Alhassanain(p) Network for Heritage and Islamic Thought

Legislation Between Subjective And Objective

The issue of law is of fundamental importance in human existence. A few questions arise in this regard. Who is entitled to enact and enforce this law and mete out punishment for its violation? What is the basis on which legislation is founded?

To answer these questions, let us have a look at the Islamic method of legislation. A perusal of this system, and of legislative thought, will establish the fact that Islam holds the view that the process of legislation should be based on scientific objectivity in specifying the issues involved in this process. Thus, the prohibition of alcohol, adultery or hoarding, the imposition of duty, keeping promises, abiding by terms of contracts and declaring, as invalid, contracts concluded under duress, the obligation to respect the human personality and to preserve the family, are all issues that must be scientifically and conscientiously defined, just the way questions in physics and medicine are defined.

In addition to this scientific identification, the process of legislation requires absolute justice and that the legislator be elevated above personal urges in their entirety, for they invariably render man unable to comply with scientific findings. This weakness and the interference of sick, spiritual conditions, natural urges, selfish desires and interests have a serious influence on the human lawmaker. As a result of this complex situation, the law takes the form of an expression of the legislator's will and a portrait of his personality. Instead of having scientific objectivity as its foundation, the law becomes a reflection of the whims, caprices and selfish interests of the lawmaker.

In this regard, Allah, the Glorious, addresses His Beloved Prophet, Muhammad (s.a.w.) saying:

"Then have We set you (O Our Apostle Muham-mad!) on a (definite) course of Law, so follow it, and follow not the vain desires of those who know not." Holy Qur'an (Jathiyah 45: 18)

A true knowledge of the issues pertaining to human behaviour, his economic, social, political, spiritual, health and other conditions, can only be attained after a complete grasp of all branches of knowledge and science; be they social, natural or biological, through experimentation, discovery and a careful study of all the relevant issues. This will enable man to appreciate the harmony and relationship that exists between all the aspects of his life, apart from grasping them individually.

To elucidate on this point, we shall give an example. Islam is law encourages that the child be shown love and compassion and given the chance to play during the period of childhood. The Shari`a frowns on ill treating or hurting the child, because that All-Knowing Legislator is conversant with his nature and with how our treatment of the child affects his behaviour later in life. Studies in criminal psychology reveal that lack of love and compassion and ill treatment during childhood is among the most important factors responsible for ggressive and rebellious tendencies, crime and maltreating others.

In the same vein, child psychology confirms that play and freedom during the childhood years contributes in freeing one from anxiety and fear, which are among the conditions endangering a complex personality that invariably turns into a threat to society. It has also been established that licentiousness, hoarding, alcoholism and drug abuse are among the most dangerous anti-social behaviours that throw materialistic man into related diseases, crime and economic woes.

A perusal of the above mentioned statistics, pertaining to sex related diseases, crime, economic problems and psychological illness, confirms that the ignorance of the law-makers is the paramount reason for the condition that man is suffering from. It is also patent enough that man's knowledge of the harm or usefulness of his various actions does not result in enacting laws accordingly. What bars him from acting upon this knowledge and certainty is the influence of his personality, the result of which is legislation based on ignorance, selfishness, personal inclinations and corrupt desires.

Thus, positive law is far from being objective for it is no more than an enunciation of what the person of the human legislator, who is subject to influences of ignorance, selfishness and psychological conditions, harbours. It is true that sometimes the legislator achieves the desired goal in objectivity in certain enactments, but, respecting them definitely requires that the enforcer act out of an inner urge to the same effect. Such pure motives cannot be found except where true belief in Allah, the Glorious, the next world and its recompense exists.

From the foregoing, it is quite obvious that man stands in need of those indispensable qualities in order to attain a blissful life through scientific legislation, absolute justice and successful execution of the law. No doubt, this cannot be achieved except through the Islamic alternative alone, since the Law-giver, in this case, is free from ignorance, injustice and personal urges.

The Interplay of System, Law and the Conditions in Which it is Applied Among the questions studied, in the relationship between time, space and the setting to which the law and system applies, is the question of the comprehensiveness of Islam, the way it covers all problems and situations and its ability to present multiple solutions to a single problem. This is seen in many areas in such a way that these multiple solutions allow for a choice from among various Islamic alternatives.

The social setting under which we live has a direct bearing on how we specify the law relevant to our situation instead of an alternative one. For instance, Islam permits both private collective ownership, promotes cooperatives, accepts economic freedom and allows the freedom of market forces and mechanism. The state is given the right of interfering in the economy and directing it, while the responsibilities of the individual and the community are defined, in such a way, that they become self-reliant,

and the state is not over-burdened with problems within the capacity of the individual or group. At the same time we encounter other legislations and concepts charging the state with responsibility toward the individual and the community, bestowing on it a big role and making it a great obligation on the state to cater to the individual and group.

As we study this phenomenon in Islamic legislation, we shall realize that there is neither contradiction nor conflict, rather, it represents comprehensiveness and prudence on the part of the law. The wide range of Islamic law allows the community to conduct its affairs according to its settings. The situation at hand, the nature of the present need and the interests of the community, together, are the factors that help in selecting the type of law to be applied.

The burden is better useed of specifying which law governs on the community through its scholars, thinkers and political movements, and the state, because of its scholarly ability and competence in specifying legislative choices, and the right to act on anyone of them among the legal alternatives is procured by the custodian of the Islamic legislation and system.

For example, the individual and the market are allowed to direct economic activities where the state, through the studies conducted by its economic commission, scientifically confirms that market economy is in the interest of the community. On the other hand, the state interferes in the economy by directing its activities where economic interest of the community entails the adoption of a centralized economy. Thus, various choices are open to the Islamic state.

Islam and New Developments

In order to elucidate on the timelessness of Islamic legislation and thought, its relevance to every time and place and the fact that it covers new developments, it is necessary to define the following terms:

1- Appurtenance of the Legislation:

Each law undertakes the regulation of a given field, such as thought, security, economy, politics, social issues, etc., which the scholars of Islamic jurisprudence call law appurtenance `muta'alliqat' of the rule. Thus, laws usually regulate various human activities, needs, relationships and positions. By subjecting man's activities, and his needs, toward scientific study based on psychology, medicine and sociology, we can classify them all into four fundamental divisions:

a- Moral Needs, Psychological Feelings and Activities: Such as, security, love, stability, beauty, anxiety, fear, grudge, aggression, anger, ugliness,… etc.

b- Mental Activities and Needs: These include unveiling the unknown, acquiring knowledge and sciences, understanding the universe and life and what relates to the last two such as knowing the Creator and His worship,…etc.

c- Material Needs and Activities: Such as, food, the need for a spouse, shelter, clothing, treatment,..etc.

d- Social and Political Needs…etc.

Therefore, a scientific and objective system and legislation is that which satisfies, regulates and reforms these natural needs of man. This is so because they are needs attached to his very existence irrespective of time or space. To be in conformity with them and satiate them is to act according to truth and justice. The twin values of truth and justice are, themselves, constant and never change or vary. What changes is the desired type and amount of human needs to be fulfilled before truth and justice can be said to be achieved.

When human activities and needs are subjected to study and analysis in the light of modern sciences, it will be realized that man remains the same in his fundamental needs and urges for food, shelter, spouse, medicine, security and psychological conditions; such as, love and hatred, stability, fear, aggression, thinking, …etc. No change, whatsoever, has taken place in him, from his creation to the end of his life on this earth. What is subject to change is rather the ways and methods of satisfying those personal urges, whether they are beneficial or harmful.

This analysis shows us that the needs of man are not, in themselves, susceptible to variation but the methods and ways by which he lives his life are subject to change and substitution. For instance, at the beginning of his existence on the earth, man was feeding on leaves, fruits and animals which he gathered or hunted from the natural and unadulterated world. He made his clothes from animal skin and some leaves, while his feet were the means of transport. Then, the means of procuring food, manufacturing clothes and transportation evolved, reaching its advance stage in our present time, and it will continue developing and becoming more sophisticated.

Then, what shall remain constant is the obligation of satisfying the bodily needs of man which shall be taken care of by the law and system in conformity with the permanent principles of truth and justice.

The religion of Islam sheds more light on the principle for answering those needs. Allah, the Most high declares:

"For you it is ordained that you shall not be hungry in it, nor (shall you be) naked, and that you shall not be thirsty in it, nor shall you feel the heat of the sun." Holy Qur'an (Taha 20: 118-119)

This is an established right of man, not withstand-ing the fact that the verses were addressed to a particular person and on a particular occasion. All laws, enactments and systems revolve around this point. Therefore, the legitimate powers can issue the necessary laws, instructions and procedures, apart from the laws and concepts existing in Islamic legislation, to protect these human rights at all times and places. The natural needs of man; such as, security, stability and protection from all forms of fear, are unalterable material and psychological wants.

The Holy Qur'an explains the permanent principle concerning security and tranquility regarding life, property and honour in the form of a question asked by the angels. They were surprised that a creature who would spill blood and corrupt the earth would be sent as a vicegerent on it. This is recorded by His saying, exalted is His name:

"(Recollect O Our Apostle Muhammad) When said your Lord unto the angels: `Verily I (intend to) appoint a vicegerent in the earth' they said, `Will You (O Our Lord) appoint therein one who will cause mischief and shed blood, while we celebrate by Your praise and hallow You alone?'" Holy Qur'an (Baqara 2:30)

And the Almighty added:

"That he who slays any one (man), without (that being for) murder, or for mischief in the land, (it shall be) as though he has slain mankind as a whole." Holy Qur'an (Ma'ida 5: 32)

And He said:

"So let them worship the Lord of this House, (He) Who fed them against hunger, and secured them against fear." Holy Qur'an (Quraish 106: 4)

And He said "And indeed We have honoured the children of Adam, and We carry them in the land and on the sea and We provided them with sustenance of good things, and We have exalted them over most of those whom We have created, by (high) decree of exaltations." Holy Qur'an: (Bani Israel 17: 70)

And the Holy Prophet (s.a.w.) also said: "The blood, property and honour of every Muslim is prohibited to any other Muslim". He also said: "It is not permissible to take someone's property except with his consent". These declarations establish the legislative foundations for the necessity to ensure the security of man's life, property and honour (reputation and personal integrity).

These principles represent the constant aspect which never changes while the means and methods of ensuring security are never evolving. In the present age, the issue of security is a complex question, the study of which is taken up by scholars, agencies and institutions. Because of the complexity of this issue, strong measures are taken, employing available technology to ensure the existence of peace and tranquility.

Therefore, Islam, in its legislative capacity, considers it part of establishing truth and justice to ensure that man enjoys security; being a permanent value. The ways and methods of ensuring security are the aspects susceptible to variation, and it is not the duty of legislation to specify them, rather human intellect is responsible for choosing the appropriate means. In this regard, the shari'a urges the intellect to think, investigate and develop the means of livelihood. It also bestowed the legitimate ruling power, in all ages, the competence necessary for issuing instructions and procedures to preserve security, with the condition that such instructions and enactments do not contradict the timeless values of truth and justice.

So, this is how the Constant and the Changeable (part of the shari'a) deals with the whole human activities.

2- Legislation and Islamic Concepts:

Under this topic, it will be noticed that Islamic legislation and concepts serve two fundamental purposes in the life of man, they are:

a- Conforming, at times, with and regulating the existing needs and activities.

b- At other times, opening up new horizons and topics, thereby promoting the evolution of human activities.

From what we grasp about the permanent and absolute standard, Islamic legislation and concepts, in their various areas, are based on the twin standards of truth and justice, which, as explained above, are constant and never changing. For this reason, the Holy Qur'an has defined man's fundamental needs from the legislative point of view, basing its reasoning on these two standards. It considers the fulfillment of these needs a right necessitated by justice, for his life and the nature of his existence are closely associated with them.

This is elucidated by the Holy Qur'anic verse relating the divine address directed to Adam (a.s.) which represents a charter of livelihood rights acknowledged for the human species by divine justice.

Allah, the Glorious, declares:

"For you it is ordained that you shall not be hungry in it, nor (shall you be) naked, and that you shall not be thirsty in it, nor shall you feel the heat of the sun." Holy Qur'an (Taha 20: 118-119)

And the Qur'an proclaims that Islamic law is based on truth and justice:

"And with truth have We sent it down and with truth it has come down; and We sent not you (O Our Apostle Muhammad!) but as a Giver of glad tidings and as a Warner." Holy Qur'an (Isra' 17: 105)

"And We created not the heavens and the earth and what is between them two but with truth." Holy Qur'an (Hijr 15: 85)

"Verily, Allah enjoined justice and benevolence (to others)." Holy Qur'an (Nahil 16: 90)

It is very clear that truth and justice are permanent values on which all systems and human behaviour and transactions are based. Thus, it is man's right to have his material needs fulfilled. To give this right is justice, while depriving it is a form of injustice. It is also among his rights to live in peace, security, stability and honour, and to secure these is justice, while failing to fulfill these needs is obvious injustice. We also read in Islamic law that establishing equality between possessors of rights when giving them their rights, is also part of justice that must be executed in its capacity as a permanent principle.

Thus it becomes manifest that change only affects subjects such as means and methods like means of medical treatment, transportation, education, security, production, …etc. All of these subjects are not a product of any social school or lawful legislation, but they are the result of man's scientific endeavour, his desire to refine his living conditions and ensure comfort, irrespective of the type of thought and the kind and level of social system involved.

The role of law and, the sociological school concentrates on encouraging the exercise of thought, and regulates and supports its realization. Similarly, Islam attaches great importance to answering the needs of man and working toward their fulfillment and regulation. Islam urges man to seek knowledge, to work for the betterment of life and illuminate his thoughts with knowledge and science. It also opens a section of its sacred legislation, which is the free legislative zone, flexible laws, etc.,

about which we shall throw more light on subsequent chapters, Allah willing All these provisions open up the horizons of Islam for the acceptance of new developments, changes and various human innovations capable of serving humanity and securing its interests. It is, therefore, a thought and legislation which caters to the permanent requirements pertaining to human existence, psychologically, mentally and physically, in accordance with the level of means and methods at his disposal for all times and places.

An Analytical Study of Religious Law and its Criterion

Before starting a study and analysis of religious law it is necessary to present its scientific definition, so that our study and analysis can take a complete form. Definition of Rule: The great jurist, Sayyid Shahid Muhammad Baqir Sadr defined rule as: "A legislation emanating from Allah, the Most High, for the purpose of regulating and directing human life."

Allamah Sayyid Muhammad Taqi al-Hakim, transmitted another definition of rule, which is: "A legal considering pertaining to the deeds of the bondsmen (of Allah) either directly of indirectly."

Scholars of Islamic jurisprudence have studied the religious law and resolved the principles, constituting it, into three elements. These are:

1. Criterion `milak', (the benefit of harm, calling for the enactment of the law).

2. Will (the will of the law maker which appertains the criterion).

3. Consideration (a verbal formulation of the will of the law maker which signifies the criterion.

Now, let us look into the criterion of the law, for its relation with the Constant and Changeable part of the Islamic law.

1-The Criterion (milak) of the Law:

Literal Meaning: It is recorded in Mu'ujam-ul-Wasit that: The milak of an issue is its constituents and epitome or its essential elements. It is said that 'the heart is the milak of the body'.

Technical Meaning: Scholars of Islamic jurisprud-ence have studied the issue of milak or criterion, defined it and founded legislative concepts on this definition. From the literal meaning they extracted the technical one. Therefore, the milak of religious law is its constituent and spirit. We can analyze the course of decreeing of rules and their enactment by the Legislator - i.e., explaining the legal philosophy of legislation - as follows:

Islamic legislation is founded on a scientific principle denoting that in every act, intention, word or issue there is essential benefit or harm. This is the principle of essential beauty and ugliness. Thus, drinking alcohol, adultery, injustice, gambling, abnormal sexual relations, stealing, usurpation, chaos, lying, fraud, hoarding, interest, rancor, etc., are in, themselves, harmful practices, i.e., there is essential harm in them. On the other hand, justice, truthfulness, trustworthiness, prayer, love and respecting others, order, security, marriage, commerce, agriculture, seeking knowledge, medical treatment, etc., are deeds that ensure benefit and public interest, i.e., they are, in themselves beautiful.

This benefit or harm is what is known in Islamic jurisprudence as criteria of rules `Milakat al-Hukm'.

2- Will:

The Exalted Lawmaker considers the different issues, questions and practices with complete knowledge, wisdom and justice. If He finds some benefit in a particular thing, He wills it and decrees a rule proportionate to the amount of such benefit in order to ensure it. This rule may take the form of obligation or permissibleness or desirableness. If He finds that a particular practice, issue or question is harmful He abhors it and enacts a law prohibiting man from performing it, in proportion to the degree of its harmfulness. This law may be one of forbidding `tahrim' or undesirableness `karahah'.

In this way, legislation always depends on the criteria and the will of the Lawmaker, which He reveals through legislative discourses (verbal expression), and takes the same direction as the criteria. Example: The saying of Allah, the Most High: "Forbidden unto you is the Dead (that which dies of itself) and blood, and flesh of swine."Holy Qur'an (Ma'ida 5: 3), and His saying:

"lawful have been made for you the good things." Holy Qur'an (Ma'ida 5: 4), and His saying "Verily, Allah enjoined justice and benevolence (to others)." Holy Qur'an (Nahil 16: 90), and like His saying: "and for the women shall be similar rights (over men) in fairness." Holy Qur'an (Baqara 2: 228), and like the saying of the Holy Prophet (s.a.w.): "The ruler is a shepherd and (he) "Verily, Allah enjoined justice and benevolence (to others)."is responsible (for the affairs) of his flock".

So the will of the Lawmaker is founded on the following fundamentals:

a- A complete knowledge of the issues He is enacting for, being conversant with their beneficial or harmful aspects.

b- Wisdom: It means to assign a thing to its rightful place. It implies that the knowledgeable one acts upon his knowledge without vanity.

c - Justice: The third element the will of the Law maker has to depend on, so that the enactment will ensure the benefits and ward off harm, is justice. Knowledge alone will not suffice for a legislator to be desirous of establishing goodness and benefit so long as he is not a just one who does not act on injustice and tyranny in the course of legislation.

3 - Consideration (I'itibar):

This denotes a formulation in the form of a decree by which the Lawmaker reveals his will. By this formulation, the will of the legislator, which alludes to the criterion of legislation, is known. Such formulation includes prohibition, obligation and permissibility.

Shahid Sadr has undertaken the analysis of the rule denoting responsibility `hukm al-Taklif' and threw more light on the position of the criterion vis-à-vis the rule. He said: "When we analyze the process of the rule denoting a responsibility such as obligation - just as any master obliges in the customary way - we will find that the rule passes through two stages. The first one is the stage of 'firmness' `thubut' and the second is that of confirming `ithbat' and manifesting. In the first stage the master specifies what the deed possesses of benefit - and this is what is known as milak - till he percieves that this benefit reaches such a level as to create a ' will' concerning that deed, proportionate to the degree of the perceived benefit.

Thereafter, the master articulates his will through a decree in the form of a consideration. Then, the deed is regarded as a responsibility on the obligatee `mukallaf'. Therefore, in the stage of affirmation (thubut), there is criterion `milak', will `iradah' and consideration `I'itibar'. `I'itibar' is not a necessary element of the stage of affirmation, rather it is normally used as an act of formulation customary to legislators and men of intellect, and legislators follows their course in this matter".

This explains the principles of the rule and that the criteria of laws are the reason behind enacting them. And these criteria decide the permanent and the variable among the laws.

As it is quite evident, the criterion or benefit is the backbone of law which the will of the legislator aims at. This will is formulated into a legislative articulation addressing the obligatee. At the stage of receiving the laws by the obligatee, the role in comprehending the "consideration' in preparation for executing the law is manifested. We shall study this issue later - Insha Allah - to remove the vagueness, as regards to what is human and what is divine, in Islamic legislation.

Legislation Between Subjective And Objective Unity of Criteria

Being conversant with the meaning of 'criteria' (milak), it is beneficial to point out that a lot of issues have a combined criterion although religious law is represented only by some of these issues under a specific topic and a given title. In this case, is it possible to consider the criterion as basis for expanding the area covered by this law, by encompassing other situations of the same criterion but unspecified by the lawmaker, or not?

Studies by jurists and legal experts have answered this question in the affirmative. They consider unity of criteria as an acceptable basis for similar application of the law just as they regard a joint cause `illah', that is mentioned in the text, a foundation for including other conditions sharing the same cause.

A clear example of this can be seen in the letter of Imam Ali (a.s.) to Malik al-Ashtar where he declared that the criteria for forbidding the hoarding of foodstuffs is the need for it, or that hoarding will cause distress or harm to people's lives. The Imam elucidated on the reason for prohibiting such practice, saying: "Behold - along with this - that most of them are very narrow minded and awfully avaricious. They hoard goods for profit and fix high prices for goods. This is a source of harm to the people and a blot on the officers in charge. Stop (people) hoarding because the Holy Prophet (s.a.w.) has prohibited it."

Based on the principle of the unity of criteria, the jurist declared that the hoarding of items, whose hoarding will result need or harm or distress, unlawful, although the narrations `hadith' on the prohibition of hoarding mentioned foodstuffs only. Since the criterion for prohibition was that the people stood in need of the foodstuffs or would be inflicted with harm as a result of hoarding, and also, since need, distress or harm is regarded as the criterion for that legislation, so, whenever it is present in respect to goods, benefits and services, prohibition comes up for discussion.

Instances of Changes In Rules As A Result of Changes In Criteria

While studying the laws, whose essence revolve round the issue of criteria, we encounter legislative terms established by the Glorious Lawmaker in consistence with the principles of knowledge, justice and wisdom. These terms explain the areas of change and permanence of a law dependent on the change or permanence of the criterion. They are:

1- Concession `rukhsah and Incantation `azimah'.

2- Initial and Secondary rules `ahkam al-Awwaliy was Thanawiy'.

3- Giving priority to the `more issue command' in case of a clash between two issues.

To define and specify, those areas are under the:

1- Competence of the state.

2- Competence of the obligatee himself.

The glorious Legislator, through His knowledge, justice and wisdom knows that the relationship between the law, the obligatee and the appurtenance would be affected by contingencies and new developments, and based on those contingencies the interests or benefits would change. This, in turn, causes a variation in the law in the light of those contingencies and developments.

We shall introduce the more prominent areas in which one law changes into another after the change in the benefit, which constitutes its backbone and necessitates enactment.

1- Concession and Incantation:

The book Mukhtar Sihah al-Lugha reports: "To resolve `azama' on something is to intend to bring about the act and resolve on the same."

"Concession `rukhsah' of an affair is the opposite of insistence on it." These are the definitions of rukhsah and azimah (emphatic formulation) in their literal sense. As for their technical meanings as rendered by the scholars of jurisprudence; Amadi said: "Azimah literally means tender and this meaning is taken from the strong obligation or promise taken by the heart on a matter… but in the field of divine law, azimah means what is binding on a bondsman as a result of the obligation imposed by Allah, the Most High, such as worship, khums and the like."

He defined rukhsah as: "The rules enacted for the situations of an excuse although the reason for prohibition exists." Azimah is also defined as: "General rules enacted by Allah in their capacity as original laws, such that they do not specifically accept a particular condition or a particular obligatee."

Rukhsah is also defined as: "What is enacted of the laws, as an alliviation for the obligatee, in special cases which necessitate this alliviation." The terms rukhsah and azimah have been mentioned by the Noble Messenger (s.a.w.) in what pertains to legislation, like his (s.a.w.) saying: "Allah likes this concession `rukhsah' to be availed of just as He dislikes that (people) should commit sin."

He also declared: "Allah likes that (people) should avail themselves of His concessions just as He likes that His determined rules `aza'im' be abided by." A study and analysis of the principles of classifying laws into 'determined' and 'concession' reveals that Islamic law has treated the subject of fixed and variable laws.

The rules, in Islamic law that denote responsibility are:

a. Obligation

b. Prohibition

They are the two rules of obligations, called azimah.

The Permissible `Mubah': It comprises the 'absolute' permissible, the desirable and the disliked.

There is a concession `tarkhis' i.e., permission for leaving out a responsibility and the obligation or prohibition is dropped, like the exemption of the old who find it difficult to fast and permission to drink alcohol when a person who drinks it compelled by circumstances, or under duress as long as the excuse last.

This shows that Islamic law has taken into consideration the conditions of a person or group and the contingencies that necessitate a change in rules affecting individuals or groups, so long as the casual factors remain. This means that the conditions under which a law is applied, and its influence on the applier, play a role in the constancy, or otherwise of the law.

Thus, the change will be relative in nature and limited by the causes of the changing. It is not an absolute change which is, in reality, an abrogation (replacing one law with another in toto), rather it is a process by which acting on a law is suspended while a changeover to another is effected till the causes of this suspension expire.

This is a result of the fact that the criteria is subject to the benefits or harms existing in the essential nature of the act, like taking alcohol and fasting. Drinking alcohol is an essentially harmful practice and its harmful relationship with the human body and mind can never change. For this reason its prohibition can never change, either. However, a concession is granted to one under duress to drink alcohol so as to arrest a more dangerous situation. Such a situation could be excessive thirst that could lead to death, in which case, one is allowed to partake in only that amount of alcohol necessary to deliver him from imminent death.

Allah, the Most High, states:

"And whoever is forced to it without the desire (for it) nor to transgress (the limits) then it is no sin on him." Holy Qur'an (Baqara 2: 173)

2- Initial and Secondary Laws:

Among the topics on legislation which are related with the criteria and the changing of rules is the question of initial and secondary rules. This topic represents a wide area of addressing the issue of change on the subject of general living conditions, politically, economically, and individually, concerning worship, …etc. The classification of real laws `ahkam al-Waqi'iyya', into initial and secondary rules, is a direct consequence of putting into consideration the criteria of laws and what may affect their appurtenances, subjects, and conditions, which in turn, guarantee the regulation of the laws and specify man's duty, vis-à-vis contingencies and new developments. A change in the situation calls for a change in the law.

To make the discussion more perspicuous, let us define the initial and the secondary rules. Allamah Sayyid Muhammad Taqi al-Hakim defined the initial real law `hukm al-waqi'iy al-awwaliy' as: "The rule assigned to a thing initially with regards to its original nature, i.e., without considering any contingency that might affect it, like most of the real and conventional, and likewise, those that denote responsibility."

And he defined secondary real law as: "What is assigned as a rule, taking into consideration certain conditions that might surface and necessitate a change in the initial law. For instance, drinking water in its initial law is only permissible `mubah', but where it acts as a means of saving life, it becomes obligatory; and likewise, trades which serve to regulate our living are regarded as general obligations `wajib al-Kifa'', but, where only a particular individual or group can pursue those trades, they turn into individual obligation `wajib al-Aini' on the said individual or group."

After these two definitions, he commented on replacing an initial law with a secondary one saying: "The realities of many of the initial laws change as a result of secondary effects. An obligation may change into a prohibition, a prohibition into permissible into desirable and so forth. This reality shows the flexibility of Islamic laws and how they conform to different situations."

The study and analysis of this legislative principle - the principle of changing the law from a particular verdict to another - taking into view the contingencies that change the criteria (benefit and harm), reveals the capability of Islamic legislation, to take care of a situation and its new developments, thereby specifying the meaning of the fixed and the variable laws in Islam. A practical example, whereby a change in criteria leads to a change in the verdict from permissibility to obligatory...is this:

Islamic legislation holds the sale of goods and currencies permissible in an initial rule, and regards it obligatory where it is required to ward off an economic ill, and thirdly, considers it prohibited in case it causes harm to the economy of the nation. To make it more concrete, the exporting of gold, currencies and merchandise is a permissible act, although Islamic law will declare it unlawful when it turns detrimental to the economy and financial position of the community.

Thus, Islam laid down the legislative principle based on which an initial rule changes into a secondary rule. The alteration of the permissible to the obligatory and, then, to the prohibited, and vice versa, based on contingencies affecting the situation, is a proof of the existence of the fixed and variable laws in the Islamic legislation. When these new conditions are removed, the initial rule reverts and its violation is not allowed, because the benefit or interest now lies in acting on the initial rule. An example of this is foreign investments, as they are permissible in the initial rule, while they would be prohibited where they result in political and economic subjugation by a foreign power.

3- Rivalry and the Giving of Priority to the More Important Over the Important:

Rivalry `tazahum' is a technical term which means: "The mutual contradiction of two laws as a result of the practical inability of an obligatee to discharge his obligation with respect to both of them."

This, in reality, is the clash existing between two obligations, or an obligation and a prohibited action, with regard to time, place or the ability of the obligatee, in such a way that he could not be able to discharge both duties, together, in that particular period of time, place or by the power at his disposal. Therefore, he has no recourse but to act according to either one of the two laws. This kind of clash, in the view of legislative concepts, turns into a conflict between laws, and the obligatee's duty is to give priority to the more important criteria of the two laws. Shahid Sadr elucidates more on the way of resolving the clashes between the laws, saying:

"The way of resolving the clashes between laws is to give priority to the one with the more important criterion, over the other." Among the example of the hukm of a clash between two rules, is the clash between performing prayer and that of rescuing a drowning man or the wounded, whom it is feared might bleed to death unless immediate help is rendered. In this case, rescuing the drowning or wounded is given priority over prayer. And also like the clash between performing Hajj and Jihad, where the most important among the two is given priority over the other. In most cases, Jihad is preferred over pilgrimage, because of the necessity of defending and protecting the faith, interests and the nation.

These instances show that the principles of resolving a contradiction discards one of the duties i.e., it discards the obligation or prohibition in respect to the less important rule, as long as the obligatee is busy with the more important one.

Another area in which laws are subjected to the phenomenon of change is that of equality between the level of benefit and that of harm in a given activity, whether it is political, economic or otherwise. This fact is formulated into a jurisprudential principle which states: "To ward off harm is more important than deriving benefit." This legislative principle refers to situations in which the law changes due to a change in the criterion.

When a practice, the exercising of which is initially permissible or obligatory, is affected by new conditions under which a benefit and a harm are simultaneously caused by exercising it, it comes under the principle of 'warding off harm is more important than deriving benefit'. In this case, permissibility or obligation depends on whether the action will bring about detriment.

Similarly, it becomes obligatory to refrain from a practice which is initially obligatory, where a harm equivalent to the benefit occurs, if it is done. For instance, there could be a benefit in severing political ties with a country which treats the Islamic nation badly, by engaging in propaganda attacks, but, on the other hand, cutting ties with that country is militarily detrimental to the said Islamic country. In this case the benefit and harm is weighed, thus, the principle of 'warding off harm is more important than deriving benefit' is applied.

Fundamentals of Legislation and Implementation Laws

"He it is Who fashiones you in the wombs (of your mothers) as He likes, There is no God but He, the All-Mighty, the All-Wise. He it is Who has sent down to you (O Our Apostle Muhammad) the Book of it there are (some) verses decisive these are the Basis of the Book, and others are ambiguous; But those in whose hearts there is perversity, they are after that which is ambiguous therein seeking to mislead and seeking to interpret (to suit their selfiish motives) while none knows its (hidden) interpretation except Allah and those firmly rooted in knowledge, say they: We believe in it, all is from our Lord but none mindes save those endowed with (wisdom)." Holy Qur'an (Al-e-Imran 3: 6-7)

These two verses discuss about creation and legislation, calling our attention to the fact that the Creator of man Who knows the nature of his bodily, psychological and ideological constitution, is the One Who decreed the laws that regulate his life. He is completely conversant with man, his conditions and various aspects of his life, with respect to creation and legislation. The Almighty, by His omniscience, justice and wisdom, decreed that legislation be based on a set of general fundamentals of thought, known in the Qur'an as the 'Mother of the Book' `Ummul Kitab' i.e., a set of fixed principles on which the entire thought and legislation is built. Therefore, the Qur'an differentiates between the fundamental principles, which serve as the bedrock of legislation and are fixed and unchangeable,

on the one hand, and the legal details for executing those principles, on the other. The substance for those general principles forms the fundamental subject matter, the spirit and purpose of the detailed laws. Some western researchers such as Montesque referred to those fundamental principles as the spirit of the law while some Islamic researchers called them 'purposes of Islamic law `maqasid al-Shari`a.'

One of the classifications of objective legislation and studies by the jurists divides legislation into fundamental law, i.e., the constitution and general law. This classification, to a large extent, approaches the principle explained by the Qur'an in the above mentioned text. It points to the permanent which does not change, and the laws that can be affected by change. Another example is the Lord's address to Adam (a.s.), as the representative of the human species, which conveys the charter of rights to livelihood. This charter represents the permanent, fundamental idea of legislating man's livelihood. Allah said:

"For you it is ordained that you shall not be hungry in it, nor (shall you be) naked, and that you shall not be thirsty in it, nor shall you feel the heat of the sun." Holy Qur'an (Taha 20: 118-119)

The Almighty Allah spells out that the provision of food, clothing and shelter is a natural right of man, and that that principle is permanent; never accepting any change. For the execution of this principle, various laws, concepts and ethical values have been enacted. These include the laws on the religious taxes of zakat and khums, prohibition of amassing wealth, hoarding and manipulation of prices. In addition, the government is bestowed with the competence to issue the necessary procedures for executing that noble principle practicably for the benefit of mankind. Within the area of competence enjoyed by the Islamic government is the process of charging extra taxes, interference in economic activities, such as banning the practice of hoarding, and the controling of prices, wages, insurance, etc.

While looking into the studies and analysis of the criteria of law, we have seen how variation and change occur through the agents of relaxation of laws, secondary laws, clash of laws, etc. From these facts, we realize that there exist fundamental enactments that are permanent and other legislations for the execution of those fundamental principles. Some laws, in the latter group, are susceptible to change under certain standards and conditions already described.

Among the fixed legislative principles is what is carried by the holy verses on the rights of women:

"And of His signs is that He created for you from yourselves, mates that you may dwell (inclined) unto them, and caused between you love and compassion." Holy Qur'an (Rum 30: 21)

"but deal kindly with them (women)." Holy Qur'an (Nisaa' 4: 19)

"Let him with abundance spend of him abund-ance." Holy Qur'an (Talaq 65: 7)

"And for the women shall be similar rights (over men) in fairness." Holy Qur'an (Baqara 2: 228)

For the purpose of executing those fixed principles, Islam enacted laws that serve as legal formulations of those principles. Some of these imple-mentation laws are subject to modification and that occurs when their prerequisites and criteria change as a result of external contingencies and conditions.

From these Qur'anic texts we can deduce that there are fundamentals and pivotal principles on which laws and concepts are based. These pivotal issues are called Ummul Kitab. They are the pivot and revolving around them are the rules and enactments, either permanent or variable, that play the part of executing the substance and the purpose the fundamental principles. As such, we find that the Prophetic sunna (tradition) consists of three kinds of enactments in the area of practical execution. They are:

1- Governmental Legislations (these emanated from the Prophet (s.a.w.) in his capacity as the ruler)

2- Initial Rules

3- Secondary Rules