Excerpts from Draft Constitution

Bismillah al-Rahman al-Raheem

Excerpts from Draft Constitution

As for those who said that “producing benefits and repelling detriments” acts as a Shari’ah reason, i.e. illah for the Shari’ah rules, and then conducted the Qiyas according to it, they referred in terms of evidence to the saying of Allah (swt) “And we have sent you but as a mercy to mankind.” Hence, they deemed the fact that he (saw) was a mercy as an illah for the Islamic Shari’ah and claimed that he could not be a mercy except by “producing benefits and repelling detriments”; thus it acts as the Shari’ah illah for the rules.

This deduction is wrong in two aspects. First: the issue is about his sending (saw), i.e. the fact that he is a Messenger, not about the Shari’ah rules. Even if we assumed that the sending of the Messenger of Allah (saw) is in reference to his message, then the issue would be related to the whole of the Shari’ah - doctrines and rules - not just the Shari’ah rules alone. Second: the ayah stating that the Messenger of Allah (saw) was sent as a mercy to mankind explains the hikmah (wisdom) of his sending, i.e. the outcome resulting from his sending. This is similar to the ayah in which Allah (swt) says: “I have created Jinn and mankind but to worship me”, i.e. so that the outcome of their creation may be to worship. Hence, it is the hikmah behind their creation, not the illah of their creation. Also, it is like Allah (swt)’s saying: “That they may witness the benefits (provided) for them.” [TMQ 22-28], which denoted the hikmah of Hajj, i.e. the outcome that may result from Hajj. It is also similar to Allah’s (swt) saying: “Prayer restrains from shameful and unjust deeds.” [TMQ 29-45], which refers to the hikmah behind observing Salat, i.e. the outcome that may result from observing Salat and so on.

Hence, the ayah here is not in the context of ta’aleel (justification) because the illah is the thing for which the rule has been occasioned (legislated). In order to perceive the illiya (the causality in the text), it is imperative that it is a description and that the description denotes a causality, i.e. the motive of the legislation. In other words, the text must denote that the legislation was for the sake of the illah. Hence it would be intrinsic and ever-present because the cause will inevitably result in the effect. Hence, whenever the illah is present, so is the ma’alool (effect). Although the ayah “And we have sent you but as a mercy to mankind” and the rest of the aforementioned ayat are descriptive and although they contain the prepositions that denote justification, the context of the speech however does not denote causality, because it may not be ever-present and because the legislation was not for its sake. The Islamic Shari’ah may be a mercy to those who believe in it and act upon it, such as the first generation of Muslims, and it may be an adversity for those who reject it such as the Kuffar. Hence, the sending of the Messenger of Allah (saw) was an adversity for the Kuffar and yet they are part of mankind. Besides, the Islamic message is existent today, since the sending has effectively occurred, and yet even the Muslims who have believed in the message are now enduring hardship. Hence, the mere sending, i.e. the mere presence of Shari’ah, is not a mercy; thus it cannot be the illah of the sending. Consequently “producing benefits and repelling detriments” is not a Shari’ah-based illah and it cannot be taken as a basis for Qiyas.

As for those who claimed that Aql is part of the Shari’ah evidences, the answer is that the point at issue is the Shari’ah rule, i.e. that which is preponderantly the rule of Allah and this can only be from what the Revelation has brought. The Aql is not part of what Revelation has brought; thus there exists no evidence, be it doubtful or conclusive, suggesting that Aql is part of the Shari’ah evidences for the Shari’ah rules. Hence it is absolutely not part of the Shari’ah evidences.

The Math'hab of the Sahabi

As for those who claimed that the Math’hab (school) of the Sahabi is Shari’ah evidence, they based their argument on the premise which suggests that the two substantiations of Ijma’a al-Sahaba are also valid evidence for the single Sahabi. They claimed that praising them collectively is also praising each one of them; also that if error could not possibly creep into their collective transmission, it could also not creep into the transmission by a single one of them. Besides, the saying of the Messenger of Allah (saw) “My companions are like the stars, whoever you follow you will be rightly guided” corroborates the notion that the Math’hab of the Sahabi is evidence.

This deduction is wrong because the Messenger of Allah (saw)’s praise of the Sahaba is not on its own proof that the Ijma’a is a Shari’ah Dalil, nor is the transmission of the Qur’an by the Sahaba on its own is proof that their Ijma’a is a Shari’ah Dalil; the Dalil is rather reflected in the fact that they have been praised and the fact that they unanimously agreed that a certain rule is in fact a Shari’ah rule. Hence, the evidence is two-fold: the praise and the Ijma’a (consensus); this is not existent in the one single Sahabi. The praise and the transmitting of the Qur’an is not a sufficiently valid evidence confirming that the saying of he who has transmitted the Qur’an from among those praised by Allah (swt) is part of the Shari’ah evidences, because just like Allah (swt) has praised the Sahaba, He has also praised those who succeeded them as well, and because the transmitting of the Qur’an, even by those whom Allah (swt) has praised, does not make the saying of the transmitter a Shari’ah evidence. Hence, the deduction is wrong. The error of this deduction is proved by the fact that what is transmitted by the Sahabi and what is reported by him via an Ahad chain cannot be deemed conclusive and decisive, but rather doubtful. Hence, the so-called “ayah” of “if the sheikh and the sheikhah were to commit adultery, stone them…” is not considered from the Qur’an, even though it was transmitted by a Sahabi; this is because there was no Ijma’a of the Sahaba on it being part of the Qur’an. Likewise, the Ahadith reported by the Sahaba by way of Ahad are not deemed conclusive but rather doubtful. This is contrary to the Ijma’a of the Sahaba, because what they agree upon unanimously as being from the Qur’an is indeed Qur’an and is conclusively as such, and what they agree upon in terms of Ahadith which are then reported on their authority by way of tawatur is deemed conclusive evidence. Hence, there is a major difference between what the Sahaba agree upon, which is indisputably conclusive and whose denier is Kafir, and what is reported by the single Sahabi, which is doubtful and whose denier is not Kafir. Hence, the Ijma’a of the Sahaba is Shari’ah evidence but the Math’hab of the single Sahabi is not deemed as part of the Shari’ah evidences. Moreover, the single Sahabi is prone to error and is not infallible; contrary to the Ijma’a of the Sahaba, which could not possibly be susceptible to error. The Sahaba differed on certain issues and some adopted a school of thought different to others; so if the Math’hab of the Sahabi were an authority, the authorities of Allah would be different and contradictory. This is why the Math’hab of the Sahabi is not Shari’ah evidence.

The Shari’ah of our ancestors

As for those who say that “The Shari'ah of our ancestors is Shari'ah for us”, they use as evidence Allah’s (swt) saying: [4-163] "We have sent you revelation as We sent it to Noah....." T.M.Q. And Also Allah’s (swt) saying: [42-13] "He has legislated for you from the Deen that which He enjoined Noah.” , and Allah’s (swt) saying: [16-123] "So We have revealed to you: Follow the Millah (religion) of Ibrahim the true in faith and he was not from the polytheists.." T.M.Q. Hence, these verses indicate that we are addressed with the Shari'ahs of the previous prophets. Besides, the Messenger of Allah (saw) has in principle come to convey on behalf of Allah that which one must abide by, thus every letter in the Qur'an and every action undertaken by him and every saying uttered by him and every decision made by him must be abided by, except for what has been mentioned as being specific to him or specific to others.

Hence, we are commanded by everything mentioned in the Qur'an and in the Hadith, except for that which is mentioned by text to be specific to the followers of previous Shari'ahs, or for that which is mentioned by text to be abrogated; and anything not mentioned to this effect, we are commanded by it; because Allah (swt) did not mention these in vain in the Qur'an. Hence, we must be addressed by them.

This “Istidlal” i.e. deduction is wrong. As for the verses, the intended meaning of the first verse is that it has been revealed to him (saw) as it had been revealed to other prophets; and the intended meaning of the second verse is that He (swt) legislated “Asl At-Tawheed”(meaning the origin of monotheism), and that is what He (swt) enjoined Noah with; as for the third verse, the intended meaning is: “Follow “Asl At-Tawheed”, because the Millah means “Asl At-Tawheed”. Likewise, are all the verses of this kind, such as Allah’s (swt) saying: [6-90] “Copy the guidance they received.” among others.

As for Allah’s (swt) saying: [5-44] "It was We Who revealed the Tawrat to Moussa , therein was guidance and light, by its standard the prophets ruled." T.M.Q. Allah (swt) meant by this the prophets of Bani Israel, not Mohammed (saw). The Muslims have only one prophet. As for the Hadith reported on the authority of Abu Hurayra in which the Messenger of Allah (saw) said: “The prophets are brothers from Allah, their mothers are different and their Deen is one...”, the meaning of their Deen is one is the Tawheed over which they did not differ in origin. It does not mean that what they had been sent with in terms of Deen is one for all of them. The evidence of this is reflected in Allah’s (swt) saying: [5-48] "To each one among you We have prescribed a Law and a method..." T.M.Q.

This demonstrates that these evidences are not valid for deduction; and to use them as a deduction about the fact that “The Shari'ah of our ancestors is Shari'ah for us” is wrong. Besides, there exists a host of evidences that prohibit the following of the Shari'ah of our ancestors in a categorical manner; regardless of whether this were mentioned in the Qur'an and the Hadith or not. Allah (swt) says: [3-85] "If anyone desires a Deen other than Islam, never will it be accepted of him..." T.M.Q. Allah (swt) also says: [3-19] "Truly the Deen to Allah is Islam..." T.M.Q. This denotes that the embracing of any Deen other than the Deen of Islam would categorically not be accepted from anyone, so how could the Muslims be demanded to follow it? Allah (swt) says: [5-48] "To you We have sent down the Book in truth confirming the book that came before it and overruling it..." T.M.Q. The overruling, i.e. the dominance of the Qur'an over the previous books does not mean their endorsement, just because He (swt) says in the same verse “Confirming”, it rather means that it abrogates them. Besides, the Ijma'a of the Sahaba has been concluded about the fact that the Islamic Shari'ah abrogates all the previous Shari'ahs. Furthermore, Allah (swt) says: [2-133,134] "Were you witnesses when death appeared before Ya’aqub? He said to his sons: What will you worship after me? They said: We shall worship your god and the god of your fathers Ibrahim, Ismael and Is’haq The One True God to Him we bow in Islam * That was a nation that has passed away. They shall reap the fruit of what they did and you of what you do. You will not asked about what they had been doing..." T.M.Q. Hence, Allah (swt) has informed us that He will not ask us about what those prophets had been doing; and if we do not get asked about their actions, we also do not get asked about their Shari'ah, because conveying it and acting upon it is part of their actions. That which we are not asked about, we are also not commanded by it and it is not binding on us. Furthermore, it has been reported on the authority of Jabir that the Messenger of Allah (saw) said: “I have been given five things which none had been given before me: Each prophet was sent specifically to his own folk, and I was sent to every red and black.” Abu Hurayra reported that the Messenger of Allah (saw) said: “I have excelled over the prophets with six things.” He (saw) mentioned them and one of them was: “and I was sent to all the people.” Hence, the Messenger of Allah (saw) has informed us that every prophet before our Prophet (saw) was sent specifically to his own folk, thus he was not sent to other than his own folk, and these folks were not commanded by the Shari'ah of other than their prophet. This confirms that none of their prophets were sent to us, thus their Shari'ah cannot be a Shari'ah for us. This is backed by what has clearly been confirmed in the Qur'an. Allah (swt) says: [7-73] "And to the Thamud people (We sent) Salih their brother ..." T.M.Q. Allah (swt) also says: [7-65] "And to the Aad people, Hood their brother..." T.M.Q. Allah (swt) also says: [7-85] "And to the Madyan people, their brother Shu’ayb..." T.M.Q.

It becomes clear from all this that the Shari'ahs of our ancestors is not Shari'ah for us for three reasons:

1- The evidences they refer to indicate “Asl At-Tawheed” and do not indicate that all the Shari'ahs of the prophets are one.

2- The existence of texts indicating the prohibition of taking any Shari'ah other than the Shari'ah of Islam.

3- Every prophet was sent specifically to his own folk, and we are not from among his folk, thus he was not sent to us and we are not addressed by his Shari'ah and it is not binding upon us. Therefore, the Shari'ah of our ancestors is not considered part of the Shari'ah evidences.

Al-Istihsan

As for those who claim that al-Istihsan (preference) was part of the Shari'ah Evidences, they have failed to produce a proof for it from Shari'ah, not even a doubtful one. Al- Istihsan has been interpreted, by those who deem it a Shari’ah Evidence, as being an evidence that flashes in the psyche of the Mujtahid, but he cannot produce it because the turn of phrase fails him. It has also been interpreted as being the act of relinquishing one aspect of an Ijtihad that is not all-encompassing in terms of expressions, to a stronger aspect that would be influential on the former one. It has also been interpreted as the process of moving the topic away from the rule of its equivalents to another rule due to a stronger aspect that necessitates this move. It has also been interpreted as the process of severing the topic from its equivalents.

They have divided al-Istihsan into two parts: al-Istihsan al-Qiyasi (analogical preference) and Istihsan al-Dharoura (preference of necessity). Al-Istihsan al-Qiyasi involves moving the topic away from the evident rule of Qiyas (analogy) that springs to mind to a different rule and with another Qiyas that would be more complex and more implicit but with a stronger argument, righter vision and sounder conclusion. For instance, if a person were to purchase a car on credit from two individuals in one single transaction, and if one of the creditors were to receive an installment towards that debt, he would then have no right to keep it to himself; his partner would be entitled to demand his share of the received installment, because his partner, i.e. the recipient would have received it as part of the jointly sold vehicle in one single transaction. In other words, if either of the two partners were to receive a payment towards the joint sale, the payment received would be for both partners and neither of them should claim it exclusively for himself. Hence, if the amount received were spent by the recipient before the second partner could take his share from it, then the exigency of Qiyas stipulates that it should be deducted from the account of both partners, i.e. from the account of the company; however, according to al-Istihsan, it would be deemed as deductible from the share of the recipient only; and by way of al-Istihsan, the spent amount would not be deducted from the second partner’s account because in the first instance, he was not obliged to enter into partnership with the recipient; he could instead leave the payment received to the recipient and claim his share from the borrower, i.e. the purchaser. The rest of the examples are the same. This is al-Istihsan al-Qiyasi.

As for Istihsan al-Dharoura (preference of necessity) it is the type in which the rule of Qiyas is contradicted due to an inevitable necessity or a requisite benefit in order to fulfil a need or to repel a detriment. When the analogical rule leads to a detriment or a problem in certain issues, then one veers away from it by way of al-Istihsan to another rule that allows for the impediment or the matter to disappear. For instance, what the hired worker handles in terms of property is deemed as a trust (Amana); so if the goods he is handling were to get accidentally damaged, without any negligence on his part, he is not obliged to guarantee compensation or replacement, because his hand is an ‘entrusted hand’. So if a person were to hire a worker to make a garment for another person in his house for a month, he would be in this case a private worker; if the garment he was handling were damaged, without any negligence on his part, he would not be obliged to guarantee compensation, because what he handles is a ‘trust’. If a person were to hire a worker to make a garment in his shop for another person and if he were making garments for all people, then he would be a public worker; if the garment were to get damaged while in his hands, without any negligence on his part, he would also not be liable because his hand is an ‘entrusted hand’. However, according to al-Istihsan, the private worker is not obliged to pay compensation but the public worker would have to guarantee compensation, so that he does not take on work more than he can handle, thus leading to damaging people’s properties.

This is in a nutshell the issue of al-Istihsan and these are the proofs they furnished for it. It is evident that these are not proofs but sheer rational justifications. They are neither from the Book nor from the Sunnah. They do not even rise to the level of being doubtful proofs, let alone conclusive denoting that al-Istihsan is part of the Shari’ah Evidences. Furthermore, what they have furnished in terms rational justifications is also invalid.

As for the first interpretation, it is forbidden to consider as valid the evidence that flashes in the psyche of the Mujtahid and he does not know what it is; his failure to express it acts as ample proof that it is not crystallised in his mind and that he knows nothing about it; thus it cannot be part of the Shari’ah Evidences. As for the other interpretations, their meaning is one and the same, namely moving the issue away from its equivalents towards a stronger aspect; in other words, moving away from al-Qiyas towards a stronger evidence. If what is meant by the stronger evidence: a text from the Book or the Sunnah, this would not be considered al-Istihsan but rather a preponderance of the text.  It would be the deduction of an evidence from the text, which is seeking evidence from the Book or the Sunnah not from al-Istihsan .

However, if they mean by the stronger evidence the ‘mind’ according to what it deems as a benefit, and this is what they meant, then it is invalid; because al-Qiyas is based on a Shari’ah Reason (‘Illah) established by the text, which is the address of the Legislator for us. The mind and the benefit are neither a text nor another Shari’ah Reason stronger than the original one. The mind and the benefit have no connection with the Shari’ah text, i.e. with what the revelation has brought; thus is “moving away” is invalid. This is as far as the interpretations are concerned; as for the types of Istihsan, the invalidity of al-Istihsan al-Qiyasi is evident from the second interpretation, which is moving away with the topic from its equivalents; also the fact that they deem it a hidden Qiyas renders it invalid, because it has nothing to do with al-Qiyas; it is rather an expedient justification. In the example of the joint sale in one single transaction: the rule of the money spent by one of the two partners, stipulating that it should be deductible from the money of the company, must not be different to the rule of receiving the payment by one of the two partners, as being received by the company. There is no room for such an expedient shift and it is contradictory to Shari’ah.

As for Istihsan al-Dharoura (preference of necessity), its invalidity is evident because it attributes the judgement to the mind and what it deems as an interest, not to the Shari’ah rule.  It also outweighs Shari’ah Reason deduced from the Shari’ah text; in other words, it outweighs what is perceived from the Shari’ah text. All this is false without a shade of a doubt. Besides, making the public worker guarantee and exempting the private worker from guaranteeing amounts to preponderance without any basis and a contradiction of the Shari’ah text. The Messenger of Allah (saw) said: “There is no (obligation of) guarantee on the one who has been entrusted.” Hence, there is no obligation of a guarantee on anyone entrusted with any type of entrusted object, because the denotation of the Hadith, with the use of the generic negative “no”, indicates generality (in Arabic grammar), thus it includes every entrusted person, private and public alike.

Hence, it is clear that al-Istihsan is not part of the Shari'ah Evidences and it would be wrong to deem it such, because no proof has been furnished, either from the Book, the Sunnah nor the Ijma’a of the Sahaba, to indicate that it is part of the Evidences, not even a doubtful proof, let alone a conclusive one. Besides, all the rational proofs they furnished were flawed, in addition to the contradiction of some examples to the texts of Shari'ah.

Al-Masalih Al-Mursalah

As for those who claimed that al-Masalih al-Mursalah (unrestricted public interests) form part of the Shari'ah evidences, they also failed to furnish a legitimate Dalil for it. However, since they justified the Shari'ah as a whole as being acquiring benefits and repelling detriments. They also justified every Shari'ah rule as being acquiring a benefit and repelling a detriment. Some of them however made it a condition that the Maslaha (interest) should be mentioned in a Shari'ah text to be in itself an interest, or a text that indicates that it is a type of interest. Others did not stipulate this condition but rather considered the interest as being a Shari’ah evidence without the need for a text considering it as such or its type, because it falls under the generality of interests with which benefits are acquired and detriments are avoided.

They defined al-Masalih al-Mursalah as being every interest which no text in Shari'ah has been mentioned to consider it itself as such its type as such. The meaning of Mursalah is that it is dispatched or severed from the evidence. They said that if the interest is identified by a specific text indicating it to be as such, like teaching people reading and writing, or by a general text indicating a type as being considered as such, like the enjoining of all types of Ma’arouf and the forbidding of all types of Munkar, it would not be in this case considered as part of al-Masalih al-Mursalah; rather that al-Masalih al-Mursalah are the interests that are severed from the evidence; in other words, they are the interests for which there exists no evidence, but rather obtained from the notion stipulating that the generality of the Shari'ah has come to acquire the benefits and repel the detriments.

However, a distinction is made between the Shari'ah interests and the non-Shari'ah interests; the Shari'ah interests are those in conformity with Shari'ah and the non-Shari'ah interests are those that contradict the intents of Shari'ah. Hence, al-Masalih al-Mursalah deemed as Shari'ah evidence are those in conformity with the intents of Shari'ah. If they contradict the intents of Shari'ah, then they are not deemed as part of al-Masalih al-Mursalah, thus they cannot be Shari'ah evidence. Therefore, al-Masalih al-Mursalah are those deemed in a general manner as such by the Shari'ah texts, thus the partial Shari'ah rule may be built on their basis when the Shari'ah text is lacking in a particular event or a similar one; thus the interest (Maslaha) becomes the Shari'ah evidence.

This is the summary of al-Masalih al-Mursalah. They are invalid on two counts:

First: The Shari'ah texts from among the Book and the Sunnah are related to specific actions of the servant. They are the Shari'ah proof for the rule of Shari'ah on the action. They are not related to the interest nor have they come as evidence for the interest. When Allah (swt) says: “If you are on a journey, and cannot find a scribe, a pledge with possession (may serve the purpose).” [2-283]; and when He (swt) says: “When you deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing.”, or when He (swt) says: “But take witness whenever ye make a commercial contract” [2-282], He (swt) is explaining the rule of deposits, the rule of recording a loan in writing and the rule of witnessing a transaction. Allah (swt) did not mention that it is an interest or not, neither explicitly nor implicitly. The texts do not indicate the rules are an interest or not in any shape or form. So how could anyone claim that these are interests indicated by Shari’ah and then go on to deem them as interests and consequently deem them Shari'ah evidence?

Furthermore, the Shari'ah reasons (Illah) have come, just like the Shari'ah texts, related to the action of the servant and as evidence for the indication of the Shari'ah rule on the action; they have not come to explain any interest or to explain the indication of the interest. So when Allah (swt) says “In order that it may not (merely) make a circuit between the wealthy among you” [59-7], and when he also says: “In order that (in future) there may be no difficulty to the Believers in (the matter of) marriage with the wives of their adopted sons” [33-37] and when he (swt) also says: “for those whose hearts have been (recently) reconciled” [9-60], He (swt) is explaining that the Illah (Shari’ah reason) behind distributing the wealth among the poor, to the exclusion of the rich, is to prevent the circulation of wealth among the rich; he is also explaining that the Illah behind the Messenger of Allah’s marriage to Zaynab is to make it permitted to marry the former wife of an adopted son; Allah (swt) is also explaining that the Illah behind giving handouts to those whose hearts have been reconciled is the state’s need to win them over. Hence, Allah (swt) has not mentioned that there was an interest; he (swt) is rather explaining that something specific is an Illah for a specific rule, without taking into reflection any type of interest or any lack of it, and without even the remotest reflection; so how could one claim that these Shari’ah reasons have been indicated by Shari’ah thus they could be deemed as Shari’ah evidence? If the texts of Shari’ah have not indicated that they have come for an interest neither in their outlining of the rule nor in their outlining of the Illah of a rule, then it would be forbidden to claim that the texts have mentioned some interests in a specific manner or by alluding to their types, because none of this is indicated in the Shari’ah texts whatsoever.

Hence, it becomes clear that the notion suggesting that the Shari’ah texts have come as evidence for specific interests or for their types is false; thus such interests cannot be deemed as Shari’ah evidence; this applies to the interests they alleged, that Shari'ah texts deem them either in themselves to be as interests, or their types to be as such, the more reason why the interests lacking any mention in Shari’ah texts should not be deemed as part of the Shari’ah evidences.

Second: The champions of al-Masalih al-Mursalah made it a condition that in order for them to qualify as such, they ought not be mentioned by a Shari’ah text indicating that they are, or their types are interests; thus the fact that they made it a condition that they ought not have a specific Shari’ah evidence, but rather that they ought to be perceived merely from the intents of Shari’ah is sufficient to invalidate their consideration to be part of Shari’ah, because the lack of evidence indicating their evidential worth is sufficient to make them invalid. This is because the rule that one must follow is the Shari’ah rule not the rule of reason. It is imperative before judging a rule to be from Shari’ah to have evidence indicating that it is part of what the Revelation has brought namely the Qur’an and the Sunnah. Hence, to stipulate a lack of mention by a text from Shari’ah is sufficient to strip it of any legitimacy.

As for the claim that these Masalih Mursalah could be perceived from the intents of Shari’ah; the intents of Shari’ah are not a text that one perceives and then deems what he perceives as evidence; what he perceives from them is worthless when it comes to establishing evidence for the Shari’ah rule. Besides, if what is referred to as the intents of Shari’ah means what the Shari’ah texts indicate, such as the prohibiting of adultery, theft, killing, intoxicants and apostasy, this is not an intent of the Shari’ah but rather a rule pertaining to the actions of the servants; thus one has to confine himself to the denotation of the text, because there is no room for taking into consideration what the mind has imagined as being an intent of the Shari’ah behind the rule, and as being a Shari’ah evidence. How could it be perceived that what the mind has imagined as being an intent of Shari’ah could amount to Shari’ah evidence? Therefore, to consider what might be perceived from the intents of Shari’ah as Shari’ah evidence is totally false.

As for what is perceived in terms of the wisdom of Shari’ah as a whole, i.e. the wisdom behind sending the Messenger of Allah (saw) as a mercy to mankind, this would be Hikmah and not Illah; the Hikmah may or may not materialise, thus it cannot be adopted as a foundation and used as evidence due to the possibility that it may not materialise; the more reason not to take what is perceived from it as a foundation that is used as evidence. Hence, what may be perceived from the so-called intents of Shari’ah is not valid to be part of the Shari’ah evidences. Therefore, it is totally false, from this angle, to consider as Shari’ah evidence what may be perceived as intents of Shari’ah. Consequently, considering al-Masalih al-Mursalah as part of the Shari’ah evidences is false.

This is as far as the reasons that made them consider al-Masalih al-Mursalah Shari’ah evidence. As for the evidential merit proving that they are part of the Shari’ah evidences, they have no Shari’ah proof whatsoever, neither from the Book nor from the Sunnah, and neither conclusive nor doubtful. This is why it is wrong to consider al-Masalih al-Mursalah as part of the Shari’ah evidences.

 

Source: Draft Constitution (Article)