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The Relative Rankings of the Five Necessities

 

The five necessities can be divided into two categories:

The first category: Those that have a “worldly purpose” to them. These are the preservation of life, familial ties, mental capacity and wealth.

The second category: Those that have a religious purpose to them. This is the preservation of the religion.

 

As for the first category, the preservation of the “worldly necessities,” the legal theorists rank them into the following order: the preservation of life, then the preservation of familial ties, then the preservation of mental capacity and then the preservation of wealth.136

 

The reasons for that are as below:

 

First: The Reasoning by Which The Preservation Of Life Takes Precedence:

Preservation of life takes precedence over preservation of familial ties, mental capacity and wealth because in each of those branches there [is assumed] the existence of life.137  Similarly, the establishment of acts of worship and of the religious masaalih is dependent upon the existence of life. Hence, it takes precedence over all of them.138  In a second way of looking at it, the preservation of familial ties is intended to protect the child, so he is not left loss without someone to bring him up. It is not a goal in and of itself but only as it leads to the continuation of life.

 

The same is the case with respect to wealth. Its perpetuity is not for its own sake but it is only for the continuation of life and the providing of life’s needs.

 

As for mental capacity, its continuance is contingent upon the continuance of life, as it is a part of it and one of its attributes. There is no continuance for it except through life’s existence. Thus, life is the source and mental capacity is secondary to it. Thus, the preservation of the source must take precedence.139

This also indicates that if a person is compelled to drink alcohol under the threat of being killed or having a part of his body amputated, then by a consensus140  it is permissible for him to drink that in order to protect his life. Some scholars say that it is obligatory to drink it under such circumstances. If he refuses to drink it until he is killed, then he is considered sinful for that—as in the case of, while starving, his refusal to eat carrion until he dies—because his refusal to drink it has made him take his soul to destruction.141

 

This indicates that preservation of life takes precedence over preservation of mental capacity.142

 

Similar is the case if someone is choking and one cannot find anything to relieve the choking except alcohol. In such a case, he can drink said alcohol and there is no sin upon him.

 

Al-Suyooti wrote, “Drinking alcohol is definitely allowed due to coercion, as a way of preserving life. Similarly, if someone is swallowing on a piece of food, he may use it to clear the path. However, in such a case it is not obligatory upon him according to the correct view. Drinking urine and consuming carrion are both permissible under coercion and they are possibly obligatory… In fact, the correct opinion must be that they are obligatory.”143

 

Similarly, one may be forced to drink alcohol in the face of great thirst, fearing for one’s life. Such a person may drink alcohol—in fact, it is obligatory upon him to drink it. This indicates that preservation of life takes precedence over preservation of mental capacity.144

 

Second: The Reasoning by Which Preservation of Familial Ties Takes Precedence:

Preservation of familial ties takes precedence over preservation of mental capacity or wealth. This is because preservation of familial ties relates to preservation of the human species by procreation as well as preservation of the child from being lost or ruined. By the prohibition of illegal sexual intercourse, there can be no confusion about paternity. Instead, the child will be ascribed to his father who will attend to his upbringing and protection.145

 

In al-Adhid’s commentary to Mukhtasar ibn al-Haajib146, it states, “The maslahah of familial ties takes precedence over mental capacity and wealth because it is for the sake of continuing life, as it is legislated for the purpose of saving the child from being lost or being without one to bring him up.”

 

Furthermore, the harm that is resultant from violating familial ties is greater than the evil that results from violating the sanctity of wealth or the loss of mental capacity due to intoxication and so forth.

 

 The reason for that is that illegal sexual intercourse leads to the mixing of paternity, loss of familial ties, loosening of society, destruction of bonds, spreading of hatred and enmity among individuals due to the transgressing of people’s rights and violating of honor. Furthermore, its harm reaches more than one person, as it touches the husband, the family and so forth.

 

This is in addition to its resultant communal diseases, deadly plagues, canceling of the benefits of marriage and driving people away from marriage.

 

For this reason we find intelligent people, from a long time ago, sacrificing their wealth, and even their lives sometime, to protect their honor and familial ties. This indicates that preservation of familial ties takes precedence over the preservation of mental capacity and wealth.

 

Third: The Reasoning by Which Preservation of Mental Capacity Takes Precedence

 

Preservation of mental capacity takes precedence over preservation of wealth. This is because the mind is the tool that distinguishes between what is beneficial and what is harmful and what is appropriate for the person and what is damaging to it. It is the guide to what is good and the thing that prevents one from evil, as it leads individuals to what is best for them, what sustains them and what completes them. It resists their going to the places of destruction and distances them from the causes of loss and harm.

 

In fact, there is no necessity of these five necessities except mental capacity that points to the necessity of itself being preserved and the way in which it is to be preserved. If mental capacity goes, so does life and the rest of the necessities, as the thing that can protect them from the sources of destruction and danger will have been lost.

 

Furthermore, mental capacity also distinguishes humans from animals and dumb beasts. This makes them capable of undertaking responsibility and being addressed [by the Divine command]. If mental capacity is not present, piety would also be removed.147

 

Note that preserving mental capacity coming after preserving familial ties is apparently when what is meant is simply a temporary loss of mental capacity which returns after a while, such as is the case with intoxication. Otherwise, if what is being discussed is a permanent loss of mental capacity, it could not possibly come after familial ties due to what has been mentioned of human’s necessity for mental capacity and that all of the masaalih, including that of familial ties, cannot be completed without it.

 

Furthermore, it is not a definitive conclusion that illegal sexual intercourse will necessarily lead to questionable paternity or loss of familial ties. However, as for mental capacity, it is rare or impossible for it to return after it is completely lost. Thus, in a case like this, preservation of mental capacity takes precedence over that of familial ties or wealth. If a person is compelled to intake something that will permanently make him lose his mind while his other compelling choice is that of illegal sexual intercourse, then for him to take part in the evil act of illegal sexual intercourse is lighter than his permanently losing his mind.

 

What may indicate the precedence of preservation of mental capacity in that situation over preservation of familial ties is the scholars mentioning that the flogging for illegal sexual condition is not to be allowed to kill the person, damage one of his limbs or cause him to lose his mind. This is because the flogging is simply meant as a deterrent and not something that would cause him to lose his mind, be killed or lose a limb.148

 

I have not found any of the legal theorists who explicitly state this, save for ibn Ameer al-Haaj who stated, after listing in order the five necessities, “It is obvious that some of the reasoning that produces this ordering of the necessities, with respect to what takes precedence over others, needs some reflection.”149

 

Al-Adhid stated in his commentary to the Mukhtasar of ibn al-Haajib150, “One could say: Life is lost via loss of mental capacity as the thing that protects it from ruin would be lost. But, giving precedence of familial ties over mental capacity could not then be maintained, as they have said that preserving familial ties takes precedence over mental capacity and wealth because it is related to sustaining life, as opposed to the other two.”150

 

Fourth: The Reasoning by Which Wealth Comes Last

As for wealth, it comes as the last of the necessities. This is because it is sacrificed for the sake of life, mental capacity and familial ties. Wealth is not something sought in and of itself. But it is sought for its role in preserving religion, life, familial ties and mental capacity.

 

Therefore, if an intelligent person is given a choice between having his wealth taken or being killed or losing his mind or the occurrence of illegal sexual intercourse with one of his relatives, taking some of his wealth would be the easiest thing upon him.

 

Since these necessities are at different levels with respect to each other, the penalties for violating each of them differ according to the different levels between them.151  And Allah knows best.

 

As for the second category, which is the preservation of religion, the scholars differ as to whether it takes precedence over the worldly necessities or vice-versa. There are two opinions on this point.

 

The first opinion states that the preservation of religion comes after the preservation of the remaining necessities. This is the view of some legal theorists.152  Al-Amidi mentions it in the form of a question but does not state it to be an opinion.153

 

They prove this by saying that religion is the right of Allah while the rest of the necessities are from the rights of humans. The rights of humans, therefore, take precedence because they are predicated upon disputes and strictness while the rights of Allah are predicated upon forgiveness and facility.154  And, furthermore, Allah is not hurt by the loss of His rights while humans are. Therefore, preserving the rights of humans takes precedence.155

 

Based on this, the rights of humans take precedence over the rights of Allah if two such rights are ever in conflict and there is no way to fulfill both of them.

Thus, if a person murders someone and then apostatizes—and the protection of Allah is sought from such an act—he is to be handed over to the heir/guardian to have the law of retribution enacted upon him and he is not handed over to the ruler to be killed for his apostasy, even though the second is the right of Allah and not the first.

 

Similarly, the maslahah of life takes precedence over the maslahah of the religion with respect to shortening and combining the prayers of the traveler, the traveler not having to fast, as well as ease for the one who is sick by not having to pray standing or to fast. Also, the maslahah of life takes precedence over that of religion in the case of saving a drowning person and the breaking away from the prayer to do that. Even beyond that, the preservation of wealth takes precedence over the preservation of religion in that it is permissible to leave the Friday Prayers and the daily congregational prayers to guard one’s wealth when one fears that it may be stolen and so on. The masaalih of the Muslims is given preference over the masaalih of the religion via the allowing of the continual presence of the non-Muslim subjects, even their blood and wealth are protected although they have a clear disbelief that would allow their lives to be taken.156

 

This evidence can be responded to in two ways.

 

First is the response of rejection. That is, we do not accept that in these examples the rights of humans are given precedence over the rights of Allah. This is explained in the following manner: As for giving precedence to the law of retribution over the death penalty for apostasy, it is because the law of retribution is also part of the rights of Allah. The murderer has transgressed what Allah has forbidden. For this reason, it is also forbidden for an individual to kill himself or to expose himself to death. Thus, the giving over of the person to the heir brings together both rights in the sense that the goal of the religion will be fulfilled due to his being put to death under the law of retribution. This is fulfilled by his being put to death by the heir as opposed to if the ruler had killed him due to apostasy, in which case the right of the heir for retribution would not have been fulfilled.157

 

Ibn al-Subki stated, “The goal of the Law is to remove the evil of apostasy. There is no purpose in it in simply killing. However, since it is a means to removing that evil, it is legislated. When it comes together with the rights of humans, there is no conflict between the two goals, as there is no goal of the human except relief through retaliation, and therefore the person is handed over to the heir/guardian in order for him to exact his full right. The two goals are then both met by that. Thus, the right of humans is not being given precedence.”158

 

The conclusion is that giving the person over to the heir is not a matter of giving preference to the rights of humans. It is simply a matter of fulfilling both of those rights. Thus, it is not related to the question that currently concerns us.159

 

As for the relaxation in some of the laws, they take the place of what is obligatory but there is no difference in their goals. The burden of performing two rakahs of prayer while traveling takes the place of the burden of four rakahs while resident. Such is also the case with the validity of the ill person praying sitting as opposed to him praying standing. In both cases, the goal does not differ.160

 

Furthermore, taking advantage of an exemption due to need is more beloved to Allah than following the stricter ruling—as the texts of the Shareeah indicate.

As for the actions which are left, such as the fast, Friday Prayers, congregational prayers, [prayer left] while saving a drowning person and so on, they are actually only delayed.161

 

As for the non-Muslim citizens remaining among the Muslims with their lives and wealth protected, this is part of the maslahah of the religion. This is so they can appreciate the beauty of Islam, making it easier for them to submit to it and to be guided to it. This is part of the maslahah of the religion and not of any other maslahah. It is similar to the case of the treaty of al-Hudaibiyyah which was termed “a clear victory.”162

 

The second way of responding to the above evidence is to accept the above arguments. However, even if those arguments are accepted, it is does not mean that the rights of humans are being given precedence over the rights of Allah because they are only being given precedence to some of the branches of the religion and not to its foundation.  Thus, the religion remains and is preserved. Here, we are speaking about giving precedence for one necessity over the other to the point that the lower necessity is sacrificed for the sake of the greater necessity, such as sacrificing life for the sake of preserving religion. Thus, the examples we have discussed are not cases of giving such precedence.

 

Furthermore, there is no conflict between these masaalih and the maslahah of the religion. Indeed, they, in reality, establish, strengthen and fortify the faith and are a form of responding to the command of Allah and adhering to His Law that He is pleased His servants have.

 

This is the response to their evidence [that the worldly necessities take precedence over the religion].

 

One could also add the following as further evidence for their case. This is the fact that the one who under compulsion is permitted to make a statement of disbelief in order to say his life, as long as his heart is firm upon faith. Allah has said,

 “Whoever disbelieved in Allah after his belief, except him who is forced thereto and whose heart is at rest with Faith but such as open their breasts to disbelief, on them is wrath from Allah, and theirs will be a great torment” (al-Nahl 106).

Ibn Katheer stated, “The words,163 ‘except him who is forced thereto and whose heart is at rest with faith,’ is an exception for he who makes unbelief with his tongue. He agrees to the demands of the polytheists with his statement under compulsion due to the punishment and pain he is receiving. His heart, though, is rejecting what he is saying. He is firm with his belief in Allah and His Messenger.” Then he says, “Based on this, the scholars agree that the one who is being compelled to commit disbelief is allowed to do so in order to save his life.”164

 

This evidence can be responded to in three ways.

 

First, the statement of disbelief under such circumstances is considered vain, meaningless speech and not speech whose meaning is intended. In order for a speech to be considered sound, it must be intended and its consequences must be believed in. Since this condition is violated, it will be considered meaningless speech with no resultant consequences, as is the case if the person is compelled to accept a contract, negation of a contract, responsibility for wealth and so forth. 165

 

Concerning the words, “except him who is forced thereto and whose heart is at rest with faith,” ibn Abbaas stated, “Allah has informed that the one who commits disbelief after faith shall have the anger of Allah upon him and a grievous punishment will be his. As for the one who is compelled and speaks disbelief with his tongue, while his heart is opposed to that by faith, in order to be saved from his enemies, there is no harm upon him. This is because Allah only holds humans responsible for what their hearts firmly intend.”166

 

Second, the evil of speaking disbelief without believing in it is less than the evil of losing one’s life.167  This is because the religion has not left by such pronouncement of disbelief, as the heart of the speaker is content with faith. In his heart, he believes in the opposite of what he is being compelled to say. It is impossible to compel someone to have disbelief in his heart, as the one doing the compelling cannot see into the heart to see if it has disbelief, belief, rejection or acceptance.

 

Furthermore, the preservation of life and limb by stating a statement of disbelief under compulsion is from the maslahah of the religion, as after that the person is able to fulfill the responsibilities of obeying Allah and worship. Thus, in the end, the maslahah goes back to being the preservation of the religion.168

 

Third, it is recommended for the one who is compelled to make a statement of disbelief to have patience and resolve and not to make such a statement, even if that leads to his being killed and his sacrificing his soul as a way of glorifying the religion and attesting to the greatness of the Lord of the worlds. Thus, there is a consensus that refusing to pronounce words of disbelief with a heart firm with faith and under compulsion is considered more virtuous than stating such words just to protect one’s life.

 

Abu Bakr ibn al-Arabi stated, “[As for words of] disbelief, even if they are allowed according to the scholars due to compulsion, if the person has patience concerning his trial and does not give in until he is killed, then he is a martyr. There is no difference of opinion on this point. The reports of the Shareeah, which are too many to recount here, indicate this point. The permission [to state the words of disbelief] comes only as a special exemption from Allah, out of mercy for the creation and for their preservation, from this Shareeah’s great magnanimity, removal of hardships and releasing of fetters.”169

 

Al-Qurtubi noted, “All the scholars agree that the one who is compelled to disbelief and chooses instead to be killed has the greater reward with Allah over the one who chooses the special exemption.”170

 

Ibn Katheer also wrote, “The scholars agree that the one who is being compelled to commit disbelief is allowed to do so in order to save his life. It is also for permissible for him to refuse [to state the words of disbelief]. Such was the case with Bilaal, may Allah be pleased with him, who refused to comply while they were doing what they did to him…” Then he presents the incident of Bilal with the disbelievers from the Quraish and the story of Habeeb ibn Zaid al-Ansaari with Musailamah, the Liar. Then he states, “It is most virtuous and preferred for the Muslim to remain firm upon his religion even if that leads to him being killed.”171

 

Concerning the verse,

 “Let not the believers take disbelievers as supporters [and protectors] in lieu of the believers. Whoever does that has no connection with Allah unless (it be) that you but guard yourselves against them, taking (as it were) a precaution” (ali-Imraan 28), Abu Bakr al-Jasaas stated,

That is, if one fears death or loss of limb and protects himself from them by demonstrating loyalty to them without belief in it. Such is the apparent purport of the text and what the major of the scholars opine… The verse shows that it is permissible to make a show of disbelief in order to protect oneself. It is similar to the verse, “Whoever disbelieved in Allah after his belief, except him who is forced thereto and whose heart is at rest with faith.” To act in such a precautionary manner under those circumstances is an exception from Allah and it is not obligatory. In fact, not making such precautionary acts is more virtuous. Our Companions [the Hanafis] say that the one who is compelled to disbelief and does not do so until he is killed is more virtuous than the one who displays [disbelief]. The polytheists took Khubaib ibn Adi and he did not resort to any saving act and they killed him. He was considered more virtuous to the Muslims than Ammaar ibn Yaasir who took such precautionary steps and displayed disbelief. He asked the Prophet (peace and blessings of Allah be upon him) about that and he said, “How did you find your heart?” He replied, “At rest with faith.” The Prophet (peace and blessings of Allah be upon him) then told him, “If they do it again, then do it again also.”172  This was in the manner of a special exemption… Thus, our Companions say about every matter in which one glorifies the faith that giving up one’s life to be killed is more virtuous than taking the special exemption and opting out of that. Do you not see how the one who sacrifices his soul through jihad against the enemy and is killed is better than the one who withdrew from the fighting? Allah has described the situation of the martyrs after their killing and has made them alive, being provided for. Similarly, sacrificing one’s soul to bring to prominence the religion of Allah and not displaying disbelief is more virtuous than performing precautionary acts at that time.173

 

Al-Izz ibn Abdul-Salaam stated, “The stating of words of disbelief is a forbidden evil, except in the case of quotations or under compulsion, if the heart of the compelled person is at rest with faith. This is because saving the life and soul is of a more complete maslahah than the evil of making a statement while the heart does not believe in it. If the person were to be patient under that circumstance it would be better, since such an act would be one of glorifying the faith and extolling the Lord of the Worlds. Exposing the soul to danger to glorify the religion is permissible. And those who say that it is obligatory to make such a statement of disbelief are far from being correct.”174  

 

The Second View: The Preservation of the Religion Takes Precedence Over the

Preservation of the Remaining Necessities

 

This is the view of the majority of the legal theorists.175

 

The following evidence is given for this view:

(1)     The religion is the main goal. Allah has said,

 “And I (Allah) created not the jinns and humans except they should worship Me (Alone)” (al-Dhaariyaat 56). And there are many other verses that give the same meaning.176

 

The Shareeah came to take humans from the drive of lusts to becoming servants of Allah by choice in the same way that they are servants of Allah by must. The preservation of the necessities has not been sanctioned simply in order to establish the worldly life itself. Instead, they are for the sake of the other life and that cannot be achieved except through the religion.177

 

(2) The fruit of preserving the faith is the greatest of all fruits. It is the achieving of true happiness in this worldly life and the Hereafter. By its loss one loses happiness and security in both this worldly life and the Hereafter.

 

(3) The other things which are preserved, other than the preservation of religion, being the preservation of life, mental capacity, familial ties and wealth, are all preserved for the sake of the religion. Allah has said,

 “And I (Allah) created not the jinns and humans except they should worship Me (Alone)” (al-Dhaariyaat 56).178

 

(4) Lives are to be sacrificed for the sake of religion. Souls, not to speak of wealth, are given up to preserve the religion. Such is done through jihad for the sake of Allah, which embodies the loss of life, cutting off of heads and loss of limb. This indicates that the preservation of religion takes precedence over the preservation of life and the remaining necessities. Life takes precedence over those others and if religion takes precedence over it, it also a fortiori takes precedence over the remaining necessities.179

 

(5) Allah has said,

 “For disbelief [and driving people away from the true religion] is greater than killing” (al-Baqarah 217). He has also said,

 “For disbelief [and driving people away from the true religion] is worse than killing” (al-Baqarah 191). Thus, the Lawgiver considers driving the believer away from his religion greater than and worse than killing. The one who tries to drive a believer away from his religion has committed a crime against him which is greater than the crime of killing itself.180

 

(6) The punishment for apostasy is death. This indicates that the preservation of religion takes precedence over the preservation of life. Otherwise, how could it be permissible to kill an apostate unless saving his life means the loss of religion?

 

If the preservation of religion takes precedence over the preservation of life, it a fortiori takes precedence over the other necessities, as life is the highest of the others.

 

The Strongest View:

After the presentation of the evidence and discussion, the superior weight of the second opinion is made clear due to the strength of its evidence, its freedom from criticism and the strong critique of the opposing view. And Allah knows best.

 

If this is accepted, I think it would be of most benefit to point out some mistakes that I have seen from some of the later scholars concerning this issue.

 

The one who reads the books of Islamic legal theory will find that the scholars do not always adhere to this order when they mention these necessities. The conjunction that they use is the simple “and”, which does not imply any kind of ordering. They might mention the first of them last, third or fourth and so on. Some of them mention the preservation of life before the preservation of religion.181  Some mention the preservation of mental capacity before the preservation of life.182  Some of them mention the preservation of mental capacity as the last of the necessities, mentioning above it the preservation of religion, life, familial ties and wealth.183  And the examples can go on.

 

A later researcher184  claims that the difference in the order of their mention reflects a difference in their strengths and the precedence of one over the other in the case of conflict. This claim is undoubtedly wrong. This is because we find that those same scholars who mention some of the necessities before others, such as the last before the second, third, fourth and so on, when it comes to the topic of “conflict and determining what has more weight” they mention the necessities in the same order that was previously discussed here.

 

Another big mistake concerning this issue is what al-Booti claims concerning a consensus on the ordering of the necessities in the following manner: preservation of religion, life, mental capacity, familial ties and wealth. After stating this order, he said, “The order in this manner among the five comprehensive principles is the subject of consensus. No weight is given to the opinion that says that the preservation of life is to take precedence over that of religion.”185  In addition to their not being a consensus on this point, due to the existence of the difference of opinion mentioned earlier, he has also placed the preservation of mental capacity before that of preservation of familial ties and that goes contrary to the trend among the legal theorists as explained earlier. And Allah knows best.

 

The Earlier Communities and Religious Laws and their Attending to the Necessities (220)

 

More than one legal theorist mentioned186  that the five necessary masaalih were of concern to all of the previous communities and religious laws. They even state that there is a consensus on this point. They said that human reasoning points to them and determines that it is obligatory to protect them and attend to them. Therefore, the intelligent and wise people—in particular with respect to preserving life, progeny and wealth—called to the protecting of them and they made laws and systems that would, in their view, protect them.

This is all because the welfare of this world and the organizing of its affairs are dependent on their existence and protection.

 

After stating most of the worldly masaalih and mafaasid that are known by human reasoning, al-Izz ibn Abdul-Salaam stated, “The sages agree upon this. Similarly, the religious laws all agree upon the prohibition of spilling blood, sexual misconduct, violating wealth and violating honor and of achieving the most virtuous, followed by the next most virtuous in statements and deeds.”187

 

Shaikh Muhammad Abu Zahrah noted, “The goal of Islamic law is to preserve the five matters concerning which there is agreement that it is obligatory to preserve them. They are life, mental capacity, wealth, familial ties and honor. All of the communities have practically agreed upon the obligation of preserving them and the obligation of assisting one another to bring them about. In fact, all of the intelligent people have agreed that society is built upon attending to and preserving these matters. Al-Ghazaali mentioned that [the violation of these matters] has not been permissible in any community. In fact, we say that they have never been permitted in any respected legal system whatsoever, regardless of whether that legal system was derived from a religion or a legal system based on human reasoning.”188

 

Al-Qaraafi wrote, “Al-Ghazaali and others have stated that there is a consensus among the religious communities concerning the five comprehensive principles and that Allah has never permitted the taking of lives or anything from the five aforementioned principles in any religious communities. They also state that intoxicants are forbidden in all the religions, even though there is a difference of opinion concerning a small amount of intoxicants which is forbidden in Islam and permitted in the earlier religious laws. As for the amount which intoxicates, it is forbidden by consensus of all the religions.”189

 

The text of al-Ghazaali’s statement in which the meaning of al-Qaraafi’s words are found is from al-Mustasfa190 , “It is inconceivable that any religion or religious law that seeks the welfare of the creation would allow for the loss or violation of these five fundamentals. For that reason, none of the laws differed about the prohibition of disbelief, killing, illegal sexual intercourse, theft and consuming alcohol. As for those things which play the role of complements for these levels, it is like our saying that in the law of retaliation there must be equality as it is sanctioned for deterrence and restitution, and that cannot be accomplished without equality. It is also like our saying that a little bit of alcohol is forbidden because it leads to consuming more and that intoxicating fruit nectar is analogous to that. These types of issues are of a lesser magnitude than the first [major issues]. Thus, the laws may differ on some of these points. As for the prohibition of intoxication, no religious law would be void of that because intoxication closes the door to responsibility and worship.”

 

In his book Shifaa al-Ghaleel,191  he makes a similar statement, also saying, “No religion has ever allowed intoxication. They may, though, include the permissibility of the amount of an intoxicating beverage that does not intoxicate.”

 

The claim that there is a consensus of all the previous religious laws to adhere to and preserve the necessities has been objected to with three points.

 

Footnotes:

136 See ibn al-Hammaam, al-Tahreer and its commentary Taiseer al-Tahreer, vol. 4, p. 89; Al-Taqreer wa al-Tahbeer, vol. 3, p. 231; Mukhtasar ibn al-Haajib and the commentary by al-Adhid and the notes by al-Taftazaani upon it, vol. 2, p. 318; Al-Amidi, Al-Ihkaam fi Usool al-Ahkaam, vol. 4, pp. 276-277; Musallim al-Thaboot wa Sharhuhu Fawaatih al-Rahamoot, vol. 2, p. 326; Nihaayah al-Sool fi Sharh Minhaaj al-Usool, vol. 4, p. 515.

137 See Taiseer al-Tahreer, vol. 4, p. 89.

138See Al-Taqreer wa al-Tahbeer, vol. 3, p. 231.

139 See al-Amidi, Al-Ihkaam, vol. 4, p. 276; Sharh al-Adhid ala Mukhtasar ibn al-Haajib, vol. 2, p. 318.

140 See Al-Jaami li-Ahkaam al-Quran, vol. 2, p. 228; al-Suhaili, Al-Raudh al-Unuf, vol. 3, p. 218.

141 See Badaa’ al-Sanaa’, vol. 7, p. 176.

142 For more details on the question of coercion and compulsion, see ibn al-Arabi, Ahkaam al-Quraan, vol. 3, pp. 1165-1170; al-Qurtubi, Al-Jaami li-Ahkaam al-Quraan, vol. 10, pp. 182-191; Badaa’ al-Sanaa’, vol. 7, pp. 175-181; Sharh Mukhtasar al-Qadoori, vol. 2, pp. 325-327; Ghadhaa al-Albaab li-Sharh Mandhoomah al-Adaab, vol. 2, pp. 82-85.

143 Al-Suyooti, Al-Ashbaah wa al-Nadhaair, p. 207. For similar passages, see Raudhah al-Taalibeen, vol. 7, p. 22; Qawaaid al-Ahkaam fi Masaalih al-Anaam, vol. 1, p. 88.

144 See al-Amidi, al-Ihkaami, vol. 4, pp. 276-277; Khalaaf, Usool al-Fiqh, p. 207; Shalbi, Usool al-Fiqh, vol. 1, p. 520.

145 See Taiseer al-Tahreer, vol. 4, p. 89; Al-Taqreer wa al-Tahbeer, vol. 3, p. 231; al-Amidi, al-Ihkaam, vol. 4, p. 277.

146 Vol. 2, p. 318.

147 See Shifaa al-Ghaleel, pp. 162-163; Sharh al-Adhid ala Mukhtasar ibn al-Haajib ma Haashiyah al-Taftazaani alaih, vol. 2, p. 318; Taiseer al-Tahreer, vol. 4, p. 89; al-Taqreer wa al-Tahbeer, vol. 3, p. 231; al-Amidi, al-Ihkaam, vol. 4, p. 277.

148 See Al-Mabsoot, vol. 9, p. 100; Badaa’ al-Sanaa, vol. 7, p. 59; Haashiyah al-Dasooqi, vol. 4, p. 330; al-Muhadhib, vol, 2, p. 270; al-Mughni, vol. 12, p. 330.

149 Al-Taqreer wa al-Tahbeer, vol. 3, p. 231.

150 Vol. 2, p. 318.

151 See al-Amidi, al-Ihkaam, vol. 4, p. 277.

152 See Mukhtasar ibn al-Haajib, with its commentary by al-Adhid and gloss by al-Taftazaani, vol. 2, p. 317; Al-Tamheed fi Takhreej al-Furoo ala al-Usool, p. 515; al-Tahreer wa Sharhuhu Taiseer al-Tahreer, vol. 4, p. 89; Al-Taqreer wa al-Tahbeer, vol. 3, p. 231; Nihaayah al-Sool, vol. 4, p. 515; Sharh al-Kaukab al-Muneer, vol. 4, p. 728; Musallam al-Thaboot wa Sharhuh Fawaatih al-Rahamoot, vol. 2, p. 326.

153 Al-Ihkaam fi Usool al-Ahkaam, vol. 4, p. 275.

154 See al-Amidi, al-Ihkaam, vol. 4, p. 275; Mukhtasar ibn al-Haajib, with its commentary by al-Adhid and gloss by al-Taftazaani, vol. 2, p. 317; Al-Tamheed fi Takhreej al-Furoo ala al-Usool, p. 515; Al-Ibhaaj fi Sharh al-Minhaaj, vol. 3, p. 241; al-Taqreer wa al-Tahbeer, vol. 3, p. 231; Nihaayah al-Sool, vol. 4, p. 515.

155 See Mukhtasar ibn al-Haajib, with its commentary by al-Adhid and gloss by al-Taftazaani, vol. 2, p. 317; al-Amidi, al-Ihkaam, vol. 4, p. 275; Taiseer al-Tahreer, vol. 4, p. 89; al-Taqreer wa al-Tahbeer, vol. 3, p. 231; Sharh al-Kaukab al-Muneer, vol. 4, p. 728; Fawaatih al-Rahamoot, vol. 2, p. 326.

156 See al-Amidi, al-Ihkaam, vol. 4, p. 275; Mukhtasar ibn al-Haajib, with its commentary by al-Adhid and gloss by al-Taftazaani, vol. 2, pp. 317-318; Taiseer al-Tahreer, vol. 4, p. 89; al-Taqreer wa al-Tahbeer, vol. 3, p. 231; Sharh al-Kaukab al-Muneer, vol. 4, p. 728; Musallim al-Thaboot ma Sharhuhu Fawaatih al-Rahamoot, vol. 2, p. 326; Al-Ibhaaj fi Sharh al-Minhaaj, vol. 3, p. 241.

157 See Sharh al-Adhid ala Mukhtasar ibn al-Haajib, vol. 2, p. 317; al-Amidi, al-Ihkaam, vol. 4, pp. 275-276; Taiseer al-Tahreer, vol. 4, p. 89; al-Taqreer wa al-Tahbeer, vol. 3, p. 231; Sharh al-Kaukab al-Muneer, vol. 4, p. 728; Fawaatih al-Rahamoot, vol. 2, p. 326.

158 Al-Ibhaaj fi Sharh al-Minhaaj, vol. 3, pp. 241-242.

159 See al-Taqreer wa al-Tahreer, vol. 3, p. 232.

160 See Sharh al-Adhid ala Mukhtasar ibn al-Haajib, vol. 2, p. 317; al-Amidi, al-Ihkaam, vol. 4, p. 276; Sharh al-Kaukab al-Muneer, vol. 4, pp. 728-729.

161 See Sharh al-Adhid ala Mukhtasar ibn al-Haajib, vol. 2, p. 317; al-Amidi, al-Ihkaam, vol. 4, p. 276; Taiseer al-Tahreer, vol. 4, p. 90; Al-Taqreer wa al-Tahbeer, vol. 3, p. 232; Fawaatih al-Rahamoot, vol. 2, p. 326.

162 See al-Amidi, al-Ihkaam, vol. 4, p. 276; Sharh al-Kaukab al-Muneer, vol. 4, p. 729.

163 See Sharh al-Adhid ala Mukhtasar ibn al-Haajib, vol. 2, p. 317; al-Amidi, al-Ihkaam, vol. 4, p. 276; Sharh al-Kaukab al-Muneer, vol. 4, p. 728.

164Tafseer al-Quran al-Adheem, vol. 4, p. 525. Al-Qurtubi in Al-Jaami li-Ahkaam al-Quran (vol. 10, p. 182) as well as ibn al-Arabi in Ahkaam al-Quraan (vol. 3, pp. 1166) also state that there is a consensus on this point.

165 See al-Mughni, vol. 12, p. 293; Ghadhaa al-Albaab, vol. 2, p. 83.

166 Jaami al-Bayaan fi Tafseer al-Quraan, vol. 14, p. 122.

167 See Qawaaid al-Ahkaam, vol. 1, p. 96.

168 Ibid., vol. 1, p. 147.

169 Ahkaam al-Quraan, vol. 3, pp. 1167.

170 Al-Jaami li-Ahkaam al-Quraan, vol. 10, p. 188.

171 Tafseer al-Quraan al-Adheem, vol. 4, pp. 525-526.

172 This incident was recorded by al-Baihaqi in Dalaail al-Nubuwwah, vol. 2, p. 281 and by him in al-Sunan al-Kubra, vol. 8, p. 208. It was also recorded by al-Haakim in al-Mustadrak, vol. 2, p. 357. He stated, “The chain is sahih although they two [al-Bukhari and Muslim] did not record it.” Al-Dhahabi conferred with his assessment. It was also recorded by ibn Jareer in his Tafseer, vol. 14, p. 122; Abu Nuaim in al-Hilyah, vol. 1, pp. 140 and 149; ibn Saad, al-Tabaqaat, vol. 3, p. 249. In al-Durr al-Manthoor, vol. 4, p. 248, al-Suyooti also ascribes it to Abdul-Razaaq, ibn al-Mundhir, ibn Saad, ibn Abi Haatim and ibn Marduwaih. Ibn Hajar stated in Fath al-Baari (vol. 12, p. 312), “The well-known view is that the verse was revealed with respect to Ammaar ibn Yaasir.” Then he presents the hadith with a number of chains, both unbroken and those [broken] with only the names of the Companions missing. He shows that all of the unbroken chains have some weakness to them. As for the broken chains, he stated that some of them have trustworthy narrators. Then he states, “The [broken] chains with only the names of the Companions missing corroborate one another.”

173 Ahkaam al-Quraan, vol. 2, pp. 9-10.

174 Qawaaid al-Ahkaam, vol. 1, p. 84. See for a similar discussion Badaa’ al-Sanaa’, vol. 7, p. 177; al-Mughni, vol. 12, p. 294; ibn al-Qayyim, al-Turuq al-Hukumiyyah, pp. 54-55; Sharh Mukhtasar al-Qadoori, vol. 2, p. 327.

175 See Sharh al-Adhid ala Mukhtasar ibn al-Haajib, vol. 2, p. 317; al-Amidi, al-Ihkaam, vol. 4, p. 275; al-Taqreer wa al-Tahbeer, vol. 3, p. 231; Taiseer al-Tahreer, vol. 4, p. 89; Sharh al-Kaukab al-Muneer, vol. 4, pp. 727-728; Al-Ibhaaj fi Sharh al-Minhaaj, vol. 3, p. 241; Nihaayah al-Sool, vol. 4, p. 514; al-Tamheed fi Takhreej al-Furoo an al-Usool, p. 515; Irshaad al-Fahool, p. 282..

176 See Sharh al-Adhid ala Mukhtasar ibn al-Haajib, vol. 2, p. 317; al-Amidi, al-Ihkaam, vol. 4, p. 275; al-Taqreer wa al-Tahbeer, vol. 3, p. 231; Taiseer al-Tahreer, vol. 4, p. 89; Sharh al-Kaukab al-Muneer, vol. 4, pp. 727-728; Al-Ibhaaj fi Sharh al-Minhaaj, vol. 3, p. 241; Nihaayah al-Sool, vol. 4, p. 514.

177 See al-Muwaafaqaat, vol. 2, pp. 37-38 and 168f.

178 See Sharh al-Adhid ala Mukhtasar ibn al-Haajib, vol. 2, p. 317; al-Amidi, al-Ihkaam, vol. 4, p. 275; al-Taqreer wa al-Tahbeer, vol. 3, p. 231; Taiseer al-Tahreer, vol. 4, p. 89; Sharh al-Kaukab al-Muneer, vol. 4, pp. 727-728; Al-Ibhaaj fi Sharh al-Minhaaj, vol. 3, p. 241; Nihaayah al-Sool, vol. 4, p. 514.

179 See al-Khalaaf, Usool al-Fiqh, p. 207; Shalbi, Usool al-Fiqh, vol. 1, p. 520; Dhawaabit al-Maslahah, p. 256.

180 See Zaad al-Maseer, vol. 1, pp. 198-199; Fath al-Qadeer, vol. 1, p. 119; Fi Dhilaal al-Quraan, vol. 1, pp. 189-191.

181 See, for example, al-Baidhaawi, al-Minhaaj, p. 85; its commentary Nihaayah al-Sool, vol. 4, p. 82; its other commentary al-Ibhaaj fi Sharh al-Minhaaj, vol. 3, p. 55; Sharh Tanqeeh al-Fusool, pp. 391-392; al-Mahsool, part 2, vol. 2, p. 220; al-Bahr al-Muheet, vol. 5, p. 209.

182 See, for example, al-Balbal fi Usool al-Fiqh, p. 144; al-Madkhal ila Madhhab al-Imaam Ahmad ibn Hanbal, p. 138.

183 See, for example, al-Muwaafaqaat, vol. 1, p. 38 and vol. 2, p. 10; al-Mahsool, part 2, vol. 2, p. 220; al-Bahr al-Muheet, vol. 5, p. 109.

184 Dr. Ali al-Umaireeni in his article entitled, “Min Maqaasid al-Shareeah: Hifdh al-Dharooriyaat,” Majallah al-Manhal (Jumaadi al-Awwal, 1406 A.H.), p. 136.

185 Dhawaabit al-Maslahah, p. 250.

186 See, for example, Mukhtasar ibn al-Haajib with its commentary by al-Adhid, vol. 2, p. 240; al-Asfahaani, Bayaan al-Mukhtasar Sharh Mukhtasar ibn al-Haajib, vol. 3, p. 188; al-Amidi, al-Ihkaam, vol. 3, p. 274; al-Ibhaaj fi Sharh al-Minhaaj, vol. 3, p. 55; Nihaayah al-Sool, vol. 4, p. 84; Musallam al-Thaboot, vol. 2, p. 262; Taiseer al-Tahreer, vol. 3, p. 306; al-Taqreer wa al-Tahbeer, vol. 3, p. 143; Sharh al-Kaukab al-Muneer, vol. 4, p. 159; al-Muwaafaqaat, in numerous places including vol. 1, p. 38, and vol. 2, pp. 10, 25, 48 and 299.

187 Qawaaid al-Ahkaam, vol. 1, p. 4. See his similar statement on vol. 1, p. 37.

188 Maalik: Hayaatuhu wa Asruhu, p. 300. It is noted that neither Shaikh Muhammad Abu Zahrah nor Imam al-Izz ibn Abdul-Salaam explicitly mentioned religion as one of the five necessities. How could they have forgotten it when it is the strongest of the necessities and the first that should be preserved and cared for? Two points can be made in response to this question. First, they did not mention it because what they meant by necessities here is what all of the religious communities and other thinkers, sages and legal theorists have agreed upon. In this context, the agreement upon preserving the necessities without preservation of religion being one of them is greater than the agreement with preservation of religion being included. Secondly, the scholars have divided the goals of the Law into two categories: the worldly goals which comprises preservation of life, mental capacity, familial ties, wealth and honor—with a difference concerning honor, as discussed previously—and the religious goals which comprises preservation of the religion. The first is the most apparent one that they were discussing and is more consistent with what they followed in their two aforementioned books.

189 Sharh Tanqeeh al-Fusool, p. 392. He makes a similar statement in al-Dhakheerah, vol. 12, p. 47.

190 Vol. 1, pp. 288-289.

191 Pp. 162-164.

 

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