This is part II of the original article that was written in response to this wretched vision of Satan, the Quilliam Foundation! The first part can be found here
I quote Rashad in his email correspondence. This is a correspondence that Rashad is more than happy to confirm.
“because they don’t implement all the shariah but only some aspects based on the permissibility of gradualism in imposing the shariah based on its legitimacy following Imam al-Izz ibn Abdus Salam in his book qawaid ul-Kubra based on the sunnah of Muhammad (saw) allowing the people of thaqeef to not pay zakat not fight jihad, stating tehat they will eventually adopt the whole of Islam (as narrated with a hasan sanad according to Shaykh Ata abu rishta the Amir of Hizb ut-Tahrir in the sunan of abu daud!) – such an opinion is a classical position – or the permissibility of abandoning the general isamic hukm due to a widespread (haja) or daroora (necessity) an Islamic opinion held by most of classical jurists e.g. Imam Juwayni, Imam Ghazali and Ibn Abdus Salam, who states that if the interests and needs of the muslims could not be met without permitting forbidden transactions then this would be necessary and permitted not just according to necessity but more than this and enough to make them strong enough to overcome their enemies – again in his book Qawaid al-Kubra, and supported by moderns scholars such as Ibn Ashur”
Well… I don’t think he really now disagrees with this especially when he thinks that certain people on accepting Islam can pray two times a day! See this link
http://traditionalislamism.wordpress.com/2008/03/01/addressing-rashads-ramblings/
Interesting paragraph though (despite its obvious distortions) but what conclusion is he trying to reach? I quote
“You and I may disagree with these opinions but they are classical positions which necessitate their acceptance and therefore there is at least a shubhat dalil permitting their point of view and the current regimes, which the majority of the ulema state are legitimate authorities and rebellion against them is haram.”
Now Rashad wants us to believe that the current secular regimes’ are valid because they follow an ijtihaad! Remember we are talking about secular regimes that are not antagonistic to the individual personal matters of worship. What are the proofs for this?
1-They follow Izz Deen Abd al Salaam in his understanding of the Banu Thaqeef incident and are gradually implementing Islam
2-More importantly they can hold onto the permissibility of abandoning a general Islamic Hukm for matters that are in the Hajiaat (things that are needed for life but not necessary) and the Darooriat (things that are necessary for life). In this case I assume this gives weight to abandoning the Huduud that implement flogging and stoning in this “modern” era.
The hadiths that are related to Banu Thaqeef have been tackled here
http://traditionalislamism.wordpress.com/2008/03/01/addressing-rashads-ramblings/
So I will not bother to go into this. I doubt very much that Izz a Deen Abd al Salaam had any view that is outside the norm in understanding these hadiths. So I will concentrate on the second aspect. Can we use the principles that are clarified by the likes of “Izz Al Deen Abd Al Salaam”, Imam Juwayni and Imam Ghazzali to abandon the Shariah in this modern era? Can we abandon “outmoded” “unpalatable” references in the Shariah and view the Secular Arab states as a product of an Ijtihaad? Before I go on, the issues that are related to rebellion have also been dealt with here.
http://traditionalislamism.wordpress.com/2007/12/30/the-art-of-evading-shubhat-part-2/
Certainly, even the most passive of scholars would not view this form of reasoning as legitimate.
Al Duririaat.
We must be careful here when we talk about the principle of “necessity “. Indeed when we talk about it we must differentiate between the Dururi as a Rukhsa i.e the “fiqhi” version of necessity and the Durooriat of the maqasid i.e. the Usuli version, if you wish. For the”fiqhi” version we have the expediency for a particular individual in particular situation to consume forbidden things of the “highest” order. With regards to the Usuli version, we are talking about the typical 5 maqasid that are well known. Just to confuse matters more though it sometimes used to mean the general need of a population in matters like accommodation, and selling (see the Muafhiq fi taj wal Al’Kleel Bi Hamish al 7taab 4/365).
Our concern is with the fiqhi version obviously. I will list just a few of the classical ulema
Imam al Razi Al Jassas al Hanafi says in his Ahkam al Quran vol 1/159
“Here the meaning of necessity purports the fear for life and limb when someone avoids foods (that are in essence forbidden) …..”
Ibn Qudamah al Maqdasi al Hanabli in his Al Mughni says (9/331)
“If it has become established, then the necessity that is expedient is the type that leads to starvation if the food is left”
He continues to say
“……..The reason for the allowance of is the need to preserve the self from destruction because this Maslah is more beneficial than the benefit of avoiding the impure….”
Imam Abu Hamid Al Ghazzali Al Shafi says in his Wasit (7/168 )
“As for necessity we imply the state that probably will lead to the person’s destruction, If, for example he does not eat and similarly if he fears that an illness would lead to death…..”
Imam Ibn Juzi al Maliki says
“…As for necessity it is the fear of death and it is not conditional that someone is patient to such an extent that he witnesses his own death” (Al Quanin al Fiqhia p116)
Clearly then we are talking about an acute scenario that is particular. Even this has certain constraints according to many of the Ulema.
(1) That there is no other means to remove this overbearing situation
(2) That this does not affect the rights of others. In other words we try to look for an exit that does not affect others. At least in principle. This is an interesting discussion. To such an extent that a number of Ulema forbid Muslims to eat dead human flesh in matters of starvation because this affects the rights of others i.e. those of the dead. Another very common example is the sinking ship scenario. What if we are going to sink because of the excessive weight of the passengers, do we throw a few overboard to their doom to save the majority? The vast majority refuse this scenario of Utilitarianism in Duruoora. Another example is the Muslim prisoner shield that is put up in defence of a non Muslim army. This example is typically allowed for as a Duroorah on a state level but more importantly because there are textual indications that allow collateral damage if it cannot be avoided. Some scholars understand this point as a Duroorah Kulia i.e. an all encompassing Duroorah ( It applies to the Muslims as a whole rather than some at the expense of others)
(3) Uttering Kufr by force is a Rukhsa and it is better when forced on pains of torture and death to avoid it.
Imam Suytui in Ashbah wal Nadhair page 63 says
“Eating the flesh of the dead in times of necessity takes precedence over taking someone else’s money (to purchase food)”
The scholars also differed on whether you can take drink alcohol when you are dying from thirst. Imam Shafi thought that alcohol makes the thirst even worse. Others also differed on whether one can take medication that has forbidden elements in it. Finally even some scholars did not consider it a sin if someone refused to take anything forbidden at all. (See MAjmu3at al Bu7uth al Fiqhea by Dr Abdul Karim Zaydan pages 141-214)
Anyway all four schools of thought and in fact the consensus agree that Duroorah in the fiqhi sense makes things that are forbidden allowed in an acute scenario. Remember this is not a norm but a very particular severe situation. It cannot be made a law. It is also much more subtle then Rashad would like to think.
Certainly it cannot lead to a normal rule for an entire population. What is more amazing is this shear idiotic logic in extending this scenario to make secularism allowed and even nullify the huduud in modern times. He even dares to call this an Ijtihaad! Also what in the world does this have to do with gradualism? How does this make gradualism allowed?
What is also incredible is the “ivory tower” like discussion. When did certain secular Arab leaders even bother to bring an establishment scholar to the fore and cry out secularism is allowed because of Daroorah?
Al Hajiyaat
The term Hajah is a term that is identified in the Quran and Sunnah. In ayah 80 of Surah Al Ghafir
وَلَكُمْ فِيهَا مَنَافِعُ وَلِتَـبْلُغُواْ عَلَيْهَا حَاجَةً فِي صُدُورِكُمْ وَعَلَيْهَا وَعَلَى ٱلْفُلْكِ تُحْمَلُونَ
Here the term means according to Thalab: the desire to transport things on animals. It also means when applied to the self a need for something lacking. Shiekh Abu Hilal al Askari says: The Hajah refers to the absence of an attribute for something that requires a certain level. For example my shirt needs (ta7taj) buttons. There is a difference between need and absence though. The first refers to an attribute that is needed for completion while the later can be missing and may or may not play a part in completing the whole. Haja is more specific then the absence of something.
In the Shariah sense the Hajjiyaat can be understood in the Usuli sense, as a generalised Fiqhi rule of thumb and even as a Rukhsa on par in an analogical sense with the Duroori Rukhsa. Sometimes the definitions can have overlapping areas of concern. In the Usuli sense we are typically talking of a maqasid like approach. In other words the Shariah fulfils the needs of shelter, a vibrant economy and domestic issues like marriage. Before I go on let us recap on Rashad’s understanding
“….such an opinion is a classical position – or the permissibility of abandoning the general isamic hukm due to a widespread (haja) or daroora (necessity) an Islamic opinion held by most of classical jurists e.g. Imam Juwayni, Imam Ghazali and Ibn Abdus Salam, who states that if the interests and needs of the muslims could not be met without permitting forbidden transactions then this would be necessary and permitted not just according to necessity but more than this and enough to make them strong enough to overcome their enemies – again in his book Qawaid al-Kubra, and supported by moderns scholars such as Ibn Ashur”
So we see that Rashad equates widespread haja with Daroora in that it makes forbidden transactions allowed according to necessity. His references are Imam Juwayni, Ghazali and Ibn Abdus Salam. You can see the typical shoddy referencing on his part. He thinks that by flooding the opposing camp with arguments, people would drown before they could even hope to swim to the shores of accuracy.
Now what does he mean by “widespread Haja”? Well it seems that he is referring to the well known principle in the books on the principles of fiqh (i.e qawaid al Fiqhiea). I shall reiterate it
“Need when it is of widespread concern among the Muslims as a general population falls into the same category as Daroora i.e. necessity be it general or specific”
الحاجة تنزل منزلة الضرورة عامة كانت أو خاصة
This principle has been attested to by Imam Juwayni in his Burhan (page 924)
“…The second category is related to the general need of the population but at the same time does not reach the acute level of daroorah. Examples (from the Sharia) include the ability to rent which is built on the need for residence. This is despite the fact that one does not own the property ….but the essential category (Jins) of the Hajah (i.e. in this case the need for accommodation) can reach the level of Daroorah for one person. This is in the sense that if everyone was forbidden from this need that is made apparent by this essential category then it is beyond doubt that at least some would fall into extreme hardship i.e. Darrar”
He goes on and says
“We also see that it is important to bring to attention an issue before we clarify our position and that is in things like renting it has become allowed outside the field of analogy…..in the sense that it is a provision of a service that is not present for a property that is present…..and we have mentioned that need when it is of widespread concern falls into the same category as Daroora i.e. necessity”
Imam Ghazzali also confirms this principle of law in his book Shifa al alel fi Biyan Al shubha wal Makhil wa Masalik al Talil (page 246)
“The general Hajaa i.e. need that is within the right of the whole of humanity falls into the same category as the specific Daroorah that is applicable to even one individual”
I think these statements need to be clarified. What do these Ulema mean? Well, we have Imam Juwayni clearly differentiating between two types of need. The first type does not fall into the category of necessity. The example given is renting. Even though it seems to violate an analogy, the Shariah has allowed to for the need of the people. It seems this type does not have the power of necessity and hence does not make something proscribed allowed in any specific or general scenario. It is also a general ruling as opposed to the rukhsa (exceptional circumstance) of Daroora. The second type falls into the category of Daroora i.e. necessity. This is for example the right to live in shelter (i.e. being homeless can lead to hardship in a necessary sense). Note we are now talking about general maqasid in the Hajiaat sense. Here the Shariah allows this because if it was forbidden then people would be in dire straits.
In other words Juwayni is saying the principle is only attested to in the true sense when it is vouched for by Kuliaat i.e. general Jins that is based on the Sharia. The other type as a tool can be used to override Qiyas if it is based on this Jins. Juwayni in other words is telling us that this principle is not of the same level as a Daroora! This is contrary to what Rashad would like us to believe. What about Ghazzali? Well he does not consider the Hajiaat a source of law in itself! (Like his master) Ghazzali in the same book noted says ( this is also confirmed in his Mustasfa)
“If it occurs (i.e. benefit) at the level of the Hajaa..then it is not considered and if it occurs at the level of Daroora then it is allowed for a Mujtahid to use it as a source of Ijtihaad on the condition that it is a definite general source as we mentioned before”
So as is clear from Imam Juwayni and his students they do not take the Hajaa as an Illah Mursalah (a essential cause based on the general maqasid) and only apply the principle we are talking about in the Daroori sense. This is only when it leads to a total annulment of the Jins i.e. the general hajjaa that is attested to by the text. We must remember in the eyes of Juwayni and Ghazzali the Shariah is the goal to attain the “jins” of the Hajiyat. In other words by following the nass we fulfil the needs of the people i.e. in terms of shelter, buying and selling, marriage etc. It really is bizarre to think that Juwayni would believe that by following the nass we abandon the maqasid.
It gets worse for Rashad. Izz Deen Abdul Salaam has this to say in his book Qawaid al Ahkam (page 372-374)
“Section- The Mashaaq (hardships) that are obligated to ease the edicts of the Sharia”
“The Mashaaq are of two types. The first, the servants cannot disconnect themselves from. This is the hardship of Wudu and Ghusl in the difficult times of travelling and the hardship in the establishment of salah in times of heat and cold ,during fajr……Also the hardship in the stoning of the adulterer and the establishment of the Hudud…and the Prophet saw said that if Fatima the daughter of Muhammad stole she would have had her hand cut off…..So all these types of hardship have no effect on the abandonment of the matters of worship and obligations nor in the easing of them because if this did happen then the interests of the people in these matters would fail in most if not all the circumstances…”
Here he is saying the exact opposite to what Rashad claims. Hardship has no affect on the nass! Does this not remind you of Majid’s handling of Tufi?
Let us now also concentrate on a certain phrase that Rashad mentions
Imam Juwayni, Imam Ghazali and Ibn Abdus Salam, who states that if the interests and needs of the muslims could not be met without permitting forbidden transactions then this would be necessary and permitted not just according to necessity but more than this and enough to make them strong enough to overcome their enemies – again in his book Qawaid al-Kubra, and supported by moderns scholars such as Ibn Ashur
He is relying on this quotation from Ibn Ashur in his book on the Maqasid al Sharia. Ibn Ashur quotes Izz deen Abd Salaam
” if the unlawful overwhelms the world to the extend that nothing lawful can be found, it is permissible to use of it what will satisfy people’s needs. That rukhsa however must not be restricted to the level of necessity, for this would lead to the weakening of the Muslims and the domination of infidels and rebellious people over the lands of Islam. It would also cause the collapse of crafts (hiraf) and business and business (sana’a) indispensable to people’s welfare.. However people must not indulge in the use of unlawful money in the way they would with what is lawful they must rather limit themselves to what is really needed…”
Note the essential phrase that Rashad omits
if the unlawful overwhelms the world to the extend that nothing lawful can be found, it is permissible to use of it what will satisfy people’s needs
In other words Izz Deen Abd Salaam is repeating the same theme as Juwayni. When the Jins is nullified to such an extent that it becomes “widespread” then it reaches the level of Daroorah i.e. it is impossible to do a lawful act to fulfil the needs of a society. Clearly this is a situation which is acute and is hypothetical. So how in the world does this principle make secularism allowed? How does this quotation make the legality of secular states depend on this “gradualist” approach. Yet again, Rashad leaves out crucial phrases! It would be interesting if Shiekh Rashad Rambali could provide a historical incident where the lawful could not be found! Subhhan Allah.
Another famous reference used (in this case not by Rashad) is the Ashbah wa Nadhair of Imam Suyuti and Imam Ibn Najim (A book of the same title with different authors).
Imam Suyuti says
“Need falls into the same category as necessity be it general or specific. From this first principle we have the allowance for renting, payment for manual labour, and the transfer of debt and things of similar types that have been allowed (in the shariah sense) despite an opposing analogy. With regards to the first it is a contract based on benefits that do not exist at the time of the contract, with the second you have an unknown attribute (i.e. no time need be given to manufacture a product for a wage) and with the third it is selling a debt for a debt. There is for a general need for contracts like this. If this need is generalised then it falls into the same category as necessity. Typical examples also include the guarantee on items that are produced. This has been allowed against an analogy i.e. the person who sells a commodity does not receive a fee that is a form of debt (in other words the fee can be withdrawn if the commodity is deficient)…..”
Note that Imam Suyuti uses the same contrast for a Hajah that in the eyes of Juwayni has not reached the level of Daroorah. In other words this type of Hajaah can oppose an analogy in the same way that Daroorah makes something that is proscribed allowed. In other words the principle here is analogous and not literally taken at the same level. What makes this even clearer are the words of Imam Suyuti himself
“Al Hajaa (i.e. need) is like the person who is craving food. If he does not eat then he will not be affected mortally but will be under hardship. This level does not allow things that are forbidden”
Also from the previous quote he even has restrictions on Daroora i.e.
“Eating the flesh of the dead in times of necessity takes precedence over taking someone else’s money (to purchase food)”
In other words if Daroora is only allowed as a Rukhsa how in the world can a Haja in an Usuli sense make something halal ? It would be a contradiction to think that Hajah would have a stronger force then a Daroora in an acute sense.
Ibn Najim the Hanafi scholar of the same titled book also says
“According to Abu Hanifa there is no concern for a need that is widespread when a nass is present”
In other words the widespread nature of the Hajaa makes no difference in the presence of the nass!
Interestingly all the examples mentioned have sources in the text themselves. Here is the link that discusses the evidences
http://www.alokab.com/forums/index.php?showtopic=26282
So it is clear that that Rashad has chosen his references very unwisely. Of all the madhahib he had to choose he went for the Shafi one!
This also is an understanding across the board.
From the Hanbali madhab would you believe it? We have Najm Deen Tufi in his Sharh la Mukhtasar al Rawdah
“It is not allowed for the Mujtahid everytime he has a Maslahah Tas7seena or Hajiaa that he considers it and establishes upon it an Islamic Hukm until he finds a corresponding witness (in the texts) to its Jins”
Ibn Qudammah al Maqdasi says in his Rawdah Al Nathir (1/413)
“For these two categories (i.e. the Hajiyat and Tah7senat) we do not know any difference of opinion that allows one to hold onto them without a foundation in the Islamic sources. If this was allowed then it would introduce into the Shariah opinions devoid of intervention and we would have not needed messengers to be sent”
From the Maliki Madhab this is also the position of Imam Qurafi, and Shatibi as well (see Al Itisaam 2/129 and Al Faruq 2/33). Ibn Qayyim and Ibn Taymiaah also discuss this issue in detail and confirm the norm on this subject. (Ilaam Al Mawki3an 2/107 and Fatwa 29/320)
It is clearly seen that Rashad has not understood the subject or has deliberately distorted it. Now I am going to add the gem to this article. You see a lot of my references, reasoning, and understanding of the position of the scholars is based on a paper written by a scholar who I quote is a “NOBLE SHAYKH”. Yes, you guessed Abdullah Bin Bayyah himself! Rashad does this bring back memories of Noddy and Nahid? . From here on I shall now clarify further the Maliki position and the position of Abdullah Bin Bayyah himself.
Abdullah Bin Bayyah and the Maliki School
The 50 page study on the difference between the effect of the Hajiyaat and the Durooriat on the Islamic text can be found here
http://www.binbayyah.net/Pages/research/Projects/the%20diffrent%20bettween%20aldarorah%20and%20alhajah.pdf
A few interesting quotes from Abdullah bin Bayyah. On discussing the reference of Imam Suyuti in his Ashbaa wal Nadhair he says
“Some of the Fuquha like Ibn Najim and Suyuti changed the understanding of Hajaah from its Usuli sense to a legalistic principle without (apparently) providing any restrictions. This has lead to some modern researchers thinking (without any basis) that every time there is even the whiff of hardship or there is a presentation of a need one is to proclaim an allowance. It is as if he i.e. the modern researcher relies on a Qati principle that indicates a Hukm without the need for any means. As a result, there becomes no difference between the Daroora al Fiqhea in its more specific meaning and this. “
He goes on to say when discussing the phrase “Need (in the general sense) falls into the category of Daroorah”
“I say that the Hajaah cannot in any way be considered to be of the same level as the Daroorah in an unrestricted sense when legalizing something forbidden. In fact, in principle, the Daroorah on its own can only legalize what is forbidden and this ruling cannot be extended to the Hajaah”
We must remember that Abdullah Bin Bayyah is talking about the “widespread” Hajaah and this principle that Rashad is depending on, let alone the Hajaah on an individual level. On discussing the Maliki School, especially the later ones, he does allow the widespread Hajaah on an analogical sense to have some power. These include the following
(1) It can override a Qiyas,
(2) It can affect the means to a forbidden act but not the entity itself. For example it cannot allow things that are forbidden because of their essence like alcohol, and pork
(3) It can restrict a general text that is disputed in its application
(4) It can be used as a principle to outweigh opinions at least according to some later Maliki scholars. This has conditions. It firstly leads to a Daraar. Secondly it is not an opinion that is very weak and finally it is attributed to a scholar that is well known in piety and knowledge.
Finally on discussing modern applications of this principle he does object to its use by a certain European foundation to make Ribawi transactions allowed for people that need to buy a first home. He says this principle alone cannot be used.
Unfortunately, with all due respect to the Shiekh, he did become inconsistent in the rest of his commentary on this fatwa. This fatwa has, anyway, been harshly criticized by many of the Ulema. I shall give just one link below.
http://www.al-razi.net/website/pages/ma2.htm
So it is clear that Rashad has yet again twisted and distorted the views of the Ulema. So on the understanding of the Ulema he quoted and on the understanding of Abdullah Bin Bayah himself (who understands them in the exact same way) how can the Hajjah make gradualism allowed? How can it make the Hudud “outmoded”? How can it make secularism allowed?
Need I say more?
May Allah protect us from this mischief and Allah knows best.