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The Types of Masaalih Intended by the Law

 

This chapter is comprised of an introduction and the following five sections:

Section One: Necessities

Section Two: Needs

Section Three: Amenities

Section Four: The Completion of the masaalih intended by the Law

Section Five: The ranks of the masaalih with respect to importance and the building of the needs and amenities upon the necessities.

 

Introduction

The previous discussion has shown that the Islamic Shareeah came to realize the happiness and masaalih of humans and to provide their safety and stability in both this worldly life and in the Hereafter. However, with respect to importance, significance, people’s need for them, their effects on the well-being of the Nation, providing for its security and stabilizing its existence, these masaalih are not all of one rank.

 

Indeed, they are at very different levels and various ranks. Some of them are necessities, without which life cannot be properly established. True happiness in this life or the Hereafter could not be afforded without them. If these types of masaalih are missing, life becomes confused, the world’s system is loss, chaos spreads, the sources of security are broken, commotions, unrest, destruction and wars spread. The human’s need for this type of masaalih reaches the level of necessity, such that he cannot do without them.

 

 Some masaalih are of lesser importance in that their absence does not cause life to be greatly disturbed. However, people are faced with difficulties, hardship and troubles by their absence. In fact, it sometimes even leads to harming the necessary masaalih. Fulfilling these types of masaalih makes life easier and more convenient for the people, removes hardship and furthermore strengthens, protects and fortifies the necessary masaalih, as those necessities can be fulfilled and met in an easier fashion.

 

There are yet others that are of even lesser importance than those. Their absence does not greatly disturb life nor does their absence cause hardship or difficulties. However, if they are realized, life attains a level of good, completion and beauty, making it a noble and blessed life.

 

Thus, the masaaalih that are intended by the Lawgiver are of three levels. The legal theorists have termed the first level “necessities,” the second “needs” or “benefits” and the third amenities, beautification or complementary aspects.

I shall speak about these three types in three sections, each with its own section. I shall follow that up in the fourth section with a discussion about the completion of these goals. Finally, the fifth section will cover the different levels of these masaalih and the importance of their rankings.

 

Necessities

This section will cover the following five issues:

The first issue: The meaning of “necessities”

The second issue: Limiting necessities to the five comprehensive necessities.

The third issue: The way in which necessities are encapsulated by the five necessities. 

The fourth issue: The order of the five necessities.

The fifth issue: The previous religions and their consideration of the necessities.

The First Issue: The Meaning of Necessities

This section has two subsections to it. The first deals with the lexical meaning of “necessities” (?????????) while the second section deals with the technical definition of “necessities.”

 

The Lexical Meaning of “Necessities”

Lexically, “necessities” is the plural of “necessity,” and it is the relative (nisba) adjective from the word “necessity,” which is “the dire need.” The word dharoorah is a quasi-infinitive noun (ism masdar) from the word al-idhtiraar (“being compelled”). Thus it means, “being in need of something and having to resort to something.” One says, “A man in great need (dhaaroorah or dharoorah).” One also says, “He was compelled to do something,” meaning he was in need of something or had to seek recourse in something.101

 

The Technical Meaning of “Necessities”

The legal theorists have defined this term with similar definitions. The most important of them are as below:

(1)         “It is the thing without which the welfare of the religion or worldly life cannot be established.”

 

Al-Shaatibi stated, “As for necessities, its meaning is the matter that is needed to establish the well-being of the religion and worldly life. It is such that if it is missing, the welfare of this world does not flow in an upright fashion but instead there is evil, corruption and loss of life. In the Hereafter, one will lose salvation and bliss, and will return to the clear loss.” 102

 

Al-Shaatibi’s words, “the matter that is needed to establish the well-being of the religion and worldly life,” are a restriction by which needs and amenities are removed from the definition as the well-being of the religion and the Hereafter are not predicated upon them.

 

The necessary masaalih are captured by preserving five matters: religion, life, mental capacity, familial ties and wealth103 , as shall be detailed later.

 

The necessities have been called such because one is compelled to have them in order to establish the welfare of humans in their worldly life and their Hereafter. Humans’ need for these reaches the level of necessity. No nation or individual can do without them at any time. If all or some of them are lagging, the system of life will be impaired, chaos would spread, evil would permeate, fear would be prevalent, safety and security would be loss and people would experience misery in this life and a grave punishment in the Hereafter—according to the amount by which these necessities are missing.

 

(2) “They are the matters concerning which the need for them reaches the level of necessity.”

 

Al-Jalaal al-Mahali stated, “The necessity (dharoori) is that for which the need reaches the limit of necessity (dharoorah).”104 

(3) A number of legal theorists defined it as, “That for which the need reaches the level of necessity.”105

(4) Others define it as, “The matter whose benefit (maslahah) falls into the realm of necessity.”106

 

Upon inspection, we see that these definitions all agree in meaning although they differ in their wording. Al-Shaatibi’s words, “the matter that is needed to establish the well-being of the religion and worldly life” is equivalent to “the matters concerning which the need for them reaches the limit of necessity,” “that for which the need reaches the level of necessity,” or “the matter whose benefit (maslahah) falls into the realm of necessity.”

 

However, one can critique al-Jalaal al-Mahali’s definition by pointing out that it is not all-inclusive. This is because it is an accepted fact, by law, reason and custom, that not all the necessities are of the same level. That is, one of them is at the highest level of necessity, which is the preservation of religion. Another is at the lowest level, which is wealth. In between those two are others at different levels, being the preservation of life, mental capacity and familial ties. Al-Jalaal al-Mahali’s definition and similar others simply state “what reaches the limit of necessity,” while the level of necessity is common to the greatest level as well as the lowest level of necessities. So if he meant what reaches the “highest” limit, then it would truly refer only to the greatest one, which is religion, excluding the other necessities of preserving life, mental capability, familial ties and wealth. Hence, the definition would not be all-inclusive.

 

The response to this critique is that what we mean by “the limit of necessity” is the lower level and not its extreme or upper limit. Thus, one should understand “limit” here to mean lower limit so that the definition will be all-inclusive and comprising of all the types of necessities. If he means the lower limit, then he must even more so mean the upper limit, as the upper limit is inclusive of what is below it and includes more than that. This is what the practice of Jalaal al-Deen al-Mahali would indicate  as he explained “necessity,” during his commentary on ibn al-Subki, with the previous definition and then he followed it up with the different types of necessities. This demonstrates that his intention was the limit of necessity with respect to the lower limit, thus being inclusive of all the types of necessities. Thus, al-Ataar stated in his notes to the commentary of al-Jalaal al-Mahali, “The meaning is the lower limit, not its upper or end limit. The indication for this is the different levels of the categories that he mentioned although they all share in the fact that they reach the level of necessity. If he meant the upper limit of necessity, any other than the highest one would not properly fit.”108

 

One can conclude from al-Jalaal al-Mahali’s definition and the ones after it that need is more comprehensive than necessity, as it also fits into the locus of necessity as well as what falls below necessity. Thus, the statements, “wherein the need for it reaches the limit of necessity” or “concerning which the need for it reaches the limit of necessity,” indicate that what is below the limit of necessity still constitutes a need but it does not reach the level of necessity.

 

Thus, necessity here is a maslahah concerning which the need of humans reaches the limits of necessity, such that life in this world or the Hereafter cannot be established properly without it.

 

Therefore, “need” is something more comprehensive or general than necessity. Every necessity is a need but not every need is a necessity. And Allah knows best.

 

Limiting the Necessities to the Five Comprehensive Necessities

The necessities which the Lawgiver has intended to care for and preserve are encapsulated by the five general matters of religion, life, mental capacity, familial ties and wealth.

 

Imam al-Ghazaali stated, “The goals of the law among the creation are five: that there religion, lives, mental capacity, familial ties and wealth are all protected. Everything that provides protection to these five goals in itself is a good (maslahah). Anything that allows these to be vanished is in itself an evil (mafsadah), and its repelling is therefore a good (maslahah).”109

 

Al-Amidi stated, “If it is a matter of the necessary goals… they go back to the five concerning which no nation or religion does without tending to them. They are the preservation of religion, life, mental capacity, familial ties and wealth. The preservation of these five goals is from the necessities. They are of the highest level of relative ranking.”110

 

Imam al-Shaatibi emphasizes this fact in many places in his book al-Muwaafaqaat. In the third introductory section of the thirteen introductory sections, he states, “The [Muslim] Nation is in agreement—in fact, all the faiths agree—that the Law has been prescribed to preserve the five necessities, which are religion, life, familial ties, wealth and mental capacity. The knowledge of them among the Nation is like [something known by] necessity.”111

 

In the first section of “The Book of Goals,” he states, “All of the necessities are five. They are preservation of religion, life, familial ties, wealth and mental capacity. It is said that they are attended to in every religion.”112

 

Limiting the necessities to these five types is something that is followed by the majority of the legal theorists, regardless of legal school. However, some of the later scholars, such as ibn al-Subki and ibn al-Najaar, add a sixth category: preservation of al-irdh (“honor”).113

 

Ibn al-Subki stated, “The necessities are the preservation of religion, then life, then mental capacity, then familial ties, then wealth and honor.” Al-Jalaal al-Mahali stated in his commentary to those words, “And al-irdh (honor), that is, in order to preserve it, the punishment for a false accusation of sexual misconduct has been legislated.114  This has been added by the author, as al-Toofi [also did so]. The conjunction he uses before it is ‘and,’ indicating that it is equal to wealth. The four previous all have the conjunction ‘then’ showing that each is less in rank than the previously mentioned one.”115

 

As you see, he attributed this to Najm al-Deen al-Toofi al-Hanbali. Ibn Ameer al-Haaj also attributed this to him, saying, “Al-Toofi and al-Subki add the preservation of honor due to the legal punishment for a false accusation of sexual misconduct.”116

 

Ibn al-Najaar al-Fatoohi al-Hanbali stated, “Necessity is divided into five types. These are the five that are attended to by every religion. They are the preservation of religion, the preservation of life, the preservation of mental capacity, the preservation of familial ties, the preservation of wealth and the preservation of honor.” Then he precedes to present the evidence for each one, and he says, “As for the preservation of honor it is via the prescribed punishment for a false accusation of sexual misconduct… In Jam’ al-Jawaami and the Mandhoomah of al-Birmaawi, it is of the same rank as wealth, using the conjunction ‘and.’ We followed those two in this issue. Thereby, it is the last of the comprehensive [necessities].”117

 

Shihaab al-Deen al-Qaraafi mentioned that “It is appropriate to divide what falls into the locus of necessities and into the locus of needs and into the locus of amenities.” He says, “The first category is comprised of the five all-inclusive [necessities]. They are the preservation of lives, religions, familial ties, mental capacities and wealth. And it is also said: honor.”118

 

At the beginning of his passage, he restricted the necessities to five and then he mentioned the sixth, which is the preservation of honor. However, he mentioned it in a non-definitive manner (seeghah al-tamreedh), indicating that he is not convinced that it is an independent one and a sixth comprehensive principle that can be separated from the five comprehensive ones. Even given that, though, it has such importance and significance that it is a must to be concerned with it and to attend to it like the five necessities.

 

Close to that is what al-Toofi did. Although he mentions honor among the necessities, he first stated that the necessities are five. Here is what he stated: “The third type are necessities, that is, what falls into the rank of necessities… such as the five necessities, which are: preservation of religion by killing the apostate and the one who calls to apostasy and punishing the heretic who calls to heresy; preservation of mental capacity by the prescribed punishment for intoxication; protection of life by the law of retaliation; protection of familial ties via the legal punishment for adultery which leads to the loss of the ties of kinship by mixing sperm; the protection of honor by the punishment for a false accusation of sexual misconduct; and protection of wealth via the cutting off [of the hand] of the thief.”119  Perhaps he meant by this that protection of honor is a necessity. However, it is included within the preservation of familial ties—as I shall show shortly—and it is not an independent comprehensive necessity. If this was what he meant, then it goes against what some of the legal theorists have attributed to him, as I just noted, that he considered the necessities to be six in number, with preserving honor being the sixth comprehensive principle in addition to the five agreed upon comprehensive principles.

 

The Strongest View

First, we must realize that violating one’s honor is of two kinds:

The first kind is a violation of honor by falsely accusing another of illegal sexual intercourse and so forth.

 

The second kind is less than that in nature, including verbal abuse, cursing, backbiting and so forth.

 

As for protecting honor from false accusations which lead to the imposition of the prescribed punishment, such is possibly agreed upon as being at the level of the necessities. However, the difference of opinion is over whether it should be as sixth, independent comprehensive principle or if it simply falls under the five aforementioned comprehensive principles.

 

Some legal theorists reckon it to be the sixth comprehensive principle. But it is the last in rank, coming after wealth. Thereby being the lowest of the comprehensive principles.

 

Some legal theorists place it under one of the five comprehensive principles. Some included it under preservation of life120 while others put it under the preservation of familial ties.

 

Based upon that, what is strongest to me is that “honor” is of different levels. Some aspects of it fall into the level of necessities, such that if it is violated there is the legal punishment for such false accusations. Other aspects of honor fall short of that and do not require any prescribed punishment, simply discretionary punishments.

 

Furthermore, what falls under the first category—which is of the level of necessities—is not strong enough to be considered a sixth independent necessity. Instead, it is included under the necessity of the preservation of familial ties or protection of progeny, as some term it.121

 

Familial ties are preserved from being lost by two things. First there is the prohibition of illegal sexual intercourse and the imposition of a prescribed punishment for anyone who would do such an act, virgin or non-virgin. Secondly, there is the prohibition of a false accusation of sexual misconduct and the imposition of a prescribed punishment for anyone who would commit this act. This is because accusing someone of illegal sexual intercourse leads to doubts concerning paternity. If such speech becomes a lot, is spread on the tongues and is prevalent among the people, reputations will be sullied, homes will be destroyed and husbands may be driven to divorce their wives, deny their own children, perform li’an122 , abandon the family and not support them or have any compassion or good relations with them simply because they doubt if the children ascribed to them are theirs or if they are someone else’s who is simply attached to them. The same thing occurs if it happens for the man. If he is accused of illegal sexual intercourse, he loses the respect of the people and his family becomes the subject of blame and accusations. I shall discuss further the implications for the accuser and the accused of such false accusations and for the society as well in the third and fourth chapters, Allah willing.

 

What I have determined to be the strongest opinion here is also what al-Zarkashi concluded, according to what al-Banaani has quoted from him. He stated, “It is apparent that honor has varying degrees to it. Part of it is from the comprehensive principles, and that is the familial ties. This takes precedence over wealth. It is preserved, on the one hand, by the prohibition of illegal sexual intercourse and, on the other hand, by the prohibition of making false accusations of sexual misconduct, which leads to doubts concerning the kinship ties of others. The sanctity of kinship takes precedence over that of wealth. However, there are other aspects of honor which are less than that, and that is those other than what touches upon kinship.”123 I also found a passage in Nashr al-Bunood ala Muraaqi al-Suood which supports this opinion. It states, “Making honor and wealth equal is al-Subki’s view. However, it is apparent that they should be distinguished. One should say: One of the benefits of preserving honor is the protecting of the ties of kin from any kind of doubt via the illegality of false accusations of sexual misconduct. This connects this aspect with the preservation of familial ties. In this sense, then, it takes precedence over wealth. They are both protected by the prohibition of illegal sexual intercourse, on the one hand, and by the prohibition of false accusations of sexual misconduct leading to doubts in paternity on the other hand. The sanctity of kinship takes precedence over that of wealth. However, there are some aspects of honor that fall short of all the necessities and which would be considered less than wealth, not equal to it in rank. This category of honor will be outside of the first category [described above]. This is how some have explained it.”124

 

This is what one senses from what al-Toofi said in Mukhtasar al-Raudhah, as he stated, after dividing maslahah into amenities, needs and necessities, “A necessity is that which is encountered by the Law giving attention to it, such as preservation of religion by the killing of the apostate and the one who calls [to apostasy], preservation of mental capacity by the prescribed punishment for intoxication, preservation of life by the law of retaliation, preservation of familial ties and honor by the prescribed punishment for illegal sexual intercourse and false accusations of sexual misconduct, and preservation of wealth by the cutting of the hand of the thief.”125  Note how he combines together familial ties and honor and stated that their preservation is via the punishments for illegal sexual intercourse and for false accusations of illegal sexual intercourse.

 

I have seen a number of later scholars referring to the preservation of familial ties as the preservation of honor. They take it as being comprised of both the preservation of familial ties and honor.

 

Among those is, for example, Shaikh Abdul-Wahhaab Khalaaf. He stated, “The necessary matters for people… go back to preserving five matters: religion, life, mental capacity, honor and wealth. The preservation of each one of them is a necessity for the people.” Then he stated, “For the preservation of honor, the legal punishments of the male and female fornicators and the legal punishment for false accusations of sexual misconduct have been enacted.”126

 

To summarize the above, honor can be divided into two categories. One category, if it is violated, leads to doubts about paternity, which is considered one of the five necessities, and hence it is similarly a necessity.

 

Another category related to honor does not lead to doubts about paternity and hence is less than a necessity, even though its preservation is desired both by the law and customarily [by people].

 

From this it is seen that to consider the preservation of honor as a sixth comprehensive principle equal to wealth in rank or just below it is not acceptable. This is because if what is meant by honor is that which is related to familial ties then making it equal to wealth or less than wealth in rank is not correct, as familial ties has a higher ranking than wealth. Allah has obligated the prescribed punishment for anyone who violates it by accusing another of illegal sexual intercourse and so on. Furthermore, it is the custom of intelligent people to sacrifice their lives and wealth to protect their honor and they are praised and congratulated for that.

 

Al-Zarkashi stated, “It is the custom of intelligent people to sacrifice their lives and wealth to defend their honor. Anything for which a necessity would be sacrificed must a fortiori be a necessity. The law has legislated the prescribed punishment for one who violates it by a false accusation of sexual misconduct. Thus it is more deserving to be preserved. In fact, a person may pardon someone who violates his life or wealth but he is not about to pardon someone who violates his honor.”127

 

Thus, Hasaan ibn Thaabit (may Allah be pleased with him) stated,

          I protect my honor with my wealth and I do not disgrace it

          There is no blessing of Allah in wealth after honor is gone

          I can be cunning for wealth if it leads to me amassing it

          But for honor I would never be cunning even if it leads me [to my goal]128

 

But if what is meant by honor is that whose violation does not lead to questions of paternity, such as verbal abuse, cursing, swearing, being accused of cowardliness, ignorance, stinginess or stupidity, it is not acceptable to think of these as necessities. Indeed, these are from the needs concerning which [if they are violated] people find themselves in hardship and difficulty. However, they do not reach the level of the necessities.

 

One can consider these aspects to be part of the completion of the preservation of life, for it is part of the needs of the soul to try to protect it against any such form of attack and “because verbal attacks may lead to physical injury and then to fighting.”129

 

The Way in Which the Necessities are Encapsulated by the Five Comprehensive Principles

The limiting of the necessary goals into these five, preservation of religion, life, mental capacity, familial ties and wealth, is not something that is taken from one specific legal text. In fact, two things point to them:

The first matter is the observation of the situations of mankind, wherein one finds that people, as a group or as individuals, are driven by necessity to obtain these characteristics. Their affairs cannot be set aright nor can their matters be considered sound for their worldly life or their Hereafter except via these necessities. The other needs and demands of humankind do not reach their level with respect to need and being compelled to have them.

 

Al-Amidi stated, “Limiting it to just these five types is based on viewing reality and the knowledge that customarily there is no necessary goal other than them.”130

 

The following further explains the above.

Religion is a necessity for humankind and one of his special characteristics that distinguishes him from the ranks of animals. By religion, he is raised to the level of being a servant of Allah alone, for whom there is no partner. He thereby frees himself from the servitude of materialism and desires or the servitude to any created thing, in order to obtain the dignity of true servitude to Allah alone, the Lord of the Worlds. His being becomes filled with honor, dignity, trust and certainty. Within the confines of the religion, he lives a pure life, secure and stable. In the Hereafter, his journey will end with gardens from Allah and His pleasure. Thus, the true happiness of his worldly life and his Hereafter will be fulfilled.

 

This is with respect to individuals. With respect to humans as a community, religion instigates in their hearts a feeling of Allah’s watchfulness, a fear of Him and a desire to obtain what He has of rewards and pleasures. This in itself spreads love, affection and loyalty among the believers. It prevents them from wronging each other and transgressing against one another. It prevents them from lewd and evil conduct. It drives them to do what is good and right and to help one another for the sake of righteousness and piety in every time and place. They do [such goodness] without worrying about the watchful eyes of a worldly authority or any fear from humans or simply any personal short-run gain or any other worldly motive. Instead, the driving force is simply the constraints of faith that are found within humankind and which do not leave them at any time or place.

 

Furthermore, it is religion that regulates the relationship between the human and his lord, the relationship between the person and himself and the relationship between him and his society. In fact, it regulates his relationship with all of the cosmos. It provides the maslahah of the individual and the society in the short-run [of this worldly life] and the long-run [of the Hereafter] without one of them impeding the demands of the other.

 

As for life, preserving it is a necessity that is not hidden from anyone. In fact, it is something natural and basic in the very make-up and nature of mankind. People, from their earliest times, always tried to protect their lives. They would not be pleased with anyone transgressing against part or all of their lives.

 

Thus protecting life is the most important masaalih after the maslahah of having religion. Otherwise, if life is lost, then lost will also be those who have religion and those who are supposed to administer the affairs of this world, as Allah has ordered it. This life cannot be established and continued except by the protection of human lives and the repelling of transgression against it as well as providing the means that will guarantee its continuance and safety.

 

As for mental capacity, it is the most noble thing in humans and the thing that most distinguishes them from animals. It is by one’s mind that one can behave and think in the best manner as well as distinguish between masaalih and mafaasid, between what is beneficial and what is harmful and between truth and falsehood. How could this not be the case when it is the foundation of one’s responsibilities and the tool that is used to understand the directive [from Allah]? Thus, the pen [of recording responsible acts] is lifted from the insane, the young and the one who is sleeping until they are mentally capable. The masaalih of a nation cannot be established if its people have lost its mental capabilities. In such a state, they will not be able to think, manage affairs in the best way or recognize what harms or what benefits them. In fact, those who ruin their minds will be dependent and a heavy burden upon others. They may even be a perpetual evil upon the society by which it will receive harm. Therefore, preserving mental capacity is a human necessity that cannot be done without.

 

As for familial ties, its preservation is a mandatory necessity for the continuance of the human species in one sense and for the proper upbringing of the next generation in another sense. When kinship and familial ties are destroyed, the human race will be cut off and annihilated. Similarly, the ties of love and family between parents and children will be cut. The results will be that the parents will no longer tend to the upbringing, care, feeding, maintenance, teaching and guidance of their children. This leads to the destruction of the household, the ruin of the family, the tearing apart of love and togetherness and the children becoming lost and homeless.

 

The competition over sexual satisfaction leads to confusion in paternity that further leads to the children being abandoned and lost, with their upbringing being unattended to. This leads to the breakdown of kinship ties and removes the human race from existence, not to speak of dashing to sexual intercourse via lust and force, leading to evils, fighting, violation of inviolable honors and breaking of ties of kinship and relations.131

 

As for wealth, it is similarly one of the necessities of life without which humans cannot do without for their strength, clothing and housing. It is the main means which helps people to maintain their living and exchange benefits with one another. If wealth is missing, the life of people will change to that of evil and chaos. It may even lead to disputes, conflicts and the spilling of blood. Furthermore, the essential ties of kin and love among people will also be cut off. Thus, the preservation of life, mental capacity and familial ties cannot be complete without the presence of the wealth necessary for them. Finally, humans, by nature, have a love for ownership and independence with what they own.132 

 

Hence, by viewing the different circumstances of people, we find that they are in great need for these five masaalih. We find that their well-being, the order of their affairs and the setting aright of their circumstances in this worldly life and in their Hereafter are all dependent on protecting them from any kind of attack on them. That is why they are of great concern for every religious community and every law that has as its goal the well-being of the creation.

 

The second matter that indicates that the necessities are restricted to these five necessities is by a complete survey of the Shareeah laws and a study of its general and particular evidences.

 

A study of the varying Shareeah laws indicates that all of them have come to preserve and protect these five comprehensive principles as well as what complements and serves them of needs and amenities. There is no necessary goal that falls outside of those five.

 

Ibn Ameer al-Haaj stated, “Restricting the goals to these—that is, the five necessities—is confirmed by a study of reality and a survey of the means of the religions and laws.”133

 

Al-Shaatibi stated, “The whole Nation agrees—in fact, so do the other religions—that the Shareeah has been prescribed to preserve the five necessities, which are religion, life, familial ties, wealth and mental capacity. The knowledge of this among the Nation is like a necessary knowledge. This is not confirmed for us by any specific evidence. Nor do we see a specific source that is distinguished by referring to them. Instead, it is known by its filling the Shareeah with a number of evidences that cannot be encapsulated in one chapter.”134

 

Shaikh Isa Manoon stated, “Restricting [the necessities] to them is known by induction, looking at the reality and the knowledge negating any necessary goal outside of them.”135

 

Thus, a survey of the Shareeah indicates that its various laws related to belief, acts of worship and social interactions are prescribed only for the preservation of the five necessities and what serves and complements them, making life easier upon the creation and removing hardship from them via needs, or what completes them and beautifies life via the amenities. The necessary masaalih are the foundation for the needs and amenities. Thus, they are the combination of the masaalih of humans for both their worldly life and their Hereafter. The Shareeah has been laid down to fulfill the masaalih of humans and to repel evil from them in both the short-run and the long-run, as a bounty and blessing from Allah and as a part of His goodness to His creation.

 

To explain this point, note that Allah has legislated the foundations of faith and the pillars of Islam, from the pronouncement of the testimony of faith, prayers, zakat, fasting, hajj and other forms of worship, to establishing the religion and to preserving it from non-existence.

 

To preserve it from becoming extinct, struggling against the disbelievers, hypocrites and evildoers has been enacted to establish the religion and protect it from any attacks against it. Similarly, migration for the sake of Allah has been obligated as a means of preservation of the religion. The law of the punishment for the apostate as well as the punishment for the heretic that introduces things that are not part of the religion has also been implemented for the preservation of the religion. Also legislated is the boycotting of the ignorant person who permits and forbids things without knowledge. Here is also the order to burn the misleading books; and there are other such laws that protect the religion and preserve it from any kind of shortcoming or harm.

 

To protect the existence of life, consuming food and drink and wearing permissible clothing has been sanctioned. In fact, it is obligatory to consume what is necessary to maintain and sustain life. Indeed, the one who is driven by necessity is obligated to eat carrion and other otherwise forbidden foods, to the limit that is necessary to sustain himself and remove his state of necessity. Finally, zakat, giving to others, laws of maintenance and care for those who cannot care for themselves have all been legislated as ways of preserving life.

 

To protect life from being ended, a number of laws have been prescribed. These include: the prohibition of killing anyone without due right, threatening a grave and severe punishment for that; the law of retribution for intentional murder; the law of blood-money and expiation for involuntary manslaughter; the prohibition for an individual to commit society, or to assist in committing suicide; the law allowing the defense of one’s own self, even if it resorts to killing; the prohibition of amputating any part of the body without an overriding benefit to such an act.

 

Everything that has been legislated for the preservation of life also works for the preservation of mental capacity, which is a part or portion of life itself.

In addition, laws have been legislated to ensure that mental capacity is not lost. Thus, all forms of alcohol and intoxicants that befog the mind are forbidden and there is a prescribed punishment for anyone who partakes in those.

 

As for the preservation of familial ties, many laws have been laid down for its existence, including: the institution of marriage and all its related laws. Laws protecting it from non-existence include the prohibition of illegal sexual intercourse and of falsely accusing another of sexual misconduct, and the prescribed punishment for each of them. Similarly, the law blocks any means of transgressing against the sanctity of familial ties.

 

With respect to the existence and preservation of wealth, one finds laws related to buying, selling, other financial transactions, trade, the exchange of usufruct among the people and the obligation of seeking one’s own livelihood and obtaining one’s sustenance.

 

With respect to preserving wealth from loss, one finds the following laws: the condition of consent in any mutually onerous transaction; the prohibition of misappropriation, stealing, fraud, bribery, interest and illegally consuming the wealth of others. Furthermore, there is a prescribed legal punishment for theft and highway robbery as well as the obligation of compensation for the destruction of wealth belong to another.

 

In chapters two and three, there will be a more detailed discussion of the five necessities and how the law protects them and keeps them from any actual or expected transgressions against them.

 

Footnotes:

 

  101   See Tahdheeb al-Lughah, vol. 11, p. 458; Lisaan al-Arab, vol. 4, p. 483; al-Qaamoos al-Muheet, p. 550; al-Misbaah al-Muneer, vol. 1, p. 360.

102 Al-Muwaafaqaat, vol. 2, p. 8.

103 Some legal theorists refer to this as al-nasb (another term for familial ties) while others refer to it as irdh (“honor”).

104 Sharh al-Jalaal al-Muhali ala Jam’ al-Jawaami ma Haashiyah al-Ataar, vol. 2, p. 322.

105 Al-Taqreer wa al-Tahbeer, vol. 3, p. 143; Taiseer al-Tahreer, vol. 3, p. 306; Fawaatih al-Rahamoot, vol. 2, p. 262.

106 Sharh al-Kaukab al-Muneer, vol. 4, p. 159; Nihaayah al-Sool fi Sharh Minhaaj al-Usool, vol. 4, p. 82.

107Sharh al-Jalaal al-Mahali ala Jam’ al-Jawaami, vol. 2, p. 322.

108 Ibid.

109 Al-Ghazaali, al-Mustasfa fi Ilm al-Usool, vol. 1, p. 287. See the similar passage in Abu Zahrah, Maalik: Hayaatuhu, Asruhu, Araauhu wa Fiqhuhu, p. 300.

110 Al-Ihkaam, vol. 3, p. 274.

111 Al-Muwaafaqaat, vol. 1, p. 38.

112 Al-Muwaafaqaat, vol. 2, p. 10. Also see Taiseer al-Tahreer, vol. 3, p. 306; al-Taqreer wa al-Tahbeer, vol. 3, p. 143; Fawaatih al-Rahamoot, vol. 2, p. 262; Nihaayah al-Sool, vol. 4, p. 82; Irshaad al-Fahool, p. 216; al-Ibhaaj fi Sharh al-Minhaaj, vol. 3, p. 55.

113 Al-Irdh (?????) is a person’s honor or reputation that he preserves from blame or censure or it is what a person is proud of concerning his lineage or honor. Or it is what a person protects of his own self or family relations from any kind of blame or blemish, whether it be with respect to his own self, his ancestors or those under his charge. See Nashr al-Bunood ala Muraaqi al-Suood, vol. 2, p. 178; al-Misbaah al-Muneer, vol. 2, p. 404. These three definitions all have the same meaning. The clearest of them for the purposes here is the last one. In Jaami al-Usool, ibn al-Atheer wrote, “Al-Irdh is the subject of praise or blame in a person. If it is said, ‘He mentioned the irdh of so and so,’ it means that he mentioned the matters by which he is exalted or abased, due to which one praises or blames him. It is possible that it be simply related to him and not to his ancestors or it could be related not to him but to his ancestors or it could be related to both. Some people say that the irdh of a person is related simply to himself and not to his ancestors.” See the similar discussion in Sharh al-Nawawi ala Saheeh Muslim, vol. 16, p. 50.

114 Shaikh al-Ataar in his further notes on the commentary by al-Jalaal al-Mahali stated, “That is, or a discretionary punishment, because this is what is obliged for the ‘non-married’ person or for slandering one’s honor in a way less than a false accusation of sexual misconduct.”

115 Sharh al-Jalaal al-Mahali ala Jam’ al-Jawaami li-ibn al-Subki ma Haashiyah al-Ataar, vol. 2, pp. 322-323.

116 Al-Taqreer wa al-Tahbeer, vol. 3, p. 144.

 117 Sharh al-Kaukab al-Muneer, vol. 4, pp. 159-163.

118 Sharh Tanqeeh al-Fusool, p. 391.

119 Sharh Mukhtasar al-Raudhah, vol. 3, p. 209.

120 Shaikh Muhammad Abu Zahrah wrote in Usool al-Fiqh (p. 367), “Preservation of life also covers preservation of honor and dignity by prohibiting false accusations, abusing…” Also see Fawaatih al-Rahamoot bi-Sharh Musallam al-Thaboot, vol. 2, p. 262; Salim al-Wusool li-Sharh Nihaayah al-Sool, vol. 4, p. 58.

121 Al-Raazi in al-Mahsool, al-Qaraafi in Tanqeeh al-al-Fusool, ibn Qudaamah in al-Raudhah, al-Toofi in his Mukhtasar, ibn al-Subki in Jam’ al-Jawaami, al-Baidhaawi in al-Minhaaj, al-Asnawi, ibn al-Subki, al-Badkhashi and al-Asfahaani in their commentaries to al-Minhaaj and al-Shanqeeti in Nashr al-Bunood all refer to it as preservation of familial ties (al-nasb). However, al-Ghazaali in al-Mustasfa, ibn al-Haajib in both al-Muntaha and its abridgement, al-Amidi in al-Ihkaam, al-Shaatibi in al-Muwaafaqaat and al-Shaukaani in Irshaad al-Fahool all refer to it as the preservation of progeny (al-nasl).

122 [This is a means of separation in which the husband accuses the wife of illegal sexual intercourse and swears to it while the wife, in her defense and to avoid any legal punishment, swears that she is innocent. Both parties ask for the wrath of Allah upon them if they be lying.—Trans.]

123 Haashiyat al-Banaani ala Sharh al-Jalaal al-Mahali, vol. 2, pp. 280-281.

124 Nashr al-Bunood ala Muraaqi al-Suood, vol. 2, p. 178.

125 Al-Balbal fi Usool al-Fiqh, p. 144. This is an abridgement of Raudhah al-Naadhir by ibn Qudaamah

126 Abdul-Wahaab Khalaaf, Usool al-Fiqh, pp. 199 and 201. Also see his Masaadi al-Tashree feema la Nass feeh, p. 57.

127 Al-Bahr al-Muheet, vol. 5, p. 310. See virtually the same words by al-Shaukaani, Irshaad al-Fahool, p. 216. Also see Nibraas al-Uqool, vol. 1, pp. 279-280.

128 Dayawaan Hasaan ibn Thaabit, p. 190.

129 Musallim al-Thaboot wa Sharhuhu Fawaatih al-Rahamoot, vol. 2, p. 262; Salim al-Wusool li-Sharh Nihaayah al-Sool, vol. 4, p. 58.

130 Al-Ihkaam, vol. 3, p. 742. In the second issue, I shall quote the words of Ameer al-Haaj and Isa Manoon that further emphasize this point.

131 See Shifaa al-Ghaleel fi Bayaan al-Shibh wa al-Mukheel wa Masaalik al-Taleel, p. 160; Nabraas al-Uqool, vol. 1, p. 280; al-Asfahaani, Sharh al-Minhaaj, vol. 2, pp. 684-685; Muhammad ibn Abdullah al-Bukhaari, Mahaasin al-Islaam, p. 43

 

133 See al-Muwaafaqaat, vol. 2, p. 17.

134Al-Taqreer wa al-Tahbeer, vol. 3, p. 144.

135 Al-Muwaafaqaat, vol. 1, p. 38. See what he says about induction and surveying producing definitive knowledge on vol. 2, pp. 51-52.

 

 

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