is a valid proof in legal matters."
As for blocking the means, al-Amidi does not mention it among the accepted proofs nor among the illusory proofs in his view. Blocking the means is not a principle; rather, it is a rule that falls under a general principle, which is the principle of the consequences of actions. This principle or rule, along with the rules that fall under it, such as the rule of blocking the means, the rule of legal tricks, and the rule of
__________
(46) Al-Ihkam, vol. 4, p. 127.


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The consideration of differences and others is ultimately based on the fact that the Sharia (Islamic law) was revealed to bring about benefits and avert harms. The principle of blocking the means (sadd al-dhara'i) is recognized by al-Shatibi(47).
As for induction (istiqra), it is not a proof but rather a method of knowledge and exploration that involves the thorough examination of things of the same kind or that share common characteristics. It is a generally valid method of understanding, not specific to legal matters, and the judgment on its validity or invalidity is subject to reason; it falls within the realm of logical or mathematical inquiries(48).
As for the minimum requirement (al-takhfif)(49), it is also not a proof or a source of legislation, but rather an investigation into the scope of rulings. This means that the ruling is related to this amount or to something greater or smaller than it. These amounts are the subject of the ruling, that is, its scope, and if it is valid, it is a legal ruling and not a principle. It may be considered in the context of preference.
As for custom (urf)(50), some jurists have accepted it while others have rejected it. A review of the opinions regarding custom indicates that it does not stand on its own as evidence. What some have considered as evidence for custom is merely a matter of terminology(51), such as languages and specific terminologies, or a matter of estimation(52), like the estimation of wages or dowries. However, custom, which refers to the prevalent practice among a specific group or what is repeated in actions to become customary, its prevalence or habitual nature does not constitute evidence nor does it render it lawful; rather, it is subject to the indications of the Sharia to determine its permissibility or prohibition based on detailed evidence for each action.
As for the claim of the consensus of the people of Medina, it is attributed to the Malikis, and according to Imam Malik (may Allah have mercy on him), it refers to the practice of the people of Medina. However, the majority have rejected it. The claim was quite valid during the time of Malik, as his era was a time of
__________
(47) Al-Muwafaqat, vol. 4, p. 130.
(48) For its meaning, see: The Effect of Disagreement, al-Bagha, p. 648.
(49) The same source, p. 634.
(50) The same source, p. 242.
(51) What falls under this category, namely terminology or estimation, is considered valid.
(52) The previous source.


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The Tabi'in (successors) (53), and Medina is the gathering place of knowledge and scholars, the sun of Islam and the source of its light. Reason dictates that the consensus of the people of Medina on a matter should continue what was prevalent during the time of the Companions (may Allah be pleased with them) and during the time of the Messenger (peace and blessings be upon him). However, this statement is not definitive from one perspective, nor can it be said to continue in every subsequent era. Therefore, it is not a proof, as previously mentioned in our discussion about the consensus of the Companions (54).
As for the opinion of a Companion, Imam Ahmad ibn Hanbal stated it, and the majority agree that it is not a proof. It is permissible to follow it as a matter of imitation, not as a proof in itself, since the proof lies in what has been revealed. The proof is established in the words of the Companions if they reach a consensus. As for one or two or more, their saying or action is not a proof.
The legislation of those before us has also been a subject of disagreement. Some said: The legislation of those before us is legislation for us as long as it has not been abrogated. Others said that all previous laws are generally abrogated, and this is the correct view, and Allah knows best. He, Exalted is He, said: “For each We have made a law and a method” {لِكُلٍّ جَعَلْنَا مِنكُمْ شِرْعَةً وَمِنْهَاجًا} (55).
The principle of istihsan (juridical preference) has been attributed to Abu Hanifa and Imam Ahmad (may Allah be pleased with them), based on what is found in their respective schools of thought regarding branches of law. However, al-Shafi'i rejected it in his book on the invalidation of istihsan. Al-Amidi rejected it in al-Ihkam, and al-Ghazali in al-Mustasfa. Al-Shafi'i is famously quoted as saying: "Whoever prefers has legislated," and istihsan has been regarded by those who rejected it as a statement based on whim and desire. The opinions on its definition are varied, leading to different meanings.
As for the proof of masalih mursala (public interest) or istislah, I will address it in detail, clarifying who advocated for it and who rejected it, along with a detailed discussion on the foundation upon which this proof is built, which is the concept of the objectives of the Sharia (maqasid al-sharia). I will exert my efforts to extract what I see as correct from their statements.
__________
(53) Imam Malik is from the Tabi'in of the Tabi'in.
(54) See pages 23, 24 of this research.
(55) Al-Ma'idah/48.


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The summary of the statement regarding these evidences that differ among the jurists (mujtahidin) and the scholars of legal theory (usuliyin) is that the disagreement about them indicates that they are not definitive (qat'i). The fact that they are not definitive is sufficient to reject them and not to consider them. This is because the principles must be certain (yaqini).


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Chapter Two

Objectives of the Sharia
Objectives of the Sharia
The objectives of the Sharia are its aims, meaning the results of its application.
The objectives of the Sharia are not the objectives of the rulings.
Objectives of the rulings
Bringing about benefits and preventing harms.
The rationale for bringing about benefits and preventing harms.
The appropriate.
Categories of the appropriate.
Categories of benefits.


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Objectives of the Sharia

Before discussing the unregulated interests (masalih mursala) in terms of their definition and their status as a principle of the Sharia, it is essential to address some preliminary points that those who advocate for interests as a legal proof rely upon, including the objectives of the Sharia, the pursuit of benefits, and the prevention of harms, as well as the significance of these objectives or interests.

Objectives of the Sharia

Some of the imams of usul al-fiqh (principles of jurisprudence) state that the Sharia has objectives and that it was established to preserve these objectives for creation. Al-Amidi(56) says: "The purpose of establishing a ruling can only be classified as either belonging to the category of necessary objectives or not belonging to the category of necessary objectives. If it belongs to the category of necessary objectives, then it is either a foundational principle or not a foundational principle. If it is a foundational principle, it refers to the five objectives that have been preserved by every community and every law, which are: the preservation of religion, life, intellect, lineage, and wealth. The limitation to these five categories is based on the occurrence and the knowledge of the absence of any necessary objective outside of them in practice... If it is not a foundational principle, it is a complementary aspect of the necessary, such as the emphasis on preserving the intellect by prohibiting the consumption of even a small amount of intoxicants that leads to larger amounts, even if it is not intoxicating. As for if the objective does not belong to the necessary objectives, it is either something that people have a need for or not. If it is something that people have a need for, then it is either a foundational principle or not a foundational principle. If it is a foundational principle, it is the second category related to additional needs, such as granting the guardian authority to marry off a minor... If it is not a foundational principle, it is a supplementary aspect that serves as a completion and addition to the second category, such as considering compatibility and the customary dowry."

__________
(56) Al-Ihkam fi Usul al-Ahkam, vol. 3, p. 274.


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In the marriage of minors ... As for if the intention is not of the type of excess needs, it is the third category, which pertains to improvement and adornment and the care for good practices in customs and transactions. This is like depriving slaves of the eligibility to bear witness, in that the slave is of a lower status and rank because he is subjugated to the owner, occupied with serving him." End quote.
Imam al-Shatibi (may Allah have mercy on him) says(57): "These objectives do not exceed three categories: the first is that they are necessary, the second is that they are needed, and the third is that they are for improvement. As for the necessary, its meaning is that they are essential for the establishment of the interests of religion and the world, such that if they are lost, the interests of the world will not proceed correctly, but rather in corruption, chaos, and loss of life, and in the other case, loss of salvation, bliss, and returning with manifest loss." He also says(58): "The total of necessities is five, which are: the preservation of religion, life, lineage, wealth, and intellect, and they have said that they are to be observed in every community." He adds(59): "As for the needs, their meaning is that they are required in terms of expansion and alleviating the hardship that generally leads to difficulty and distress resulting from the loss of what is sought. If they are not observed, hardship and distress will generally befall the obligated." An example of this according to al-Shatibi is "the concessions that ease the burden in cases of illness, travel, the permissibility of hunting, and enjoying the good things that are lawful in food, drink, clothing, and housing, and similar matters...".
"And as for improvements, their meaning is to adopt what is appropriate from the virtues of customs and to avoid the disgraceful conditions that rational minds find repugnant. This encompasses the category of noble morals. Among his examples are: 'removing impurities in acts of worship and purification, covering the private parts, adorning oneself, and drawing closer through voluntary good deeds, almsgiving, acts of devotion, and similar things.' Al-Shatibi considers the necessary objectives as the foundation for the needed and the improved, and the needed objectives as the foundation for the improved objectives."(60)
__________
(57) Al-Muwafaqat, vol. 2, p. 4.
(58) The same source, pp. 5, 6.
(59) The same source, pp. 5, 6.
(60) The same source, see pp. 9, 10.


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Many of the usul scholars (theologians) adhere to this classification, asserting that the interests (masalih) that the Sharia (Islamic law) safeguards and promotes fall into these three categories: necessary, supplementary, and embellishing. Most of those who have written on this subject in our time support the notion of these objectives (maqasid) and categorize them in the same manner, namely into necessary, supplementary, and embellishing. The necessary objectives are almost unanimously agreed upon by the usul scholars to be five: the preservation of religion, life, intellect, lineage, and wealth. Some have added a sixth, which is the preservation of honor. However, there is no consensus among the laws on the five mentioned. Al-Shawkani stated in Irshad al-Fuhul(61): "It has been objected to the claim of consensus among the laws on the five mentioned that wine was permissible in earlier laws and in the early days of Islam, and it was responded that the permissible in those laws is what does not reach the level of intoxication that removes the intellect, for it is prohibited in every religion, as al-Ghazali said. Ibn al-Qushayri narrated this from al-Qaffal, then he disputed it, saying: The news has been transmitted that it was permissible absolutely, and it has not been established that the permissibility was to the extent that does not remove the intellect. Al-Nawawi also stated in his explanation of Muslim, and his wording is: As for what is said by those who have no understanding that intoxicants have never ceased to be prohibited, this is false and has no basis." Al-Shawkani adds(62): "I say: I have contemplated the Torah and the Gospel and found in them only the absolute permissibility of wine without any restriction against intoxication; rather, they explicitly mention what follows wine in terms of intoxication and its permissibility, thus the claim of consensus among the religions on prohibition is not established. Some later scholars have added a sixth, which is the preservation of honor, for the custom of rational people is to sacrifice their lives and wealth for their honor, and what is redeemed by necessity is more deserving of protection, and it has been legislated that the punishment for slander is a limit." Al-Qarafi also counted the necessary objectives as six and called them the universals(63).
Contemporary usul writers repeat that the necessities are five and that they are observed in every religion, mentioning them while omitting the preservation of honor, except for a few, who acknowledge the objectives of the Sharia but do not accept the claim that they are observed in every religion, and argue that the necessities are eight, not five.
__________
(61) Irshad al-Fuhul, p. 216.
(62) Irshad al-Fuhul, p. 216.
(63) See: Sharh Tanqih al-Fusul, p. 392.


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He says(64): "For example, the five objectives that they say have not been neglected by any community or law, which are the preservation of religion, life, intellect, lineage, and wealth, are not all that is necessary for society as a society. The preservation of the state, the preservation of security, and the preservation of human dignity are also necessities of society. Therefore, the necessities in reality are not five, but rather eight. As for the legal rulings for which they were legislated, religions differ in their perspectives on one another... So how can these be the objectives of every community?" He distinguishes between the objectives of the Sharia (Islamic law) and the objectives of certain rulings, saying(65): "These objectives of the Sharia are the objectives of the Sharia as a whole, that is, the objectives of the Islamic religion, and they are not the objectives of every specific ruling." He states(66): "Thus, we find that the legislator, at the same time that he clarified the objectives of the Sharia as a whole, also clarified his objective in legislating certain specific rulings, as he said regarding the creation of jinn and humans: 'And I did not create the jinn and mankind except to worship Me,' and he said otherwise in many rulings... So, the objective of Allah in legislating a specific ruling is not His objective for the Sharia as a whole, nor is His objective for the Sharia as a whole His objective for every specific ruling."

We have mentioned here the statements regarding the objectives due to their role or because they serve as a prelude to the discussion of public interest (maslaha), as they say that these objectives indicate through induction that they bring about benefits and avert harms, and then they count them as reasons for the Sharia and for the rulings, legislating rulings based on the benefits. Therefore, I will not discuss the objectives here in terms of their division into necessary, need-based, and embellishing, but rather in terms of whether they are primarily about bringing benefits and averting harms. Are they reasons for the Sharia and for the rulings or not?

The objectives of the Sharia are its goals, that is, the results of its application.
__________
(64) Islamic Personality, vol. 3, p. 382
(65) The same source, p. 360.
(66) The same source, p. 361.


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The texts indicate that this Sharia has objectives that serve as the purpose of its application to creation. Allah, Exalted is He, said: "And We have not sent you except as a mercy to the worlds"(67). This text negates—by His saying "and We have not"—the idea that the sending of the Messenger has any purpose other than being a mercy to the worlds. The sending of the Messenger (peace and blessings be upon him) was indeed through the message, so the message itself is the mercy, meaning that the existence of this message applied to people is the mercy. If we wish to understand this mercy, we can imagine a society where there is no trace of the application of Islam, and where its systems and laws are of human origin; such laws lead to corruption, injustice, misery, and a life of hardship. Meanwhile, the Sharia of Islam brings people out of corruption into righteousness, from darkness into light, and from misery into prosperity.
And Allah, Exalted is He, said: "And We send down from the Qur'an that which is healing and mercy for the believers"(68). The two verses indicate what the Legislator intends from the message and from the Qur'an, which is healing and mercy, and these are objectives that result from application. They are objectives in the sense of goals, meaning results that may arise from the Sharia or may not arise. The texts do not indicate that the attainment of these results is inevitable, because there are people who reject this message, and there are communities that reject it and do not apply it, but rather fight against it; thus, the goal, or the mercy for which the message was sent, will not be realized among them. The sending of the Messenger as a mercy, and the sending down of the Qur'an as healing, means the intended state that is to exist from the sending of the message and the sending down of the Qur'an, or in other words, that Allah, Exalted is He, has shown mercy to the worlds by sending them the message, or by sending them the medicine or healing remedy they need for their ailments of misery, corruption, and hardship. The Sharia was sent to be a mercy, and there is nothing in the two verses that indicates it was legislated because it is a mercy; rather, the meaning is that its legislation and sending is the mercy.
And a person, in his relationships, whether with himself, with other creatures, or with the Creator, is in need of a system. He is inevitably driven to fulfill his needs and attain his interests. The existence of a Sharia for him to act according to is a matter
__________
(67) Al-Anbiya / 107
(68) Al-Isra / 82


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Inevitably. For this reason, there are different laws and systems among humans, some of which are man-made and some of which are from the Creator. What a person establishes for themselves in terms of systems and laws is akin to a Sharia (law) and has an intention or objectives, which the person themselves determines – since they are the one who establishes the Sharia – based on what they see as most suitable, beneficial, and correct for them. Islam, as a Sharia revealed by the Creator for people to adhere to, has objectives defined by the one who revealed the Sharia, which is Allah, Exalted is He.

It should be noted that the objectives determined by a person through their intellect when legislating for themselves do not necessarily correspond to the objectives that the Creator intends from His legislation for the message. Furthermore, a person may establish systems and laws, or even a specific plan, to bring about certain benefits or to achieve specific goals, but due to the fact that the extent of what they do not know is greater than what they do know, (and you have not been given of knowledge except a little) (69), and because they do not fully encompass the human being in terms of their instincts, inclinations, and motivations, and because they do not fully understand societies in terms of the nature and laws of their movements, whether in decline or ascent, for this reason, they may aim for a specific goal and legislate what they see as necessary to achieve it, or devise the plan they consider safest and most accurate to reach it, yet they may fail and the result may be the opposite.

Whereas the Creator has knowledge of all things, knowing what rectifies the human being and what corrupts them, and encompasses the human being in a way that is not deficient (Does He not know who created and is the Subtle, the All-Aware) (70) and knows the unseen, the movements of societies, and the laws of nature. Therefore, if He sets a goal for legislation, then the legislation must necessarily lead to that goal if adhered to. Allah, Exalted is He, said: (Indeed, this Qur'an guides to that which is most upright) (71).

The objectives of the Sharia are not the objectives of the rulings.
__________
(69) Al-Isra /85
(70) Al-Mulk /14.
(71) Al-Isra /9.


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Then indeed, these objectives of the Sharia (maqasid al-sharia), which are the mercy to the worlds and the healing of people, are objectives of the Sharia as a whole, and not of specific rulings; that is, they are not objectives for each detail of the Sharia. The text states: “And We have not sent you…”(72), and the Messenger (peace and blessings be upon him) was sent with the message, thus the text indicates that the message – the entire message – is mercy. And His saying, Exalted is He: “And We send down from the Qur'an…”(73), indicates that the Qur'an is healing and mercy, so the texts indicate that the message as a message is mercy, and that the Qur'an and what it indicates from the Sunnah, consensus of the Companions, and analogy (qiyas), that is, the Sharia, is healing and mercy. Thus, the two texts indicate that the Sharia as a whole is mercy and healing, and there is no indication in them of the objectives of detailed rulings, or the objectives of some rulings.

There have come texts, and each one of them indicates a specific objective, so this objective is an objective for this ruling, or for this action only, and not for the Sharia, nor for other rulings.

Objectives of Rulings

Allah, Exalted is He, said: “And I did not create the jinn and mankind except to worship Me”(74), so the worship of the Creator is the objective of creation, and this objective may be absent as we see in those who do not worship Allah, and the texts themselves indicate that among the jinn and mankind there are those who do not obey. And Allah, Exalted is He, said: “Fasting has been prescribed for you as it was prescribed for those before you that you may attain piety”(75). And He said: “Indeed, prayer prohibits immorality and wrongdoing”(76), so piety and prohibition are results that may occur or may not occur; the command to fast, the command to attain piety, the command to pray, and the prohibition of immorality and wrongdoing are all a mandate from the Legislator, unlike His saying, Exalted is He: “And the family of Pharaoh picked him up to be an enemy to them…”

__________

(72) Al-Anbiya / 107.
(73) Al-Isra / 82.
(74) Adh-Dhariyat / 56.
(75) Al-Baqarah / 183.
(76) Al-Ankabut / 45.


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sorrow)(77), and being an enemy and a source of sorrow is the objective behind making the family of Pharaoh pick him up, and this is a result or goal of their picking him up. It is not in the realm of what may be delayed, because it is a revelation from Allah about what He wants and what will be. It is a matter that Allah, Exalted is He, wanted to happen and is not a command.
These goals or objectives are intended from a specific ruling or from a specific action, and they are not related to the objectives of the Sharia as a whole, and therefore they are not objectives for other rulings apart from these rulings in which they are mentioned.
What has been referred to as necessary objectives are objectives for specific rulings, each one being an objective for a ruling, and not each one of them being an objective for all rulings, nor for the entire Sharia, as there is no evidence for that.
These objectives are indicated by the texts, so the preservation of religion is an objective for the prohibition of apostasy, for which the legislator has prescribed the punishment of death(78). The preservation of intellect is an objective for the prohibition of alcohol and similar substances, for which the legislator has prescribed the punishment of flogging(79). The preservation of lineage is an objective for the prohibition of adultery, for which the legislator has prescribed the punishment of stoning or flogging(80). The preservation of wealth is an objective for the prohibition of theft, for which the legislator has prescribed the punishment of amputation(81). Likewise, we find that the preservation of human dignity is an objective for the prohibition of false accusation without evidence, for which the legislator has prescribed eighty lashes. The preservation of security is an objective for the prohibition of corruption on earth, for which the legislator has prescribed the punishment of death, crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land. The preservation of the state, that is, the unity of the Islamic nation and the preservation of its entity, is an objective for the prohibition of splitting the ranks of Muslims and dividing them as a community and entity or state, for which rulings for fighting the rebels have been legislated. The Messenger of Allah (peace and blessings be upon him) said: "Whoever comes to you while your command is united upon one man and seeks to split your ranks or divide your community, kill him"(82). He also said: "If allegiance is given to two caliphs, kill the latter of the two"(83).
__________
(77) Al-Qasas / 8.
(78) See: Al-Ihkam by Al-Amidi, vol. 3, p. 274.
(79) The same source.
(80) The same source.
(81) The same source.
(82) Narrated by Muslim in the Book of Leadership.
(83) Narrated by Muslim in the Book of Leadership.


[Page 38]

These are objectives of rulings, and they are not the objectives of the Sharia (maqasid al-sharia), as the texts do not indicate that. The preservation of wealth is not an objective of the Sharia as a whole, but rather an objective of one of its rulings, and the preservation of lineage is the same. Likewise, the objective of one ruling is not the objective of another ruling; the preservation of lineage is not an objective for the prohibition of theft, nor vice versa.
These objectives are known by the texts of the legislator and are not known by reason. They are ends. Our definition of them as ends is as understood directly from the text. The end is the end of legislation. The objectives of the Sharia are the ends of its legislation. The objectives of rulings are the ends of the legislation of rulings. The end of legislating a specific ruling is determined by the one who legislated the ruling, which is Allah, Exalted is He. Reason cannot understand them except through Allah informing about them. As for what some claim about understanding the objectives of legislation through induction, this is not correct for several reasons:
The rulings for which the legislator has specified objectives differ in their objectives, so each ruling has an objective different from the other. If there is a ruling for which the legislator has not specified its objective, we cannot determine the objective of the legislator from it based on the objectives of other rulings, as they are different.
The legislator is Allah, and He cannot be compared to a human. If the legislator were a human, we could, to some extent, grasp the reality of his essence, motivations, and mentality as a human, and thus we could speculate about his objective or objectives. However, since the legislator is Allah, Exalted is He, we cannot grasp anything of this, and thus we cannot know His objective unless He informs us about it.
The scholars have agreed that there are rulings for which reason cannot discern their objectives without Allah informing about them, and these are the rulings of acts of worship. Every ruling for which the legislator has not informed about its objective is like them. It should not be said that this is specific to acts of worship, because acts of worship are part of the Sharia and are commands and prohibitions like other rulings. The classification of the rulings of the Sharia into acts of worship, transactions, and others does not give acts of worship a specificity that is not shared by the rulings of transactions or ethics or others, because this classification is from humans and not based on evidence from the Sharia itself. This classification is correct.


[Page 39]

In terms of the reality of these rulings. The acts of worship are the set of rulings that regulate the relationship between a person and their Creator, while the rulings of transactions are the set of rulings that regulate the relationship between a person and other human beings. Ethics are the rulings that regulate a person's relationship with themselves, so to speak, or rather: they regulate a person's private conduct, such as their eating, clothing, and the refinement of their inclinations, nature, and temperament. Similarly, there is a classification that categorizes certain things: food, drinks, clothing, or: measured items, counted items, and weighted items; this is a classification of things based on their reality, and no category has any advantage or specificity over another except by evidence from the Sharia. This classification is akin to codifying the rulings of the Sharia and making them systems, such as an economic system, a social system, a governance system, a penal system, and a system or rulings of clear evidence; these are different systems in terms of their reality or in terms of the nature of what they address. However, they are also one system, which is the system of Islam, and therefore, the rulings of the economic system, for example, cannot be given a specific description that is not applicable to other systems unless the texts indicate so. The same applies to the rulings of acts of worship. The lack of seeking objectives for them should apply to all rulings. This is one aspect, and on the other hand, all rulings of the Sharia are acts of worship, and a person must worship Allah in all their actions, as He, Exalted is He, said: “And I did not create the jinn and mankind except to worship Me”(84). Just as prayer is an act of worship, truthfulness is an act of worship, obedience to the ruler is an act of worship, jihad is an act of worship, avoiding alcohol is an act of worship, and refraining from usury is an act of worship.
The intellect may sometimes grasp an objective or objectives in the sense of a wisdom or wisdoms behind a particular ruling, but it cannot determine that this is the wisdom behind legislating that ruling; what it has grasped in terms of wisdoms—despite its importance—may be secondary compared to the wisdom of others that it has not comprehended due to the limitations of its knowledge or its lack of insight into the unseen. Therefore, the intellect cannot determine the wisdom, even though it can.
__________
(84) Adh-Dhariyat/56


[Page 40]

One can deduce a wisdom or multiple wisdoms, meaning that the error lies in the statement: "this is the wisdom." It is possible to say: "this is a wisdom," without introducing the definite article "the."
Accordingly, the objectives of the rulings must be indicated by the texts. Whatever the legislator has informed us about his intention therein, we accept it, whether it pertains to customs or acts of worship. Whatever the law indicates as being a reason, we consider it a legal reason, whether in customs or acts of worship. What the legislator has not informed us about regarding his intention or its reason, it is not valid to specify an objective for it or to provide a rationale.


[Page 41]

Bringing Benefits and Preventing Harms

Some scholars of usul (principles of jurisprudence) and writers in the field have said that the objectives of the Sharia (maqasid al-sharia) and the objectives of rulings are to bring benefits to people and to prevent harms from them. Al-Amidi, for example, says(85): "... we know from the state of the Legislator that He does not issue a ruling devoid of wisdom, as rulings are established for the benefits of the servants, and this is not by necessity, but rather by considering the customary practice of legislating rulings." His statement that it is not by necessity is contrary to the view of the Mu'tazila, and his statement regarding considering the customary practice means by extrapolating the rulings.

He also says(86): "The purpose of legislating a ruling is either to bring a benefit or to avert a harm, or a combination of both concerning the servant, as the Exalted Lord is above harm and benefit, and perhaps this is intended for the servant because it is suitable for him and aligns with his nature." The suitable here means appropriate, and as Abu Zayd(87) said, as quoted by Al-Amidi(88): "The appropriate is that which, if presented to minds, would be accepted." However, Al-Amidi believes that it is more accurate to say(89): "The appropriate is a clear, defined description that necessitates that arranging the ruling accordingly results in what is suitable to be intended by legislating that ruling." Al-Amidi stipulates that there must be a text that attests to the consideration of the benefit or the intended purpose or the appropriate, otherwise the consideration is not valid. He states(90): "The appropriate that does not have a foundational text from the principles of the Sharia attesting to its consideration... nor has its abrogation appeared."

__________

(85) Al-Ihkam, vol. 3, p. 260.
(86) The same source, p. 271.
(87) The same source, p. 270. Abu Zayd is Ubayd Allah ibn Umar al-Dabusi, the judge, who died in 430 AH.
(88) The same source.
(89) The same source.
(90) The same source, p. 284.


[Page 42]

It is referred to as the appropriate maslahah (public interest) that is unqualified. And he said(91): "The jurists from the Shafi'i, Hanafi, and others have agreed on the prohibition of relying on it, and this is the truth." The appropriate maslahah is the unqualified interests (masalih mursala).
Similarly, al-Shatibi believes that the objectives (maqasid) are the interests, and when he discusses the objectives, he introduces a preface saying(92): "The purpose of establishing the laws is for the interests of the servants in both this world and the Hereafter." He also says: "If we deduce from the Sharia that it was established for the interests of the servants, a deduction that neither al-Razi nor anyone else disputes..."(93), then he says: "If the deduction indicates this and is beneficial for knowledge in such a matter, we assert that the matter is consistent in all details of the Sharia"(94). He says(95): "... as for the connection of the address to it legally, if the interest is predominant when compared to the harm in the ruling of habit, it is the intended purpose legally, and to achieve it, the demand was placed upon the servants, so that its law may proceed on the most upright path and the most guided way, and so that its attainment may be more complete, closer, and more deserving of achieving the intended goal according to the prevailing customs in this world. If it is followed by harm or hardship, it is not intended in the legality of that action and its demand. Likewise, if the harm is predominant in relation to the interest in the ruling of consideration, then its removal is the intended purpose legally, and for this reason, the prohibition was established, so that its removal may be achieved in the best possible ordinary ways in such cases, as every sound mind testifies. If it is followed by an interest or pleasure, it is not the intended purpose of the prohibition of that action; rather, the intended purpose is what predominates in the matter, and anything else is annulled in accordance with the prohibition, just as the aspect of harm is annulled in the aspect of command."
Thus, al-Shatibi sees from the deduction of the Sharia, that is, from examining its particulars, that its rulings have objectives that are to bring about interests and avert harms. If the legislator commands something and reason finds that alongside the interest there is harm, the intended purpose of the command is the interest, and the harm is not intended. Likewise,
__________
(91) The same source.
(92) Al-Muwafaqat, vol. 2, p. 3.
(93) The same source.
(94) The same source, p. 4.
(95) The same source, p. 18.


[Page 43]

If something is prohibited and, from the perspective of reason, there is a benefit alongside the harm, then the benefit is not the intended purpose of the prohibition; rather, the harm is the intended purpose. It is seen that this applies to all details of the Sharia, meaning that the benefit (maslaha) for which there is no text operates in the same manner, and it is given a ruling based on what it brings of benefit or what it averts of harm. He says(96): "Every legal principle that is not supported by a specific text, and is consistent with the actions of the Sharia and whose meaning is derived from its evidences, is valid and can be relied upon, and referred back to if that principle has become established by its total evidences, because the evidences do not necessarily indicate certainty in the ruling by themselves without the addition of others to them... and this includes the type of reasoning with the mursal (unattributed hadith) which was relied upon by Malik and al-Shafi'i, for although it does not have a specific text supporting the branch, it is supported by a general principle, and the general principle, if it is definitive, may equal the specific principle." However, al-Shatibi sets a criterion for considering the benefit that has no text, saying(97): "It is necessary to consider the alignment with the intention of the legislator, because benefits are only considered benefits in the way that the legislator has established them." He also conditions that the benefit should not be negated in the view of the Sharia.
__________
(96) Al-Muwafaqat, vol. 1, p. 15.
(97) Al-Muwafaqat, vol. 1, p. 16.


[Page 44]

The rationale for bringing about benefits and averting harms

To this, some jurists (usuliyyin)(98) go, considering benefits as a reason for the Sharia, and bringing about benefits and averting harms as reasons for legal rulings. Al-Amidi, for example, considers benefit as a description that can validly be established as a reason for a ruling, but he stipulates that the evidence must indicate that it is a benefit for it to be considered valid. He dedicates a section to this and states(99): "The eighth section on establishing the evidence that relevance and consideration are indicators of a description being a reason, because the rulings were legislated for the objectives of the servants; as for the fact that they are legislated for objectives and rulings, this is indicated by consensus and reason."
Al-Shatibi holds that customs are among those matters in which the legislator (al-shari) has considered the meanings, that is, the underlying reasons (illal), and he sees these reasons as interests (masalih). He states(100): "The principle in customs is to pay attention to the meanings... For we have found the legislator aiming for the interests of the servants, and the ordinary rulings revolve around them wherever they go. You see a single matter being prohibited in a situation where there is no interest, but if there is an interest, it is permitted, like the dirham for dirham with a delay, which is prohibited in sale but permissible in a loan... And the legislator has elaborated on the reasons and rulings in the legislation of the chapter on customs... Most of the time, he has justified them with the appropriate reasons that, when presented to the minds, are accepted. Thus, we understand from this that the legislator intended to follow the meanings in this regard, not to adhere strictly to the texts, unlike the chapter on acts of worship...".
Thus, we find among many of the usuliyyin (jurisprudential scholars) the view that the relationship between the ruling and the description is a cause (illa), and this was the entry point for the discussion of public interests (masalih mursala), the studies of relationships, and the cause and its pathways, or the indicators of it from the discussions of qiyas (analogy). Al-Qarafi (may Allah be pleased with him) said(101): "The indicators of the cause are eight: text, implication, relationship, analogy, rotation, examination, extension, and refinement of the basis." Al-Razi (may Allah be pleased with him) mentioned in Al-Mahsool that they are ten with an addition.
__________
(98) Most contemporary scholars in the field of usul (principles of Islamic jurisprudence) also adhere to this view; we will present some of their opinions later.
(99) Al-Ihkam, vol. 3, p. 285.
(100) Al-Muwafaqat, vol. 2, p. 225.
(101) Sharh Tanqih al-Fusul.


[Page 45]

Consensus and classification. Many consider the analogy (qiyas) to be one of the matters indicative of the cause (illah). So what is analogy? Or: what is appropriate?


[Page 46]

The appropriateness

Al-Shawkani(102) said: "The appropriateness is the essence of the book of analogy (qiyas) and the place of its ambiguity and clarity, and extracting it is called the extraction of the legal basis (takhrij al-manaat)." Al-Shawkani attributed to al-Mahsool: "People have mentioned two things in defining appropriateness: the first is that it leads to what is beneficial for a person in terms of acquisition and preservation, and it may be expressed in terms of acquisition as bringing benefit and in terms of preservation as repelling harm. The second is that it is suitable for the actions of rational beings in customs, as it is said that this pearl is appropriate for this pearl in bringing them together in a compatible string."(103)

Some have defined appropriateness as that which, if presented to minds, would be accepted. Abu Zayd al-Dabbusi said this, as did al-Shatibi. Ibn Qudamah al-Maqdisi mentioned that appropriateness is the attribute that, when establishing a ruling, leads to a benefit(104). Ali al-Shashi gave an example and said(105): "If we see a person giving a poor man a dirham, it is likely that the giving is to meet the need of the poor and to acquire the reward." From this, it can be inferred that meeting the need and acquiring the reward is an appropriate description and thus serves as the reason for the giving.

Al-Shawkani quotes al-Razi saying(106): "Appropriateness is what entails acquiring a benefit or repelling a harm; the former is like wealth being the reason for the obligation of zakat, and the latter is like intoxication being the reason for the prohibition of wine." He also quotes Ibn al-Hajib's definition of appropriateness(107): "Appropriateness is an apparent, well-defined attribute that is rationally derived from the arrangement of the ruling upon it, which is suitable to be intended for acquiring a benefit or repelling a harm." All these definitions convey a similar meaning, approximately.

__________
(102) Irshad al-Fuhul, p. 214-215.
(103) The same source.
(104) Rawdat al-Nazir wa Jannat al-Manazir.
(105) Usul al-Shashi.
(106) Irshad al-Fuhul.
(107) The same source.


[Page 47]

Seyf al-Din al-Amidi sees that the most accurate definition of suitability (munasaba)(108) is: "It is a clear, defined description that necessitates the arrangement of the ruling according to it, resulting in what can be deemed as the intended purpose of the legislation of the ruling." This definition differs from previous definitions in that it does not show a role for reason in establishing suitability, and consequently in establishing the cause, and thus in legislating through reason.
The differing understandings of the reality of suitability lead to differences and details regarding its acceptance as a principle in indicating causation or its rejection or elaboration. Therefore, we find that the imams of usul (principles of jurisprudence) mentioned categories of suitability: influential, appropriate, and strange.
Upon investigating the meaning of suitability, it becomes clear that it is used in relation to two meanings. The first: what reason cannot judge or determine, and it is only understood through the text or texts that indicate it. Suitability in this sense is the suitability between the ruling and the description, and it is the suitability that some imams have made one of the proofs of the causality of that description for that ruling. Suitability in this sense must be indicated by the Sharia, and the jurist or mujtahid must understand that indication from the text or texts. To further emphasize and clarify, this meaning does not entail that the jurist or mujtahid determines the suitability through his reason, as this is mere inclination and legislation through reason.
The second meaning of suitability is what reason can judge and determine - and this must be outside the matters of legislation, as legislation involves beautification and vilification, and reason has no role in them - or it may be something that it is permissible for a person to judge. This meaning has types; it may involve what can be referred to in terms of error and correctness, or what can be referred to in terms of custom or nature and temperament. An example of the first is entering into war with old weapons against an enemy using the latest types of weapons; it can be said that this is a mistake and inappropriate. The second is like visiting after midnight or during the time of the afternoon nap; this is also described as "inappropriate." The third is when it is said: this color matches this color or does not match it, or these grains...
__________
(108) The same source.


[Page 48]

Corresponding with each other to be in a single category. There may be matters that are difficult to place under a specific type, such as saying: "These two spouses complement each other," as the correspondence may pertain to their temperaments, inclinations, interests, or other factors.
This second meaning of correspondence does not aid in reasoning because it is determined solely by the intellect. Thus, the cause is an intellectual cause, and the ruling is an intellectual ruling. The cause is neither legal nor is the ruling legal.
The jurists have agreed to consider the correspondence we mentioned in the first meaning. It is the correspondence indicated by the Sharia. Or as they said: the correspondence that the Sharia has acknowledged as valid. As for the correspondence that the Sharia has not acknowledged as valid, it falls under the second type, that is, correspondence by the judgment of the intellect alone. This is divided into two categories: one category that the Sharia has acknowledged its annulment, and this is unanimously rejected. The second category has not been acknowledged by the Sharia either as valid or annulled, and there is a difference of opinion regarding it. Therefore, some have argued that the criterion is not the correspondence, as it often has no effect on the ruling. The term "strange correspondence" has been used for that which is non-influential. Ibn Taymiyyah said(109): "If the effect of the attribute on the ruling of the original is known through deduction and the attribute is suitable, then either its effect on something other than the original is known through text or consensus, or its effect on something other than the original is not known. The first is the influential and suitable correspondence, and the second is the strange." He then said(110): "The words of the judge and the Iraqis imply that they do not rely on strange correspondence and they rely on the influential, whether it is suitable or not." This indicates that correspondence is sometimes considered and sometimes not, and that the influential is always considered. This is because the correspondence may be indicated by the Sharia - as Ibn Taymiyyah said, through text or consensus - and thus it is considered, or it may be purely by intellect and thus it is not considered.

Categories of Correspondence
__________
(109) Al-Masuda, p. 408.
(110) The same source.


[Page 49]

As for those who expanded on deriving the rationale and considered it a cause, even if it were devoid of legal consideration, and unleashed their minds to search, estimate, and determine for the rulings causes that the Sharia does not support with general or specific evidence, they have fallen into errors. They noticed that their rational justifications often conflict with the Sharia, and they observed that the rulings of the Sharia frequently contradict the requirements of rational suitability. An example of this is the waiting period (iddah) of a free woman and that of a slave woman, the nakedness (awrah) of a free woman and that of a slave woman, considering only water for purification, and in its absence, the use of dust, and the non-consideration of chemical purifiers like alcohol and similar substances. This is where the Sharia does not align with rational suitability.
When encountering these contradictions, it was noted that some rational suitability sometimes aligns with the Sharia, while some appears to conflict with it. Some have no text to support them nor to refute them. Thus, they divided suitability into three categories:
The first category: which is the suitability that the Sharia acknowledges and is referred to as the acknowledged suitability.
The second category: which is the suitability that the Sharia has annulled, which the mind establishes as a cause for legislation, but the Sharia indicates its unsuitability and lack of causation.
The third category: which is the rational suitability that the Sharia has neither acknowledged nor annulled. This is referred to as the unqualified suitability.
They stated that suitability is interest (maslaha). They said: unqualified interest (maslaha mursal). This is akin to considering the genus of the description in the genus of the ruling. For whatever description the ruling was established for, that description is an interest. The mind sees nothing suitable except what it perceives as an interest. Thus, all causes are encompassed by the description of interest. Moreover, interest exists in every ruling that the legislator has sought, and harm exists in every ruling that the legislator has prohibited. Preventing harm is an interest, so interest becomes the suitable description in any ruling, whether it is a request for action or a request for abstention.


[Page 50]

Categories of Interests
Based on this, any report that the appropriate description is interest (m interest), interests have been divided in terms of consideration, similar to the division of the appropriate into three categories:
The first category: the recognized interests, which the Sharia has acknowledged as valid based on evidence that has been explicitly stated.
The second category: the abrogated interests, which the Sharia has declared invalid, such as the fatwa of Yahya ibn Yahya al-Faqih al-Maliki to the Umayyad caliph Abd al-Rahman ibn al-Hakam when he engaged in sexual relations during the day in Ramadan, that he must fast for two consecutive months. When he was reproached for this, as he was not commanded to free a slave despite his ample wealth for that, he said: "If I had commanded him to do that, it would have been easy for him, and he would have belittled freeing a slave in light of fulfilling his desire." Thus, the interest in mandating fasting was to deter him. This is a false statement that contradicts the text of the Sunnah because the Messenger (peace and blessings be upon him) said to the Bedouin who told him: "I had relations with my family during Ramadan." He said to him: "Free a slave." He said: "I cannot find one." He said: "Fast for two consecutive months." He said: "I cannot bear it." He said: "Feed sixty needy people."(111). There is no disagreement regarding the non-recognition of these interests.
The third category: what the Sharia has neither acknowledged as valid nor invalidated. This category is what is referred to as the unqualified interests (masalih mursala). As is clear, they are unqualified by evidence. There is no evidence from the Sharia that indicates them. Rather, the interest is considered based on rational judgment that it brings about a benefit or goodness, or repels harm or prevents corruption.
Many contemporary scholars in the field of usul (principles of jurisprudence) adhere to this classification of interests and the reasoning based on interest(112). For example, Dr. Muhammad Saeed Ramadan al-Bouti concludes that interests are reasons for rulings, but he sets conditions for interest that he calls criteria, stating(113): "Those who considered beliefs...
__________
(111) This story can be found in most books of usul that discuss unqualified interests.
(112) Such as al-Bouti and al-Bagha, for instance, who cite almost the same texts as al-Shatibi. See the impact of differing evidences, pp. 38-40, and see the book Criteria of Interest.
(113) Criteria of Interest, p. 87.


[Page 51]

The acts of worship are based on the interests of the Hereafter; they do not disagree with what we have mentioned. Rather, their intention is that they are not based on a clear, suitable description in the minds that can be used for analogy, unlike transactions and other rulings that are directly detailed based on the interests of worldly life. Most of them are based on clear reasons in the minds, which allows for analogy to be made upon them. Thus, he considers interests (masalih) a suitable description, merely because it becomes clear in the mind that they are interests, and thus they become a reason for the rulings.
Others said that the pursuit of interests and the prevention of harms are neither a reason for the Sharia as a whole nor a reason for any specific ruling. They distinguish the objective of the Sharia or the goal from the reason, stating that the objective of Islamic Sharia as a whole is the pursuit of interests and the prevention of harms, and the pursuit of interests is not a reason for Islamic Sharia as a whole, nor is it the goal of every specific ruling from the rulings of the Sharia, nor a reason for any specific ruling. Accordingly, the pursuit of interests and the prevention of harms do not exist in the legal rulings, neither in terms of their derivation nor in terms of their legislation, and they are not reasons for the rulings in any way. Even the legal reasons derived from legal evidence are not the interests of the servants, but rather the meanings indicated by the legal evidence, regardless of interests and harms.


[Page 52]

Chapter Three
The Considered Interests
Evidence of Those Who Advocate Considered Interests
The Scholars' Position on Considered Interests
Considered Interests Are Not a Legal Evidence
Discussion of the Evidence Presented by Advocates of Interest-Based Reasoning.
Evidence One: The Legislator's Consideration of the Type of Interests in the Type of Rulings.
Evidence Two: The Approval of the Messenger (peace and blessings be upon him) of Mu'adh...
Evidence Three: The Principle Regarding Customs Is to Pay Attention to the Meanings.
Evidence Four: The Change of Customs and the Insufficiency of Texts.
Evidence Five: Ten Examples from the Actions of the Companions and a Summary of the Actions of the Successors.
Evidence That Interests Are Not a Legal Evidence.


[Page 53]

The Considered Interests

We have previously encountered al-Amidi's expression for it as the "considered interest," and the two common expressions are: considered interests (masalih mursala) and istislah. We have also noted that considered interests are those interests that the Sharia has neither acknowledged nor rejected. They are actions intended to bring about a benefit or avert a harm, and they have no evidence from the Sharia. Al-Shawkani (may Allah have mercy on him) said(117): "Ibn Burhan stated that they are based on a general principle and not a specific one." Istislah is said to be the pursuit of reform, and it is also said to be the pursuit of goodness. In legal terminology, it refers to deriving a legal ruling based on an interest, with the addition that the interest must fall within the objectives of the Lawgiver (Shari). Al-Shawkani (may Allah have mercy on him) said(118): "Some have called it 'the inference from the considered interest,' and Imam al-Haramayn and Ibn al-Sam'ani referred to it as inference."

In the preceding discussion of this research, there is enough to clarify how to infer the position on considered interests, and the following is a summary of the argument, which serves as evidence for the validity of considered interests.

The Sharia has objectives, and it has been established through induction that these objectives are to bring about benefits and avert harms. If this is established through the examination of the texts of the Sharia, it becomes a general principle, and it is applied to specific cases that do not have a text or specific evidence, that is, to what has not been included in the examination. The issues that lack a text or consensus are considered based on the benefits or harms they produce, and a legal ruling is given based on this consideration. The absence of a detailed evidence indicating the ruling does not mean that the ruling based on bringing about a benefit or averting a harm is not Sharia-compliant, as it has evidence that may be stronger than the detailed evidence, which is the general evidence derived through induction. This understanding is the cornerstone of the position of all those who advocate for it.
__________
(117) Irshad al-Fuhul, p. 242.
(118) The same source.


[Page 54]

The authority of public interest (maslaha murasala). Then after that, they attempt to cite some actions of the Companions (may Allah be pleased with them) as evidence that they were deriving rulings based on public interest (maslaha murasala).
As for the induction (istiqra) they speak of, al-Shatibi has provided examples of it, and I will present them as they appeared in his work. He says (119): "What is relied upon is that we have deduced from the Sharia that it was established for the interests of the servants, an induction that neither al-Razi nor anyone else disputes. For Allah, Exalted is He, says regarding the sending of the messengers, which is the basis: {Messengers as bringers of good tidings and warners, so that there will be no excuse for the people against Allah after the messengers}(120). {And We have not sent you, [O Muhammad], except as a mercy to the worlds}(121). And He said regarding the origin of creation: {It is He who created the heavens and the earth in six days, and His Throne was upon the water, that He might test you as to which of you is best in deed}(122). {And I did not create the jinn and mankind except to worship Me}(123). {Who created death and life to test you as to which of you is best in deed}(124) ... And if the induction indicates this, and it is beneficial for knowledge in such a matter, we conclude that the matter is continuous in all details of the Sharia..."(125). These are examples of the particulars deduced to indicate that the public interest (maslaha mursala) is a legal proof.
Similarly, one of the contemporary scholars (126) presents evidence for the consideration of public interests (maslaha) in the Sharia, and we will mention some of it. He says: "The saying of Allah, Exalted is He: {Indeed, Allah commands you to render trusts to whom they are due and when you judge between people to judge with justice. Excellent is that which Allah instructs you. Indeed, Allah is ever Hearing and Seeing.}"(127). He then says: "The essence of justice between two things or two persons is the balance and equivalence between them in a matter, so the aim is to consider moderation between the extremes of excess and deficiency in everything. The true organization of people's interests and their harmony with one another is nothing but a straight line that separates the extremes of excess and deficiency in their affairs. These are two extremes that inevitably lead to corruption...". He also argues that
__________
(119) Al-Muwafaqat, vol. 2, pp. 3, 4.
(120) An-Nisa (The Women) / 165.
(121) Al-Anbiya (The Prophets) / 107.
(122) Hud / 7.
(123) Adh-Dhariyat (The Winnowing Winds) / 56.
(124) Al-Mulk (The Sovereignty) / 2.
(125) Al-Muwafaqat, vol. 2, pp. 3, 4.
(126) This is al-Bouti in his book, The Principles of Public Interest, p. 75.
(127) An-Nahl (The Bee) / 90.


[Page 55]

By His saying, Exalted is He: “This is insight for the people and guidance and mercy for a people who are certain” {هذا بصائر للناس وهدىً ورحمة لقوم يوقنون}(128), and by His saying, Exalted is He: “And We have not sent you except as a mercy to the worlds” {وما أرسلناك إلا رحمة للعالمين}(129).
The summary of this explanation is that it can be said that the Legislator has established the genus of description within the genus of rulings, and since the description is the public interest (maslaha), which is a common description in all rulings, -according to their statement- they said that the Legislator has established the genus of public interest within the genus of rulings. The proof for the validity of the unregulated interests (masalih mursala) –which is the explanation we just mentioned- is that the Legislator has established the genus of interests within the genus of rulings.
__________
(128) Al-Jathiya/20.
(129) Al-Anbiya/107.


[Page 56]

Evidence of Those Who Advocate for Public Interest (Maslaha Mursala)

Below are their evidences as they are scattered in the books of usul (principles of jurisprudence), whether from the imams or from contemporary scholars. The mention of the statements of some contemporary scholars is merely to complete the discussion, so that it cannot be said that there are other evidences. Therefore, I have attempted to summarize all that has been cited in support of public interest (maslaha mursala).
The foundation of their evidence is that the legislator has placed the genus of public interests within the genus of rulings. Based on this evidence, one contemporary scholar said(130): "As for when there is no text or consensus regarding the ruling on an incident, nor analogy to it - and there is a public interest in it - it is likely that it is required by the Sharia, for wherever there is public interest, there is the law of Allah, Exalted is He - and this incident takes on a legal ruling based on the public interest sought therein."
"The approval of the Messenger of Allah (peace and blessings be upon him) of Mu'adh's ijtihad (independent reasoning) when he sent him as a judge, and his question about what he should rule if a matter arose for which he found no ruling in the Book or the Sunnah, and his saying: 'I will exercise my judgment and not hold back.' The Messenger of Allah (peace and blessings be upon him) struck his chest and said: 'Praise be to Allah who has guided the Messenger of the Messenger of Allah to what pleases Allah.'"(131)
The scope of working with public interest is in transactions and similar matters that fall under the category of customs. The original principle in this type of obligations is to pay attention to the meanings and motivations upon which the rulings are based; thus, they are reasonable interests through which the mind can perceive the goodness of what the Sharia demands and the evil of what it prohibits. And Allah, Exalted is He, has obligated upon us what our minds can perceive as beneficial and has prohibited what our minds can perceive as harmful..."(132)
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(130) This is Dr. Mustafa al-Baghā in his book The Impact of Disputed Evidences, p. 54.
(131) The Authority of Public Interest (Maslaha Mursala), p. 88. There is much discussion about this hadith, and it is rejected by Ibn Hazm, and al-Albani also rejected it, yet it is cited in the books of jurisprudence.
(132) See al-Muwafaqat, vol. 2, p. 225, and The Impact of Disputed Evidences, p. 55.


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The reality is constantly changing and developing, and the new developments require an endless and limitless number of rulings. As for the texts or partial principles, they are limited and finite, and the finite cannot suffice for anything other than the finite. Therefore, it is necessary to have a way to establish partial rulings, and this way is through public interest (maslaha), based on the objectives of the Sharia (maqasid al-sharia) in a comprehensive manner. Some scholars of hadith(133) say: "The changing morals, integrity, and conditions of people may lead to a situation where what was once a benefit becomes a harm. If the door of legislation through public interest were not opened for the jurists, Islamic law would become narrow in addressing the interests of the people, falling short of their needs, and would not be suitable for keeping pace with various places, times, environments, and conditions. This is contrary to what is known about it in terms of flexibility, comprehensiveness, and expansiveness."(134)
"The companions of the Prophet (peace and blessings be upon him) undertook many actions for which there was no prior evidence to consider, but they did so purely based on the benefit they perceived in them, ... rather, they legislated for these incidents (and rulings) what they saw as achieving the public interest (maslaha) that brings benefit or prevents harm, according to what their minds comprehended."(135).
One of the matters that it is claimed the Companions (may Allah be pleased with them) acted upon as an inference from public interest (maslaha mursala) is:
Their agreement (may Allah be pleased with them) to compile the scattered pages in which the Qur'an was written into a single mushaf occurred when the killing of the memorizers of the Qur'an increased in the Battle of Yamama during the time of Abu Bakr, at the suggestion of Umar (may Allah be pleased with them both), when he saw the benefit in this compilation.
The appointment of Abu Bakr to Umar and his nomination for the leadership after him has no apparent support other than the public interest (maslaha) that he considered.
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(133) The impact of the differing evidence, p. 55. And see the authority of public interests (maslaha).
(134) The previous source.
(135) This text is from Dr. Mustafa al-Bagha's book The Impact of Divergent Evidence, p. 54, and similar statements are made by many contemporary scholars today. This statement is somewhat echoed by some of the imams, but none were as bold as al-Bagha to say "for whatever they found in it of benefit." Indeed, some of the imams restricted it to being in accordance with the objectives of the Sharia (maqasid al-sharia), and some restricted it to what the Sharia has established as benefit, and you will see this clearly in what follows when we discuss al-Shatibi's opinion and the opinion of Ibn Abd al-Salam. Al-Qarafi said in his book (Sharh Tanqih al-Fusul): "It is known that the unregulated benefit (mashlaha mursala) is more specific than the unrestricted analogy and unrestricted benefit." Page 394.


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ج- Umar left the caliphate to be decided by consultation (shura) among six of the senior companions, not leaving the matter as the Messenger of Allah (peace and blessings be upon him) did, nor appointing one person as Abu Bakr did; and there is no basis for this except for public interest (maslaha).
د- Umar established the diwan (registers) and organized them in such a way that they encompassed all the interests of the state, and he adopted the prison and dated it from the Hijra (migration).
هـ- The liability of craftsmen. Al-Shatibi says: "The rightly guided caliphs ruled on the liability of craftsmen, and Ali (may Allah be pleased with him) said: 'People cannot be right except through that.'"
و- The companions of the Messenger of Allah (peace and blessings be upon him) agreed after him on the punishment for the drinker of alcohol to be eighty lashes, relying on public interests.
ز- Umar ibn al-Khattab (may Allah be pleased with him) would share the governors whom he suspected regarding their wealth, due to the mixing of their private funds with the wealth they acquired through the authority of governance. This is in the interest of public welfare (maslaha mursala).
ح- It was narrated from Umar (may Allah be pleased with him) that he poured out adulterated milk mixed with water as a reprimand for the deceiver, and this was for the public interest so that sellers would not deceive the people.
ط- It was narrated from Umar ibn al-Khattab (may Allah be pleased with him) that he would execute a group for the act of one if they participated in killing him, because public interest necessitated that, as there is no text on the matter.
ي- Umar (may Allah be pleased with him) did not divide the lands that the Muslims conquered by force, which are the lands of Iraq, Syria, and Egypt, although some companions requested him to divide these lands that Allah had granted them through their swords, as the Messenger of Allah (peace and blessings be upon him) divided Khaybar when he conquered it.
ك- What al-Bouti mentioned as an example of the actions of the successors regarding the adoption of public interest (istislah), which is "a number of rulings made by Umar ibn Abdul Aziz (may Allah be pleased with him) during his caliphate. Among them... his order to the governors to establish inns along the road to Khurasan for travelers to take refuge in during their journeys and travels. This was an action not known in the time of the Prophet.


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Peace and blessings be upon him, and nothing was spent from the public treasury of the Muslims for such matters during his time; rather, it was a matter necessitated by the interests of travelers, who filled the roads during that golden age.."(136).
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(136) These examples from (A) to (K) can be found in many books of usul (principles) that mention public interests (masalih mursala). You can find them, for instance, in al-Muwafaqat and al-I'tisam by al-Shatibi. They are also found in Sharh Tanqih al-Fusul by al-Qarafi. The last example was mentioned by Muhammad Said Ramadan al-Bouti in his book Al-Dhawabit al-Maslahah.


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The Position of Scholars on Public Interest (Maslaha)

I almost titled this section "The Scholars' Rejection of Public Interest" instead. For no one can be said to have accepted it without reservation. However, it is often attributed to Malik and the Malikis, and many contemporary scholars advocate for it. Dr. al-Bagha(137) states: "The words of the usuliyyin (jurisprudents) almost converge on the fact that the opinion of public interest is a matter of disagreement, and the prevailing view is that it is not valid for inference, as there is no evidence to support its consideration, and only Imam Malik (may Allah have mercy on him) has adopted this view."

Some contemporary proponents of public interest argue that the four imams have indeed accepted it, despite reports of their rejection of public interest—except for Malik. They also claim that the Companions (may Allah be pleased with them) accepted it. Al-Bouti(138) states: "Public interests are accepted by consensus among the Companions, the Tabi'in (Successors), and the four imams." These conclusions and opinions contradict the transmitted texts; so where is the truth? Furthermore, the conclusions of contemporary scholars contradict the clear and explicit reports from the imams, as reported from Imam Ahmad ibn Hanbal, and even what they themselves stated, such as al-Ghazali in al-Mustasfa. What, then, is the truth?

The truth is that if a correct narration is reported from any of them stating that they do not accept public interest, we must affirm what they said, unless it becomes clear that they have abandoned that statement. However, to delve into their jurisprudential branches and search for some rulings, and if we find some of them for which we do not know the evidence, to hastily claim: "Its evidence was public interest," is not correct at all, nor does it hold any validity in reasoning. The statement of those who say, "Public interests are accepted by consensus among the Companions, the Tabi'in, and the four imams," is a bold claim that has no justification other than a disregard for knowledge and a reckless approach to expressing opinions.

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(137) The Impact of Disputed Evidence, p. 41.
(138) The Criteria of Public Interest, p. 407.


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And moving away from ambiguity, I will present below some of the opinions of the scholars, and I will present the positions that it is claimed the Companions (may Allah be pleased with them) took regarding public interest (maslaha) in its unregulated form.
As for the positions of the imams and scholars, the majority hold that public interest (maslaha) in its unregulated form is not a legal proof. Imam al-Shafi'i (may Allah be pleased with him) rejected this view. Al-Amidi reported this from him. Many scholars of the Shafi'i school, such as al-Amidi, al-Ghazali, and Izz al-Din ibn Abd al-Salam, also reported his rejection. It is well-known that al-Shafi'i said: "Whoever deems something good has legislated." This condemned deeming good, according to al-Shafi'i, includes the public interest (maslaha) intended by the Malikis.
Imam al-Shafi'i says in his Risala: "Indeed, deeming good is a form of pleasure," and then he states: "The scholar should not speak except from the perspective of knowledge, and the perspective of knowledge is the necessary report by analogy with the evidence of what is correct, so that the scholar is always following a report, and the seeker of knowledge is by analogy," and he said: "If he speaks without a necessary report or analogy, he is closer to sin than the one who speaks while being ignorant..." He also said: "And Allah has not allowed anyone after the Messenger of Allah to speak except from the perspective of knowledge that has preceded him, and the perspective of knowledge thereafter is the Book, the Sunnah, consensus, and the reports, and what I have described of analogy upon them"(139).
From these statements of Imam al-Shafi'i (may Allah be pleased with him), we understand that he strongly criticizes public interest (maslaha) in its unregulated form just as he criticizes deeming good, and indeed the former is included in the latter for him, as it is neither a necessary report nor an analogy since it is unregulated. Therefore, al-Ghazali said the same as al-Shafi'i. He said: "Indeed, whoever deems something good has legislated just as whoever deems something good has legislated"(140).
Public interest (maslaha) in its unregulated form is not considered by Imam Ahmad ibn Hanbal (may Allah be pleased with him), and it is not mentioned among the principles he relied upon. Scholars of his school, such as Ibn Taymiyyah and Ibn Qudamah al-Maqdisi, have rejected it. As for what some contemporary scholars claim that he follows Imam Malik in accepting it(141), this is a statement for which there is no evidence.
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(139) Risala, p. 508, issues from 1464 to 1468.
(140) Al-Mustasfa, vol. 1, p. 245.
(141) The Criteria of Public Interest, p. 368. The Authority of Public Interest in its Unregulated Form by Ahmad Faraj Hussein, p. 65.


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Hajj. Contemporary scholars may have transmitted what al-Shawkani mentioned, citing Ibn Daqiq al-Eid(142): "There is no doubt that Malik has a preference over other jurists in this regard, followed closely by Ahmad ibn Hanbal, and others hardly escape from considering it." Al-Qarafi(143) stated: "It is, upon investigation, present in all schools of thought."
Such statements cannot be firmly attributed to Imam Ahmad, as his principles do not include public interest (maslaha), and his stance on reasoning is far removed from the general public interest. As for what is reported from some scholars that it exists in all schools, we will elaborate on this, as those who accept it do not mean that it is universally applicable, but rather that it is derived from specific evidence, not from general or comprehensive evidence.
Regarding what Dr. al-Bouti mentions in his book (The Criteria of Public Interest) about the absence of public interest (maslaha) among the principles relied upon by Imam Ahmad not preventing it from being considered valid by him, I do not find this argument sound. Even if that does not prevent it, what is the proof that it is considered valid by him? The research into his jurisprudential opinions does not justify the claim that he considers public interest (maslaha), as the existence of a matter for which we do not find its evidence is not sufficient to claim that he derives rulings from public interest (maslaha).
What some attempt to assert, that the concept of public interest falls within the broad meaning of analogy (qiyas), is a statement without benefit, as analogy is different from public interest (istislah). If deriving a ruling based on public interest is included within analogy, then everything said about categorizing the reasoning into valid, abrogated, and general would be invalidated, and consequently, public interest (istislah) would be invalidated. This argument is not based on an understanding of the subject: analogy is valid because it is supported by conclusive evidence. Public interest (maslaha) does not fall under analogy, and this is what the scholars who accepted public interest (maslaha) have established. There is no need for lengthy discussion on this; those interested may refer, for example, to al-Shatibi's statements in al-I'tisam, which we will mention when discussing al-Shatibi's opinion.
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(142) Irshad al-Fuhul, p. 242.
(143) Sharh Tanqih al-Fusul, p. 394.


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As for the Hanafis, it is well-known that they do not accept istislah (public interest) and do not consider it. Al-Amidi reported their rejection of masalih mursala (unrestricted public interests) along with the Shafi'is(144).
Al-Bagha(145) quotes Dr. Abdul Wahab Khalaf from his book (Sources of Islamic Legislation): "It is well-known in some books that they do not accept istislah and do not consider it a legal proof." Here, we also encounter an attempt to assert that the Hanafis do accept istislah, as Khalaf(146) states: "... it is unlikely that they would accept istihsan (juridical preference) and deny istislah." This is a strong viewpoint since istislah and istihsan are intertwined. Dr. Al-Bagha and Al-Bouti also support Khalaf's view that "the share of maslaha in his (i.e., Abu Hanifa's) jurisprudence lies in two of the most important proofs... which are istihsan and 'urf (custom)"(147). It is clear from what has been reported about him that he does not accept maslaha, even if it overlaps with istihsan. The Hanafis' acceptance of istihsan is only because they have evidence for it, while they reject istislah because there is no evidence supporting it. This is the crux of the matter, and it is not about the proximity or distance of one from the other. The examples brought to demonstrate the existence of istislah in Hanafi jurisprudence are, in their view, supported by istihsan, and Allah knows best, not istislah.
Regarding what has been reported about Imam Malik (may Allah be pleased with him), the opinions are almost unanimous on his consideration of masalih mursala, although Al-Qurtubi denied this, as we will show. There is a difference in the extent to which he goes in his acceptance of it. Al-Shatibi reported in Al-I'tisam that he elaborated on it extensively, like a seasoned scholar deeply understanding the meanings of public interests, and then said: "Indeed, many scholars have criticized various aspects of his elaboration." Al-Shawkani(148) said: "What is reported about Malik is the permissibility of saying it absolutely." He also said(149): "Al-Juwayni stated in Al-Burhan that Malik went to extremes in this matter."
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(144) Al-Ihkam, vol. 4, p. 160.
(145) Athar Al-Adillah Al-Mukhtalaf Fiha, p. 45.
(146) The same source, quoting from Sources of Islamic Legislation.
(147) See: Dawa'ib Al-Maslahah, p. 381.
(148) Irshad Al-Fuhul, p. 242.
(149) The same source.


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"His statement led him to permit killing and taking wealth for interests that he presumed to be necessary, even if he did not find a basis for them."
Ibn Qudamah al-Maqdisi(150) said: "It has been reported that Malik said it is permissible to kill one-third of the people for the benefit of the two-thirds." Among what is reported from Malik contrary to this is what has been attributed to al-Qurtubi, for example. Al-Shawkani(151) said: "A group of Malikis have denied what has been attributed to Malik regarding this statement, including al-Qurtubi. Al-Shafi'i and most of Abu Hanifah's companions held that it should not be relied upon, which is also Malik's position. Al-Juwayni, the Imam of the Two Holy Sanctuaries, was bold and reckless in what he attributed to Malik regarding excess in this principle. This does not exist in Malik's books or in any of his companions' books." Thus, al-Qurtubi denies that Malik or any of his companions said this.
Al-Bouti cites from the followers of Malik, such as al-Shatibi and al-Qarafi, that he (may Allah have mercy on him) adopted public interest (maslaha) where it aligned with the objectives of the wise Sharia (maqasid al-sharia)(152).
And the truth is that if the attribution of the saying regarding public interest (maslaha murasala) to Malik is established, it cannot be established in any case - given what is known of his condition and his strictness in following the texts and rejecting innovation - that he would say it in contradiction to the texts. Rather, if he were to say it, his reliance on it would not differ from what his followers have presented. We can understand the reality of his opinion when we elaborate on the understanding of al-Shatibi and al-Qarafi regarding public interest. As for al-Ghazali, I have previously pointed out the confusion in knowing his opinion. Some have found al-Ghazali's statements perplexing and thought that he advocates for public interest in certain cases.
The fact is that his statement in al-Mustasfa is clear, and there is no need to circle around the texts. In al-Mustasfa, the title is as follows(153): "Then what is presumed to be from the foundations but is not, which are also four: the law of those before us, the statement of a companion (sahabi), istihsan (preference), and istislah (public interest)." He also said(154): "With these conditions that we have mentioned, it is permissible to follow
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(150) The Garden of the Observer and the Paradise of the Spectator, p. 150.
(151) Guidance of the Thinkers, p. 242.
(152) See: The Criteria of Public Interest (maslaha).
(153) The Purified, vol. 1, p. 245.
(154) The same source, p. 315.


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The interests (masalih), and it becomes clear that istislah (public interest) is not a fifth principle in itself, but rather, whoever seeks to establish it has legislated just as whoever deems something good has legislated. As for the confusion that some may encounter due to statements like: "With these conditions we mentioned, it is permissible to follow interests," it should not be used as a pretext to claim that he advocates for istislah. Following interests is a natural inclination in humans, as people inherently pursue their interests. However, the subject of discussion is the evidence for the action that is intentionally performed for the sake of interest; is the evidence the interest itself? The assertion of interest is a consideration of the legality of the action based on it being an interest, and this is what al-Ghazali refutes. However, if the Sharia indicates the permissibility of the action, then there is nothing preventing its performance with the intention of serving the interest. The indication of the Sharia comes from the legal proofs and not from the fact that the interest is an interest. This, then, is the meaning of his statement "it is permissible to follow interests." And his statement "istislah is not a fifth principle in itself," and his statement: "rather, whoever seeks to establish it has legislated." Therefore, istislah is not considered valid according to al-Ghazali. Likewise, al-Amidi refuted istislah in al-Ihkam, saying(155): "The interests are divided in terms of the testimony of the Sharia into those that are recognized, those that are nullified, and those that the Sharia does not testify to either way. The latter is referred to as the unqualified suitable." He also said(156) - regarding the unqualified suitable -: "This category is uncertain between the two categories, and it is not more appropriate to associate it with one than the other, thus it is not permissible to argue with it without a recognized witness that identifies it as being among the recognized rather than the nullified."
Imam Izz al-Din ibn Abd al-Salam also rejected it. He said(157): "And likewise, there is no ruling except for Him (i.e., Allah), so His rulings are derived from the Book, the Sunnah, consensus, sound analogies, and recognized proofs. No one has the right to deem something good or to employ an unqualified interest, nor to imitate someone whom he has not been commanded to imitate."
Ibn Qudamah al-Maqdisi also refutes unqualified interests. He said(158): "... this is called an unqualified interest and we do not call it analogy, because analogy refers to a specific principle, and the correct view is that this is not a proof because it is not known.
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(155) Al-Ihkam fi Usul al-Ahkam, vol. 4, p. 160.
(156) The same source.
(157) Qawaid al-Ahkam fi Masalih al-Anam, p. 304.
(158) Rawdat al-Nazir wa Jannat al-Manazir, p. 150.


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The Sharia (Islamic law) aims to preserve life by all means, and thus mutilation has not been legislated even though it is the most effective deterrent and punishment. Likewise, killing has not been legislated for theft or drinking alcohol. If a ruling is established for the benefit of these interests, and it is not known that the Sharia has preserved that interest by establishing that ruling, it would be a matter of placing the Sharia based on opinion and a ruling based on pure reason." This is a valuable statement. Similarly, it was rejected by Majd al-Din Ibn Taymiyyah. He said in his manuscript(159): "The unestablished interests (masalih mursala) cannot be the basis for rulings, as stated by al-Baqillani and a group of theologians."
Taqi al-Din Ibn Taymiyyah also rejected it, stating(160): "The unestablished interests are a form of legislation in religion that has not been permitted, and they resemble in some respects istihsan (juridical preference), rational improvement, and opinion, and the like." Ibn al-Hajib al-Maliki also rejected it. It is mentioned in the book (Hashiyat al-Taftazani and al-Jurjani on Mukhtasar al-Muntaha al-Usuli): "The unestablished interests are interests that do not have a foundational basis in the Sharia, even if they align with the principles of interests and are accepted by reason. Then he said: We have no evidence, so it must be rejected as in the case of istihsan"(161).
Ibn Humam al-Din al-Iskandari al-Hanafi also rejected it. He said(162): "... This category known as unestablished interests, the preferred view is to reject it. There is no evidence for its consideration, and it is a legal evidence that must be rejected. They said that many occurrences would be left without rulings, and we said we deny the necessity (i.e., we do not concede that the absence of consideration leads to occurrences being devoid of rulings) because generalities and analogies are comprehensive, and even if it were absent, the negation of every specific evidence would lead to its ruling being the original permissibility (i.e., if in an incident there is no basis from the four sources of evidence, then one acts according to a general principle established in the Sharia by consensus, which is original permissibility, as it is the default for things)."
The esteemed Imam, Sheikh Muhibb Allah ibn Abd al-Shakur, who is of the Hanafi school, also rejected the unestablished interests. He said(163): "If no one knows of any considerations that are appropriate, it is strange to consider it as unestablished; it is called unestablished interests, which is a proof according to Malik, while the preferred view among the majority is to reject it. We say: There is no evidence without consideration, and if...
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(159) p. 450.
(160) Principles of Rulings in the Interests of People, p. 304.
(161) Volume two, p. 389.
(162) Taysir al-Tahrir, vol. 3, p. 315. The text in parentheses is by the commentator Amir Badshah.
(163) See the book Fawatih al-Rahmut with the explanation of Muslim al-Thabut, printed with al-Mustasfa, vol. 2, p. 266.


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He was following the principles of reason. They said: First: If you did not consider this, the occurrences would be empty. We say: We deny the necessity because the generalities and analogies are general, and also the absence of a basis is a basis for permissibility. Secondly: The companions (may Allah be pleased with them) were content with taking into account the interests. We say: Rather, they only considered what they were aware of regarding the consideration of its type or its kind.
And al-Shawkani also addresses this, as he rejects qiyas (analogy) as a principle, and takes from qiyas only what has a stated cause, even if he does not call it qiyas. He says(164): "And when you have understood what we have clarified and all that we have established has become clear to you, know that the accepted qiyas is that which has a stated cause in the text and in which there is a definitive negation of difference, and what falls under the category of the implied meaning of the speech or the nuance of the speech according to the terminology of those who call that qiyas, and we have previously established that it is from the concept of agreement. Then know that the deniers of qiyas did not claim to disregard everything that is called qiyas, even if it has a stated cause or is definitively negated in terms of difference, rather they considered this type of qiyas to be indicated by the evidence of the origin, included under it and subsumed within it..." His statement means that he accepts the stated cause or that in which there is a definitive negation of difference and does not accept the inferred cause. He does not accept the cause that is based on analogy, as analogy is a form of inference. His rejection of maslaha mursala (unrestricted public interest) is more appropriate, as it is based on the unrestricted analogy which is not a form of inference at all, but rather a matter of rational judgment.
The Zahiri (literalist) and Twelver (ithna 'ashari) sects have also rejected istislah (public interest), as they do not accept qiyas (analogy) at all.
Al-Shatibi, in his Muwafaqat and in his I'tisam, advocates for the acceptance of public interests (maslaha mursala) and states that the two imams, Abu Hanifa and al-Shafi'i, adhered to it(165). This is contrary to what al-Amidi mentioned(166). Imam Shihab al-Din al-Qarafi, of the Maliki school, also accepts it. He says(167): "As for public interest (maslaha mursala), it is reported that it is specific to us, and when the schools of thought are lacking, they find that when they analogize and differentiate between the two issues, they do not seek a witness by considering that meaning."
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(164) Irshad al-Fuhul, p. 203-204.
(165) Al-Muwafaqat, vol. 1, p. 15.
(166) Al-Ihkam fi Usul al-Ahkam, vol. 4, p. 160.
(167) Sharh Tanqih al-Fusul, p. 394.


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which they used to gather and differentiate, but they suffice with the general suitability, and this is the unregulated public interest (maslaha mursala), so it is then applicable in all schools of thought.
As for our era, most writers on usul (principles of jurisprudence) or those addressing it hold the view of the authority of unregulated public interests. Among them, for example, are Sheikh Muhammad al-Khudari Bey(168), Jad al-Haq Ali Jad al-Haq(169), Muhammad Said Ramadan al-Bouti(170), Abdul Karim Zidan(171), Sheikh Abdul Wahab Khalaf(172), Muhammad Ibrahim al-Hafnawi(173), Khalifa Babikr al-Hassan(174), and Mustafa al-Khin(175).
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(168) See his book: Usul al-fiqh.
(169) Islamic jurisprudence, its flexibility, and development.
(170) Criteria of public interest.
(171) The concise in the principles of jurisprudence.
(172) Sources of Islamic legislation and the science of usul al-fiqh.
(173) Perspectives on the disputed evidences of legislation.
(174) The disputed evidences among the usulists.
(175) The impact of differences in legal principles.


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Dr. Muhammad Hussein Abdullah(177) refuted it.
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(177) The Clear in Usul al-Fiqh.


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The unregulated interests (masalih mursala) are not a legal proof.

We have previously clarified that the argument based on unregulated interests is disputed among the imams and usuliyyin (jurisprudents), and that the majority reject it. This is the correct view, and Allah knows best. I will discuss this now through:
First - Discussing the evidence presented by those who advocate for it.
Second - Presenting evidence that it is not a legal proof.
Third - Clarifying that those who spoke of unregulated interests did not mean that they are unregulated in an absolute sense, but rather that they are unregulated in relation to the specific evidence on the particular issue, while they fall under the general or universal evidence. This will be illustrated through the views of the two imams, al-Qarafi and al-Shatibi. I have presented al-Shatibi's view first due to the clarity and prominence of the intended meaning in his texts, followed by al-Qarafi's view.
Fourth - Clarifying that those who spoke of interests among the imams did not intend the deception that those who mix truth with falsehood resort to, but rather intended the interest: that which is sought by the Sharia, and this will be shown through the views of the two imams, Ibn Abd al-Salam and al-Ghazali.
Fifth - Refuting two doubts:
That there are recognized interests, canceled interests, and interests that are neither recognized nor canceled.
The argument for permissibility based on the absence of evidence for prohibition, or based on the action not contradicting the Qur'an, the Sunnah, consensus, and analogy.

Moreover, I have appended the last three points mentioned here (the third, fourth, and fifth) to the fourth chapter of this book.


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Discussion of the Evidence Presented by Advocates of Istislah

We have previously mentioned the evidence relied upon by those who advocate for istislah, and I will discuss it here in the same order that I presented it earlier.

The first evidence: The legislator has established the genus of interests within the genus of rulings

This is their first evidence and it is the cornerstone of their arguments. It is based on the premise that the legislator has objectives that are the interests of creation, and that the original principle in the Sharia is to consider these interests(179).
Indeed, the Sharia has objectives, as indicated by the Sharia itself, and these objectives pertain to the Sharia as a whole and not to each individual ruling. This is evidenced by the texts that imply that the Sharia has objectives, such as His saying: “And We have not sent you, [O Muhammad], except as a mercy to the worlds” {وما أرسلناك إلا رحمة للعالمين}(180), and His saying: “And We send down in the Qur'an that which is healing and mercy for the believers” {وننزل من القرآن ما هو شفاء ورحمة للمؤمنين}(181), and His saying: “This is a guidance for the people and a mercy for those who are certain” {هذا بصائر للناس وهدى ورحمة لقوم يوقنون}(182). Reflecting on these texts and scrutinizing their implications reveals that mercy, healing, and guidance are the results of accepting, applying, and adhering to the Sharia, and it indicates that these results or interests are a consequence of applying the Sharia as a whole. When the Sharia is implemented in society, its condition becomes upright, it flourishes, and it adheres to the sound path and the straight way that the Qur'an guides to: “Indeed, this Qur'an guides…”

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(179) What some people, especially contemporary ones, understand from such statements is different from what the foundational scholars intended by them, and I am discussing here according to the meanings that come to mind, which is that the interest is what the intellect perceives as beneficial.
(180) Al-Anbiya/107.
(181) Al-Isra/82.
(182) Al-Jathiya/20.


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للتي هي أقوم)(183) This is what the texts inform us, and this is what occurred in reality when this Sharia was applied to the people, and there is nothing in these texts that indicates, even remotely, that interests (masalih) exist, or that the objectives of the legislator (maqasid al-sharia) are interests, let alone going further in the reasoning to say that if it is established that the matter is an interest, then it is Sharia. It is true that these objectives or goals or outcomes are, in reality, interests for the people, but it is not their being interests that indicates the Sharia or its correctness or acceptance. Rather, what indicates its correctness and acceptance as a whole is the creed (aqidah). And there is nothing in these texts that we have cited that indicates that interests are legislated because they are interests. Moreover, these texts inform us that our Sharia is a Sharia of mercy and healing and guidance and righteousness, and ... it does not clarify to us what mercy is or what righteousness is... Likewise, it is not at all indicated that interest is the basis of the Sharia, let alone that it is said to be the cause of the Sharia. Furthermore, the meaning that must be understood and nothing else when we say the Sharia is mercy, or the Sharia is guidance, or the Sharia is healing, is that the rulings that the Sharia has detailed and clarified are the mercy and the healing, and they are the righteousness and the justice, so they must be adhered to as they were revealed. And these texts do not indicate detailed rulings of the Sharia; rather, they inform us of the reality of the Sharia, that it is guidance, mercy, and healing, and the texts did not say that it is an interest, but rather this generalization of "interest" is a figurative expression from humans, because the Sharia can only be said to be an interest, goodness, and truth, and this is not based on studying its reality, but only based on it being from the Creator, the Sovereign.
Perhaps someone might say: The reasoning for interests, including the unqualified interests (masalih mursala), based on the objectives of the Sharia is not based on these evidences or texts that I have mentioned, but rather it is based, as he said, on the induction of the Sharia.
I say that the induction of the Sharia is an induction of its rulings, meaning what researchers have referred to as "particulars". They said that they have induced the particulars and reached the general ruling, which they apply to every incident that requires a particular ruling. The response here is: It is not correct that the texts indicated interests in all particulars,
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(183) Al-Isra/9.


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And my evidence here against their statement is the existence of some texts that contradict this general principle for them. In fact, all the texts they cited as examples of induction do not contain any indication of public interest (maslaha), and I will address here most of them. Among their evidences is His saying, Exalted is He: “Messengers bringing good tidings and warning, so that people will have no argument against Allah after the messengers”(184). The intended purpose of the Legislator here is that people have no argument against Allah, and there is no indication of public interest in it, neither in its literal meaning nor in its implied meaning. More than that, there is no public interest for the servants according to reason, nor is there any interest of a kind that is considered suitable or appropriate that minds would accept. Likewise, there is no suitable description that conveys or implies causality. Thus, the argument from this text is invalid. Furthermore, how did those who advocate for public interests find a benefit for people in this text? Which is better for people: to have an argument or not to have one? Is it not better—and thus in their interest—to have an argument so that they may be saved from punishment like the people of the interval? Similarly, among their examples of induction is His saying, Exalted is He: “And He it is who created the heavens and the earth in six days, and His Throne was upon the water, that He might test you as to which of you is best in deed”(185), and His saying: “Who created death and life to test you as to which of you is best in deed”(186). If the Creator's purpose in creating the heavens and the earth and in creating death and life is to test people as to which of them is best in deed, then where is the indication in the text that the purpose of the Legislator is public interest? There is no such indication in the text. And just as we said in the previous text, we say here: does reason see that testing people is in their interest? There is no way to support this claim. And can reason judge that the public interest for the servants is that they be created and tested, either to Paradise or to Hell? Therefore, not only do the texts not contain any indication of public interest, but the claim of this interest is not something that minds would accept. Public interest is not a clearly suitable and defined description. Likewise, there is no public interest here according to the objectives of the Sharia (maqasid al-sharia).
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(184) An-Nisa/ 165.
(185) Hud/ 7.
(186) Al-Mulk/ 2.


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Similarly, among the examples they have deduced is His saying, Exalted is He: “And I did not create the jinn and mankind except to worship Me”(187). This is a text that indicates a specific objective of the Legislator regarding a particular action, and it does not imply any benefit, nor does it indicate that this action is for the sake of benefit. Likewise, if we consider it rationally, is the reality of creating people for worship a benefit for them? Worship involves obligations and restrictions, and how can reason determine the benefit of one who does not exist due to the obligation of creation?
As for their argument from His saying, Exalted is He: “And We have not sent you, [O Muhammad], except as a mercy to the worlds”(188), and from His saying: “And We send down of the Qur'an that which is healing and mercy for the believers”(189), and from His saying: “This is enlightenment for mankind and guidance and mercy for a people who are certain”(190), we have discussed this previously(191).
And as for His saying, Exalted is He: “Indeed, Allah commands you to render trusts to whom they are due and when you judge between people to judge with justice. Excellent is that which Allah instructs you. Indeed, Allah is ever Hearing and Seeing. Allah commands you to render trusts to whom they are due and when you judge between people to judge with justice. Excellent is that which Allah instructs you. Indeed, Allah is ever Hearing and Seeing”(192), this text also does not indicate benefit, neither in its literal meaning nor in its inferred meaning, nor does it contain anything that indicates that the purpose of legislation is benefit or that benefit is its motivator or impetus. Rather, it is reason that sees justice as a benefit, and that immorality, wrongdoing, and oppression as corruption. These terms cannot be understood unless they are connected to a foundation that we understand by analogy. Do you not see that the positive and distorted laws have what they call justice, and they have what they call immorality and wrongdoing, and they have what they call truth and falsehood? Yet, if we look at the reality of their justice and compare it to our Sharia, we would find it to be pure oppression, and we would find their truth to be falsehood, and their goodness to be immorality... These terms can only be understood through what they indicate. The terms justice, goodness, immorality, wrongdoing, and oppression mentioned in the verse can only be understood in reality through what they indicate. And what they indicate are not rulings that we know in advance and recognize as justice or goodness, or immorality, or wrongdoing, or oppression, and the verse came to say that this which you call justice, I have come to command you with it, and this which you call wrongdoing, I have come to prohibit you from it! No, it is not so. Rather, the verse commands justice that
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(187) Adh-Dhariyat / 56.
(188) Al-Anbiya / 107.
(189) Al-Isra / 82.
(190) Al-Jathiya / 20.
(191) See pp. 77-78.
(192) An-Nahl / 90.


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The Sharia has clarified in other places that justice is what is commanded, and it prohibits the wrongdoing that other texts have identified as wrongdoing. Similarly, this applies to goodness, lewdness, and oppression. What is commanded by the legislator is justice, and what is prohibited is wrongdoing, not because reason has examined and found that what the legislator commands aligns with what reason recognizes as justice, goodness, or what is known, and that what is prohibited aligns with what reason recognizes as lewdness, wrongdoing, or oppression, but rather because the command comes from the Creator, who alone has the authority to command and prohibit. To Him alone belongs the determination of what is good and what is bad. As for what al-Bouti argued when he cited this verse to support the concept of public interest (maslaha) by saying, "Justice is the straight line between the extremes of excess and deficiency"(193), this statement lacks clarity. For this statement to have a meaning that can be understood by reason, one must know what excess and deficiency are. Could it not be that what a person perceives with their reason and based on their interest as excess is actually justice or deficiency? And what reason perceives as deficiency is actually justice or excess, and what is seen as justice is actually excess or deficiency, and likewise what is seen as interest is actually corruption or the opposite? Did Allah, Exalted is He, not say: {And if the truth had followed their desires, the heavens and the earth and whoever is in them would have been corrupted}(194)? And also His saying: {And know that among you is the Messenger of Allah; if he were to obey you in much of the matter, you would surely be in trouble}(195)? Therefore, Allah, Exalted is He, commands us in this verse to uphold the justice that He has established as justice and clarified for us in the Sharia, and prohibits us from the wrongdoing that He has established as wrongdoing and clarified for us in the Sharia. The use of the term public interest for what Allah commands is because Allah commanded it, not because we understood and determined what the interest is and then found the Sharia commanding us what we understood and determined! No, it is not so. Thus, this verse does not provide evidence for public interest, nor does it indicate that the Sharia takes public interest into account.
In this way, the argument based on the induction of the Sharia that the interests of the servants are a fundamental principle in legislation falls apart, and the claim of making the legislator's category of interests a category of rulings is invalidated. The legal texts from the Book and the Sunnah are related to a specific action of the servant; they are the legal evidence for the ruling of the Sharia regarding this action, and they are
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(193) See page 61 of this research.
(194) Al-Mu'minun/71.
(195) Al-Hujurat/7.


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It is not related to public interest (maslaha) and harm (mafsada), for when Allah, Exalted is He, says: “Then a pledge is to be held in hand”(196) and when He says: “When you contract a debt for a fixed term, write it down”(197) and when He says: “And have witnesses when you trade”(198), He is merely clarifying the ruling on pledges, the ruling on writing down debts, and the ruling on witnessing in sales, without indicating whether this is a public interest or not, neither explicitly nor implicitly. The text does not imply that this ruling is a public interest or not, neither closely nor remotely, nor in any way whatsoever.
The second evidence: The approval of the Messenger of Allah (peace and blessings be upon him) of Muadh when he sent him to Yemen to exercise his opinion if he did not find a ruling in the Book of Allah or in the Sunnah of His Messenger.

This is an argument in an inappropriate context. The hadith does not mention public interest, but the hadith – if authentic – is used as evidence for the permissibility of ijtihad (independent reasoning). The hadith does not state that the Messenger of Allah (peace and blessings be upon him) approved Muadh's ijtihad based on public interest, neither in the explicit wording nor in the implied meaning. Rather, it is an approval for Muadh to exercise his opinion to judge according to what this ijtihad leads him to if he does not find the ruling in the Book or in the Sunnah. Muadh did not say that he would judge by his opinion; rather, he said: “I will exercise my opinion.” This means that if he does not find the ruling explicitly in the Book or in the Sunnah, he will exert his effort to derive it. Even if he had said: “I will judge by my opinion,” there is nothing in the hadith that indicates that his ruling by his opinion would be based on public interest. From where does the understanding come that the Messenger of Allah (peace and blessings be upon him) approved istislah (public interest) or masalih mursala (unrestricted public interests) through this hadith? This is an assertion without evidence.

The third evidence: Their statement that the origin in customs is to pay attention to meanings and the motives of legislation, which is contrary to acts of worship that are restricted to the limits of the text.
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(196) Al-Baqarah / 283.
(197) Al-Baqarah / 282.
(198) Al-Baqarah / 282.


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It has already been established that there is no distinction between acts of worship (ibadat) and other matters referred to as customary practices (adat); all are legal rulings (ahkam shar'iyya), all are addresses from the Legislator (al-Shari'), and all are directed towards the accountable person (mukallaf). Acts of worship are a pure relationship between the servant and his Lord, which must be performed according to what Allah has commanded, while customary practices are a relationship between human beings that must also proceed according to the commands of Allah, Exalted is He(199).
This statement, which refers to paying attention to the meanings in customary practices, does not align with the true meaning intended by its proponents. They intended that the rulings of actions outside of acts of worship should be justified. The true meaning is that these actions are sought for their meaning, which is incorrect. Theft, adultery, prayer, and enjoining good and forbidding evil are actions for which meanings are not sought; rather, rulings are requested for them. Similarly, if we say that meanings are the causes (illal) – which is the aim of the proponents of this statement – this is also incorrect, as actions do not have a cause sought for them; the cause in Sharia is the cause of the ruling related to the action, not the cause of the action itself. For instance, distraction from prayer is the cause of the ruling, which is the prohibition of selling at the call to prayer on Friday; this distraction is not the cause of the sale or the prohibition of selling. As for what they intended, which is that the rulings of actions outside of acts of worship should be justified, these rulings are understood from texts or from what is suitable for inference. Some of these rulings come with justifications, whether the cause is taken explicitly, implicitly, through deduction, or analogy, while others come without justification. What is not justified cannot be justified by anyone after the Messenger of Allah (peace and blessings be upon him). Justification – in every case – leads to analogy (qiyas) and not to the claim of public interest (maslaha mursala). If it is said that meanings are the interests or the types of interests present in the rulings, this refers back to their original evidence, which we have refuted. In summary, the response here is that interests are not the meaning of the ruling nor of the text indicating the ruling. As for the action for which a ruling is sought, there is no meaning to be considered in legislating the ruling other than understanding its reality, and thereafter the ruling related to it is given from the texts, not from its reality, as its reality does not indicate anything.
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(199) See page 62.


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As for what they said, that these meanings and motivations are interests (masalih) in which reason perceives the goodness of what the Sharia commands and the evil of what it prohibits, we have previously stated that this designation (masalih) is a human approximation and not from the legislator. Therefore, it has no legal value, whether it is called interests or otherwise. The claim that reason perceives from these interests the goodness of what the Sharia commands and the evil of what it prohibits is incorrect, as we have explained earlier when discussing justice, benevolence, and wrongdoing, and when discussing mercy and healing(200). In addition, these objectives, if indicated by the text, are results that may occur or may not occur. So, if they do not occur, does a person perceive the opposite from them, that is, does he perceive the goodness of what the Sharia prohibits and the evil of what it commands? This is one aspect; on the other hand, goodness and evil are not included within what reason can perceive. What a person loves may occur, and what he hates may occur, but the improvement and disapproval do not follow what a person loves or hates, nor what is deemed good or bad. Allah, Exalted is He, said: “And perhaps you dislike something while it is good for you”(201). As for the statement that Allah, Exalted is He, "obligated upon us what our minds perceive as beneficial and prohibited upon us what our minds do not perceive as harmful," it is evidently flawed and invalid. If that were the case, what need would we have for the Sharia of Islam then? Rather, Allah has obligated upon us things from which we may not perceive any benefit or harm, and prohibited upon us things from which we may not perceive any benefit or harm. He has imposed upon us obligations from which we only perceive that we must listen and obey, and this is the meaning of servitude to Allah. This statement: "He obligated upon us what our minds perceive as beneficial and prohibited upon us what our minds perceive as harmful" is false and has nothing to do with Islam.

The fourth proof(202): that reality changes and evolves continuously, while the texts are limited; therefore, it is necessary to establish sources for legislation, and their claim that the finite cannot suffice without the infinite necessitates taking into account the unregulated interests (masalih mursala).

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(200) See pages 77-78, 80-81.
(201) Al-Baqarah 216, and Allah, Exalted is He, said in Surah An-Nisa, verse 19: “And perhaps you dislike something and Allah makes therein much good.”
(202) See page 63.


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The implication of this statement is that the Sharia is incomplete and we must add sources from our own to complete it, which contradicts the text of the Qur'an: "Today I have perfected for you your religion"(203). Furthermore, this is an unsuccessful logical hypothesis - that is, the limitation of texts and the unlimited nature of events - do you not see that a single text, such as the legal maxim derived from the texts of the Qur'an, which is: the default ruling of things is permissibility unless there is evidence for prohibition, provides a ruling for all things in the world, no matter how numerous they are?

All events since the completion of the revelation of legislation until the Day of Judgment have their rulings in the Sharia based on its limited texts. This is not through induction but through the texts of the Qur'an: "Indeed, We have sent down to you a Book in which is your mention"(204), "We have not omitted in the Book from anything"(205). The proofs are not only the Qur'an and the Sunnah, but they include the Qur'an, the Sunnah, the consensus of the Companions (may Allah be pleased with them), and analogy (qiyas), and these are complete in themselves without any human addition; any addition to the proofs under the pretext of the inadequacy of the proofs for new occurrences is merely an accusation of deficiency against the Sharia, which contradicts the Qur'an. The addition would be rejected rulings because they do not come from the Ruler, who is Allah alone(206). As for their claim that the additional proof must be the public interests (masalih mursala), even if we assume we concede the need for an additional proof, making it the public interests is an arbitrary determination without evidence.

The fifth proof(207): that the Companions (may Allah be pleased with them) acted upon the public interests.
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(203) Al-Ma'idah/3.
(204) Surah Al-Anbiya/10.
(205) Surah Al-An'am/38.
(206) And see the text we cited from Ibn Humam al-Iskandari on page 73 in response to such a statement, and a similar response was made by al-Shawkani in (Irshad al-Fuhul) page 204, where he said: "This is answered by what we have presented regarding His, Exalted is He, informing this nation that He has perfected their religion and what His Messenger (peace and blessings be upon him) informed them that he left them on the clear path, the night of which is like its day. It is not hidden from a person of sound intellect and good understanding that in the generalities of the Book and the Sunnah and their unrestricted texts and specific texts, there is enough to address every incident that occurs and clarify every new matter, known by those who know it and unknown by those who do not."
(207) See page 63.


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It is therefore incorrect, and at best, it is a misconception. Even if there were an action by the Companions (may Allah be pleased with them) for which we do not have evidence from the Qur'an, Sunnah, or analogy, it would not be correct to say that their evidence was public interest (maslaha mursala), unless there is proof of that. Moreover, the actions of the Companions, even if we do not find evidence for them in the Qur'an, Sunnah, or analogy, are evidence in themselves if they reached consensus on them. Thus, all claims relying on the Companions' use of public interest in cases where there is no denier fall away. The consensus of the Companions indicates the existence of evidence, even if it has not reached us.

There is no indication that they considered public interest. The examples they provided from the actions of the Companions (may Allah be pleased with them) will be examined one by one:

Their agreement (may Allah be pleased with them) to compile the scattered pages into a single mushaf after the killing of the Qur'an memorizers in the Battle of Yamama. And their agreement on the copying of the mushaf.

This action does not indicate that public interest was evidence for its permissibility. Did any of the Companions say that they derived this action from public interest? The command of Abu Bakr to compile the Qur'an and the command of Uthman to copy the mushaf and burn the other mushafs indicate that it was a removal of a great harm. When the killing of the Qur'an memorizers increased, and there was fear for the Qur'an from being lost if the killing of the reciters continued, they saw the necessity of compiling the Qur'an. The occurrence of differences in the recitation of the Qur'an due to the differences in the copies of the mushafs raised the fear that this would lead to disagreement in the Qur'an among the Muslims. Therefore, Hudhayfah ibn al-Yaman said to Uthman: "Catch the Muslims before they differ." So he ordered the copying of the mushaf into one version and burned the rest, all of which was a harm removed by the Caliph of the Muslims. This was not a public interest acted upon by him, but rather because the Messenger (peace and blessings be upon him) commanded the removal of harm. Ibn Abbas (may Allah be pleased with him) reported that the Messenger of Allah (peace and blessings be upon him) said: "There should be no harm nor reciprocating harm"(208).

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(208) Narrated by Ibn Majah in the Book of Judgments, Chapter 17. In some narrations: "There should be no harm nor causing harm."


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The actions of Abu Bakr and Uthman were to remove harm, and each of their actions was based on the Sunnah (tradition) and not merely because they saw it as a public interest (maslaha).
If someone says that removing harm is a public interest, I say: Yes, but the public interest was not the evidence for the action; rather, its evidence is the hadith, and the reality they sought to address with their actions was not the evidence, because the evidence is established in the indication of the text. As for the reality, it is the basis upon which the hadith was focused. Therefore, it is likely that Abu Bakr's hesitation in accepting Umar's statement was to verify the basis.
And if someone asks: Why do you cite their actions based on the Sunnah when they did not explicitly state that, and you reject the evidence of public interest because they did not explicitly state that? The answer is that we know with certainty that the Sunnah is evidence, and we also know with certainty that they derive evidence from it. As for the public interest, it has not been established as evidence, so it is not correct to make it evidence for them, neither in this incident nor in others.

The appointment of Abu Bakr as successor to Umar.

They say: There is no apparent evidence for it other than public interest(209). The objectivity indicates that public interest was not a basis for Abu Bakr's action, neither apparent nor hidden. We can apply the term public interest to the outcome that Abu Bakr sought from his action. However, it is not the evidence for his action; rather, the evidence for his action is the Sunnah, which has indicated the permissibility of this action. It is well known that Muslims differ on whether the Messenger (peace and blessings be upon him) appointed an imam after him or not. Some of the Sunnis believe that he appointed Abu Bakr as imam, as he said in his illness: "Tell Abu Bakr to lead the people in prayer"(210). Others say that he did not appoint anyone for the caliphate; rather, his command to Abu Bakr to lead was a nomination for the caliphate. This is due to the indication of the texts that the imam does not become an imam except through the pledge of allegiance (bay'ah) of confirmation. This
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(209) See page 64.
(210) Narrated by al-Bukhari in the Book of Al-I'tisam, and the Twelver Shia believe that he (peace and blessings be upon him) appointed Ali (may Allah be pleased with him) as imam. They support this with rational arguments that are not valid for evidence and with weak hadiths. They make the imamate of Ali part of their creed.


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The latter is the more correct view. If the Messenger of Allah (peace and blessings be upon him) nominated Abu Bakr for the caliphate, this is evidence for Abu Bakr regarding the nomination of Umar (may Allah be pleased with him). Abu Bakr's action is nothing but a nomination for Umar, and a guidance for the Muslims towards what is best for them. Umar did not become caliph except through the pledge of allegiance after the death of Abu Bakr. It is not possible to make him a caliph through Abu Bakr's appointment, because if that were the case, there would have been two caliphs for the Muslims at the same time, which is not permissible according to his saying (peace and blessings be upon him): "If two caliphs are pledged allegiance to, then kill the latter of the two"(211). Thus, this action of Abu Bakr is supported by the action of the Messenger of Allah (peace and blessings be upon him) and not by public interest (maslaha). As for what he aimed for in the action, whether it was public interest or what is best or the prevention of harm, these are desired outcomes, but they hold no value in legislation. Rather, the action that is considered is what leads to the outcome, whether it is beneficial, in the interest of the people, and good, or whether it is to prevent harm, corruption, and evil. The action requires evidence from the Sharia, and mere intention for public interest is not the evidence. In our case, the nomination is permissible, and leaving it is also permissible; thus, whoever acts in this matter chooses, based on the evidence of permissibility, what he sees as best.

C- Umar left the matter to consultation among six of the Companions(212).

What is said here is similar to what was said regarding Abu Bakr's appointment of Umar, for the public interest of the Muslims was before Umar (may Allah be pleased with him). However, the mere fact that it was a public interest as he saw it was not the evidence for the action. He explicitly stated this when he said: "If I appoint a successor, I have appointed one better than me, and if I leave it, I have left one better than me"(213). Here, he clarifies his evidence for his action, and it is understood from his words that both appointing a successor and leaving it are permissible.
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(211) Narrated by Muslim in the Book of Leadership.
(212) Refer to page 64.
(213) History of Nations and Kings by al-Tabari, vol. 5, p. 34, and al-Bukhari in the Book of Judgments. The wording is as in al-Tabari.


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D- The establishment of the diwan (divisions) by Umar and their organization and arrangement so that they encompass all the interests of the state, and his taking of the prison and its dating by the Hijra(214).
These actions were not guided by public interest (maslaha), but rather aimed at achieving a result that can be obtained, which is the public interest. As for the evidence, it is the Sharia, and these actions are viewed as follows:
When the Islamic state expanded and the number of Muslims increased during the time of Umar—who is the guardian of the Muslims and responsible for their care—their conditions and affairs became in need of regulation, preservation, and documentation, in order to manage their affairs according to the rulings of the Sharia. Therefore, Umar introduced these means and methods to fulfill the duty of implementing Islam. If the implementation of Islam and the care of the Muslims' affairs can only be achieved through these methods and means or similar ones, then adopting them or adopting similar ones becomes obligatory according to the legal principle: "What is necessary to complete an obligation is itself an obligation." Thus, the evidence for the action is the Sharia, while the benefit is the desired outcome. On one hand, the Sharia has indicated the permissibility of these things that Umar introduced, as the default ruling for things is permissibility unless there is evidence for prohibition. For example, the Sharia has commanded the collection of funds from zakat, kharaj, jizyah, and others, and has mandated their distribution in specific ways. If the funds become abundant and the sources and expenditures multiply, and there are many who are obligated to pay zakat, kharaj, or a tithe, then organization becomes obligatory for the complete implementation of Islam, not merely for the sake of benefit. As for the use of specific things or certain means and methods over others for this organization and care, the choice falls on what best achieves the desired outcome as seen by the one in charge of care, which is the caliph or imam. However, he is obliged to choose from what Allah has permitted and to avoid what He has prohibited, even if it is found that the latter is more effective in achieving the desired outcome. These things that Umar introduced are permissible based on the principle of the permissibility of things, as there is no evidence for their prohibition. The actions that were carried out regarding these things are the implementation of Islam itself.
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(214) See page 64.


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As for Umar's (may Allah be pleased with him) establishment of imprisonment, his evidence was the action of the Messenger of Allah (peace and blessings be upon him). Look at what Abd al-Rahman al-Maliki said(215): "-Imprisonment: the legal imprisonment is the hindrance of a person and preventing him from acting on his own, whether that is in a country, a house, a mosque, or a prison designated for punishment or otherwise. The evidence that imprisonment is a punishment from the Sharia is what has been narrated from Bahz ibn Hakim from his father from his grandfather: 'That the Prophet (peace and blessings be upon him) imprisoned a man on suspicion and then released him.' And from Abu Huraira: 'That the Prophet (peace and blessings be upon him) imprisoned someone on suspicion for a day and a night.' Imprisonment during the time of the Prophet (peace and blessings be upon him) was in a house or in a mosque, and the same was true during the time of Abu Bakr. There was no designated prison for adversaries. When it came to the time of Umar, he bought a house for Safwan ibn Umayyah for four thousand dirhams and made it a prison. Umar imprisoned al-Hutay'ah for slander, and he imprisoned Subay' for his questioning about al-Dhariyat, al-Mursalat, al-Nazi'at, and similar verses..." Thus, imprisonment was indeed practiced by the Messenger of Allah (peace and blessings be upon him). The establishment of a permanent prison is for the complete application of Islam as the number of Muslims increased and the territory of the Islamic state expanded, similar to the establishment of the diwan for the same reason. It is for the application of Islamic punishments. The same can be said about everything that is introduced for the sake of organization and the proper care of Muslim affairs, and the proper application of Islam, such as dating by the Hijra or otherwise. The same applies to modern means and inventions such as cars, airplanes, machines, factories, telephones, radios, televisions, and rockets... The original ruling regarding things is permissibility unless there is evidence of prohibition. Thus, traveling is permissible, and the means are permissible unless there is evidence of their prohibition. Therefore, it is permissible to ride a beast, a car, or an airplane, but it is not permissible to ride a pig, for example, not because it is unsuitable for that, but because the evidence has prohibited it, and its prohibition applies to all forms of benefit from it.
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(215) The System of Punishments, p. 162.


[Page 85]

H - The Inclusion of Craftsmen(216)

Al-Shatibi stated this, and among the modern scholars, al-Bouti mentioned it and attributed the practice to the Companions and the Followers based on public interest (maslaha). Some writers in the field of usul (principles of jurisprudence) have counted the inclusion of craftsmen as an example of istihsan (juridical preference). Al-Bouti mentioned that Abu Hanifa (may Allah be pleased with him) permits istisna (manufacturing) based on public interest, which is incorrect and indeed dismissive. For Abu Hanifa advocates istihsan and rejects public interest in the view of those who established it on its branches. Regardless, istisna is permissible and established by the Sunnah, not by public interest or istihsan. The Messenger of Allah (peace and blessings be upon him) had a ring made(217) and had a pulpit made. People used to have things made during the time of the Messenger of Allah (peace and blessings be upon him), and he remained silent about them, so his silence is an endorsement of istisna(218). As for the inclusion of craftsmen, the subject of the contract in the istisna process is what is made, such as a ring, a pulpit, a cabinet, a car, and so on. In this regard, it is akin to a sale. However, if a person brings raw materials to the craftsman and asks him to make something, then it becomes a matter of rental (ijara). Therefore, to determine the legal ruling regarding inclusion, one must consider the basis for its realization, whether it is akin to a sale or a rental, and then apply the relevant legal rulings. If it is a sale, the craftsman is liable. If it is a rental, there is no liability on the craftsman, as the Messenger of Allah (peace and blessings be upon him) said: "Whoever entrusts a trust, there is no liability upon him"(219). It was also reported from Ali (may Allah be pleased with him) that he said: "There is no liability on a shepherd or on a trustee"(220). If the craftsman is given the material to make something from it or with it, he is a trustee or an honest keeper, and the material with him is a trust whether it is fabric, wood, iron, or otherwise.

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(216) See page 64.
(217) Narrated by Anas: The Prophet (peace and blessings be upon him) made a ring. And from Sahl: The Messenger of Allah (peace and blessings be upon him) sent to a woman saying, "Tell your carpenter boy to make me some sticks to sit on." Both narrated by al-Bukhari.
(218) The Economic System in Islam, p. 144.
(219) Narrated by Abu Dawood.
(220) Al-Mabsut by al-Sarakhsi, vol. 11, p. 109.


[Page 86]

And among what has been reported from al-Shafi'i in al-Um (The Book of al-Shafi'i) is his statement(221): "The depositary (mustawda') is not liable unless he acts contrary to the agreement. If he does act contrary, he will not be released from liability except by returning the deposit to its owner, even if he returns it to the place where it was, because his initial handling of it was as a trustee, and he has moved beyond the limits of trust, and the owner of the property did not renew the trust with him." Al-Shafi'i (may Allah be pleased with him) does not find an excuse for those who consider the hired worker (sani') to be liable because it contradicts the hadith, unless he says, for example(222): "The trustworthy (amin) is one to whom you have given something willingly, trusting in his honesty, not one who is given a wage for anything of what you have entrusted to him. My giving this wage differentiates him from the trustworthy who took what he was entrusted with without compensation." The material, when given to the worker, is merely a deposit and nothing else, and the hadith applies to it. As for the wage given to the worker, it is not in exchange for the deposit of the raw material, but rather it is a wage for the work done on it. Therefore, there is no liability on the worker. However, if a person is given a wage for safeguarding the material or item, he is also not liable, because it is a deposit and he is a trustee, unless he is negligent, and the details of this matter are found in its places in the books of jurisprudence. If the deposit is entrusted to him with a wage on the condition that he is liable, then this condition of liability is invalid, because it is not in the Book of Allah, and every condition not found in the Book of Allah is invalid. This is contrary to the hadith that removes liability from the trustworthy. This condition makes the contract akin to insurance contracts, and all insurance contracts are prohibited by Sharia(223).
In summary, making artisans liable is not permissible. Advocating for it based on public interest (maslaha) or preference (istihsan) is abandoning the Sharia for personal whims. As for al-Bouti's statement(224): "The rationale for the public interest (in making artisans liable) is that people have a need for craftsmanship, and they often leave their belongings with others, while they are mostly unknown in terms of their craftsmanship and trustworthiness, and negligence and lack of care are prevalent among them. If they were not held liable, it would lead to one of two things: either a complete abandonment of craftsmanship, or they would work without being liable for anything, thus opening the door to lying, deceit, and embezzlement of funds. Therefore, the public interest lies in making them liable, and it is
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(221) Al-Um, vol. 3, p. 245.
(222) Al-Um, vol. 4, pp. 37-38.
(223) See The Economic System in Islam, p. 185.
(224) The Controls of Public Interest, p. 356.


[Page 87]

Public interest (maslaha), even if it does not rely on a specific evidence from the Sharia, does not contradict a text or a definitive proof within it." His statement here pertains to the hired craftsman, and his assertion that it does not contradict a text is incorrect. This is because it contradicts the hadith of the Prophet (peace and blessings be upon him): "Whoever entrusts a deposit and it perishes, he is not liable." As for his claim that not holding liable leads to abandoning the practice of manufacturing or opens the door to lying, deceit, and embezzlement, the response to this is that the Sharia ruling must be applied regardless of the outcomes perceived by minds. As for abandoning manufacturing, there is no harm in that if it results from the application of the Sharia, and it will then be the good and the interest. However, if it leads, according to his statement, to lying, deceit, and embezzlement, then the legislator did not legislate to prevent that by abandoning rulings, but rather legislated punishments that are derived from their sources. Moreover, I believe that holding craftsmen liable leads to their scarcity, which is a harm, while not holding them liable leads to their abundance, then to competition, then to price reduction, and to the flourishing of the industry. Industry is the backbone of nations today, so the interest lies in not holding them liable. Whose mind, then, would be the source for determining the interest upon which legislation is based?
It has been attributed to Ali ibn Abi Talib (may Allah be pleased with him) his statement regarding holding craftsmen liable: "People cannot be right except with that." This does not indicate his consideration of public interest (maslaha mursala). If this is established from him, it is understood in the context of sales. It has been narrated that Ali did not hold anyone among the hired workers liable. Here is what al-Bouti himself transmits from al-Shafi'i in al-Um(225): "He said in al-Um: (It may be narrated from a source that the scholars of hadith do not affirm that Ali ibn Abi Talib (may Allah be pleased with him) held the washer and dyer liable, and said: People cannot be right except with that. Ibrahim ibn Abi Yahya narrated this to us from Ja'far ibn Muhammad from his father that Ali (may Allah be pleased with him) said that, and it is narrated from Umar holding craftsmen liable from a weaker source than this, and we do not know of either of them being established. It has been narrated from Ali ibn Abi Talib that he did not hold anyone among the hired workers liable, and from a source that is not established like it)," then al-Bouti concludes with the statement(226): "What is transmitted by the generality of writers about Ali (may Allah be pleased with him) and others regarding holding craftsmen liable...
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(225) The limits of public interest, p. 356.
(226) The same source, p. 357.


[Page 88]

The reliance on the craftsmen is not sufficiently established to depend on it." But I do not know why al-Bouti relied on it in such a matter.
What we mentioned about al-Bouti two pages ago is almost quoted verbatim from al-Shatibi in al-I'tisam, but the detail that appears in al-Bouti makes his intent different from that of al-Shatibi. Al-Shatibi does not base the proof of liability on public interest (maslaha), but rather the public interest is the desired outcome, and the evidence is established from the Sharia, whether general or specific. Al-Shatibi says(227): "And in the hadith 'There should be neither harming nor reciprocating harm'(228) the principles testify to it(229) in general, for the Prophet (peace and blessings be upon him) prohibited a resident from selling to a nomad, and said: 'Let people earn their livelihood from one another'(230), and said: 'Do not throw goods until they are brought down to the market'(231). This is from the preference of public interest over private interest. Thus, the liability of craftsmen falls into that category. We can argue that the claim of liability based on evidence like that which al-Shatibi presented is not valid due to the existence of specific evidence regarding liability. Therefore, the liability of craftsmen is not permissible because it contradicts the Sharia as we have previously explained. In any case, there is no room in this matter to argue for unregulated public interests.

And the consensus of the companions of the Messenger of Allah (peace and blessings be upon him) after him on the punishment for the drinker of alcohol being eighty lashes is based on public interests(232).

This statement is flawed. For the punishment for the drinker of alcohol is established by the Sunnah, and the Messenger (peace and blessings be upon him) punished the drinker of alcohol. It is narrated from Anas that "the Prophet (peace and blessings be upon him) was brought a man who had drunk alcohol and he lashed him."
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(227) Al-I'tisam p. 7.
(228) Narrated by Ibn Majah.
(229) Meaning for liability.
(230) Narrated by Muslim, al-Tirmidhi, and others; the wording is from Muslim.
(231) Narrated by al-Bukhari and others.
(232) See p. 64.


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"With two palm fronds, about forty"(233). In a narration by al-Nasa'i, "the Prophet (peace and blessings be upon him) struck him with a sandal about forty times," and in a narration by Ahmad and al-Bayhaqi: "He commanded about twenty men, and each one struck him twice with the palm fronds and sandals." As for what has been narrated from Ali that he said: "The Prophet (peace and blessings be upon him) struck forty, and Abu Bakr struck forty, and Umar struck eighty, and each year"(234), it indicates that the punishment was carried out by the Messenger (peace and blessings be upon him) forty times, and the Companions carried it out forty and eighty times. This means that the minimum is forty and the maximum is eighty, which is left to the discretion of the imam. Therefore, it is not among the public interests (maslaha mursala). He did not legislate eighty for the sake of a benefit, but it was left to the caliph to impose forty or eighty. As for what Umar did, it is a matter of managing affairs, which is what the caliph is allowed to do according to his opinion and ijtihad. Moreover, is not the punishment of eighty indicative of the command of the Messenger (peace and blessings be upon him) to strike forty with two palm fronds? And likewise, when the Companions strike eighty, and none among them denies that, is this not a consensus among them? Thus, there is no room here to speak of public interests (maslaha mursala) at all(235).

Z- Umar ibn al-Khattab sharing with the governors whom he suspects regarding their wealth due to the mixing of their private funds with the funds they have benefited from the authority of governance(236).

This action does not indicate any inference based on public interest. For the Sharia has granted the caliph the authority to manage the affairs of the Muslims according to his opinion and ijtihad. He appoints governors, holds them accountable, dismisses them, spends from the public treasury based on his opinion and ijtihad, concludes treaties and breaks them, directs armies for jihad, and other matters that the Sharia has assigned to him. His actions as a caliph stem from the rights granted to him by the Sharia. If he specifies a benefit he desires, the actions he undertakes to achieve it are not permissible solely for that benefit; rather, they must be indicated by the Sharia.

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(233) Narrated by Muslim from Anas.
(234) Narrated by Muslim from the hadith of Hudhayfah ibn al-Mundhir regarding the punishment of al-Walid.
(235) And see a detailed discussion on this matter in the book "Nizam al-Uqubat" by Abdul Rahman al-Maliki.
(236) Refer to page 64.


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It is permissible. His action (may Allah be pleased with him) is from the perspective of holding the rulers accountable. This accountability was practiced by the Messenger of Allah (peace and blessings be upon him). Moreover, it is a form of advising the Muslims and striving in their counsel and caring for their affairs. He (peace and blessings be upon him) said: "There is no ruler who oversees the affairs of the Muslims and does not strive for them and advise them except that he will not enter Paradise with them"(237). Umar's (may Allah be pleased with him) sharing with the rulers is due to the mixing of their wealth with the public funds that they benefited from through their governance, so Umar (may Allah be pleased with him) took from them what they gained through their authority. This is similar to what the Messenger of Allah (peace and blessings be upon him) did with the one he appointed over the alms. The Messenger of Allah (peace and blessings be upon him) warned against touching public funds and emphasized this warning, and when he saw it from one of his governors, he admonished him and addressed the people regarding it. From Abu Hamid al-Sa'idi, the Prophet (peace and blessings be upon him) appointed Ibn al-Lutbiyah over the alms of Banu Sulaym, and when he came to the Messenger of Allah (peace and blessings be upon him), he held him accountable, saying: "This is for you, and this is a gift that was given to me." The Messenger of Allah (peace and blessings be upon him) said: "Why did you not sit in your father's and mother's house until your gift came to you if you are truthful?" Then the Messenger of Allah (peace and blessings be upon him) stood up and addressed the people, praising Allah and extolling Him, then said: "As for what follows, I appoint men from among you over matters that Allah has entrusted to me, and one of you may come and say, 'This is for you, and this is a gift that was given to me.' Why did he not sit in his father's and mother's house until his gift came to him if he is truthful? By Allah, no one of you will take anything unjustly except that he will come carrying it on the Day of Resurrection"(238). This is a metaphor for Allah holding him accountable and punishing him for his actions, and it is a severe warning against the ruler touching public funds in any way or under any pretext or fatwa. The Messenger of Allah (peace and blessings be upon him) reclaimed from anyone who was appointed over the affairs of the Muslims the wealth – which is the gift – that he received by virtue of his authority, so Umar's (may Allah be pleased with him) action is supported by the Sunnah.

H- It has been narrated that Umar poured out the adulterated milk and that this was an act based on public interest (maslaha mursala)(239).
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(237) Narrated by Muslim.
(238) Narrated by al-Bukhari in the Book of Judgments, and Muslim in the Book of Governance, and the wording is from al-Bukhari.
(239) See page 64.


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And this is also incorrect. The public interest (maslaha) is a result, and the action is evidenced by the Sunnah. This action of Umar (may Allah be pleased with him) falls under the category of market oversight (hisbah), and its evidence is the Sunnah. He (may Allah be pleased with him) used to inspect the market just as the Messenger of Allah (peace and blessings be upon him) did when "he saw a pile of wheat and extended his hand, and found it wet. He said to the owner of the pile: What is this? He replied: The sky has rained on us. He said: Make the wetness apparent so that people may know it"(240). Umar was performing hisbah to monitor the sellers, and when he saw adulterated milk, he punished the deceiver, and this punishment of pouring out his milk is a form of ta'zir, which is a punishment whose estimation is left to the imam or the judge, and he may determine it as he sees fit within the limits of the Sharia, and it is not a legal ruling evidenced by public interest.

As for Umar killing a group for the sake of one. And that he did this only based on public interest (maslaha mursala) since there is no text on the subject(241).

This also does not suffice to claim that the Companions (may Allah be pleased with them) relied on public interest (maslaha mursala). For the evidence of Umar's action here is analogy (qiyas). May Allah reward their father, those who claim that Umar sheds the blood of a group of people, even Muslims, without evidence from the Sharia. The difficult riddle here is what al-Bouti suggests, saying that the evidence for killing a group for the sake of one is found in the verses of retribution (the free for the free, the slave for the slave, and the female for the female)(242) and "And We ordained upon them therein a life for a life..."(243). And he says(244): "The verse of retribution indicates that a group is killed for the sake of one due to its specification of the rationale, and due to the complete presence of the rationale in each individual of the group separately. So how can it be said about this ruling that Umar enacted and which the majority of jurists agreed upon, except for the Zahiris and some Hanbalis: that it is a ruling opposed to the text? Indeed, how can some say that

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(240) Narrated by Muslim in the Book of Faith.
(241) See p. 64.
(242) Al-Baqarah/178.
(243) Al-Ma'idah/45.
(244) The Limits of Public Interest, p. 150.


[Page 92]

"Is his evidence الاستحسان (istihsan) or المصلحة المرسلة (maslaha mursala)?" This is his statement on page 150 of his book "Dawabit al-Maslahah". Then he says on page 357: "The fatwa of Umar regarding the killing of a group for the sake of one was of the nature of المصلحة المرسلة (maslaha mursala)." He – al-Bouti – brings this issue as an example of the Companions taking المصلحة المرسلة (maslaha mursala), stating(245): "However, this basis of interest does not have a specific text indicating it nor a witness from an original to be compared to, so it was of the nature of المصلحة المرسلة (maslaha mursala)." Indeed, how does he derive the ruling from the text and say(246): "What the researcher sees after careful consideration is that each of the two verses of retribution mentioned carries a clear indication of this ruling." Then he states what we mentioned above about the absence of a text or witness from an original for comparison? The difficult riddle is that he derives the ruling from the text, yet believes that Umar – who he is – relied on المصلحة المرسلة (maslaha mursala). Does he mean to say that he understood it and Umar did not?
The correct view is that the two verses do not indicate that a group can be killed for the act of one.
There is no doubt that a group can be killed for the act of one, based on the Sunnah, because the texts of the hadiths that discuss the punishment for a killer include both the individual and the group. The saying of the Messenger (peace and blessings be upon him): "Whoever is killed for a murder has two options: either to seek compensation or to have the killer executed"(247) includes the case where he was killed by one person or by a group.
It is narrated that Umar had doubts regarding the case of a murder in which seven participated, "So Ali said to him: O Commander of the Faithful, what if a group participated in a theft, would you cut off their hands? He said: Yes. He said: Likewise"(248). Therefore, if a group, two or more, participates in the killing of one person, they are all punished, and they are all to be killed, even if the victim is one(249).
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(245) The regulations of public interest (maslaha), p. 357.
(246) The same source, p. 149.
(247) Narrated by al-Bukhari.
(248) The narration is in al-Muwatta.
(249) See: The system of punishments by Abdul Rahman al-Maliki.


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Ibn Hazm says regarding this issue(250): "... Ibn Jurayj reported to me that Abdul Karim and Abu Bakr both said: 'Omar was uncertain about it until Ali said to him: O Commander of the Faithful, what if a group shared in stealing a camel, and this one took a part and that one took a part, would you cut off their hands?' He said: 'Yes.' Ali said: 'That is when neither is the root of the other, because the text has come regarding the killing of one who kills, just as it has come regarding the cutting off of one who steals, and neither of the two texts in the Qur'an is stronger than the other.' Allah, Exalted is He, said: {And there is for you in retaliation life}(251), and He said: {And the recompense of an evil deed is an evil one like it}(252), and He said: {As for the thief, the male and the female, amputate their hands}(253), and He did not specify in either case one who is alone from one who participates. If it were valid, it would only be that he objected to Omar's differing judgment and that he abandoned one of the texts and adhered to the other"(254). Ibn Hazm believes that the evidence is the text of the Qur'an, and here he intends to refute the argument of Omar's use of analogy (qiyas), as he does not consider it a proof. Whether the evidence in this matter is analogy or text, there is no way to claim that Omar (may Allah be pleased with him) relied on public interest (maslaha).

Y- The fact that Omar (may Allah be pleased with him) did not divide the lands that the Muslims conquered by force, which are the lands of Iraq, Syria, and Egypt(255). Bilal, Abdul Rahman, and Al-Zubair requested him to divide these lands that Allah had granted them by their swords, just as the Messenger of Allah (peace and blessings be upon him) divided the land of Khaybar among the fighters when he conquered it.

The Messenger of Allah (peace and blessings be upon him), after concluding the truce with Quraysh at Hudaybiyyah, attacked Khaybar and Allah granted him and the believers victory over it by force, and He made their land, homes, and wealth his. He divided the spoils and the lands after he
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(250) Al-Ihkam fi Usul al-Ahkam, vol. 7, p. 176.
(251) Al-Baqarah/ 179.
(252) Ash-Shura/ 40.
(253) Al-Ma'idah/ 38.
(254) Al-Ihkam fi Usul al-Ahkam, vol. 7, p. 176.
(255) Kitab al-Amwal by Abu Ubayd. See p. 64.


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One-fifth of it was allocated, and the lands were divided into one thousand eight hundred shares, divided into eighteen sections, each section comprising one hundred shares. Because the Messenger of Allah (peace and blessings be upon him) divided the lands of the conquered territory (anwa) in Khaybar among the Muslims, they requested Umar ibn al-Khattab (may Allah be pleased with him) to divide the land of al-Sawad among them. However, Umar refused to yield to the opinion of the Companions who were demanding the division of the land in this matter. In fact, it is reported that he said: "O Allah, suffice me with Bilal and his companions." He consulted the Ansar and the Muhajirun, and then said: "I saw that I should hold the lands with their inhabitants and impose a tax on them, and upon their necks is the jizya (poll tax) which they will pay, so it will be a spoils for the Muslims, the fighters and their offspring, and for those who come after them. Do you see that these frontiers must have men who will remain steadfast in them? Do you see that these great cities like Syria, al-Jazira, Kufa, Basra, and Egypt must be filled with armies and provisions for them? From where will these be provided if the lands and their inhabitants are divided?" Then he said: "And there is no one among the Muslims except that he has a right and share in this spoils." They agreed with him on his opinion and all said: "Your opinion is the best, and what you said and saw is good. If these frontiers and cities are not filled with men, and provisions are not provided for them, the people of disbelief will return to their cities...". Some of the Companions, such as Bilal, Abdur-Rahman ibn Awf, and al-Zubair, argued with Umar (may Allah be pleased with him) and all the Companions regarding the action of the Messenger of Allah (peace and blessings be upon him) in dividing the land of the conquered territory in Khaybar. However, Umar saw that the situation had changed, that there were soldiers enlisted, and that there were many Muslims who did not attend the battle and were not among the fighters, and they had descendants. All of this required substantial funds and large expenses, so he believed that the interest of the Muslims necessitated holding these lands and not dividing them among the warriors, but rather keeping them under the control of their inhabitants, imposing a tax on them, and spending its revenue on the Muslims. He consulted the Companions on this, and they agreed with him, saying: "Your opinion is the best."
This issue, as I have mentioned above, occurred regarding the lands of the conquered territory in Iraq, Syria, and Egypt. Some contemporary authors of usul (principles of jurisprudence) dare to portray that Umar (may Allah be pleased with him) and the Companions with him abandoned what the Messenger of Allah (peace and blessings be upon him) had clarified under the pretext of public interest (maslaha). They then say that Umar's action
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[Page 95]

It indicates the permissibility of abandoning the ruling of the Sharia for the sake of public interest (maslaha). The support of the Companions for Umar becomes a consensus on the permissibility of abandoning the Sharia for the sake of public interest. This type of understanding is barren and flawed. The reality of the matter is that the spoils of war (anfal), the gains (ghanimah), and the revenue (fay') are matters entrusted to the imam, who acts according to his opinion based on the interest of the Muslims. The land of the black soil (Ard al-Sawad) in Iraq, Sham, and Egypt is a matter entrusted to the caliph; if he wishes, he can divide it and distribute it, and if he wishes, he can withhold it. Thus, the action is originally permissible according to the evidence of the Sharia, not based on the argument of public interest, rather the public interest or what is better is the desired outcome through the choice among the permissible actions. Then, when Umar (may Allah be pleased with him) consulted the Companions and sought their opinions, he presented his view and supported his action with the following verses: {What Allah has given as booty to His Messenger from the people of the towns, it is for Allah and for the Messenger and for [his] near relatives and the orphans, the needy, and the traveler, so that it will not be a perpetual distribution among the rich among you. And whatever the Messenger has given you - take it; and what he has forbidden you - refrain from it. And fear Allah; indeed, Allah is severe in penalty} {7} {For the poor emigrants who were expelled from their homes and their properties, seeking bounty from Allah and [His] pleasure and supporting Allah and His Messenger. Those are the truly righteous} {8} {And [also for] those who were settled in the abode and [in faith] before them. They love those who emigrated to them and find not in their chests any need of what they were given, but give [them] preference over themselves, even though they are in privation. And whoever is protected from the stinginess of his soul - it is those who will be the successful} {9} {And those who came after them say, "Our Lord, forgive us and our brothers who preceded us in faith and put not in our hearts any resentment toward those who have believed. Our Lord, indeed You are Kind and Merciful"} {10}. Then he said: "This verse encompasses all Muslims in general – referring to His saying: {And those who came after them} – and if I live, the shepherd will come, and he will receive his share from it without having sweated for it".
Thus, Umar ibn al-Khattab (may Allah be pleased with him) used the Quran to justify his action, and he chose a permissible action from among several permissible actions, but he selected what was better because he is the caliph of the Muslims, and it is obligatory upon him to advise them. The evidence for the permissibility of the action and the permissibility of other actions is the action of the Messenger (peace and blessings be upon him), for he divided the land in Khaybar among the fighters. However, before that, when he opened the land of Banu al-Nadir, he did not divide the land.
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And he divided what was besides it among the early emigrants (muhajirin) without the helpers (ansar) except for two men among them. And in the Battle of Hunayn, after the conquest of Mecca, the Messenger (peace and blessings be upon him) divided the wealth and pardoned the captives. The actions of the Messenger (peace and blessings be upon him) indicate that the matter of land, wealth, and captives is entrusted to the caliph, who manages it in a way that he sees as beneficial for Islam, that is, in a manner that aids and affirms the application of Islam within the Islamic state, and carries the call through jihad to other nations and peoples; thus, this action does not involve reasoning based on public interest (maslaha), but rather aims to achieve the interests of Muslims through permissible actions. Therefore, the action of the Commander of the Faithful, Umar ibn al-Khattab, is not from the category of unregulated public interests (masalih mursala) in any way.
K- The last example that we mention here, which is from the works of the successors (tabi'in), indicates that a number of the rulings made by Umar ibn Abd al-Aziz included his instruction to the governors to establish inns along the road to Khurasan(259).
This is also not a matter of public interest (maslaha murasala), but rather it pertains to taking care of the affairs of Muslims and advising them. This is something that the Sharia has established with evidence from the Sharia itself, and not from public interest (maslaha murasala). We have discussed this sufficiently when we talked about Umar's establishment of the diwan and his accountability of the governors(260).
Thus, all the incidents narrated about the Companions (may Allah be pleased with them) do not contain any evidence based on public interest (maslaha mursala), but rather they are based on legal proofs.
The evidence that public interests (maslaha) are not a legal proof

If the argument based on the evidence they presented for the validity of public interests (maslaha) is rejected, this alone is sufficient to refute them and not to consider them. Nevertheless, they are invalid for several reasons.
__________
(259) See page 65 of this research.
(260) See pages 89-90 of this research.


[Page 97]

The legal proofs (adillah shar'iyyah) are from the roots, and it is a condition for them to be definitive (qat'i). The public interest (maslaha mursala) is a delusive proof, and at best, it is speculative (dhanni). Therefore, it is not correct to consider public interest as a proof. As for the claim that it is a proof but not a foundational source in itself, or that it is not equivalent to the Qur'an, the Sunnah, consensus (ijma), and analogy (qiyas), but rather refers back to the four sources, then - if this claim is valid - the proof would be the source to which it referred.
The public interest is rejected in terms of its definition, that is, in terms of it being "mursala" (unrestricted), as its being "mursala" means it is sent from the proof. By its definition, there is no proof for it. Thus, there remains no reason for consideration except for whims or the judgment of reason. This is not part of the religion. Making the Sharia as a whole a rejected proof is invalid. For the Sharia as a whole does not have a specific meaning that it indicates.
It is not known from the legislator (al-shari') that he preserved the intended purpose by every means. Rather, he specified a path that must be adhered to. When we recognized, for example, that one of the objectives of the Sharia is the preservation of the intellect, we did not know the method of that preservation through reason. Rather, we recognized it from the Sharia, and the Sharia constrained us by its method. We originally did not know the objective except through the legislated rulings. And consider what we have cited from Ibn Qudamah al-Maqdisi on page 72.
The claim of public interest contradicts the definition of the legal ruling. It is the address of the legislator concerning the actions of the servants, and if there is no address, then there is no legal ruling. We are commanded to follow the Sharia only. Allah, Exalted is He, said: “Follow what has been revealed to you from your Lord”(261).
And He said: “And whatever the Messenger has given you, take it; and what he has forbidden you, refrain from it”(262).
__________
(261) Al-A'raf/ 3.
(262) Al-Hashr/ 7.


[Page 98]

The estimation that a certain matter is in the public interest (maslaha) is dependent on reason, and human intellects vary; their judgments are not considered Sharia, whether they are correct or incorrect. To deem an action as Sharia-compliant simply because it is seen as beneficial by reason is to grant reason a role in determining what is good and bad, which contradicts the sovereignty of Allah alone: “The judgment is for none but Allah”(263).
There are many texts that prohibit following public interest (maslaha) because it is based on desire and opinion. For example, His saying, Exalted is He: “And know that among you is the Messenger of Allah; if he were to obey you in much of what you command, you would surely be in trouble”(264). And He said: “And if you disagree about anything, refer it to Allah and the Messenger”(265). And He said: “And it is not for a believing man or a believing woman, when Allah and His Messenger have decreed a matter, that they should have any choice in their affair”(266). And He said: “But no! By your Lord, they will not believe until they make you judge concerning that over which they dispute among themselves and then find within themselves no discomfort from what you have judged and submit in [full, willing] submission”(267). And He said: “Fighting has been enjoined upon you while it is hateful to you, and perhaps you hate a thing and it is good for you, and perhaps you love a thing and it is bad for you; and Allah knows, while you do not know”(268). Making public interest (maslaha) a proof is not a reference to Allah or to the Messenger, nor is it a judgment by the Messenger (peace and blessings be upon him) or acceptance of his ruling. And His saying, Exalted is He: “And Allah knows, while you do not know” is a response to those who use public interest (maslaha) as evidence, for He, Exalted is He, says that He alone knows what is in the interest, goodness, justice, guidance, and truth, while they do not know that. Likewise, the saying of the Companion (may Allah be pleased with him) when the Prophet (peace and blessings be upon him) prohibited him from engaging in contracts of sharecropping or leasing: “The Messenger of Allah (peace and blessings be upon him) prohibited us from something that was beneficial to us, but obeying the Messenger of Allah is more beneficial for us”(269) is a refutation of those who place the Sharia where there is public interest (maslaha).
__________
(263) Al-An'am 57, Yusuf 40, 67.
(264) Al-Hujurat 7.
(265) An-Nisa 59.
(266) Al-Ahzab 36.
(267) An-Nisa 65.
(268) Al-Baqarah 216.
(269) Narrated by al-Bukhari from Rafi' ibn Khadij.


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The religion is complete by the text of the Qur'an. The sources of our religion are all that was revealed from Allah to the Prophet Muhammad (peace and blessings be upon him) as legislation for us. The estimation of public interests (maslaha) is not revelation, so making the unregulated interests (masalih mursala) a source is legislation without revelation. The claim that these actions taken based on public interest have not been legislated by the Sharia implies that the Sharia is incomplete. This contradicts His saying, Exalted is He: “Today I have completed for you your religion” {اليوم أكملت لكم دينكم}(270). And His saying: “We have not neglected in the Book anything” {ما فرطنا في الكتاب من شيء}(271). There is an intervention here, as some may say: These actions that we take based on public interest are indicated by the Sharia to be permissible through a general or comprehensive evidence, and the response is that if the Sharia indicates their permissibility, then they are not unregulated at that point, and they are taken based on the evidence that permitted them, not merely based on being a public interest.
__________
(270) Al-Ma'idah/3.
(271) Al-An'am/38.


[Page 100]

Chapter Four

What Did the Scholars Mean by Public Interests (Masalih)

The Opinion of Imam al-Shatibi
The Opinion of Imam al-Qarafi
The Opinion of a Group of Contemporary Scholars
The Opinion of Imam Izz al-Din ibn Abd al-Salam
The Opinion of Imam al-Ghazali

Refuting Two Doubts
The First Doubt: That there are recognized interests, nullified interests, and interests that are neither recognized nor nullified.
The Second Doubt: Restricting the interest so that it does not contradict a text, consensus, or analogy.


[Page 101]

What did the scholars mean by "public interest" (maslaha)?

We have discussed public interest (maslaha) as a source of legislation and demonstrated with evidence that it does not stand on its own as proof. We have refuted with evidence and argument all that those who advocate for public interest have imagined to be proof of its validity. The impetus for this discussion was the widespread notion among some of the later scholars of usul (principles of jurisprudence) that public interest is a legislative source, and that public interest serves as evidence for legal rulings. Wherever there is public interest, there is the law of Allah, and the principles derived from this have been established as legal principles, whereas they are nothing but the establishment of public interest as a religion. In fact, some of the later scholars resort to the writings of the imams and the predecessors, extracting texts or fatwas and presenting them to us in meanings other than those intended by the imams. Therefore, it is necessary to warn against the ideas of these individuals, who confuse Muslims regarding the rulings of their religion, and make public interest a grand title through which they seek to free themselves from the constraints and rulings of religion. Thus, it was essential to refute their arguments and claims, and clarify the truth in this matter. Consequently, we have clarified the position of the scholars regarding public interest, and since al-Shatibi and al-Qarafi have endorsed it, it is necessary to explain the true meaning of their endorsement of public interest.

-Upon closer examination, it becomes clear that no one has claimed that public interest serves as evidence for action—anyone who attributes such a statement to someone is required to provide evidence without distortion or misrepresentation. Those who have spoken in favor of public interest merely intended that a person may choose within the realm of permissible actions according to their own interest or benefit or what is most suitable for them, and there is no harm in this. They have discussed the means and methods that were present during the time of the Messenger (peace and blessings be upon him). The means are subject to the principle of original permissibility, which is: the default ruling of things is permissibility unless there is evidence of prohibition. The methods depend on the action intended to be performed and the available or possible means for it. Thus, the methods can vary, change, and develop according to the variety, change, and development of the possible means. If the means are permissible, and the action intended to be performed is permissible, then the methods will take on the ruling of permissibility or the ruling of


[Page 102]

The action in detail is not what we are addressing here. As an example for clarification: we take jihad as an example; it is an obligation, and it has means, including the sword, spear, shield, and horse, as well as the tank, airplane, cannon, and others. All of these are permissible things in combat. The use of the sword and spear and similar weapons necessitates combat methods that differ from those required by modern weapons. Likewise, the transmission of news, which used to rely on humans and horses or on pigeons, has changed; the means have transformed and the methods have evolved, so that news is now transmitted via telephone, fax, or others. These methods are governed by the same ruling as the means or the ruling of the commanded action, provided there is no other method. Another example is the election of the caliph, which may occur through consulting the people of authority and resolution (ahl al-hall wa al-aqd), or through consulting the entire community; whichever method is used, it is permissible as long as it expresses the consent and choice of the community. The opinion of the people may be gathered through someone who collects their views, or by raising hands to determine the majority, or through secret ballot boxes. All of these are methods, and they are permissible if the action conducted through them is permissible, and the means used are not prohibited.
However, if the term "public interest" (maslaha) refers to the existence of a legislative source such as the Qur'an, the Sunnah, the consensus of the Companions, and analogy (qiyas), then this cannot be established in any case. Rather, it is acceptable if it refers to new means and innovative methods, for which there is evidence in the sources of legislation indicating them or their origin, that is, what they are considered a branch of.


[Page 103]

The opinion of Imam al-Shatibi

He, may Allah have mercy on him, said in al-I'tisam(272): "The essence of the unregulated interests (masalih mursala) returns to preserving a necessary matter and alleviating a necessary hardship in religion. Also, its reference is to preserving the necessary from the perspective of 'what is not completed without it...' Thus, it is a means and not an objective, and its return to alleviating hardship pertains to easing, not tightening." So, the statement of Imam al-Shatibi: "a means" clarifies what we have stated, and his statement: "not an objective" is a response to anyone who claims that the existence of something as an interest is evidence of its permissibility. For the objectives are the results of actions, and the ruling of actions is from the Sharia, but the means to the action is what is taken based on the unregulated interest.

Al-Shatibi believes that the inference from interest regarding a means should be in the case of the absence of a text on that means, and the absence of analogy (qiyas) as well. He said(273): "The unregulated interests refer to considering the appropriate that does not have a specific origin supporting it, so it does not have a specific legal witness, nor is it an analogy such that if presented to minds, it would be accepted." Here, the importance of his statement "specific legal witness" appears, meaning that this means or method does not have a specific text, otherwise it would not fall under the unregulated interests, and also that there is no analogy indicating that means or method. He also said(274): "As for it being in the necessary matters as a means and 'what is not completed without it,' if it is stipulated, then it is a legal condition, and thus it has no place in this regard, because the text of the legislator has relieved us from considering it. If it is not stipulated, then it is either rational or customary, and it is not necessary for it to be legal. Likewise, it is not necessary for it to be in a known manner." Thus, it becomes clear from what he said that the unregulated interest is a means or method.
__________
(272) Al-I'tisam, vol. 2, p. 78.
(273) Al-I'tisam, vol. 2, p. 65.
(274) Al-I'tisam, vol. 2, p. 78.


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There is no specific or particular text that indicates this, but there is a general principle or comprehensive evidence under which the means or methods fall. It divides them into two categories: entities and actions. The entities are means to which the ruling of the original principle in things applies. The actions are methods that are subject to the rule that what is necessary for the completion of an obligation is itself obligatory.
And his statement: "And if it is not stipulated, then it is either rational or customary, so it does not have to be legal" refers to the fact that the ruling based on public interest (maslaha) may have its evidence in "what is necessary for the completion of an obligation is itself obligatory," and this is a necessary principle in both legal and non-legal matters. The public interest (maslaha mursala) according to al-Shatibi does not mean that it is unrestrictedly sent forth, but rather that it refers to means or methods that are derived from a specific evidence or particular proof that directly indicates this detail, but they are not derived from a general evidence or comprehensive proof under which they fall. He stated in al-Muwafaqat(275): "Every legal principle that does not have a specific text supporting it, and is compatible with the actions of the Sharia and whose meaning is taken from its evidences, is valid and can be relied upon if that principle has become certain through its collective evidences. Because the evidences do not have to indicate certainty in the ruling by themselves without the addition of others to them, as previously mentioned, because that is nearly impossible, and this includes a type of unrestricted reasoning..."
What reinforces this meaning of public interests (masalih mursala) according to al-Shatibi is his statement(276): "If we were to assume the preservation of the Qur'an and knowledge without books, that would be valid, and likewise, all other necessary interests can be preserved." For the writing of the mushaf and the writing of knowledge, such as hadith and jurisprudence, are among the necessary methods for preserving the Qur'an and preserving knowledge. If we were to assume that the preservation of the Qur'an and knowledge is possible through a method other than writing, that would be acceptable legally. It is as if al-Shatibi is saying: the preservation of the Qur'an and the preservation of knowledge is an obligation, and it is necessary to adopt the required method for that, even if there is no specific evidence stipulated for it. The absence of a specific text makes that method a public interest (maslaha mursala), and if there is only one method, then that method is obligatory based on "what is necessary for the completion of an obligation is itself obligatory," and if there are multiple methods, then any one of them that is adopted is valid.
__________
(275) Al-Muwafaqat, vol. 1, p. 15.
(276) Al-I'tisam, p. 78.


[Page 105]

And to further emphasize and clarify, consider his statement in the same text(277): "Just as if we were to assume the existence of the public interest (maslaha) of the supreme imamate without an imam, on the condition that there is no text regarding it, that would be valid, as would other necessary interests." He believes that the premise of the existence of a caliph is indicated by the text, and it is supported by the principle that what is necessary for the fulfillment of an obligation is itself an obligation. As for the principle, it is because Islam cannot be implemented without a caliph, and since implementing Islam is an obligation, the existence of a caliph is also an obligation. Al-Shatibi's view is that if there were no text on the obligation of the caliphate, the obligation would be to implement Islam and to implement any necessary matter for it. If the implementation of Islam were possible without the existence of a caliph, that is, through another means, then what is required by Sharia according to the principle (what is necessary for the fulfillment of an obligation...) would be one of two things: either the existence of a caliph or that means, and then the appointment of a caliph or that means would be a public interest (maslaha mursala). This is in the case where there is no text on the imamate.
Al-Shatibi does not see that the public interest is what is determined by reason; rather, the public interest is the action commanded by the legislator. If we know that an action is commanded by the legislator, we then know that it is a public interest, and likewise, we know that what leads to it is also a public interest. The same applies to corruption (mafsada); the public interest is what the Sharia has deemed to be a public interest, not what the intellect, desires, or self inclines towards. He says: "The public interests established by Sharia and the evils repelled are only considered in terms of how this life supports the afterlife, not in terms of the whims of souls in seeking their ordinary interests or repelling their ordinary evils." He supports this with several points, of which I will mention one. He says: "The Sharia has come to free the obligated from the inclinations of their desires so that they may be servants of Allah. This meaning, if established, cannot coexist with the assumption that the establishment of Sharia is in accordance with the whims of souls and the pursuit of their immediate benefits, whatever they may be. And our Lord, Exalted is He, said: {And if the truth had followed their desires, the heavens and the earth and whoever is in them would have been corrupted}(278).
__________
(277) Al-I'tisam, vol. 2, p. 78.
(278) Refer to Ruh al-Ma'ani by al-Alusi and see the rest of the verse.


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From this, we understand what al-Shatibi means by public interest (maslaha), and this is the meaning that the imams and scholars from the early generations intended when they spoke about bringing about benefits and averting harms, and when they established the jurisprudential principles regarding that. This is not like what some contemporary scholars say to justify modern fatwas and to permit some of what Allah has prohibited, taking the benefits as they perceive them with their minds as a source of legislation.
Al-Shatibi elaborated and discussed in his book al-I'tisam ten examples of public interests (masalih mursala) that confirm for us the meaning of public interests as he mentioned. These are the examples:
The compilation and copying of the Qur'an. He said regarding it(279): "For this relates to the preservation of the Sharia, and the command to preserve it is known, and to prevent the means to disagreement in its origin, which is the Qur'an, and it is known that there is a prohibition against disagreement in that with no further elaboration."
The consensus of the Companions on the punishment for the drunkard being eighty lashes. This, in his view, is established by the consensus of the Companions, and the reason for its transmission is that there is no specific text regarding a certain number, but the Companions have agreed on what is best in a permissible matter, relying on the fact that the Sharia establishes causes in some instances in place of the effects(280).
Liability of craftsmen. Regardless of whether the liability of craftsmen is permissible or prohibited, al-Shatibi's statement regarding liability relates to the principle that what is necessary for fulfilling an obligation is itself an obligation. Through these examples, his applications of public interests become apparent, and in this meaning, there is nothing in them, nor are they considered a source of legislation. Likewise, his position is clarified through the rest of his examples, which are:
Punishing the accused.
Imposing taxes.
Punishment by taking wealth for certain offenses.

__________
(279) Al-I'tisam, vol. 2, p.
(280) The same source, vol. 2, p.


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The increase beyond the limit of necessity is forbidden if the forbidden encompasses the land.
The killing of a group by one individual.
The appointment of the most suitable imam from among those who are not mujtahid (jurisprudents) if the time is devoid of a mujtahid.
The pledge of allegiance to the lesser (mufdool) in the presence of the better (afdal).

And in what we have presented from al-Shatibi (may Allah have mercy on him), there is enough to clarify that he did not make public interest (maslaha) a door among the doors of legislation.


[Page 108]

The opinion of Imam al-Qarafi

As for what al-Qarafi has stated, it indicates that he did not intend by the public interest (maslaha) anything far removed from what al-Shatibi intended, and that he did not aim to make public interest a source of legislation. Those who rejected public interest did so as a principle among the foundational principles or as a legal ruling that has no evidence whatsoever, neither partial nor general, as is understood from the term "public". Due to the difference in the meaning of public interest between its rejecters and its proponents, it is necessary to investigate this matter. Al-Qarafi finds it strange that the view of the public interest is attributed to Malik and the Malikis, while it is rejected by others, whereas, in reality, everyone agrees with it—according to his opinion. He says(281): "What is unknown is the public interest, which we affirm, and upon investigation, it is general among the schools of thought." He said(282): "And it is, according to Malik, a proof." He said(283): "As for public interest, it is reported that it is specific to us, and if the schools of thought are lacking, they find that when they make analogies and distinguish between the two issues, they do not seek a witness by way of consideration for that meaning by which they gathered and distinguished, but rather they suffice with the mere analogy, and this is public interest, so it is then present in all schools of thought." He provided examples of public interest from the actions of the Companions (may Allah be pleased with them), expressing his astonishment that the Malikis are denied the right to speak of it, rather he said that those who denied it took it into account. This indicates the difference in the meaning he intends from the meaning that they denied. He said(284): "It has been previously established that public interest is present in all schools of thought upon investigation because they make analogies and distinguish by means of analogies and do not seek a witness by way of consideration, and we do not mean by public interest anything other than that. What further confirms the practice of public interest is that the Companions (may Allah be pleased with them) undertook matters for the sake of pure public interest without a prior witness by way of consideration, such as the compilation of the Qur'an, for which there was no prior command or analogy, and the appointment of the caliphate.

__________

(281) Sharh Tanqih al-Fusul, p. 394.
(282) The same source, p. 446.
(283) The same source, p. 394.
(284) The same source, pp. 446-447.


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From Abu Bakr to Umar (may Allah be pleased with them), there was no prior command or precedent in this matter, and likewise, the caliphate was left to consultation (shura), the recording of accounts (dawawin), the minting of currency for the Muslims, and the establishment of prisons were actions taken by Umar (may Allah be pleased with him). The demolition of the endowments (awqaf) adjacent to the Mosque of the Messenger of Allah (peace and blessings be upon him) and the expansion of the mosque when it became cramped was done by Uthman (may Allah be pleased with him). The renewal of the call to prayer (adhan) on Friday in the marketplace, which is the first adhan, was also done by Uthman (may Allah be pleased with him), and this is very much in line with absolute public interest (maslaha). The Imam of the Two Holy Sanctuaries (Imam al-Haramayn) has addressed matters in his book titled al-Ghayathi, permitting them and issuing fatwas on them, while the Malikis have distanced themselves from them and have bridged over them, stating them for absolute public interest. Likewise, al-Ghazali in al-Shifa al-Ghalil, although both of them strongly denied our stance on public interest (maslaha mursala).
We know that those who rejected public interests (masalih mursala) did so on the grounds that they lack specific or general evidence, whether partial or total. Al-Qarafi's statement that they acted upon them, along with the examples he provided, indicates that he means by "mursala" that it is unbound from specific evidence for that very action and not from general or total evidence. Precisely, it is for him a matter that the intellect understands to be subject to general or total evidence, thus falling under that evidence without there being specific evidence for it. The evidence by consideration that al-Qarafi speaks of is what attests to the intellect's correctness in understanding or judging that matter to fall under that evidence. In this sense, his statement about its existence in all schools of thought is valid; in fact, this is inevitable. If every ruling required the intellect to have evidence, no ruling would be established in this world, and certainty in the foundation of religion would not exist.
Thus, there is no basis for anyone to attribute to these two imams their stance on public interest as a source of legislation, or that the presence of public interest in an action indicates its permissibility. A further examination of al-Qarafi's statements or their statements confirms this meaning, so there is no need for lengthy elaboration.


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The opinion of a group of contemporary scholars

A large number of our contemporary scholars have gone to the view that the term "public interest (maslaha) that is not explicitly mentioned" is a name that some scholars of the principles of Sharia have sometimes used to refer to the means and methods by which legislative rulings are implemented, and this reinforces the understanding we have presented regarding the imams' views on public interest that is not explicitly mentioned.
This opinion has become clear in the memorandum submitted by a crowd of scholars from the Kingdom of Saudi Arabia to King Fahd under the name "Memorandum of Advice," which was published in 1993. I will mention here some excerpts from what the magazine reported and what was included in the memorandum to clarify the scholars' opinions and the content of the opinion.
The magazine stated: "... the materials or procedural rulings, and these are the materials that stipulate rulings related to material means and methods by which legislative rulings are implemented, which is what scholars of the principles of Sharia have sometimes referred to as public interest that is not explicitly mentioned." The scholars then provided examples of public interest that is not explicitly mentioned. The memorandum stated: "For example: the collection of zakat on specific funds, determining who is obligated to pay it, and distributing it to specific categories of people, all of this is considered legislative rulings since the ruling of the obligation to collect zakat by the state, and not giving it to those who are not entitled, and the conditions of zakat such as the amount and the reason for it, and what prevents its payment from debts and so forth, all of this is considered legislative rulings for the actions of those obligated by duty or status. As for the means used to carry out this legislative ruling, such as transportation methods, written or magnetic records, and how the collectors connect with the people, either by going to them or inviting them to pay their zakat to the zakat department by writing to them via registered mail, and the period during which this occurs, whether at the beginning, middle, or end of the year, all of these matters are considered procedural rulings related to the method and means of implementing this legislative ruling. As an example

__________


[Page 111]

The last point is that the participation of people in public roads and utilities and the allowance of the right to benefit from them by traveling on them, as well as the prohibition of the exclusivity of one person over another in this regard, are considered legislative rulings. As for organizing the implementation of these rulings through various means and methods such as sidewalks, traffic signs and signals, and the procedural steps necessary to verify the eligibility to drive vehicles on them, all of this is considered procedural rulings.
Thus, it is understood from the memorandum that public interest (maslaha) is not a legislative source according to the scholars who accept it, but rather it is the means and methods necessary for implementing the legal rulings. The memorandum also stated(286): "Legislative rulings must be derived from the evidence of the Sharia, and it is prohibited to take them from other sources."
It also stated(287): "The Book indicates that the material means in existence are permissible to benefit from, as they have been made subservient by Allah, Exalted is He, to His creation and as a favor upon them. Allah, Exalted is He, said: {He is the One who created all that is in the earth}. The Sunnah and the actions of the rightly guided caliphs also indicate that procedural rulings and purely worldly rulings are generally permissible unless there is specific evidence prohibiting any of them, such as what was established in the hadith regarding pollinating the date palms, in which he (peace and blessings be upon him) said: "You know best about your worldly affairs," and the digging of the trench, which was inspired by the Persians as a defensive policy, and some of the Companions learning the craft of catapults and using them, and Umar (may Allah be pleased with him) using the diwan inspired by non-Muslims to organize matters of grants procedurally, among other examples. Therefore, whenever it is established that a ruling is procedural, any means or method by which the legislative ruling derived from the evidence of the Sharia is implemented may be adopted, provided it achieves the objectives in the best manner, while ensuring the simplification of procedures and facilitating them, and being gentle with the people when enacting them if they pertain to the state. These means and procedures are what the scholars of the principles of Sharia sometimes refer to as public interest (maslaha) considering that there is no specific evidence for them, but they fall under the general legislative ruling, which is a means and method for its implementation."
__________
(286) The same source, p. 29.
(287) The same source, p. 29.


[Page 112]

The opinion of Imam Izz al-Din ibn Abd al-Salam

Imam Izz al-Din ibn Abd al-Salam rejects legislation based on public interest (maslaha) that is not explicitly established. For him, public interest is defined by legal rulings. He states(288): "Most of the interests and harms of this world are known by reason," then he says(289): "There is no comparison between the interests and harms of this world and those of the Hereafter," and then he says(290): "As for the interests and causes of both worlds and their harms, they can only be known through the Sharia." Therefore, his conclusion is that interests and harms can only be known through the Sharia, because the interests and harms of this world, that is, interests based on personal desire or rational determination, are insignificant compared to the interests and harms of the Hereafter. The interests and harms of the Hereafter can only be known through transmission. Thus, the interest is what the Sharia commands, and the harm is what the Sharia prohibits. This is the ultimate statement regarding the non-recognition of public interest as a source or foundation for legislation. This clarifies that his use of the term public interest does not indicate interests based on opinion, desire, or reason; rather, for him, public interest is the legal ruling and what the legal ruling necessitates. In fact, if matters are left to reason, it may determine interests or harms that are contrary to what is established in the Sharia, and consideration is only for the Sharia. Therefore, you will not find any importance in his view in labeling something as harm or interest; rather, some things that the Sharia commands he may label as harm, and some things that the Sharia prohibits he may label as interest. For example, he states(291): "Sometimes the causes of interests are harms, and they may be commanded or permitted not because they are harms but because they lead to interests, such as cutting off the hands of those who steal to preserve lives, and risking lives in jihad. Likewise, all legal punishments are not sought because they are harms but because they are intended by their legislation, such as cutting off the hand of the thief, executing the highway robber, killing the criminals, stoning the adulterers, and exiling them, as well as the discretionary punishments. All of these

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(288) The Principles of Rulings in the Interests of Mankind, p. 13.
(289) The same source, p. 14.
(290) The same source, p. 13.
(291) The same source, p. 14.


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The evils that the Sharia has mandated to achieve the genuine benefits associated with them, and its naming as benefits is a metaphorical expression of naming the cause by the name of the effect."
And he says(292): "Perhaps the causes of evils are benefits that the Sharia has prohibited, not because they are benefits, but because they lead to evils, such as the pursuit of forbidden pleasures, doubts, and disliked matters while neglecting the hardships of obligatory and recommended acts. These are benefits that have been prohibited not because they are benefits, but because they lead to genuine evils, and their being called evils is a metaphorical expression of naming the cause by the name of the effect."
Thus, for him, benefits are what the Sharia has requested or what is necessitated by what the Sharia has requested. Evils are what the Sharia has prohibited or what is necessitated by that prohibition. If the benefit has not been established by the Sharia, he rejects it. Therefore, he advocates for istihsan (juridical preference) and rejects masalih mursala (unrestricted benefits). He says(293): "The uniqueness of God in obedience is due to His exclusive bestowal of the blessings of creation, preservation, sustenance, and religious and worldly reform. There is no good except that He brings it, and there is no harm except that He removes it. None of the servants is more deserving of obedience than another, as none of them has any favor in relation to God regarding what I have mentioned. Likewise, there is no judgment except His; His rulings are derived from the Book, the Sunnah, consensus, sound analogies, and valid proofs. Therefore, no one has the right to exercise istihsan or to employ masalih mursala, nor to imitate anyone who has not been commanded to be imitated, like a mujtahid (juridical scholar) imitating another mujtahid or imitating the Companions. In these matters, there is disagreement among scholars, and it is a refutation against those who oppose his statement, Exalted is He: 'The judgment is only for Allah; He has commanded that you not worship except Him'(294)."
In these statements that we have cited from Imam Izz al-Din ibn Abd al-Salam, there is enough to refute any distortion of his words.
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(292) The same source, p. 14.
(293) The same source, p. 304.
(294) Yusuf/40.


[Page 114]

The Opinion of Imam al-Ghazali

Imam al-Ghazali's understanding of public interest (maslaha) aligns with that of Imam Izz al-Din ibn Abd al-Salam. He does not see public interest as what is deemed beneficial by reason or humanity; he states: "As for public interest, it is originally about bringing benefit or averting harm, and we do not mean that. For bringing benefit and averting harm are the objectives of creation and the welfare of creation in achieving their objectives, but we mean by public interest the preservation of the objectives of the Sharia, and the objectives of the Sharia concerning creation are five: to preserve their religion, their lives, their intellect, their lineage, and their wealth"(295).

He rejects istislah (the practice of deriving legal rulings based on public interest) as a source, categorizing it under the title: "Clarification that there are things thought to be among the sources of evidence, but are not, and they are also four: the law of those before us, the sayings of the companions, istihsan (juridical preference), and istislah"(296).

He concludes his remarks on istislah(297): "Istislah is not a fifth source in itself, but whoever uses istislah has legislated just as whoever uses istihsan has legislated." These statements from Imam al-Ghazali are clear and explicit in not considering istislah a source of legislation.

However, some, as previously mentioned in our research, attempt to argue that public interest is a recognized source among the imams, scholars, and jurists, citing their statements in ways that do not clarify the reality of the matter, leading the reader and those interested in this issue into confusion due to the conflicting statements.

What is clear from al-Ghazali's statements as found in the Mustasfa is that the meaning of public interest (maslaha mursala) for him differs from the meaning of istislah. Istislah is legislation based on the public interest as perceived or determined by reason, and this
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(295) Mustasfa, vol. 1, p. 286.
(296) Ibid, p. 245.
(297) Ibid, vol. 1, p. 315.


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He said: "And thus he rejected it and considered it akin to istihsan (preferential reasoning) in judgment, as we have clarified from his texts previously. As for the unqualified public interest (mislaha mursala) according to him, it is not so; rather, it is that which the Sharia has indicated is intended through evidence from the Book, the Sunnah, and consensus (ijma). He states: 'Every public interest that pertains to the preservation of a legal objective known to be intended by the Book, the Sunnah, and consensus is not outside these foundations, but it is not called qiyas (analogy); rather, it is called public interest (mislaha mursala) since qiyas is a specific principle, and the fact that these meanings are intended is known not by one evidence but by many evidences that are countless from the Book and the Sunnah, and the circumstances and various signs, which is why it is called public interest (mislaha mursala)'(298). Therefore, he agrees here with al-Qarafi and al-Shatibi in that the unqualified public interest is not devoid of evidence in the absolute sense, but it has evidence or countless evidences. The discussion is not about the term unqualified public interest, but about the intended meaning of it. If the intended meaning is that it is unqualified from evidence in the absolute sense, then no one has said that. And if the intended meaning is that it has evidence that is beyond count but does not have a specific evidence particular to it, then there is no disagreement in considering it. Al-Ghazali states: 'And if we interpret public interest as the preservation of the objectives of the Sharia, there is no room for disagreement in following it; rather, it must be definitively established as a proof'(299).

Thus, al-Ghazali distinguishes between istislah (public interest reasoning) and unqualified public interest (mislaha mursala), rejecting istislah unanimously because it is mere opinion and not revelation, while accepting unqualified public interest if it is intended by the Sharia, and its intention is known through evidence from the Book, the Sunnah, and consensus.

If we say that unqualified public interest is what is deemed beneficial by reason, and no evidence has come regarding it from the Book, the Sunnah, or consensus, then it is rejected by him. This is clear from following his statements, and the discussion is not about the term since there is no dispute in terminology, but rather about the meaning of the terminology.
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(298) Al-Mustasfa, vol. 1, p. 311.
(299) The same source, p. 311.


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And perhaps the matter is perplexing to some due to the examples that al-Ghazali brings when discussing public interest (maslaha). We will present some of them to clarify this.

He says(300): "If the disbelievers took cover behind a group of Muslim captives, if we refrained from attacking them, they would strike us and overpower the abode of Islam, killing all the Muslims. If we threw our weapons, we would kill an innocent Muslim who has committed no sin, and this is not permissible in the law. If we refrained, we would empower the disbelievers over all the Muslims, allowing them to kill them, and then they would also kill the captives. It may be said that this captive is doomed to die in any case, so preserving all the Muslims is closer to the objective of the law, because we know with certainty that the aim of the law is to minimize killing, as it seeks to cut off the means to it whenever possible. If we cannot cut it off, we can minimize it, and this is an attention to a benefit that is known by necessity to be an objective of the law, not by a single piece of evidence or a specific origin, but by numerous evidences that are beyond enumeration. However, achieving this objective through this means, which is the killing of one who has committed no sin, is strange and lacks a specific origin to support it. This is an example of a benefit that is not derived from a definitive general principle. And it is not analogous to the case where the disbelievers take cover in a fortress with a Muslim, as it is not permissible to throw weapons in that case due to the lack of necessity. We are not in need of the fortress, so we would refrain from it, as we do not have certainty of our victory over it, because it is not definitive but rather speculative. And it is not analogous to a group on a ship, where if they throw one of them overboard, they would be saved; otherwise, they would all drown, because this is not a general principle, as it leads to the destruction of a limited number, and that is not like the extermination of all the Muslims..."

The first example is the killing of a group of Muslims for the sake of preserving all Muslims. Indeed, preserving Muslims from extermination and cutting off killing among them or minimizing it is an objective of the law supported by many evidences. However, killing a group of Muslims does not have a specific text. In fact, if the issue were merely the killing of a group of Muslims or even a single Muslim unjustly, it would be prohibited. This is a matter that lacks a text but has a benefit, which is a benefit that, according to the law, is indicated by many texts. So, should a group of Muslims be killed—an act that lacks a text—for the sake of that...
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(300) The same source, p. 294.


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The public interest (maslaha), al-Ghazali stipulates here that the interest must be necessary, meaning it is not sufficient for it to be merely a need (hajiyya) or an enhancement (tahsiniyya), and it must be comprehensive, that is, for the preservation of the whole even at the expense of the part or some. This is evident from the example he provided regarding Muslims on a ship. It is also required that it be definitive (qat'i) and not speculative (dhanni), as in the case of using a Muslim as a shield in a fortress. Al-Ghazali stated regarding these examples and similar ones: "When we interpret the public interest as the preservation of the objectives of the Sharia, there is no room for disagreement in following it; rather, it must be established that it is a proof, and where we mentioned a disagreement, it is when two interests and objectives conflict, and at that point, the stronger must be preferred"(301). The examples we have cited from him pertain to the conflict of interests and objectives. The Sharia texts indicate the demand for the preservation of the whole and the preservation of the part or the portion. However, a conflict arises such that one must be sacrificed, either the whole or the part. What is to be sacrificed? Here too, al-Ghazali rejects that the determination of which should be sacrificed is based on reason; rather, it must be the Sharia that clarifies which of the two interests or objectives is primary and more preferable. He presented a discussion on this, stating(302): "In the matter of using a shield, opposing the objective of the Sharia is forbidden, and refraining from fighting the disbelievers is a violation of the objective of the Sharia. If it is said that we do not deny that opposing the objective of the Sharia is forbidden, but we do not concede that this is a violation, we say: overpowering the disbelievers and the dominance of Islam is an objective, and in this is the eradication of Islam and the dominance of disbelief. If it is said that refraining from harming a Muslim who has not sinned is an objective and this is a violation of the objective, we say: this is an objective, and we have been compelled to violate one of the objectives, and there must be a preference, and the particular is insignificant in relation to the comprehensive. This is particular in relation to the comprehensive, so it cannot oppose the comprehensive. If it is said that it is acknowledged that this is particular, but it is accepted that the particular is insignificant in relation to the comprehensive, then the insignificance of the Sharia towards it is known through a text or analogy based on a text. We say: we have recognized this not through a specific text but through various rulings and the conjunction of indications, leaving no doubt that preserving the plan of Islam and the lives of Muslims is more important in the objectives of the Sharia than preserving a specific individual for an hour or a day, especially when the disbelievers will return to kill him; this is something that cannot be doubted as well."
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(301) Al-Mustasfa, p. 311.
(302) Ibid, p. 312.


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"We have permitted the consumption of another's wealth under coercion due to our knowledge that wealth is insignificant in the balance of Sharia, alongside blood, and this is known through many evidences."

Imam al-Ghazali (may Allah have mercy on him) affirms that the preference between two interests or objectives or two harms is solely a matter of Sharia and not for any human being to decide. He says(303): "If it is said, why did you not understand that preserving the greater is more important than preserving the lesser in the matter of the ship, in coercion, and in famine? We say: We did not understand this, as the ummah has unanimously agreed that if two people are coerced into killing a person, it is not permissible for them to kill him, and it is not permissible for Muslims to consume the flesh of a Muslim in famine. Thus, consensus prevents the preference of the greater. As for the preference of the whole, it is known either by certainty or by a presumption close to certainty, which must be followed in Sharia, and there is no text to the contrary. In contrast, the majority is prevented by consensus in coercion and in famine. Therefore, under these conditions that we have mentioned, it is permissible to follow interests, and it becomes clear that istislah (public interest) is not a fifth source in itself, but whoever seeks public interest has legislated just as whoever seeks what is good has legislated."

Furthermore, al-Ghazali also said in response to those who mistakenly think he advocates for public interest(304): "If it is said that you have leaned towards the opinion of public interests in most of these matters and then you have included this principle among the imagined principles, let this be included among the correct principles so that it becomes a fifth source after the Book, the Sunnah, consensus, and reason(305). We say: This is among the imagined principles, for whoever thinks it is a fifth source has erred, as we have returned public interest to the preservation of the objectives of Sharia, and the objectives of Sharia are known through the Book, the Sunnah, and consensus. Thus, any interest that does not return to the preservation of an objective understood from the Book, the Sunnah, and consensus is among the strange interests that do not align with the actions of Sharia, and it is invalid and discarded. Whoever adheres to it has legislated just as whoever seeks what is good has legislated."

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(303) The same source, p. 314.
(304) Al-Mustasfa, vol. 1, p. 310.
(305) Meaning analogy.


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Refuting the Two Objections

The first objection: that there are recognized interests, nullified interests, and interests for which the Sharia has given neither recognition nor nullification.

Let us assume here that the prevention of harm (mafsada) falls within the meaning of interest (maslaha). The gist of the statement above is that the Sharia was laid down only to secure interests, or that interests are the motives for legislation and the causes (ʿilal) of rulings. But since interests are something that the intellect estimates, that is, measures by human standards, which are subject to error and correctness and to everything that Allah has created in human nature, it was found, when the rulings were examined, that they did not all come in accordance with the interests as estimated. This alone was enough to demolish this claim at its foundation for those who held that interests are the causes of the Sharia. Instead, however, they said of the rational interests they found contradicting a text of the Sharia that they are nullified interests, and of what they found by their intellects to agree with the texts of the Sharia that it is a recognized interest.
It is in the nature of this approach, that is, holding interests to be causes and dividing them into recognized and nullified interests, that legislative inquiry ends up determining the interest from the action first, and then searching for evidence to serve it. If some meaning or suitable attribute is found in a text that fits the determined interest, the action is judged permissible and the interest recognized. If a text is found that prohibits the action leading to that interest, the action is judged prohibited, or the interest is judged not recognized. But since the rulings of the Sharia are attached to the actions of people and not to what they call an interest, they did not find, for many of the interests they determined, a text that indicates them or aims at them. Nor did they find a text that forbids them. So they said that the Sharia has given them neither recognition nor nullification, and some said that they have no ruling in the Sharia. An example is that they found no text indicating the interest resulting from the compilation of the Qur'an, no text indicating the interest intended in establishing the registers (diwans), and no text that nullifies any


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Either way, they believed that there is no evidence in the Sharia for the two actions. And since there must be evidence for an action to be considered Sharia-compliant, they established a proof they called: the interest (maslaha) that has no evidence, which is the unregulated interest (maslaha mursala).
Indeed, it is possible that there is no evidence indicating the interest in an action or in many actions, because the evidences are not directed towards interests. However, there are evidences that clarify the rulings of these actions. Therefore, the error lies in the foundation. This error is making interests the motives for rulings and their causes. This claim is refuted by the notion of nullified interests, and subsequently, it loses its meaning by the notion of interests that are neither recognized nor nullified. Its implication is that the Sharia is incomplete, which contradicts His saying, Exalted is He: “Today I have completed for you your religion.”
Then, if the rulings indicate interests, what can be said about the nullified interests? Is it not correct to say that they are evils (mafsada), based on the principle that the origin of legislation is the interests of the servants? Therefore, if the Sharia nullifies them, they must be evils. The result is that these interests are evils, meaning that these interests, according to rational estimation, are evils by the ruling of the Sharia. If this is the case, there is nothing preventing us from saying about what they referred to as interests that have no evidence for recognition or nullification that they are evils that have no evidence for recognition or nullification.
Thus, this claim of recognized interests, nullified interests, and interests that are neither recognized nor nullified is of no benefit and cannot serve as a basis for any meaning as long as the Sharia has not indicated interests, and as long as these interests may be evils.

The second objection: Restricting the interest so that it does not contradict a text, consensus, or analogy
As a result of rejecting unregulated interests and not considering them among most of the scholars and jurists, those who advocate for them tend to impose restrictions or criteria on them, including that they must be in accordance with the objectives of the legislator, and they must not contradict the Qur'an, nor the Sunnah, nor consensus, nor analogy, so that they can claim that they are not absolute interests, mistakenly believing that this way they become legitimate.


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As for the statement that it must be in accordance with the objectives of the Lawgiver (maqasid al-sharia), we have previously clarified that the objective of the Lawgiver, which is the public interest (maslaha) according to them, is not the same as the ruling. Rather, it is a result of the application of the ruling, which may occur or may not occur.
However, if what is intended is that which is indicated by the Sharia (Islamic law) and not by reason, then there is no harm in calling it a public interest (maslaha), benefit, good deed, or something else. This is not an unqualified public interest (maslaha mursala), but rather it is an objective of the ruling indicated by the Sharia. It may be considered a cause (illah) depending on the differing opinions of the imams and usuliyyin (jurisprudents) regarding the paths of causation.
And their saying that it - the public interest (maslaha) - must not contradict a text or consensus, nor contradict the Qur'an, nor the Sunnah, nor consensus, nor analogy, as al-Bouti elaborated in his book(306), does not make it legitimate. Because the action that Islam approves is not merely one that does not contradict any of these four sources, but rather one that emerges from them or from some of them. The ruling is the address of the legislator, so it must come in an address to be considered legitimate, and it is not merely that which the legislator has not prohibited or condemned. Then, the legal rulings are five: the obligatory (fard), which is what the legislator has commanded to be done with a decisive demand; the recommended (mandub), which is what the legislator has commanded to be done with a non-decisive demand; the permissible (mubah), which is what the legislator has left to choice between action and inaction; the disliked (makruh), which is what the legislator has commanded to be abandoned with a non-decisive demand; and the forbidden (haram), which is what the legislator has commanded to be abandoned with a decisive demand. So where does the action that does not contradict the Qur'an, nor the Sunnah, nor consensus, nor analogy fall?
There is a speaker who says: If we know that it is not contrary, we know that it is permissible; it may be obligatory, recommended, permissible, or disliked. It is neither forbidden nor something that the legislator has commanded to be abandoned.
I say: The Sharia encompasses all occurrences of life in every time and place, and it provides a ruling for every action of the servants. No human being can encompass all that the Sharia indicates; that is, no person—no matter how knowledgeable—can know everything that is permitted or everything that is prohibited among actions. Therefore, if someone says about a certain action: "I do not find a text indicating its prohibition," this is not knowledge of permissibility, but rather ignorance of the ruling, for it may be that
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(306) The controls of public interest (maslaha).


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The evidence indicating prohibition exists, but it is the inability to derive it that is present. One cannot rule that an action is not forbidden unless it is known—by evidence—that it is obligatory, recommended, permissible, or disliked. An action for which there is no indication of permissibility, but its permissibility is inferred from the absence of anything that prohibits it, what prevents one from saying: we did not find anything indicating its permissibility, and therefore it is forbidden? It should be noted that the absence is relative to the researcher and not to the Sharia, for the Sharia has a ruling for every action.

If it is said: your statement is opposed by the hadith of the Messenger of Allah (peace and blessings be upon him): "Indeed, Allah has prescribed obligations, so do not neglect them, and He has prohibited things, so do not violate them, and He has set limits, so do not transgress them. And He has pardoned certain matters out of mercy for you, not forgetting, so do not seek them out"(307), as well as what Ibn Majah and al-Tirmidhi narrated from Salman al-Farsi, who said: the Messenger of Allah (peace and blessings be upon him) was asked about butter, cheese, and fur, and he said: "The lawful is what Allah has made lawful in His Book, and the unlawful is what Allah has made unlawful in His Book, and what He has left silent about is what He has pardoned for you." These texts indicate that we have been pardoned for what we do not find evidence for, and consequently, there is no blame or punishment, and that there are matters about which the legislator has remained silent. Accordingly, it is valid to infer from the absence of contradiction with the Qur'an, the Sunnah, consensus, and analogy regarding matters that fall within the realm of pardon, which are occurrences that have no ruling. I say: these texts should not be understood in a way that contradicts other texts, and the claim that there are matters or occurrences that have no ruling contradicts the definitive text: "And We have sent down to you the Book as a clarification for all things"(308), which implies that the Sharia is incomplete, and it contradicts the definitive text: "This day I have perfected for you your religion"(309). These are definitive texts, while those are reports of singular transmission, and in cases of contradiction, the definitive is given precedence. Thus, the meanings of the two hadiths and similar ones must be understood in a manner that does not lead to this conclusion. Therefore, the Sharia encompasses rulings for all occurrences, and silence does not mean the absence of a ruling or the absence of clarification. Rather, it is silence regarding prohibition specifically for what has been permitted by the general evidence of permissibility. It is silence regarding additional detail and clarification for what has already been clarified. Here are examples for clarification:

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(307) Al-Shatibi mentioned this text in al-Muwafaqat, vol. 1, p. 101.
(308) An-Nahl, 89.
(309) Al-Ma'idah, 3.


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Regarding the silence on prohibition specifically concerning the general evidence of permissibility, the texts indicate that the default ruling for things is permissibility unless there is evidence of prohibition. What is meant by things here are the entities, so the absence of a text indicating the ruling of a specific matter does not mean that the legislator is silent about it; rather, it means that he is silent about its prohibition, and its ruling is clarified by the legal principle that the default ruling for things is permissibility unless there is evidence of prohibition. In this regard, the saying of the Messenger of Allah (peace and blessings be upon him) is relevant: "The most grievous of Muslims is the one who asks about something that has not been prohibited, and it becomes prohibited because of his question"(310). His saying "has not been prohibited" means that it falls under the categories of what is permissible according to the general rule. And his saying "and it becomes prohibited" means that a specific text has been revealed that specifies the general rule.
As for the silence regarding additional detail and clarification of what has already been clarified, it is as if the text comes to clarify the ruling of a specific action, such as His saying, Exalted is He: {And those who make zihar from their wives, then return to what they said, must free a neck}(311). The mention of "a neck" does not specify whether it is a believing neck or a disbelieving one, a female or a male neck, a child or an adult neck. This is not silence about clarifying the ruling; rather, it is silence about restricting the ruling, that is, silence about providing additional clarification. If the legislator does not specify the type of neck that must be freed, then any neck would suffice. The absence of specification here is considered a concession.
An example of this is also found in the Noble Qur'an in His saying, Exalted is He: {Indeed, Allah commands you to slaughter a cow}(312). If they slaughtered it without any question, their slaughtering of any cow would suffice. If they slaughtered a cow that was a mature one, or a young one, or not yellow, or had spots, meaning it did not conform to the descriptions that were later requested of them, their action would still be sufficient, and their act would be excused. Thus, the lack of specification here does not pertain to the existence of a case with no ruling; rather, it pertains to the lack of additional detail and clarification of what has already been clarified.
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(310) Narrated by al-Bukhari in the Book of Al-I'tisam.
(311) Al-Mujadila, 3.
(312) Al-Baqarah, 67.


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On this basis, the position of the Messenger of Allah (peace and blessings be upon him) is understood when he read: “And [due] to Allah from the people is a pilgrimage to the House”(313). A man said: "O Messenger of Allah, every year?" He turned away, then said: "O Messenger of Allah, every year?" He turned away, then said: "O Messenger of Allah, every year?" The Messenger of Allah (peace and blessings be upon him) said: "By the One in Whose Hand is my soul, if I had said it, it would have become obligatory, and if it had become obligatory, you would not have been able to fulfill it, and if you did not fulfill it, you would have disbelieved. So leave me as I have left you"(314). The anger of the Messenger of Allah (peace and blessings be upon him) indicates a prohibition against this type of questioning, which leads to an increase in restrictions or an increase in obligations due to excessive clarification and detail. The command for pilgrimage did not specify how many times – in the text – and performing it once suffices for obedience, just as it suffices to perform it twice or three times. If the question necessitates an answer, the answer would be an increase in clarification, which is an increase in obligations that leads to what the Messenger of Allah (peace and blessings be upon him) informed: “you would not have been able to fulfill it,” thus the lack of specification regarding how many times is a form of concession.
If we consider concession on this basis of understanding, we do not find it to be an area that contains actions without rulings. Rather, it is:
Entities that the legislator has not prohibited, thus they remain permissible based on the principle regarding the nature of things.
Actions whose rulings have been defined by the legislator, but he did not restrict them with additional detail or clarification regarding what the questioner might ask, like the examples we mentioned, and similar to His saying: “And kill them wherever you overtake them”(315). His saying: “kill them” is fulfilled by killing, whether the killing is done by poisoning, stabbing with a dagger, throwing a spear, strangling with a rope or by hand, or slaughtering with a knife, or shooting a bullet, or detonating a bomb, or otherwise. The lack of clarification regarding how to kill is a lack of additional clarification. And leaving the clarification here is the concession. If a questioner were to ask the Messenger of Allah (peace and blessings be upon him): "Should we kill them in this way or that way?" his question would provoke the anger of the Messenger of Allah (peace and blessings be upon him), as happened in the hadith about pilgrimage. In this regard, the Messenger of Allah (peace and blessings be upon him) said: "Leave me as I have left you."
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(313) Al-Imran/ 97.
(314) Sunan al-Nasa'i, Book of Hajj Rituals.
(315) Al-Baqarah/ 191, An-Nisa/ 91.


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Silence regarding the increase of clarification is not present in all rulings; we notice that some rulings, such as prayer and pilgrimage, do not allow for additional clarification, and Allah knows best. If the legislator were to say, for example, "Establish the prayer" without further detail, the matter would remain ambiguous, and the prayer could be performed in any manner. However, the Messenger (peace and blessings be upon him) provided additional clarification and detailed the matter through his hadiths and his statement, "Pray as you have seen me pray"(316). There is no room for further detail and clarification in this matter, and any change or addition to it is considered an innovation (bid'ah) and is subject to his saying: "Whoever performs an action that is not in accordance with our command, it is rejected."

Thus, no incident is devoid of a ruling, and the ruling indicates its type from among the five types, and stating what does not contradict is not correct.

I must also point out that I am not discussing the ruling of an action when the jurist has exerted their utmost effort and could not reach a presumption regarding a ruling for it.

It should also be noted that regardless of what the correct opinion may be in the area or category of exemption, its subject pertains to things and actions that Allah has pardoned, not to interests. Interests are the result of actions. Therefore, the ruling on what falls within the area of exemption is a ruling on a thing or action, not a ruling on the purpose of the action or its result, whether it is called an interest or otherwise. That is, if it is correct to say that it is permissible or that hardship or punishment is lifted from actions that do not contradict the Qur'an, the Sunnah, consensus, or analogy, then this permissibility or lifting of hardship pertains to the actions themselves and not to their intentions or results.

Thus, the area of exemption is not an entry point for the discussion of unregulated interests.

__________
(316) Narrated by al-Bukhari in the Book of Prayer.


[Page 126]

The conclusion:

Acting with the intention of public interest (maslaha).
Legal opinion (ra'y shar'i) and non-legal opinion (ra'y ghayr shar'i).


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Acting with the Intention of Achieving Public Interest

What has been previously stated regarding the prohibition of using public interest (maslaha) as evidence for ruling on an action does not mean that seeking public interest is not permissible. It is natural for a person to be inclined towards what they perceive as beneficial and to shy away from what causes them harm; however, the actions they undertake in both cases must adhere to the legal rulings.
The legal rulings are five: what is established as obligatory by evidence must be performed regardless of its outcome, what is established as recommended remains recommended even if we see that there is benefit in abandoning it, what is established as disliked remains so even if it appears to us that there is benefit in doing it or harm in leaving it, and what is established as forbidden must be avoided, even if reason suggests that there is benefit in doing it or harm in leaving it. These rulings do not change except if there is evidence from the Sharia that abrogates them, as in certain cases indicated by the Sharia, such as not cutting off the hand of a thief during a famine, consuming carrion in cases of necessity, and uttering a word of disbelief under duress, and similar situations.
As for what is permissible, which is what the Sharia indicates is allowed, it is natural for a person to act in it according to what brings them benefits—as they perceive them—or to satisfy their desires, or according to what wards off harm—as they perceive it—or what alleviates pain or reduces burdens and restrictions.
Engaging in trade is permissible, engaging in agriculture is permissible, and it is permissible for a person to work as a hired laborer or to be an employer; they may work in whatever they see as beneficial for them, such as what yields them more profit, or what provides them with more comfort, or what aligns with their inclinations and tastes, provided they fulfill the rights of Allah in any work they choose.
A person may consume foods and wear clothing that they like according to their interests, desires, tastes, or inclinations, provided they avoid the forbidden, such as pork, carrion, intoxicants in food, and anything that exposes the private parts or silk for men in clothing.


[Page 128]

Similarly, whoever is entrusted with the responsibility of caring for something is obligated to adhere to the rules of necessity as they are. As for what is permissible (mubah), he chooses according to what he sees as more beneficial, suitable, or correct, such as the caliph in managing the affairs of the ummah, the man in caring for his family, and the woman in managing her husband's wealth.
In all of this, the action is permissible, and its evidence is the Sharia, not the interest (maslaha), rather the interest is the goal that the servant intends from his action.
Thus, interest does not make something lawful or unlawful. Human actions are of two types: acts of worship and customary actions. As for acts of worship, they are a pure relationship between the servant and his Lord, in which the person intends to humble himself before the Creator and to obey Him absolutely, and what the servant gains here is the pleasure of Allah, Exalted is He. There is no interest or worldly return involved.
As for customary actions, such as marriage, divorce, buying, partnership, agency, and acquiring furniture and decorated houses, all of these are actions performed by both Muslims and non-Muslims, each intending certain benefits and interests. The Sharia came and organized the process of benefiting and obtaining interest in these matters and actions. If a person has an interest and desire in sexual relations, the Sharia does not prohibit him from that nor does it leave him free; rather, it has set constraints that must be adhered to, as is the case in buying and selling. The fact that something is an interest does not imply permissibility or prohibition, because the text has allowed us to fulfill our interests but has established a system for that. Ownership is an interest that a person naturally seeks. The Sharia has not prohibited ownership but has defined its causes. Ownership cannot be obtained through gambling, deceit, or theft. Ownership can be achieved through hunting, buying, or leasing. Whoever acquires through lawful buying has intended an interest in the sale, and whoever acquires through usury has intended an interest in usury. The interest in both cases is ownership, which is fundamentally permissible. However, the means of buying is permissible while the means of usury is forbidden. The fact that the intended goal is an interest or permissible does not affect the means to that goal, meaning it does not indicate the permissibility of the action intended to achieve that goal. Allah, Exalted is He, said: “And seek by means of what Allah has given you the home of the Hereafter, and do not forget your share of the world, and do good as Allah has done good to you, and desire not corruption in the land. Indeed, Allah does not like the corrupters”(317).
__________
(317) Al-Qasas/77.


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The legal opinion (ra'y shar'i) and the non-legal opinion (ra'y ghayr shar'i)

Our statement that public interest (maslaha) is not a legal proof does not mean that we consider every ruling whose proof is public interest to be un-Islamic, or that the one who adopts it is sinful. Rather, the ruling remains legal for the one who adopts it if they believe that public interest is a legal proof, or if they are following someone who holds that view.

The status of public interest as a proof or not is a matter of disagreement among the scholarly imams. The Messenger of Allah (peace and blessings be upon him) said: "If a judge strives to make a ruling and is correct, he will receive two rewards, and if he strives and errs, he will receive one reward"(318). Thus, the ruling derived from the proof of public interest is legal for the one who derived it—based on what they have deemed preferable—and for the one who follows them. The ruling remains respected by those who do not accept public interest, even if it is not permissible for them to adopt it because it is not a legal ruling according to their reasoning or according to whom they follow.

It must be noted that the opinion we respect, even while considering it erroneous, is one that is based on correct reasoning and knowledge and piety. However, the opinion that arises from flattery, personal interest, or partisanship is not a considered or respected opinion.

Those who have advocated for public interest in contemporary times, making it a proof for the Sharia and attempting to rely on some imams in a mistaken manner, and who have issued fatwas based on public interest or the pursuit of benefits and the prevention of harms, permitting usury, or extending hands to the apostate systems that oppose Islam and cooperating with them, or participating in governance under a system of disbelief, or permitting work in usurious institutions, or permitting reconciliation with Israel and recognizing Palestine for it, or permitting seeking assistance from disbelievers to fight Muslims, or refraining from changing those who rule by other than what Allah has revealed under the pretext of facing harm, among many others, their statements and fatwas are rejected and not considered in Islam. They are not weak Islamic opinions; rather, they are non-Islamic opinions, and they are not legal for those who...

__________
(318) Narrated by the two Shaykhs.


[Page 130]

It adopts it. These fatwas are not of the kind of correct legal reasoning (ijtihad), but rather legislation from outside of revelation.
The permissibility of usury (riba), for example, cannot be said to be an Islamic ijtihad opinion for which its proponent is excused, because usury has a definitive text that is certain in its authenticity and meaning, firm, not abrogated, and not specified or restricted: "And He has forbidden usury"(319). Likewise, participation in ruling by disbelief has definitive texts with no room for ijtihad. Allah, Exalted is He, said: "And whoever does not judge by what Allah has revealed, then it is they who are the wrongdoers"(320), and He said: "the disbelievers" and He said: "the wicked". So whoever rules or participates in ruling by disbelief is wicked with interpretation, and a disbeliever if we do not interpret for him. And the one who issues a fatwa permitting it based on public interest (maslaha) is fabricating lies against Allah.
Such rulings are not of the kind of permissible disagreement in opinion, but rather they are a form of misleading in religion, and taking legal rulings from outside the religion of Islam (Have you not seen those who claim to believe in what has been revealed to you and what was revealed before you, wanting to refer to Taghut while they were commanded to disbelieve in it, and Satan wants to lead them astray into a far astray) (321).
__________
(319) Al-Baqarah/ 275.
(320) Al-Ma'idah/ 45.
(321) An-Nisa/ 60.


[Page 131]

Table of Sources and References

No.
Book
Author
Publisher
1
The Impact of Differences in Usul al-Fiqh (Principles of Jurisprudence) on the Differences Among the Jurists
Dr. Mustafa Said al-Khan
Dar al-Risalah
2
The Impact of Disputed Evidence in Islamic Jurisprudence
Dr. Mustafa Dhib al-Bagha
Dar al-Imam al-Bukhari - Damascus
3
Al-Ihkam in Usul al-Ahkam (Principles of Rulings)
Ali ibn Muhammad al-Amidi
Islamic Office
4
Al-Ihkam in Usul al-Ahkam (Principles of Rulings)
Abu Muhammad Ali ibn Ahmad ibn Sa'id ibn Hazm
Dar al-Afaq al-Jadidah - Beirut
5
Disputed Evidence Among the Usuliyyin (Principles Scholars)
Dr. Khalifa Babikr al-Hassan
Wahbah Library - Abidin - 1st Edition
6
Guidance of the Masters to Achieving the Truth from the Science of Usul
Muhammad ibn Ali ibn Muhammad al-Shawkani
Dar al-Fikr - Beirut
7
Usul al-Fiqh (Principles of Jurisprudence)
Sheikh Muhammad al-Khudari Bey
The Great Commercial Library - Egypt
8
Al-I'tisam
Abu Ishaq Ibrahim ibn Musa al-Lakhmi
Dar al-Tahrir for Publishing and Printing - Cairo
9
Al-Um
Muhammad ibn Idris al-Shafi'i
Dar al-Ma'rifah - Beirut
10
Al-Amwal
Abu Ubaid al-Baghdadi
Dar al-Fikr, Beirut - 2nd Edition
12
History of Nations and Kings
Abu Ja'far Muhammad ibn Jarir al-Tabari
Dar Ihya al-Turath al-Arabi
13
Facilitating the Liberation on the Book of Liberation
Ibn Hammam al-Iskandari
Dar al-Kutub al-Ilmiyyah - Beirut
14
The Marginalia of al-Taftazani and al-Jurjani on the Summary of the Ultimate Principles
Ibn al-Hajib al-Maliki
Dar al-Kutub al-Ilmiyyah - Beirut
15
The Authority of Masalih Murssalah (Public Interests)
Dr. Ahmad Faraj Hussein
University Culture Foundation
16
Al-Risalah
Muhammad ibn Idris al-Jami'i
Dar al-Kutub al-Ilmiyyah - Beirut


[Page 132]

17
The Garden of the Observer and the Paradise of the Risk-takers
Ibn Qudamah al-Maqdisi
Dar al-Kitab al-Arabi – Beirut
18
Sunan Abu Dawood
Abu Dawood Sulayman ibn al-Ash'ath
Dar Ihya al-Sunnah al-Nabawiyyah
19
Sunan Ibn Majah
Abu Abdullah Muhammad ibn Yazid al-Qazwini
Dar al-Fikr
22
Sharh Tanqih al-Fusul fi Ikhtisar al-Mahsol
Shihab al-Din al-Qarafi al-Maliki
Dar al-Fikr – Cairo
23
Sahih al-Bukhari
Abu Abdullah Muhammad ibn Ismail
Dar Ihya al-Turath – Beirut
24
Sahih Muslim
Abu al-Husayn Muslim ibn al-Hajjaj
The Egyptian Press and its Library
25
The Controls of Public Interest (Maslaha)
Dr. Muhammad Said Ramadan al-Bouti
The Umayyad Library in Damascus
26
The Science of Usul al-Fiqh
Dr. Abdul Wahab Khalaf
Islamic Call Library
27
Islamic Jurisprudence: Its Flexibility and Development
Jad al-Haq Ali Jad al-Haq
Islamic Research Academy
28
Fawatih al-Rahmut with the Explanation of Muslim al-Thubut
Abd al-Ali Muhammad ibn Nizam al-Din al-Ansari
The Amiri Press in Bulak, printed with al-Mustasfa 1st edition
29
The Rules of Judgments in the Interests of the People
Abu Muhammad Izz al-Din ibn Abd al-Salam
Al-Rayan Foundation – Beirut
30
Al-Mabsut
Muhammad ibn Ahmad ibn Abi Sahl al-Sarakhsi
Dar al-Ma'rifah – Beirut
31
Introduction to Islamic Legislation
Dr. Kamal Musa
Al-Risalah Foundation 1st edition
32
Al-Mustasfa
Abu Hamid Muhammad al-Ghazali
The Amiri Edition in Bulak – 1st edition
33
Al-Maswada in Usul al-Fiqh
By the three Imams of the Al-Taymiyyah family:
Majd al-Din Abd al-Salam ibn Abd Allah ibn al-Khidr.
His son Shihab al-Din Abd al-Halim ibn Abd al-Salam
Taqi al-Din Ahmad ibn Abd al-Halim was born.


[Page 133]

34
The Objectives of the Sharia (Maqasid al-Sharia)
Abu Ishaq Ibrahim ibn Musa
Muhammad Ali Sabih Library and Press – Cairo
35
The Muwatta
Abu Abdullah Malik ibn Anas al-Asbahi
Dar al-Kutub al-Ilmiyya – Beirut
38
Reflections on the Evidence of Divergent Legislation
Dr. Muhammad Ibrahim al-Hafnawi
Dar al-Bashir for Culture and Sciences in Cairo
39
The Concise Book on Usul al-Fiqh
Dr. Abd al-Karim Zidan
Al-Risala Foundation – 3rd edition


[Page 134]

Contents of the Book
Introduction ... 7
Chapter One ... 10
Principles of Jurisprudence (Usul al-fiqh) ... 11
The Ruler ... 13
Sources of Legislation ... 15
Preliminary ... 15
Sources of Legislation Must Be Definitive ... 16
Agreed-Upon Sources ... 17
First Source: The Book (al-Kitab) ... 18
Second Source: The Sunnah ... 18
Third Source: Consensus (Ijma) ... 19
Fourth Source: Analogy (Qiyas) ... 22
Disputed Sources ... 24
Chapter Two ... 29
Objectives of the Sharia (Maqasid al-sharia) ... 30
The Objectives of the Sharia Are Its Goals, i.e., the Results of Its Application ... 33
The Objectives of the Sharia Are Not Objectives of the Rulings ... 35
Objectives of the Rulings ... 36
Bringing About Benefits and Preventing Harms ... 41
The Cause of Bringing About Benefits and Preventing Harms ... 44


[Page 135]

The appropriateness ... 46
Categories of appropriateness ... 48
Categories of public interests (masalih) ... 50
Chapter three ... 52
Unrestricted public interests (masalih mursala) ... 53
Evidence from those who advocate unrestricted public interests ... 56
Scholars' stance on unrestricted public interests ... 60
Unrestricted public interests are not a legal evidence ... 70
Discussion of the evidence presented by proponents of public interest (istislah) ... 71
Evidence one: Considering the generality of public interests in the generality of rulings ... 71
Evidence two: The approval of the Messenger (peace and blessings be upon him) of Mu'adh ... 76
Evidence three: The principle in customs is to pay attention to meanings ... 76
Evidence four: The change of customs and the inadequacy of texts ... 78
Evidence five: Ten examples from the actions of the Companions, and a number of actions of the Followers ... 79
Evidence that public interests are not a legal evidence ... 96
Chapter four ... 100
What did the scholars who advocated unrestricted public interests mean? ... 101
The opinion of Imam al-Shatibi ... 103
The opinion of Imam al-Qarafi ... 108
The opinion of a group of contemporary scholars ... 110


[Page 136]

The interests according to Imam Izz al-Din ibn Abd al-Salam ... 112
The interests according to Imam al-Ghazali ... 114
Refuting two doubts ... 119
The first doubt: That there are recognized interests and nullified interests, and interests that are neither recognized nor nullified ... 119
The second doubt: Restricting the interest so that it does not contradict a text, consensus, or analogy ... 120
Conclusion ... 126
Acting with the intention of interest ... 127
Sharia opinion and non-Sharia opinion ... 129
Index of sources and references ... 131
Contents of the book ... 134


[Page 137]

[The Back Cover]

We have discussed the unregulated interests (masalih mursala) as a source of legislation and have demonstrated with evidence that there is no proof to support it. We have refuted with evidence and argument all that those who advocate for unregulated interests have imagined to be evidence of its validity. The impetus for this research was the widespread belief among some of the later scholars of usul (principles of jurisprudence) that unregulated interests are a legislative source, and that the interest is evidence for the legal ruling. Wherever there is an interest, there is the law of Allah, and the rules built upon that have been made into legal principles, which they are not, as they are nothing but making interest a religion. In fact, some of the later scholars resort to the books of the imams and the predecessors, extracting texts or fatwas and presenting them to us in meanings other than those intended by the imams. Therefore, it is necessary to warn against the ideas of these individuals, who confuse Muslims regarding the rulings of their religion, and make interest a grand title through which they free themselves from the constraints and rulings of the religion. Thus, it was essential to refute their arguments and claims, and clarify the truth in this matter. Consequently, we have elucidated the position of the scholars regarding unregulated interests, and since al-Shatibi and al-Qarafi have endorsed it, it is necessary to clarify the true meaning of what they intended by their endorsement of unregulated interests.

The Author


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Printed electronically: The Poor One to Allah (Khalifa Abu Muhammad),
27th of Dhu al-Qi'dah, 1424 AH
20/1/2004