The above emphasis on the supremacy of the sources of Islamic law should not leave the reader thinking Islamic law is entirely set in stone and is completely unresponsive to changing circumstances. Whether we are talking about clear textual rulings or legal opinions deduced by scholars, these laws all have a way of adapting that is organic to Islamic law. It is an adaptability that allows for accommodation of new realities while remaining loyal to the Qur’an and Sunnah. Before going further, it is important to say that what the reader is about to confront does not contradict what was said above about the necessity of being committed to the law of God as it is discovered by jurists. The ‘adaptability’ and ‘change’ in the law that will be described below is sanctioned by the sources of Islamic law, and it is thus an application of, rather than a deviation from, the law of God.
The legal avenues for change that will be discussed are: a) the ʿillah (lit. ratio legis) analysis; b) custom and its relation to general rulings and judicial proceedings; c) maṣlaḥah (lit. common good) as it relates to ḍarūrah (lit. necessity), and; d) maṣlaḥah as it relates to istiḥsān (lit. juristic preference) and istiṣlāḥ (lit. to deem proper).
a. The ʿillah analysis
Consider the following example: I explicitly instruct you to not leave the house after 7:00 pm, and I explicitly say that this is because it gets dark after 7:00 pm and your presence in the darkness poses a danger to your safety. Let us further assume that this instruction was given in the winter when the days are short and the nights are long. When the summer arrives, and it gets dark at 9:00 pm, you decide that it is permissible for you to leave the house at 7:00 pm because the cause for my instructions is no longer present: i.e., it is no longer dark at 7:00 pm, and I explicitly said that this was the reason for my instructions. Can one claim that your decision to leave the house at 7:00 pm in the summer contradicts the text of my instruction? Certainly not. My instruction explicitly tied the ruling to the presence of darkness, not to the timing of 7:00 pm. As such, if you shorten the curfew in the summer months (and conversely extend it in the winter months) you are following my instructions, not violating them.
At play in the above scenario is something jurists call ʿillah
(lit. ratio legis
). When the ratio legis is present, the ruling is present, and when it is absent, so is the ruling.
It is an attribute that triggers the ruling (lit. ḥukm
). Pinpointing the ratio legis is a complicated process on its own and is outside the scope of this paper. The point here is that jurists have always known and recognized that non-ritual rulings have a ratio legis that can be identified through rational and textual examination. This is one of the main mechanisms that allows for adaptability in Islamic law. A very basic example is the use of the ʿillah
of intoxication that is present in the ruling on the consumption of alcohol. That is, jurists have determined through textual and rational investigation that the ratio legis of the ruling on alcohol is the fact that it is intoxicating. Any consumable substance, therefore, that has this ratio legis attracts the same ruling, and any substance that is not intoxicating, or whose intoxicating feature is removed, is not subject to the prohibition (subject to other grounds of prohibition). The use of the ʿillah
to extend the ruling to a new situation is called qiyās
(lit. analogical reasoning). Prohibiting the consumption of narcotics, for example, is based on qiyās
since the ʿillah
that triggered the prohibition on the consumption of alcohol is present in those substances.
Note that in the above example the ruling has not changed. The change in circumstances simply affects whether the ruling is triggered or not. The ruling itself, however, remains untouched. A clear ruling from the Qur’an and Sunnah is not subject to suspension, for that would be tantamount to abrogating the clear commandments of God.
This is something that the companions of the Prophet Muhammed ﷺ understood and applied after his death. For example, the Prophet Muhammed ﷺ clearly instructed that a stray camel be left alone and not be seized and explicitly stated that is because the camel has the ability to survive alone until its owner finds it.
This was in contrast to his ruling regarding stray sheep. After the Prophet’s death ﷺ, the third Caliph, ʿUthmān Ibn ʿAffān, ordered that the stray camel be seized and sold (and its proceeds given to the camel’s owner). That is because people had become more willing to falsely claim “abandoned” property as their own.
Although it may seem that Caliph ʿUthmān contradicted the Prophet’s ruling, he had a correct understanding of the ʿillah
for the Prophet’s ruling. The Prophet ﷺ clearly issued the ruling based on the fact that stray camels were likely, as opposed to other animals, to be reunited with their owners without any intervention. This was the ʿillah
of the ruling. When the ʿillah
was no longer present (i.e., it no longer became likely that a stray camel would be reunited with its owner without intervention), the ruling was no longer applicable.
One can also start to appreciate how the ruling can also be extended (through qiyās
) to capture stray animals that enjoy the same ʿillah
as the stray camels during the time of the Prophet ﷺ.
The paper will discuss custom (lit. ʿurf
) under a separate heading, but this concept permeates the ʿillah
analysis in important ways. According to the 20th-century scholar Shaykh Muṣṭafá al-Zarqāʾ, there are two ways in which custom may be a decisive factor when determining whether a ruling applies or not. The first is when a custom itself serves as the ʿillah
. In other words, the event that triggers the ruling is the presence of a certain custom. The second case is when a new custom vitiates the existence of the ʿillah
, thus preventing the ruling from being triggered.
With regards to the former, Shaykh al-Zarqāʾ cites the opinion of Abū Yūsuf (d. 798), the student of Abū Hanīfah, regarding what constitutes a trade involving usury (lit. ribā
). According to the hadith of the Prophet ﷺ, certain commodities must be traded in equal weight (lit. wazn
) and others in equal volume (lit. kayl
Otherwise, the transaction would be prohibited for involving what is known as ribā al-faḍl
Wheat, according to the hadith, is one of those commodities that must be traded in equal weight. In other words, one who exchanges 5 kg of wheat for 10 kg of wheat would be engaging in a prohibited transaction. According to Abū Yūsuf, however, the ʿillah
for prohibiting the trade of unequal weights (rather than unequal volumes) is based on commercial custom; that is, if wheat was customarily measured by volume during the time of the Prophet Muhammed ﷺ, he would have prohibited its trade in unequal volume.
His view is that the ʿillah
is not inequality in weight or volume per se, but inequality based on the measurement customarily used at any given time for that certain commodity.
Therefore, when wheat becomes customarily measured in volume rather than weight, inequality in weight does not render the transaction prohibited; rather, it is inequality in volume that triggers the prohibition. As such, even though the hadith explicitly prohibits trading unequal weights of wheat, this prohibition may no longer apply if wheat becomes customarily traded in volume (rather than weight); in which case, the prohibition would be on trading unequal volumes of wheat, not weights.
Another example deals with a female virgin’s consent to marriage. According to the hadith of the Prophet ﷺ, when a female virgin’s consent is sought by her male guardian, who acts as her agent in marrying her to a specific man, her silence is tantamount to giving consent.
This is in contrast to the requirement for verbal consent with respect to a previously married woman. The ʿillah
for allowing silence to serve as a valid indicator of consent is a matter of local custom. That is, it was customary, during the time of the Prophet ﷺ for unmarried women to shy away from showing desire for a specific man; and their consent was consequently indicated through bashful silence. However, in a society where women do not customarily shy away from showing such a desire (as is the case in most societies today, arguably), silence no longer serves as a reliable indicator of consent and verbal consent becomes required.
In other words, the local custom, which is the ʿillah
for allowing the Prophet’s ruling on silence and its validity, no longer exists.
The above two examples are cases in which the ʿillah
was a custom. Recall that there is another role that custom plays in the ʿillah
analysis, which is when a custom vitiates the ʿillah
. A transaction involving an unacceptable degree of uncertainty (gharar
) is prohibited. In the past, when different currencies or forms of payments were used (e.g., the dīnār
and the dirham
) in the same market, a contract had to specify the currency in which the payment would be made. Otherwise, an essential element of the contract would be left undefined, leading to the presence of gharar
, which is the ʿillah
for prohibiting such contracts. The uncertainty will likely result in a dispute between the parties as the buyer will insist on a currency of lower value while the vendor will insist on a currency of a higher value; and this is precisely the scenario that the ruling against gharar
is designed to avoid. However, it is possible for a contract to leave the currency unspecified without attracting prohibition. This will happen when the relevant market customarily uses a certain currency. As a result of commercial custom, knowledge of the currency to be used in performing the contract is imputed to the parties, and the ʿillah
for prohibiting the contract (i.e., gharar
) no longer exists.
b. Points of clarification on the above analysis
There are important points of clarification that need to be mentioned at this point. First, as mentioned earlier, the ʿillah analysis is strictly concerned with whether the facts at hand trigger a certain ruling or not. It is not concerned with whether a ruling should be changed or removed ‘from the books.’ It, therefore, applies to qaṭʿī rulings and, a fortiori, to ẓannī rulings that are the product of juristic reasoning and subject to differing opinions amongst the schools of law.
Second, there is an important difference between the ʿillah
and the ḥikmah
(lit. wisdom) behind a ruling. The ʿillah
must be an apparent (lit. ẓāhir
) characteristic such that it is discoverable through the senses; it also must be concrete or measurable (lit. munḍabiṭ
) such that it is not abstract or subject to subjective assessment.
, however, is more of an abstract explanation of why the ruling is the way it is and the benefits it aims to achieve.
Going back to the simple example of alcohol, the ʿillah
is the fact that the drink is an intoxicant. This is a concrete, apparent, ascertainable characteristic. The ḥikmah
, one can strongly and rightfully argue, is that intoxicants compromise the intellect and may lead to harmful actions such as violence as well as substance abuse (with all its accompanying issues). When assessing whether a consumable item should be prohibited or not we simply look to see whether it is an intoxicant or not, and not whether its prohibition would achieve the same ḥikmah
as the prohibition on alcohol. It may be that this approach will lead to the prohibition applying to cases where the ḥikmah
will not necessarily be achieved.
However, the few instances where this happens is the tax we as Muslims pay to enjoy the protection and the benefit that this law offers us in the aggregate.
The reason for relying on the ascertainable ʿillah
rather than the more abstract ḥikmah
is that relying on the ḥikmah
is too subjective and does not allow for consistency in applying the law.
For example, if we are to apply a ḥikmah
-based approach to the ruling on alcohol, how will we know—for each individual—whether the prohibition achieves the ḥikmah
or not. Some people have a greater tolerance for alcohol than others. Is the law to be tailored to every individual? Further, there is no way to ascertain whether the law is applicable or not. In addition, a ḥikmah
-based approach opens the door for people to claim, on dubious grounds, that certain rulings no longer apply. One may, for example, claim that the ḥikmah
for the prohibition on zinā
(lit. fornication) was to ensure that the lineage of every child is known and that since we now have the technology to know who is the child of whom, this prohibition no longer applies. However, when we say that the prohibition on zinā
is triggered by a concrete fact (i.e., the absence of a valid marital contract between the man and the woman), then the ḥikmah
-based reasoning becomes futile. This restriction (i.e., that the ʿillah
is what triggers the ruling and that it must be an apparent and concrete characteristic) is probably why textual rulings that some people want to see suspended or changed remain as they are. And although this reality may displease some, it does preserve the religion from arbitrary and ill-intentioned change like in the zinā
example mentioned above.
At the same time, one should not assume that jurists robotically and mindlessly engage in this analysis. The following example is illustrative: the ʿillah that allows the transfer of property from one person to another is consent (lit. riḍā). However, the subjective state of mind of the parties is something that is unknown to the jurist, as he is not a mind reader; here, the subjective state of mind is something that is not apparent (ẓahir) and, therefore, cannot tell us if the ʿillah (i.e., consent) is present or not. As a result, jurists will presumptively rely on the presence of a contract as the ʿillah for allowing the transfer of property. In other words, since we have no mind-reading machine, we will simply have to rely on the best indicator of consent: the presence of a contract—and this will serve as the presumptive ʿillah. However, jurists are cognizant of the fact that there may be evidence that rebuts the presumption of consent. Evidence of duress (lit. ikrāh) will obviously rebut the presumption and will be sufficient to establish that the ʿillah of consent is not present, even in the presence of an apparent contract. All this is to say that the insistence of the jurists on an apparent and measurable fact is not mindless. Even if the apparent/measurable fact is present, but there is clear evidence that clearly rebuts the presence of the ʿillah, then the ruling will not be triggered.
c. Custom in general rulings and judicial proceedings
The above examples centered around the concept of ʿillah
. There are, however, rulings that change for reasons not related to the ʿillah
. That often happens when an Islamic ruling is phrased generally and consequently relies on juristic discretion, which itself tends to rely on custom, to fill the ruling with substance. For example, Islamic law requires that a witness in court be of upright moral character (lit. ʿadl
). This is an undisputed ruling. However, in determining what constitutes moral uprightness, custom plays an important role. Ibrahim ibn Mūsa Al-Shāṭibī (d. 1388), in discussing this question, cites the example of head covering for men. He says, “This is a matter that depends on the place, in reality. For this [i.e., men uncovering their heads] is distasteful to those of morally upright character in the eastern lands, but not distasteful in the western lands [i.e., the maghrib]. And the religious ruling will differ on that basis. For the people of the east, it [uncovering the head] is impugning, and will not be impugning for the people of the west.” The Islamic ruling, as derived from textual sources of Islamic law, did not change. The requirement of moral uprightness is still met. However, what constitutes moral uprightness is subject to change such that someone who is considered upright in one time/place may not be considered so in another. This explains the legal principle laid down by Muslim jurists that says “custom is determinative” (al-ʿādah muḥakkamah
Another legal principle that branches out of this is even more explicit, stating, “There is no objection to the changing of rulings with changing times” (lā yunkar taghayyur al-aḥkām maʿa taghayyur al-azmān
Similarly, when a jurist aims to determine what is equitable, just, or reasonable in a given situation, custom will often play an important role. For example, Ḥanafī jurists determine an equitable quantum of spousal support (lit. nafaqah
) that is owed by a man to his wife by looking to the customary practice of the social class of which the couple is a part. A man would, consequently, be obligated to provide a standard of living that is customarily offered by other similarly-situated men.
Custom plays a similar role in determining the substance of a contract. In a contract for the lease of a home that does not explicitly state the ends for which the property may be used or the activities that can be carried out within it, jurists will look to what is customary in such a transaction. In the absence of explicit permission from the landlord, a lessee will not be permitted to use the property in a manner that harms the property, such as using it for metalwork. That is because it is customary for such activities to be prohibited unless the parties agree to the contrary.
Rulings of this nature that are based on custom have the same force and effect as a specific textual ruling. Imam al-Sarakhsī (d. 1090) states, “That which is established by custom is like that which is established by text.”
A similarly worded precept states, “Specification by custom is like specification by text.”
This is not intended to mean that the custom and divine text are of the same stature. Rather, what is meant is that when a jurist relies on custom to determine the appropriate ruling, it is as if he relied on divine text, provided that the Qur’an or Sunnah has empowered custom on that point of law.
Another important role for custom is serving as prima facie evidence (lit. ẓāhir al-qawl
) in judicial proceedings. An example of this is when a married woman complained to a judge, after the consummation of the marriage, that her husband had not given her the dowry to which she was entitled. In Madina, it was customary for consummation to occur only after the dowry had been paid to the wife. Muslim judges, therefore, relied on this custom as prima facie evidence for the unreliability of this specific claim. However, when it later became customary for consummation to occur before the payment of the dowry, judges accepted the claim of a woman on a prima facie basis.
Similarly, when a divorced couple seek judicial injunction for the separation of property upon divorce, a judge may rely on custom, on a prima facie basis, to determine which property belongs to which spouse.
For example, a sword, in the absence of any other evidence, will be granted to the husband since it is customary for such property to be owned by the man rather than the woman. Property that is customarily owned by a woman will also, in the absence of other evidence, be granted to the woman. Since these judicial determinations are rooted in custom, they will naturally change to the extent that the relevant custom changes.
d. Putting custom in its correct place
It is important to neither overstate nor understate the role of custom in Islamic law. The fact that a custom may serve as the ʿillah
for some rulings does not mean that we have the green light to assume that the rulings in the Qur’an and Sunnah are rooted in the customs of Prophet Muhammed’s time, and that they consequently are not applicable today. In order for a custom to serve as the ʿillah
for a certain ruling, there must be evidence that points to custom as the ʿillah
for that specific ruling.
With the ruling relating to the consent of a female virgin, the fact that the Prophet ﷺ differentiated between the virgin and the previously married woman indicates that custom was the ʿillah
for allowing silence to serve as a female virgin’s consent. Without such a requirement, most rulings in the Qur’an and Sunnah can be explained away as responses to Arab custom that no longer prevail today—which would virtually entirely displace the Shariah.
In addition, the reason custom plays an important role in applying generally-worded rulings is precisely because the words upon which the ruling hinges are left undefined by the Qur’an or Sunnah. As such, custom is empowered in such questions of law. It is only when custom is empowered on a point of law that the ruling can change with the change in custom.
Therefore, a new custom cannot be used to override a clear and specific injunction in the Qur’an or Sunnah.
For example, the waiting period for a widowed or divorced woman is defined in the Qur’an. The legal question of “How long is the waiting period?” is specifically answered in the Qur’an. As such, custom is not empowered to play a role in answering this legal question. One cannot claim that today’s custom dictates a longer or shorter waiting period. If, hypothetically speaking, the Qur’anic ruling simply stated that the waiting period is a “reasonable” or “just” amount of time, then one could have resorted to custom in giving effect to the general ruling.
There is also an important difference between custom being used to give effect to a general rule and custom being used to create an exception to a general rule. As has been clearly established above, a change in custom will change the application of a general rule that is based on that custom. However, a new custom cannot be used to carve out an exception to a general rule.
If a general prohibition, for example, encompasses actions X, Y, and Z, all those actions are prohibited. If it becomes customary over time to engage in action Z, that action remains prohibited no matter how prevalent it becomes and no exception can be carved out.
It is also worth noting that since the Qur’an and Sunnah have empowered custom on certain points of law, the change of a ruling due to a change in the relevant custom is not a change in the law of God. In the words of Imam al-Shāṭibī:
Differences in rulings due to differences in custom are not, in reality, differences in the content of the [divine[ command. That is because the law is laid down on the basis that it is eternal… rather, the difference [in rulings] means that when customs differ, each custom is traced back to a legal principle that rules over that custom.
At the same time, the power of custom and its place in Islamic law should not be understated. Classical scholars have emphasized the power custom has in Islamic law. In his chapter on “The Change in a Fatwa In Accordance With Change in Places, Times, Conditions, Intentions, and Customs,” Ibn al-Qayyim states:
This is a chapter of great benefit, ignorance of which has caused great error against the Shariah, which has imposed difficulties, hardships, and obligations that cannot be fulfilled, all of which are known to be things that cannot be brought about by the marvelous Shariah which is the highest rank of benefits.
Shihāb al-Dīn al-Qarāfī (d. 1285) described the practice of dispensing a custom-based ruling after the custom upon which the ruling depends has changed as being “contrary to [scholarly] consensus” (khilāf al-ijmā
ʿ) and “ignorance in religion” (jahālah fī al-dīn
He continued to say, “Rather, the revealed law that is derived from customs and usages changes when the customs and usages underlying such rules change so that the rule is made to conform with the new custom and usage.” This was part of al-Qarāfī’s response to those who say, in the face of a changing custom:
We practice deference to the teachings of the master jurists, and we lack the authority to introduce a new rule on account of the fact that we do not have the capacity to engage in independent legal interpretation[.] Should we then give legal opinions in accordance with what is in the books containing the transmitted views of the master jurists?
al-Qarāfī clarifies that since the ruling is one that is based on custom, a jurist does not have to be a mujtahid in order to change the law to accommodate for a new custom. Consequently, the door to change remains open, thus giving Islamic law a flexibility that allows it to adapt to and accommodate changes in custom.
In his main work on custom and its role in Islamic jurisprudence, the Damascene scholar, Ibn ʿĀbidīn stated that many of the rulings developed by a master jurist (known as a mujtahid) are based on:
the custom of his time, such that if he was present at the time of the newly-emerging custom he would have ruled in a manner contrary to his original ruling. That is why it has been said that among the conditions for [attaining the rank of] ijtihād is knowledge of the customs of people. For many of the rulings differ in accordance with differences in time due to changes in the custom of the people, or the emergence of a necessity, or the corruption of people, such that if the ruling remained in its original form it would have necessarily brought about hardship and harm to the people; and it would have contravened the principles of the Shariah that are based on decreasing hardship, facilitating ease, and removing harm and damage so that the world may run in accordance with the most perfect system and the best of laws. This is why you see many scholars of the madhhab [i.e., the Ḥanafī school of law] have contradicted what has been stated by the mujtahid [i.e., Abū Ḥanīfah] on many points [of law] which he based on what existed during his time—due to their knowledge that if he existed during their time he would have ruled as they did in accordance with the principles of his own madhhab.
e. Maximizing benefit and minimizing harm (maṣlaḥah) and ḍarūrah
It is a widely accepted proposition that the Shariah has been revealed by God to maximize benefit (lit. maṣlaḥah
) and avoid harm (lit. mafsadah
For simplicity, we can say that the Shariah aims to maximize net benefit.
Benefit and harm, however, are to be defined by the Shariah, rather than an independently determined definition to which the Shariah must conform.
By canvasing the Qur’an and Sunnah, and examining the rulings provided therein, Muslim scholars have settled on a list of five basic benefits that are necessary for human life known as the maqāṣid
(lit. purposes) of the Shariah: religion, life, intellect, progeny, and property; we may call these the “five necessities.” Every Islamic ruling has been laid down to maximize net benefit in the form of one of these five necessities.
There are many ways in which this principle of maximizing net benefit may affect the application of the law, with some ways being more controversial than others. One basic and uncontroversial example is rooted in the concept of necessity (lit. ḍarūrah
). Jurists have laid down the legal principle which essentially says that the impermissible can become permissible when one of the five necessities is at stake (al-ḍarūrāt tubīḥ al-maḥẓūrāt
We find precedent for this in the fact that a Muslim is allowed to consume carrion (i.e., the flesh of a naturally dead animal, which is prohibited) in the face of life-threatening hunger.
Violating the prohibition on consuming carrion brings with it harm in that it is a violation of God’s command. However, this harm is tolerated when it is the only way to avoid the greater and more severe harm of death. The harm of consuming carrion is tolerated to the extent that is necessary to remove the harm to life. Similarly, the harm to intellect caused by consuming wine is tolerated to the extent it is necessary to protect a Muslim from death. Effectively, this is a weighing of one harm against another and favoring the lesser of two evils, which is an Islamic legal principle (yukhtār ahwan al-sharrayn
On the basis of the above, whenever circumstances arise that endanger one of the five necessities, a non-permissible act may become permissible if it is the only means of preserving the necessity that is at stake, so long as the harm being tolerated is not greater than the one being avoided. This is a use of maṣlaḥah
that all Islamic schools of law accept. Imam Abū Hāmid al-Ghazālī, a Shāfiʿī jurist, uses the example of an enemy army that uses Muslim prisoners as human shields.
He accepts that it is permissible to fire at the opposing army even though that will inevitably cause death to the fellow Muslim prisoners (which is impermissible). The act, however, is justified since it is the only way to protect against a greater harm, which is the defeat of the Muslim army and a greater number of Muslim causalities..
Unlike the previous examples, the two competing harms relate to the same basic necessity (i.e., life). What determines the analysis here is the breadth of each harm; one of them falls on a select few (i.e., the Muslim prisoners) while the other falls on a great number of people (i.e., the entirety of the Muslim army and, potentially, the Muslims of the city being attacked). In light of the Islamic legal principle that states that a specific harm is to be tolerated in order to repel a universal harm (yutaḥammal al-ḍarar al-khāṣṣ lidafʿ al-ḍarar al-ʿāmm
), firing at the enemy that uses Muslim prisoners as human shields becomes permissible.
And, once again, this is an application of the principle that states, “necessities render the impermissible permissible” (al-ḍarūrāt tubīḥ al-maḥẓūrāt
f. Maṣlaḥah as it relates to istiḥsān and istiṣlāḥ
As stated, the use of maṣlaḥah
in the cases of ḍarūrah
is agreed upon. However, there are other ways in which this concept is used to accommodate new circumstances—ways that do not attract the same level of unanimity as in the case of ḍarūrah
One such use of maṣlaḥah
comes in the form of a legal concept widely used in the Ḥanafī school of law known as istiḥsān
(lit. juristic preference). Istiḥsān
is an umbrella term for different legal tools.
The legal tool that is relevant to this paper is al-istiḥsān lil-ḍarūrah
(juristic preference due to necessity). Istiḥsān lil-ḍarūrah
is what happens when a jurist abandons the use of analogical reasoning due to an undue hardship (lit. ḥaraj
) or harm (lit. ḍarar
) that results from such reasoning.
It is also described as a specific (lit. juzʾī
) exception (lit. istithnāʾ
) to a general principle (lit. qāʿidah
) or indicant (lit. dalīl
), such that some parts of the general principle or indicant remain applicable to all other relevant scenarios.
One should not be confused by the use of the word ḍarūrah
. The ḍarūrah
relied on in the case of istiḥsān
is a lower threshold than the one described above.
Although the word maṣlaḥah
is sometimes not explicitly used in this reasoning, it is effectively the concept doing the work.
To say that the analogically-determined ruling to a legal question should be abandoned for the sake of avoiding harm or hardship is essentially to say that the benefit of abandoning analogy is greater than the benefit of relying on it. An example of istiḥsān lil-ḍarūrah
is the exception to the accepted principle that stipulates that a person holding an item in trust for another is only liable for damage caused by him/her intentionally or recklessly. This general principle would capture a service provider who provides a service that requires them to keep the item of their customer in trust (such as one who dyes or sews clothing). Despite the existence of this analogical ruling that applies here, the Ḥanafī jurists carved out an exception for the non-exclusive service provider (lit. ajīr ʿāmm
) (i.e., one who offers the service to any customer and not just to one) and made them strictly liable for any damage caused to the property of their customers (i.e., they are liable regardless of whether they were reckless/intentional).
That is because, in the absence of such a rule, the service providers have little incentive to take due care of their customer’s property; and if the customer’s property is ever damaged, the service provider can simply claim that the damage was caused naturally or due to events beyond their control, and the customer will tend to have no way to satisfy the burden of proof in making their claim. Therefore, and in order to prevent damage to or destruction of people’s property, strict liability was imposed. The result is that the service provider is liable for any damage or destruction and can only escape such liability by proving that the damage or destruction was beyond their control (essentially, this is a reversal of the burden of proof).
Similarly, Ḥanafī jurists also carved out exceptions (a practice known as takhṣīṣ
) when undue hardship would be caused by a strict application of general rulings. For example, there is a hadith of the Prophet Muhammed ﷺ in which he instructs one of his companions to only testify (in judicial proceedings) with respect to a matter that he saw with his eyes as he sees the sun.
This is essentially a prohibition on tendering hearsay evidence (lit. shahādat al-tasāmuʿ
). This general rule, however, was later narrowed down by Ḥanafī scholars in cases where its strict application would cause undue hardship by not admitting evidence that would be otherwise unattainable, thus leading to a loss of rights.
Ḥanafī jurists consequently accepted hearsay evidence in ten scenarios, including to prove the status of an old charitable endowment (lit. waqf
), the consummation of a marriage, death, and lineage.
Importantly, the threshold of hardship or necessity being employed in istiḥsān
is lower than the one used in the first example of ḍarūrah
, which all jurists from all schools of law accept. In the latter, the necessity has to be pressing such that the preservation of one of the five purposes is at stake. With istiḥṣān
, we see a lower bar. The hardship or harm being avoided is one that makes the attainment of the five purposes difficult or highly costly, but not impossible.
One can see how the concept of istiḥsān
can be really helpful in facilitating change in Islamic law when a legitimate need arises. This concept, however, is not to be seen as a deviation from divine text. Rather, and as its proponents emphasize, it is based on the Qur’anic and Sunnaic tendency and command to facilitate ease and prevent undue hardship.
Mālikī jurists use similar reasoning but under the title of istiṣlāḥ
. The Mālikī concept of istiṣlāḥ
is broader than the Ḥanafī concept of istiḥsān lil-ḍarūrah
. However, the two concepts overlap such that istiḥsān lil-ḍarūrah
(from the Mālikī perspective) is but one form or subset of istiṣlāḥ
. The other form is the use of maṣlaḥah
as an independent source of legislation (lit. aṣl mustaqill
) when there is no text addressing the matter at hand; as opposed to carving out an exception to a textual ruling.
One of the most basic examples cited by Mālikī jurists to justify use of maṣlaḥah mursalah
(lit. unattested maṣlaḥah
) in this manner is the decision by the companions of the Prophet Muhammed ﷺ to collect the Qur’an in one book.
The decision initially encountered objection since the Prophet Muhammed never clearly commanded that such a thing be done (but neither did he prohibit it). Eventually, the decision was accepted and it became evident that this course of action was necessary to preserve the religion. The maṣlaḥah
being achieved in such cases is known as maṣlaḥah mursalah
. That is, it is a maṣlaḥah
that has not been specifically attested by the Qur’an and Sunnah, but has not been invalidated either.
One can see how this concept of istiṣlāḥ
can become useful as changing circumstances create a need for new laws that protect certain Islamically-recognized interests. Istiṣlāḥ
is particularly useful in the realm of public administration, and it is consequently an important tool for regulation as societies change and become much more complex. For example, there is no clear text that states that judges are to hear every case that comes before them (nor is there clear text that limits what cases judges can hear). One would assume, however, that the natural and default state of affairs is that judges are to hear all cases that come before them. Using istiṣlāḥ
, one can justify the imposition of a statute of limitations (lit. qanūn al-taqādum
; this was first imposed in the Muslim world by the Ottoman Empire) as there is no text that forces an Islamic court to hear every case that comes before it nor is there text that prevents authorities from limiting what a court may or may not hear.
One can start to see how istiṣlāḥ
can be very useful in maintaining the relevance of Islamic law in new areas of modern life.
g. Caveats to the use of maṣlaḥah
It may occur to some that istiḥsān and istiṣlāḥ, along with the concept of maṣlaḥah that underlies them, serve as a golden ticket for a modern makeover for Islamic law. There are, therefore, points of clarification and caveats that are due at this juncture.
The first caveat is that the maṣlaḥah
(whether used in istiḥsān
to carve out an exception to a general ruling or in istiṣlāḥ
to develop a new ruling where no clear textual ruling exists) cannot be in direct violation of a clear or specific textual ruling. In the above examples of istiḥsān
was being used legitimately because it did not abrogate the ruling; it rather narrowed down its application as God intended (at least according to the proponents of istiḥsān
). In the examples of istiṣlāḥ,
no specific or clear command from the Qur’an or Sunnah was being violated based on maṣlaḥah
. It is hardly a controversial statement to say that it is not acceptable, even from the perspective of those who ‘expansively’ use maṣlaḥah
to directly violate a clear injunction from the Qur’an or Sunnah; such a maṣlaḥah
is simply one that is invalid and is known as “maṣlaḥah mulghāh
” (lit. invalidated maṣlaḥah)
In other words, if the Qur’an clearly and definitively says X on a specific matter, one cannot say Y on the basis of maṣlaḥah
alone. A famous example of an invalid maṣlaḥah
is that of a fatwá
whereby a king or sultan is prevented from compensating for violating his Ramadan fast (due to sexual intercourse) by freeing a slave; his only options under this fatwá
would be to feed the poor or fast two consecutive months. Since the king is in possession of many slaves, his violation of the Ramadan fast does not cost him much and, so the argument goes, the goal of deterrence will not be achieved. This fatwá
that prevents him from freeing a slave based on the proposition that there is a maṣlaḥah
in restricting him to feeding the poor or fasting two consecutive months is an invalid one because it clearly and directly violates an unequivocal Prophetic teaching.
Further, the Mālikī jurist, Imam al-Shāṭibī, enumerated three conditions for a valid maṣlaḥah mursalah
(which is the basis for istiḥsān
): 1) that it be suitable (mulāʾim
) with respect to the maqāṣid
of the Shariah such that it does not contradict a definitive text; 2) that it deal with a rational issue (as opposed to pure ritual acts); and 3) that it be necessary or alleviate an undue difficulty (lit. ḥaraj
The third condition enumerated by al-Shāṭibī is very important as it highly restricts the use of maṣlaḥah mursalah
. The example of consolidating the Qur’an into one book is a perfect example of this third condition. That course of action was necessary in order to preserve that which the Shariah seeks to preserve (i.e., religion). At play here is a legal principle that states, “that which is necessary for the performance of an obligation is itself an obligation” (mā lā yatimmu al-wājibu illā bihi fahuwa wājib
The (first) condition requiring the maṣlaḥah
be suitable is also important. al-Shāṭibī clarifies that this means that the maṣlaḥah
, although not attested by a specific text, is part of a genus of maṣālih
that has been attested by text. Consolidating the Qur’an, in and of itself, finds no attestation in the Qur’an and Sunnah. However, the Qur’an and Sunnah certainly attest to the broader maṣlaḥah
of preserving religion and religious knowledge. ‘Preserving religion’ is, therefore, a broad genus
that encompasses a number of maṣālih
, including consolidating the Qur’an. A maṣlaḥah
that does not fit under any recognized genus of maṣālih
is categorized as “gharīb
” (lit. extraordinary) and is not even accepted by the Mālikī school of law (which is known to be to the flag-bearer of maṣlaḥah),
even if it is not clearly invalidated.
Of course, the threshold is not always this high. Maṣlaḥah mursalah
can be used to alleviate difficulty (rather than satisfy a necessity) in a manner that is suitable with respect to the objectives of the Shariah. Once again, suitability is another way of saying that the Shariah must have recognized this type of maṣlaḥah
generally. al-Shāṭibī uses the example of the Rāshidūn Caliphs imposing a standard of strict liability on tradesmen who have the property of others in their possession.
That is, such tradesmen will be liable for damage to their customers’ property whether such damage was caused intentionally, negligently, or by causes beyond their control, unless they can prove that they did not cause the damage intentionally or negligently (this is effectively a reversal of the burden of proof). The reason for this is that such tradesmen tend to leave the property unattended and tend to not act diligently with respect to their customers’ property (due to the fact that they can easily claim it was not their fault and the customer has little means to prove their case). Since this sort of business arrangement is necessary for people to carry on their lives, the absence of strict liability is likely to result in loss of property for many people who rely on such tradesmen. To prevent such loss of property on such a large scale, strict liability was imposed on tradesmen who hold the property of customers in their possession. How is this a ‘suitable’ maṣlaḥah
and from where does it get its legitimacy? al-Shāṭibī states this maṣlaḥah
falls under the general approach found in Islamic rulings where lesser/private harms are tolerated in order to achieve a greater/public benefit. He cites the example of Prophet Muhammed’s ﷺ command that Bedouin merchants sell directly to the consumers in a city rather than have the merchants of the city purchase their goods and then sell them to the consumers in the city.
This Prophetic command was made in order to allow the public to have the benefit of the lower prices offered by the Bedouin merchants. By preventing the city’s merchants from purchasing the goods from the incoming Bedouin merchants, the merchants were forced to accept a loss that they otherwise would have not suffered (in fact, they would have enjoyed profits). However, this loss to the merchants is offset by the greater benefit of lower prices enjoyed by the consumers.
Al-Shāṭibī uses this as precedent for potentially forcing tradesmen to accept a loss (by being held liable for damage they had no role in causing) in order to achieve the greater public benefit of preserving the property of consumers. Since this maṣlaḥah
finds precedent (albeit in the general, not the specific, sense), it is a ‘suitable’ one that can form the basis of a ruling.
How can this be applied in the modern context? The modern example of the limitations period is helpful here. Such a law is certainly not absolutely necessary. However, in the absence of such a law, and as societies become more complex, the administration of justice will face great difficulty in the absence of such a law to the extent that the judiciary’s ability to adjudicate cases in a timely and efficient manner will be highly compromised. Admittedly, there will be people with legitimate claims that will be prevented from having their rights vindicated simply because they did not make a claim within the limitations period. However, one can argue that this is an appropriate tax for society to pay in order to ensure that the administration of justice is not backlogged or stifled. If ensuring the courts are able to adjudicate cases efficiently and as they arise means compromising the potential legal claim of persons who were injured a few years ago and failed to bring a claim, then that is, one can argue, an appropriate cost; just like how imposing strict liability was an appropriate cost to ensuring a public benefit. And to the extent that the court system is involved in preserving and promoting the maqāṣid of Shariah, such a law would be ultimately preserving and promoting the maqāṣid.
Finally, and to be clear, one must realize that istiḥsān and istiṣlāḥ are not used arbitrarily. They are not based on a desire to escape the law of God. Rather, and from the view of the proponent, they are an application of God’s law in that they are designed to remove harm and undue hardship—two goals to which the Qur’an and Sunnah clearly attest. This is a key point. These legal tools cannot be used to narrow down or abrogate rulings because those rulings no longer conform with a new and emerging norm. Nor can one disregard a ruling because the ruling is incompatible with a dominant “ism” of the day. Istiḥsān and istiṣlāḥ are legal concepts, not ideological ones. They are used in the context of a legal and principled approach, employed by qualified jurists, that aims to facilitate ease for the believers as defined by the divine text.