From Islamic Seminary Secondary Laws of Shari'a The Islamic Seminary - www.theislamicseminary.org - email@example.com
The Secondary Laws of Shari’a
The Secondary Laws of Shari’a in the Islamic System
In the Islamic system the laws and rules of Shari’a, due to the conditions in which the people qualified to fulfill their responsibilities and the circumstances prevailing and governing, are divided into two categories:
a. The Primary Laws or the Original Laws
The primary are those laws and rules of the Islamic system that remain the same and are for normal conditions. They are called the ‘primary or the original laws.’
b. The Secondary or the Alternate Laws
The secondary laws and rules in the Islamic system are those sanctioned with due effect but are enforceable for a limited time and in exceptional cases and conditions. Such laws are called the ‘secondary and alternate laws.’
In other words, the laws and rules that are sanctioned without having in consideration the special and exceptional conditions are called the ‘primary and original laws’ and those that are sanctioned for exceptional conditions are called the ‘secondary laws.’
It is the responsibility of a Muslim to practice and follow the ‘primary laws’ and rules of Shari’aunless it becomes impossible to do so. Such impossibility and reason may come into existence due to the circumstances prevailing and governing the society, such as birth control (to control the population) when population explosion would cause huge social, economical and educational hardships in the society. In such cases it becomes obligatory to control the exploding population. So also is the need to see that prices for much needed marketable commodities are reasonable and to see that harmful monopoly of goods in public demand is controlled. This is so if non-intervention of government would lead to the deprivation of the disadvantaged groups of people in the society.
Some times the reason for the inability to follow the ‘primary laws’ may come from ones personal conditions and circumstances such as unbearable hardships and impasses or harms related to ones own circumstances, which will be discussed, in greater details later.
As a matter of fact, the case that the emergence of certain conditions and elements or new issues could become reasons for changing the ‘primary laws’ and rules existed in the very early days of the history of Islam. The Muslims aware of the criteria of Shari’a knew them because the general principles such as abolishment of hardships and extreme harms are founded on the basis of the text from the Holy Quran and the Sunnah.
The fact that the emergence of certain conditions and circumstance may become the reason for change in the virtues or vices of certain facts is also of the issues that since a long time has been considered by the scholars. ‘Allamah Hilly in the topics dealing with the issue of virtues and vices as factors based on grounds of reason has said the following:
"The theologians of the Shi’a and the Mu’tazilah maintain that the grounds for the validity and genuineness of the existence of virtues and vices in human deeds are based on the decision and the judgment of reason. They also maintain that such issues some times can be made clear and plain with a simple and normal consideration of reason. Some times they exist in certain cases and conditions otherwise and complex, such as exacerbating truth or expedient lies."
However, the terms such as the ‘secondary laws, or the ‘secondary responsibility’ do not have a very long history. These terms are mostly found in the works of the Shi’a Muslim scholars.
The Muslim scholar who first made use of the term ‘the secondary laws’ was Shaykh Muhammad Taqi Isfahani (born in 1248 Hijri). In ‘Hidayatul Mustarshidin’ he has called the fatwa of a Mujtahid (scholar of Shari’a) that may not coincide the actual rule of Shari’a for a case, a ‘secondary law’ and responsibility. Today the scholars call such a case the ‘apparent rule’ as opposed to the ‘ actual rule’ not a secondary law and rule. After him Muhammad Husayn Ibn ‘abdurrahim (born 1150 Hijri) the author of ‘fusul’ expressed the primary and the secondary laws by the expression and terms as ‘the original and temporary responsibilities.’ In his discourses on the issues of Ijtihad (advanced study of Shari’a) where he has a short discussion about the ‘primary laws’, hints to the ‘secondary laws’ are available. He divides the applicable rules and laws into the ‘actual and primary and the actual non-primary laws’.
In fact, the beginning of the investigations and verifications of the issue of the ‘secondary laws’ was the time of Shaykh Ansari (born 1281 Hijri). He in ‘ Makasib’ as well as in ‘Fara’id al-’usul’ when speaking of and discussing the general rule of Fiqh called ‘the law of no harm and losses’ has introduced some very fine and profound discourses on the issue of the ‘secondary laws’. After Shaykh Ansari Muhaqqiq-e Khurasani (born 1329 Hijri) in ‘Kifayatul ’usul’ when speaking of and discussing the general rule of Fiqh the ‘no harm and losses’ he has made a presentation about the ‘secondary laws’. After Khurasani other scholars also have discussed the ‘secondary laws’ in details and in smaller degrees.
The previous scholars of Fiqh have made certain presentations on the issue of the ‘secondary laws’ and principles but within such presentation what exist are discussions on the issue without specifying the title of the issue. For example, ‘allamah-e Majlisi (born 1111 Hijri) in explaining the Hadith ‘ la zarar wa la zirar’ (no harm and losses) he writes that this Hadith is narrated by both the Sunni and Shi’a scholars and it has become one of the significant principles in Fiqh.
On examining the works of the Sunni Muslim scholars I did not find anyone writing about the ‘secondary laws’ in the Islamic Shari’a although there are certain precedents in the works of a number of earlier Sunni Muslim scholars. Malik Ibn Anas (born 179 Hijri) in al-Mudawwanatul Kubra’ about the secondary titles of vows, covenants and oath have some discourses.
Muhammad Ibn ‘idris Shafi’I (born 204 Hijri) also towards the end of the book ‘al-’umm’ have some discourses on this issue.
He under a heading ‘what may become lawful due to necessity’ has dealt with the issues of necessity, which are of the ‘secondary laws’
Abul Qasim Kharafi (born 334 Hijri) also under the heading, ‘coercion’ has dealt with such discourses.
Ibn al-Hazm ’undulusi (born 456 Hijri) in ‘al-Muhalla’ have several pages of a discourse on the kinds of coercion. He has some discourse in the same context about vows, covenants and oaths.
Ahmad Ibn Husayn al-Bayhaqi (born 458 Hijri) also in ‘al-Sunan al-Kubra’ has a detailed discourse on the issues of vows, covenants, and oaths.
Of such scholars one may name Imam Muhammad al-Ghazali (born 505 Hijri) and Abu Bakr Ibn Mas’ud kesani Hanafi (born 587 Hijri). Abu Bakr Ibn Mas’ud in ‘Bada’i ‘ al-Sana’i ‘ under the heading ‘coercion’ have several pages of discourse over the linguistic and Shar’i meaning of ‘coercion’ and its rules. He also has some discourses over vows, covenants and oaths.
Also Ibn Qudamah Hanbali (born 620 Hijri) in vol 5 and 8 of al-Mughni have several pages of discourse over the issue of ‘necessity, coercion’ and the conditions for their emergence and the rules therefor. He in vol 11 of this book has some discourses over vows, covenants and oaths.
‘abdul ‘aziz ‘abdussalam (born 660 Hijri) in ‘Qawa’idul Ahkam fi Masalih al-Anam’ has long discourses on the issue of ‘coercion, emergencies’ and the laws of ‘important and more important’ and the laws of ‘corrupt and more corrupt’. In this book he considers the case of becoming lawful due to an emergency what was unlawful.,
Muhyiddin Nawawi (born 676 Hijri) in ‘al-Majmu’ fi Sharh al- Muhadh dhab’ in many passages have referred to the principle of ‘no harm and losses’ and in the 13th vol. of this book in the section ‘Mortgages’ he has a concentrated explanation about the above-mentioned principle ‘no harm and losses’. In vol. 9th of this book also he has some discourses about the issues of ‘coercion and emergencies’.
After the above-mentioned scholars one could also mention Jalal al-Din Saywati (born 911 Hijri). In ‘al-Ashbah wa al-Nza’ir’ he has about five pages of a discourse on the issue of ‘no hardships’ and five pages of discourse about the law of ‘no harm’ and nine pages about the laws of ‘no coercion’.
The Views of the Fuqaha’ in the Definition of the ‘Secondary Laws.
In the works on ’usul al-Fiqh and Fiqh one may find such terms as ‘Secondary Rules, Secondary Legislation, Secondary Principles, the Secondary Order and the Secondary Principle’. Such terms in some respects are similar and in other respects they are different.
One of the contemporary scholars has a similar view and it says, "Those of the Islamic Laws that are based on permanent needs of human beings are the ‘primary laws’.. On this basis, the laws that are sanctioned for timely needs are called the ‘secondary laws’.
Shaykh Ansari has said, "The primary laws are sanctioned regardless of the possibility for its applicability to other cases. What follows it is that there will be no conflict between such laws and those that may come into being due to certain conditions. For example, consuming meat for food in normal conditions are permissible, however, if one would swear not to consume it for food it becomes unlawful for him to consume it for food. Or it may become obligatory to consume it. For example if it would be for an obligatory reason or one may have made a vow to consume meat for food".
The Differences between the Primary and Secondary Laws.
From the above details it becomes clear that the differences between the ‘secondary’ and the ‘primary laws’ are as follows:
The Kinds of the Secondary Laws.
After considering the secondary laws of every case or subject and its primary laws it is possible to picture a great number of the secondary laws. For example with a view to the five categories of rules, namely the obligatory, the desirable, the prohibited, the detestable and the allowable if the primary rule of a case would be permissible the secondary rule may become either one of the five therefore five multiplied by five would result into twenty five cases. There, however, is one exception: Both the primary and secondary rules can not become of the same nature like both being obligatory or prohibited. Based on this five out of twenty five will become exceptional and the remaining twenty cases will remain valid possibilities.
There are some other examples also that do not seem to have clear applications in Shari’a, This may happen when the primary rule for a case would be a prohibition and its secondary rule would be a desirable one or that the primary rule would be detestable and its secondary rule would be a desirable one or vice versa. The rest of the possibilities may have certain applications and one may find real examples in Shari’a for them.
Some Examples of the Secondary Laws.
One example is hoarding of in-public-demand-commodities, which is considered as detestable in normal conditions by a group of Fuqaha’. However, in the other conditions such as when famine would existence and people would direly need the commodity, hoarding is prohibited and the Islamic government will make the hoarder to sell such commodity.
An example of such case is learning industrial skills that according to the primary rules is only permissible, however, if the protection and the security of the Islamic system would depend on it, then as being an introductory step for the fulfillment of an obligation it becomes obligatory. Muhaqqiq-e Khu’i in this matter has said, "learning all industrial skills are of the permissible tasks. It is not even desirable thus; there is no question about its being an obligatory task. However, if ignoring to learn it would cause huge losses to the system then its learning becomes necessary".
Another example of this nature is the case of drinking or eating in normal conditions as a permissible act and an obligatory act when preserving one's life would depend upon eating and drinking.
An example for such case is consuming for food of carcasses or pork as a permissible act to preserve one's life, while in normal conditions and as a primary rule it is prohibited. This example, however, would only hold when following the laws for emergencies would only be permissible and not obligatory.
An example of such case is the same as the one in 3 when following the rule for emergency is obligatory. (in such a case the opinion of the Fuqaha’ are different.
An example of such case is obeying the parents as an obligation according to many of theFuqaha’. This is obligatory as long as it would not lead to an unlawful act and disobedience to God in which case it becomes prohibited.
An example of this case is consuming the flesh of lamb or cow and other animals for food while if such animals would feed solely on human waste, as a secondary rule consuming their flesh for food becomes prohibited.
An example of such case would be making people to smile for fun, which is a permissible act but it may become a desirable act when it would make people happy.
The Difference between the Secondary Laws and the Abrogation of the Laws.
Apparently people who have discussed the abrogated and the abrogating verses of the Holy Quran they have taken the verses indicating the primary laws as the abrogated and those indicating the secondary rules and laws as the abrogating ones.
It is very possible that the words of Hibbatullah Ibn Salamah (died 410 Hijri) in al-Nasikh wal Mansukh and those of the 'abdurrahman Ibn 'ata’iqi (a scholar of the eighth century) in their discourses about the Holy Quran may have such implications. The interpretation of the first and last part of the verse 2:173 is being considered as abrogated and abrogating ones. In the first part of this verse pork is prohibited and in the second part in an emergency it is permissible, thus, these scholars have called the first part as abrogated and the second part of the verse as abrogating.
One of the contemporary scholars has considered this opinion as the one to apply to all the works on abrogated and abrogating texts.
Obviously, there is a fundamental difference between the abrogation and secondary laws. In the definition of abrogation it is said, "Abrogation means the removal of the previously existing law by the law and a rule that is sanctioned later. The relations between the two laws would be as such that both laws would not possibly exist together." In the case of emergencies, coercion and sever hardships and such other secondary status the previously sanctioned laws do not become obliterated only their subjects change because the subjects of the previously sanctioned laws are for normal conditions and subjects of the secondary laws are for unusual conditions. In the case of consuming carcasses for food a prohibition is for normal conditions and permissibility is for the case of emergency.
In other words, an abrogation is thinkable only in the case of such two laws that would be of totally opposite nature and as such they would not exist together at the same time. Secondly, the subject for both laws would be the same. Such conditions do not exist in the case of the secondary laws. It is possible in the case of a primary and secondary laws to exist at the same time. The author of Haqa’iq al’usul also says it clearly, "Naskh or abrogation means obliteration of the primary or the secondary laws of a subject."
Therefore, although the secondary laws are for accidental and unusual conditions they in such conditions have the due force of validity. It is possible that the Shari’a for some reason in a later time abrogate just as is the case with primary laws.
The Criteria to Discern the Primary and the Secondary Laws
According to many of the Fuqaha’ the secondary laws are associated with exceptional conditions and the primary laws are associated with the normal conditions. On this basis the text of verse 173 of chapter 2 gives a secondary status to an 'emergency'
Just that because a status of a law is secondary it can not be considered a secondary law. This is true because it is a fact in the case of the apparent, as opposed to actual, laws such as the laws on the basis of 'Bara’at (freedom from responsibility on the basis of the absence of sufficient reason to prove responsibility) and emergencies. This also applies to the cases of the primary laws for emergencies like the obligation of Tayammum (a procedure that substitutes Wuzu) for a person who do not have any water for Wuzu or using water would be harmful for him. For this reason some of the Fuqaha’ have considered these two kinds of laws as the secondary laws. Of such Fuqaha’ is Muhaqqiq-e Na’ini who calls the primary laws for emergencies as the secondary laws. 'allamah Muzaffar also has considered such rules as the 'apparent' ones as opposed to the 'actual' ones like 'precaution and freedom from responsibility' as the secondary laws.
The task of discerning the primary laws from the secondary ones although may not seem to be difficult, but in some cases it may not be that easy. Of such examples are the cases wherein the primary laws would have several possibilities. One such case comes in the sections of the laws of worships. "For one who may have access to water, the rule is to have a Ghusl (a shower) or Wuzu, but for one who may not have access to water for good reasons such as when using water would be harmful for him he must have Tayammum". At first, it may seem as if the law therein is a secondary one but there is no doubt that the law in this case also is a primary law.
In certain cases the Shari’a pictures several conditions for the people qualified to shoulder a responsibility and on such basis it has classified, or has categorized such people. For example; a person is not on a journey or is on a journey. A person not on a journey must pray in full and a person on a journey must shorten the prayer. Or that a person who intends to pray he may have access to water or does not have access to water or that the use of water is harmful for him or it is not harmful for him. All the laws in such cases are the primary laws.
For some cases in Shari’a there are certain rules without categorization and dividing methods and for certain conditions other laws are declared. In such instances the second law is a 'secondary law'.
In other words in the first examples the laws from the very beginning are introduced in categories and in divisions but in the second examples such laws are introduced in the form of exceptions.
The task of discerning and properly identifying the cases and the subjects to which such laws apply is also very important. A lower degree of carefulness and proper expertise may lead aFaqih to confusion and instead of a more important case he may give more consideration to what is only important, or in a crucial time the Islamic system and its protection may be exposed to dangers and insecurity.
The significance of this task for the leader and the Imam of the society is of a much greater degree. The position of the Imam and leader is the one that, in order to manage and supervise the system properly, requires to discern precisely all the laws and cases related to the management of the state. It is very important to discern what is important and more beneficial for the state and what is not important and beneficial for it. The leader and the Imam may even need the help of the experts in certain fields related to the management of the state.
Imam Khomeini with a view to such task has said, "It is possible, based on the fact that the running of the government is only for the just Fuqaha’, an objection or question may arise in the minds. One may say that Fuqaha’ are not capable of running the state. This question and objection does not have a strong base because we see that in every state the affairs are managed with cooperation of a great many of the experts and knowledgeable people. The kings and the Chief Executives a long time ago until our times did not know all the issues related to the running and management of the state. The experts of every field managed the affairs of the state. If the head of the government is a just person he finds the just or trustworthy ministers and officers and in this way he brings injustice, transgression and corruption in the public treasury, against people’s lives, honor and properties under control. Just as during the government of Imam Ali (a.s) all the affairs of the government were not managed by him alone, instead the governors, the judges and commanders of the army were involved. Today also we see that the management of the political issues, the army and defense of the solidarity and the independence of the country each post and position is assigned to qualified persons."
It is certain that if the secondary status of a rule would become an individualized matter in such a case the task of discerning the cases to which such rules and laws may apply will not be very difficult. Obviously and very often the individuals easily discern what is difficult, harmful and a case of emergency for him or her. Although in some cases even individuals need the help of an expert of the field to which the case is related such as the physicians etc., especially when the level and degree of difficulties and hardships would be such that is judged by commonsense not according to the individuals standards.
The Procedures to Enforce or Practice the Secondary Laws.
In general, three stages can be presumed for the secondary laws:
The first stage is of the functions of the legislative authorities in Shari’a. When there is a need and there is no obstacle the Shari’a may sanction a law which will be addressed to all Muslims universally and not individually. One example is the following verse of the Holy Quran:
"…God has not imposed any hardships upon you in religion…" The second stage, which can also be called the stage of discernment, is when the individual case people faced with is being studied to find which rule is applicable to it. The ordinary people themselves can, some times, carry this task. One example for such case is the case of one who finds himself in a difficult position of consuming pork or carcasses for food or in the month of Ramadhan one is convinced that fasting is harmful for him due to a certain illness. In some cases the leadership or the legislative body carries the task of the stage of discernment. This is when the government, in order to solve the social problems, would need to benefit from the secondary laws.
If the leadership or the advisors would see that standardizing the prices of in-public-demand commodities would help to overcome certain difficulties they may do so for the protection of the system.
The author of 'al-Jawahir’ in the section on "unlawfulness of wages for obligatory acts" writes: "It is not an offense to receive wages for teaching certain industrial skills that are needed in the society because running of the social order and the lives of industrialist depend on it."
The author of 'Miftah al-Karamah' in his discussion on the barren and unutilized lands points out to one of the cases to which the rule of ‘no hardships' applies, and says, "By utilizing the unutilized land one becomes the owner of such land. Because of the fact that people need to live in civilized manners if utilizing the land would not give one the right to become the owner it will cause huge hardships to the society."
Obviously the task of deducing the ‘secondary laws’ from the texts of Shari’a is the task of aMujtahid just as deducing the ‘primary laws’ and the branches of such laws is. Those of the secondary laws that in regards to their applicability are not of limited nature are dealt with only in the section to which such laws belong as branches in a process jurisprudentially accepted. Those of the secondary laws that are dealt with in several sections of the Fiqh are treated as the rules of Fiqh, such as the principle of ‘no harm’ and ‘no hardships’.
The task of a Faqih is to study the basis of such rules as regards their authority and authenticity and clarify their limits and domain.
About the third stage, namely the application and execution stage, in general, one may say that it is the task of the people or the government and from this aspect there is no difference between the ‘secondary’ and the ‘primary laws’.
One very important point to note in this regard is the fact that the secondary rules are often involved in the social issues and it, obviously, at the first place, is the duty of the government to see it executed properly. For this reason it is important to consider the secondary laws from two angles:
Example of such laws are the obligations of fulfilling
one's vows, covenants, oaths, the conditions set along with a contract,
involvement in certain prohibited matters due to emergencies, coercion and
missing certain obligations due to an emergency. Such cases are of the ones
for which people and individuals are responsible to fulfil and the
government or the leadership does not have to play any role therein.
Just as discernment of the ‘secondary laws’ applicable to the social issues is the duty of the government so also is its application and execution. The reason for this is also clear. Of such reasons are disruption and chaos that may follow due to ignoring the duty of enforcing such laws.
For example, adjustment of prices of certain commodities and controlling them and controlling the activities of hoarding urgently needed commodities are all of the duties of the government and no one would have the right to interfere with such issues. Of such examples are the issues related to the export and import of the commodities, during peace or war times if they would affect the security of the state.
Imam Ali in one of his instructions to Malik-e Ashtar has considered the tasks to control hoarding of needed commodities and to maintain proper prices for the needed goods of the duties of the governor. The Imam has said, "Do not allow hoarding of in-public-demand goods because the Holy Prophet would allow it. The dealings of the people must be based on justice and fairness. In the exchange of the goods no harm or loss should be caused to the buyers or sellers. After warning people against the evil of hoarding you may bring such people into account through balanced penalties."
The Secondary Laws and the Difficulties of Newly Emerging Cases.
Without any doubt, the Islamic society due to new changes and developments in all walks of life is facing new problems and the Shari’a must accommodate such issues and solve such problems according to its own standards.
Ibn-e Khaldun in his Muqaddamah says, " The conditions of the world and nations are in the state of change."
In such a case it is the task of the Faqih who is well aware of the conditions of the time to take two steps: First, he must clarify properly the basics that Fiqh requires and rectify through the skills of being a Faqih all the complexities. It is very much possible to solve a case with the application of the ‘primary laws’ without resorting to the ‘secondary laws’. Secondly, he must carefully study the cases and subjects to which the ‘secondary laws’ could be applied so that when necessary after inapplicability of the ‘primary laws’ the ‘secondary laws’ would be applied. Through such process it becomes possible to find proper Islamic solutions to all the issues and the problems of the society in all times and circumstances.
The secondary laws are beneficial utilities for the government. The Islamic government may study any newly emerging case and find proper solutions for the key issues such as balancing the economy, curbing inflation, controlling the population, regulating prices of goods, issues related to currencies, banking issues, taxes, internal and external affairs of trade etc. One of the contemporary Fuqha’ explaining the facts about the ‘secondary laws’ have said, "Many of the great difficult issues can be solved by means of the secondary laws and many of the complex issues can be made simple by means of the secondary laws. All such means are available for the Islamic government.
The secondary laws, however, must not be carried out of limit to the extremities and with the emergence of every new case the secondary laws must not, before proper studies, be declared as solutions.
Proper discernment of the cases and subjects to which a secondary law could be applied requires a sound degree of knowledge and awareness. The basis for the application of the secondary laws is when it would not be possible to apply the primary laws. To explore this and the case to which the secondary laws could be applied, as just mentioned, requires a sound degree of knowledge of the Islamic resources. For example when and to which case the rules of ‘no harm’ and ‘no hardships’ be applied or that which case is ‘important’ and which one is ‘more important’ all require proper knowledge of the Shari’a.
From the above it becomes clear that the secondary laws come from very high grounds in theShari’a and that such laws play very significant roles in the law. In many cases the primary laws do not have the necessary force, especially, the social issues. In such fields the secondary laws work as the key to solve difficult problems.
Taking into consideration the availability of such sources of laws to the Islamic social system in all times and places it will have proper laws for all cases. In reality the secondary laws are complimentary to the primary laws. For this reason the secondary laws are important. Martyr Murtaza Mutahhari, has said, "The Shari’a of Islam has approved a category of laws that effect to control other laws and it has a force similar to a veto power."
The existence of the secondary laws in the Islamic system is not due to shortages of legal resources. On the contrary, it is the sign of its richness and the vastness of its resources. These laws exist due to the unavoidable emergence of changes that take place in human life and in the circumstances and surroundings. The presence of such categories of laws in the Shari’a of Islam are significant factors in dealing with changes. It is a degree of flexibility for variously changing needs of all times and locations. "Islam is a religion with preciseness of mathematical characteristics. It calculates with accuracy and equates that which is important and what that is more important. According to the Islamic system in times of need, an issue of vitality could and should be sacrificed for that of greater vitality. This factor has bestowed proper and flexibility to the system. We have not introduced such a factor into the system. The system has been made this way and in this form it has been given to us. Even if we wanted to make the system flexible, we did not have such a right in the first place. Flexibility is a component part of the nature of this system, and it is an equating process that it contains for us."
The position of the secondary rules and laws in the Shari'a is as those of an integral part in a system. Evidence to this is the fact that the authoritative basis for these laws and the primary laws are the Holy Quran and the Sunnah. Secondly, the Fuqaha’ according to their methodology of reasoning have dealt with the secondary laws along with the primary laws. They have not dealt with the secondary laws in a separate chapter. In the sight of Marhum-e-Hakim, the above fact seems to be enough evidence for considering the secondary laws as inseparable parts of theShari’a.
The secondary rule or principle, although being a law universally applies to all applicable cases, however, they are such rules that apply only in exceptional and extra-ordinary conditions and circumstances. In other words, the universal principle in all sections of the law requires obedience to the primary laws. Only in certain cases we must search for the secondary laws, and these cases, compared to the subjects of the primary laws are fewer in number.
The Number of the Titles for the Categories of the Secondary Laws in the Shari’a
None of the Fuqaha’ in their investigations and works have specified the number of the titles for the categories of the secondary laws. Only the following are the well-known titles for the categories of such laws.
Initially, each of the above mentioned titles seems independent titles but a careful study and proper consideration of these titles reveal that many of them are very closely related to the others. These relations are as such that in some cases two of them can be considered as one and the same.
In the views of some of the scholars of Shari’a ‘urgency’ is a universal title and the issues of ‘hardships and ‘constraints’ are some of the examples of ‘urgency’ and ‘pressing needs’. The author of al-Jawahir in the section of the Shari’a dealing with rules of cleanliness has said this, "It is not permissible to have Wuzu or Ghusl, formal both with unclean water nor is it permissible to drink such water except in the case of urgency. Hardships and extreme constraints are of such examples." In some cases he considers the case of ‘losses’ the same as an ‘urgency’. In the section of the law about food and drinks he has the following expressions, "In all cases wherein eating or drinking is not permissible, in all such cases due to ‘urgency’ it all becomes permissible. Proof for such rules are the verses of the Holy Quran, the principle of ‘no harm, ‘no constraints’ and that Islam is an easily practicable religion."
Although, ‘hardships and ‘constraints’ may be considered the same as ‘urgency’ each one is dealt with separately as an independent principle and rule. The existence of Ahadith in theShari’a is the reason for such separation. In some of these Ahadith the title ‘urgency’ and in some of them ‘hardships’ and or ‘constraints’ or ‘losses’ are mentioned.
One of the contemporary Fuqaha’ also points out saying, " ‘Coercion’ may also be considered an other example of ‘urgency’." Some of the scholars have even considered both titles; (coercion and urgency) as one and the same as in the interpretation of verse 173 of chapter two wherein a ‘compelled’ person is considered as a ‘coerced’ one.
The Fuqaha’ have considered the titles such as ‘important’ and ‘more important’ as the secondary titles side by side with the other secondary titles such as extreme ‘hardships’ and ‘constraints’ and it seems as if it is not a separate title. In fact, urgency should, with a view to the following, be considered a basic standard for the practice of the secondary laws. Although the primary laws from the point of view of the Shari’a are important and in normal conditions it is necessary to obey such laws but in certain cases obedience to the secondary laws is more important. In the Holy Quran and Sunnah also there are no such captions. It is only the decision of reason that when facing an ‘important’ and ‘more important’ issue the ‘more important’ must be given the priority.
Therefore, the law of ‘important’ and ‘more important’ is the criteria and standard that dictates to obey the secondary laws, in certain cases, before the primary laws not because of the secondary laws just that they are laws. On this basis one may say that giving the priority to the secondary laws before the primary laws for practical reasons is because of the fact that a ‘more important’ case has a priority over an ‘important’ case. Some other scholars have also stressed on this point.
The law of ‘important’ and ‘more important’ is not limited to the cases of the secondary laws. In the case of a conflict between two laws of primary nature also this law is followed. For example, in the case of saving a life from drowning the Fuqaha’ consider it permissible to walk on a piece of land that is currently under the control of some one due to usurpation, if saving life may require it. It is very likely that in those cases wherein making an untrue statement or a statement that involves backbiting is considered permissible is based on this law. However, the number of the secondary laws can not be limited to a known number of cases, even though the idea about the applicability of the popularly known secondary laws may be considered a good possibility. It is not so in the cases of the secondary laws that are not so popular because there is no known rules to follow in discerning and distinguishing such laws. Such secondary laws are found only in scattered sections of the law where one may face them.
It seems necessary to conduct more precise and profound studies to discern, distinguish and analyze the issues of the principles of jurisprudence and issues of jurisprudence. It is also necessary to deduce and infer secondary laws for the newly emerging issues and cases that require the application of such laws.
Titles of the Popularly Known Secondary Laws.
1. Protection of the System
Of the most important issues, according to the Shari’a, one is the protection of the Islamic system. This caption and title implies sometimes the (a) preservation and protection of the sovereignty of the Islamic system and the prevention of confusion and uncertainty from creeping into the system at the hands of the internal and external enemies. For this reason Marhum Na’ini considered the protection of the sovereignty of the country against the hostile intentions of the foreigners and their plots and to mobilize the defense capabilities as preservation and protection of the Islamic system. In other words he considered it preserving the sovereignty and independence of Muslim lands. (b) Sometimes it means to enforce and bring about law and order within the Muslim society. It is to enforce the rules of discipline among the people, the establishments and institutions of the society. Protection of the system in this sense is opposed directly to chaos and anarchy.
The caption ‘protection and preservation of the system’ in the majority of cases, applies to its meaning in case (b). The author of Jawahir, in the issue and discourse that in order to settle the court cases and disputes among people, it is obligatory to acquire the qualification of aMujtahid, has said this: " The basis and proof for such necessity is that the Islamic system needs it." Also on the issue of the unlawfulness of receiving payments for performing obligatory acts, he writes: "There is no offence in teaching for payment such obligatory tasks as artistic skills needed in society. It is because of the fact that the order and the integrity of the social system depend upon such artistic skills."
According to Imam Khomieni, prevention of chaos and anarchy from creeping into the society is the basis of the philosophy to establish a government. According to Na’ini, in a discourse on ‘preservation and protection of the system’ it indicates and refers to both meanings of the phrase ‘preservation and protection of the system’, mentioned in (a) and (b). Na’ini has said, " InShari’a, the protection and preservation of the Islamic system is one of the most important obligations. Evidently, all of the aspects related to the foundation of the government, protection of the honor and the rights of the people are based on two principles: (a) The maintenance of law and order as means of progress in the society is one of such principles. It is the protection of the people’s rights, maintaining justice and other obligations related to the welfare of the country and people. (b) The other such principle is defending the country against the invaders and intruders."
Both tasks of the safeguard and protection of the system in the sense mention in (a) or (b) are obligatory tasks according to Shari’a and according to reason. The scholars consider this issue and principle a firmly and already settled one, free from any need of further analysis. They have based many rules on this principle. For example Na’ini writes: " That the Shari’a does not agree with causing anarchy and chaos in the society is clearly evident and all the duties related to the protection and safeguarding of the system and the country are of the urgent obligations beyond any doubt."
The reason that these laws are considered as the secondary ones is because of the fact that in many cases the protection and the safeguarding of the system involves doing or otherwise of certain acts. Such acts that may have been permissible in normal conditions may due to the efforts of providing security to the system have become obligatory or otherwise. Therefore, the title and caption of being a secondary law is an introductory and a step towards some other tasks and because of this they have become obligatory or otherwise. al-Khu’i has said, "Learning of all artistic abilities are of the permissible activities and they do not even come under the desirable activities far from being obligatory or otherwise ones. However, if ignoring to learn such skills would lead to emergence of chaos in the society and the system then learning such skills becomes an obligation."
Hardships and Constraints.
One of the important rules and principles that apply very frequently in Fiqh and the Islamic law is the principle of "no hardships and no constraints." The fact that so many of the Fuqaha’ apply it in so many of the sections of the law to various cases is proof of the significance and usefulness of this principle. In most of the issues related to the government and the society and some of the newly emerging complex cases that require ruling from Shari’a this principle may provide key answers and solutions.
There is another point that reveals the significance of more investigations into this principle. It is the fact that some people, despite the existence of solid evidence to prove its authority and authenticity and the fact that so many of the Fuqaha’ have applied this principle to so many cases, they have considered its nature and applicability unclear.
They have limited its authority to the obligations whose fulfillment is beyond human capabilities. Thus, practically they have denied its authority unaware of the fact that in such cases reason independently negates the responsibility and there will be no need on the part of Shari’a to declare such a principle. Of such people one may name Shaykh Hurr ‘Ammili.
Hardships and Constraint are of Four Kinds
From the Fuqaha’s point of view, the first kind of constraints and hardships are not of the cases to which the secondary laws may apply. It is obvious that the Shari’a does not impose a responsibility beyond peoples’ capabilities. The second kind of hardships and constraints is just like the first one because the expressions and the pronouncements of Fuqaha’ on the issue of hardships and constraints do not include this kind.
Evidence to this is the fact that the irreasonibleness of imposing an obligation that would cause disruption in the social system is obvious and without any shred of doubt. We all know that the goal of Shari’a for having such laws is not to disrupt and destroy the social orders and paralyze the sound and peaceful way of life of individuals. The final goal of the Shari’a is to, in most of the rules, safeguard and protect society to the highest level of excellence and decency. With the view to this, how could it be acceptable on the part of the Shari’a to command people for the duties that would disrupt social order?
As far as the case in (3) is concerned, it may fall under the laws of the ‘principle of no harm’ and that the ‘principle of no constraint’ does not apply to it, although in many cases of ‘no harm’ one could present evidence from both principles. Therefore, the fundamental argument in the principle of ‘no constraint’ is only related to the fourth kind of hardships and constraints, mentioned above.
Evidence of the Authority and Sources of this Principle
(1) " A man asked Imam Ali (a.s), ‘my fingernail came off in an accident. How should I make Wuzu?’ "Wipe it from behind a piece of cloth and you do not have to wash it." Replied Imam Ali. (a.s).
2. "Imam Ali was asked about the use of a jacket made of the leather from an animal that is not known as regards being slaughtered properly according to the instructions of the Shari’a or not. The Imam considered its use lawful even during prayer on the basis that Islam is a religion that do not impose hardships on people."
Muhaqqiq-e Bujnurdi also writes in this regard, "The evidence for relieving people from the burden of the laws that cause constraints on the Muslims is the kindness and the grace of Lord God on His servants. He wanted the religion to be easy to follow for the people and without difficulties."
The Meaning and the Implications of this Principle
The meaning and the implication of the principle under consideration is indicative of the fact that God has not sanctioned any law that would cause constraints on the people. For example, in the case of a person whose injured finger is bandaged and it is difficult to remove such bandages for Wuzu, no obligation that would make him have Wuzu as in normal conditions is sanctioned.
Also, if severe weather would cause a great deal of constraints, compared to normal conditions, no law that would obligate him to have Ghusl in such condition is sanctioned.
Therefore, all the Islamic responsibilities of the people at first relates to conditions free from constraints as if all the laws and religious rules initially are sanctioned with the stipulation of freedom from hardships and difficulties.
The Meaning of Hardships and Constraints
Constraint, in its dictionary definition is narrowness and impasse. In Hadith sometimes it refers to sin and unlawful matters. The author of Sihah al Lughah and Ibn Manzur say "Constraint means sin, difficulty and narrowness." With a view to this, the original meaning of constraint is narrowness. Also sin and unlawful matters are called constraints (Haraj). Because of this aspect, sins and unlawful matters committed in this world will cause constraints and narrowness in the next world and life.
In the following verses of the Holy Quran the word ‘Haraj’ (constraints) is used to mean sins and unlawful matters.
"People who are weak or sick and those who do not have the means to take part in the fighting are exempt from this duty if their intention remains sincere about God and His Messenger. Righteous people shall not be constrained. God is all forgiving and all merciful. (9:91)"
It is no sin (Haraj) for the blind, the lame, the sick ones, and yourselves to eat at your own homes or the homes… 24:61
God will open the hearts of whomever He wants to guide to Islam, but He will narrow down (Harajan) the chest of one whom He has led astray, as though he was climbing high up into the sky. Thus, God places wickedness on those who do not accept the faith. (6:125)
A book has been revealed to you, (Muhammad). You should not feel constraint to convey its warning and its good advice to the believers. (7:2)
According to the linguists one may find a meaning for the word ‘’usr’ (hardships) very close to that of the word ‘Haraj’ (constraints).
In al-Nihayah, Ibn Athir has said, "The word ‘‘usr’ (hardships) is opposite of the word ‘Yusr’ meaning ease and comfort. ‘usr means hardships and narrowness.
In Lisan al-‘arab it is recorded, "’usr is opposite to ‘yusr’ that means ease and comfort."
From the above one may have the understanding that ‘’usr’ and ‘Haraj’ both have the same meaning or very closely similar meanings as such that to draw a fundamental distinction is not possible. A further evidence to this is the fact that the Fuqha’ in many cases have placed the two next to each other.
Cases to which this Principle may Apply
The evidence related to the principle of ‘no hardships’ and ‘no constraints’ clearly show that this principle has a vast field for application. Verse 78 of chapter 22, which is the fundamental evidence to prove its authority requires many Hadith to take it in due consideration.
The above verse considers what is outside the limits of ‘no constraints’ law as the field of the application for the religious laws and it negates the existence of narrowness and constraint from religion. Therefore, the domain of this principle extends to all the laws applicable to both the individuals and the society.
Muhaqqiq-e Bujnurdi, has explained the supporting evidence for the authority of this principle in the form of the verses of the Holy Quran and the Ahadith, He has pointed out the domain of this principle. He has said, "The verses of the Holy Quran and the Ahadith have clearly stated that religion, Islam, is not a religion to impose hardships and constraints upon people and God did not want Muslims to suffer hardships in following the laws of this religion."
The Fuqaha’ have based their decision of applying this law only in the case of the obligations of the form of compulsory or prohibitions not the desirable or the detestable ones. It is because of the fact that the kindness and grace of Allah come to relieve people from ‘hardships’ and ‘constraints’. In the case of the detestable and desirable duties because such duties do not force one to suffer hardships and constraints the rules of this law do not apply to them. As a result of this, if one would engage himself in non-compulsory duties due to extra-ordinary attention and carefulness towards ones’ duty that may cause him suffering and hardships, under the application of this law he can not be subjected to any admonition and objections.
Some Examples of the Inference of Fuqaha’ in the Light of this Principle.
One of the contemporary Fuqaha’ includes an other case to the above ones. It is the case of a woman whose personal safety and the safety of her sexual feelings would depend on having a husband in such a case one may consider it unnecessary on her part to wait for four years. If her husband has disappeared in such a case a Muslim judge may issue her a divorce so she can marry some one.
With a view to the meaning and implications of the law of ‘no hardships’ and ‘no constraints’ a question may rise that in the Islamic system there are many instances that involve hardships and difficulties. Of such case is to become a member of the army for defense, the prohibition of fleeing from the battle field, fasting in the month of Ramadhan in summer, surrendering to judicial penalties, leaving the country when one feels necessary etc.
How could all such cases be reconciled with the universal nature of the law of ‘no hardships’ and ‘no constraints’? The Holy Quran says in a very general manner that ‘He has not sanctioned any hardships up on you in religion’. Can one say that the above laws have priority over so many of the obligations and prohibitions? Or that certain cases due to their greater significance such as the cause of defense, prayers, saving lives and unlawful sexual activities, have a particular status in the Islamic system. Just that there is this law such cases can not be over looked even though this law has a priority over less significant obligations and duties. The author of Fusul has said in this regard, "What is required as to the degree of hardships is what the majority of people normally would not bear. A small degree of hardships do not justify the case. There is no doubt that in the cases such as defense, in order to repulse evil from ones loved ones and property people stand up as a matter of honor and dignity and it is not considered difficult. It is not so especially in the case of Muslims who expect great rewards for such heroic deeds in the life to come."
The author of Jawahir has said, "In the case of very important duties like defense matters such obligations never fall under the law of 'no hardships’ and ‘no constraints' because of the great benefits of these duties." In the book of Taharat, after applying the law of 'no hardships' he has said, "For one who can acquire water only through buying and it would be, in such conditions, harmful for him he must have Tayammum instead of Wuzu." He further adds, "In some of the very important duties such as defense matters the law of 'no hardship’ and ‘no constraints' do not apply because of the very important benefits involved in such matters, however, in the cases that do not have such significance this law is applicable."
It can, however, be said that the existence of hardships and constraints in the difficult matters like defense is very obvious. Just because that some people due to their expectation of reward in the next life and for the sake of spiritual accomplishments do not dislike such hardships it does not remove the hardships from such matters.
According to Muhaqqiq-e Bujnurdi, the verse of the Holy Quran that says, "God has not sanctioned any thing that would cause you hardships" from the meaning that is obvious and apparent from it, it is of a universal nature. It includes all the laws of Shari’a that involve hardships and constraints, i.e. all the obligations and prohibitions. However, the Fuqaha’ have not dealt with it in this way, especially, when the hardships and constraints would be of a personal nature not one for a whole species. Staying away from most of the prohibited matters do cause hardships and constraints to some people and no Faqih would issue a fatwa in favor of such case.
With a view to the evidence supporting the authority of this law and opinions of the scholars in the matter it is possible to find several categories of the issues that cause hardships and constraints.
Fighting is made mandatory for you, but you dislike it. You may not like something which, in fact, is for your good and something that you may love, in fact, may be evil. God knows, but you do not know. (2:216)
Eyes became dull and hearts almost reached the throat when they attacked you from above and below and you started to think of God with suspicion (33:10). There the believers were tested and tremendously shaken. (33:11)
God pardoned the Prophet, the Emigrants, the Helpers, and those who followed them, when the hearts of some of them almost deviated (from the truth) in their hour of difficulty. God forgave them because of His Compassion and Mercy. (9:117)
Some Points in the Law of "No hardships"
1. 'azimah or Permissible (Obligation or Permission)
The fact that the application of the law 'no hardships’ and ‘no constraints' is obligatory or permissible some of the scholars consider it an obligation. The author of al-Jawahir is one of such scholars who in the issue that 'fasting is not obligatory for very old people' has said, "In such case the application of this law is obligatory because of the ‘no hardships’."
Some of the scholars have decided according to the second form, the permissibility. Among them is Muhaqqiq-e Hamadani, who writes: "Tayammum in the conditions wherein it is permissible is based on the law of 'no hardships' as a permissible duty and not an obligatory one. As a result of this if one would bear great hardships and instead of Tayammum make Wuzu or Ghusl his choice is acceptable. Proof for this is the fact that the evidence supporting the authority of the law of 'no hardships' are to provide ease and to facilitate, for this reason such evidence are not enough to negate a necessity nor for proving impressibility."
The author of al-'urwah in the section on Tayammum points out to this viewpoint and considers a Wuzu made with suffering hardships and constraints as a valid one.
The fact that removal of hardships from the servants of God is a favor from Him, can not become evidence for the validity of the very desirability of the act, it, in fact, can become evidence of its undesirability. It, in fact, is a form of disregard for the favor like the act of ignoring the rule of shorter prayers at a journey and instead praying a complete prayer and fast during a journey which indeed is an undesirable act.
Muhaqqiq-e Hamadani, defending his view has said, "The reason for an exception in choosing the primary laws instead of following the secondary laws in the kind of duties such as Wuzu and Gusl is the constraints in them without having any evil in performing such acts. On this basis, the exception is because of ‘no necessity’ not because of ‘undesirability’ of the duty. As a result if one would bear the hardships and perform the act that was not required of him he has performed an act that was desirable in the sight of God.
Quite opposite of this is what one of the scholars of our time (Makarim-e Shirazi) believes, "The imposition of heavy duties causes disobedience and opposition in people and this by itself is a great evil. For this reason, some of the scholars have maintained that the law of ‘no hardship’ due to the kindness of God towards people is based on an obligatory ground."
2. Is the Criteria in the Law of "No Hardships" Hardships for Individuals or for a Whole Species?
Some of the scholars have for two reasons affirmed the hardships for individuals
Another reason that could be added to this would be the case of a commander that may issue an order for his subordinates to follow with a choice that in the case of hardships they may disregard it. In such a case if one of them did not follow the orders due to such reasons he could be excused even if it would not be hard for others. The hardships in the individuals’ cases may be considered as the criteria but it is possible that such law would apply to the Islamic government in which case consideration of the welfare of the whole species and society would have to be studied.
Some times the negativity and absence of some thing may become the cause for hardships and constraints. For example not to remove certain buildings from the road areas may cause traffic congestion, not to broaden roads may cause delays for the emergency services such as ambulances and fire fighting machines, leaving certain shops and stands may cause bad congestion on the footpaths and sidewalks. It seems that to such cases also the law of ‘no hardships’ very well applies. As discussed above the meaning of the evidence supporting the authority of this law is the removal of all kinds of rules that would cause hardships, regardless of their applicability to the positive matters or those of negative nature.
In the matters of the above cases it is possible to say that non-permissibility of doing any thing to the properties of the others may cause huge hardships and the Shari’a does not agree with it. This is in addition to the evidence in the Holy Quran that has clearly removed all kinds of hardships. In the Ahadith also one finds such expressions as ‘there is no constraints in religion’ that there is no religion more facilitating than Islam’ that Islam is a very easy system to follow’. Without any doubt such expression include the negativity and absence of some thing also.
The existence of any degree of hardships and constraints may not justify the application of this law. It must be as such and to the degree that normally people would not agree to bear.
The evidence supporting the authority of this law also do not support its applicability to the smaller degrees of hardships, otherwise, most of the religious duties would fall under this law because almost all the obligations in religion involve some degree of hardships. Therefore, this does not agree with the fundamentals of religion. It is for this reason that the Fuqaha’ whenever discussing this issue have included in the their expressions the words like "great", "sever" and "huge" hardships. Shaykh Ansari has said, "Whenever there is huge ‘hardships’ and ‘constraints’ this law may be applied."
Another caption and title for the secondary laws that has been discussed very often in Fiqh and applied is the law of "no losses". The Fuqaha’ have been applying this law since a long time. For example, Shaykh-e Tusi in al-Khilaf in the section on the contracts of exchanging certain merchandise in which losses have taken place against one of the parties, expresses his belief in the nullification of such contract. It is based on a Hadith from the Holy Prophet that says, "There is no losses in Islam".
Also Ibn Zuhra in the section of the Fiqh dealing with the ‘choice’ to revoke the contract due to the defect in the merchandise, writes: "The evidence supporting this fact is the Hadith from the Holy Prophet that says, ‘There is no losses in Islam’."
‘allamah also in Tadhkirah in the section on ‘losses’ has based his decision on the above Hadithfrom the Holy Prophet. In al-Mughni, al-Majmu’ fi Sharh al-Muhaddhdhab and Bada’i’ this law is very often referred to as an authority.
The evidence proving the authority of this law is the same Hadith the, "no (suffering) losses" and "no (causing) losses". This Hadith is recorded in the books like Sunan of Ibn Dawud, vol. 3, P. 315, the book of Aqdiyah, Hadith No. 3635. Sahih-e Tirmizdhi, vol. 4, P. 332, Hadith No. 1040. Sunan of Ibn Majah, vol. 2, P. 5800.
Some of the Fuqaha’ along with this law have discussed another law that says, "The losses are to be abolished". The two laws are dealt with separately. Of these scholars is Abdul Karim Zaydan who has discussed it in ‘al-Madkhal li Dirasat al-Shari’a al-Islamiyah’. Others like Ibn Najm have considered the two laws as one.
Najmuddin Tufi Hanbali also gives preference to the supporting proof of this law over those of the primary law.
The Evidence Proving the Authority of this Law.
The evidence proving the authority of this law are many Ahadith which contain the very popularly know expression, "no losses and no suffering losses." Fakhrul Muhaqqiqin in ’idahul Fawa’id has stated that this Hadith is Mutawatir, (unanimously reported).
The Ahadith Narrated from the Holy Prophet about this Matter.
The Holy Prophet said, "For this tree God in the next life will give you a tree in Paradise." Jundab did not accept the offer.. The Holy Prophet then told the Ansari man to uproot the palm tree and throw it away because there is ‘no causing losses’ in Islam."
Can the owner of the canal create another canal to let the water flow to his field away from the palm trees that exist on the old canal? "Have fear of God and do not cause any losses to your brethren." Replied the Holy Prophet.
The Meaning of this Law.
The Fuqaha’ within the limits of this law have expressed differing opinions.
From the point of view of Shaykh Ansari, the meaning of the law "no (suffering) losses" and "no (causing) losses" is the negation of any rule in Shari’a that would involve losses to people. Any such rule is declared none existent, i.e. if a contract which would cause losses to one party would have been considered binding and irrevocable it would be contrary to the above-mentioned law, but no such law is sanctioned in Shari’a. The same is true of the case of a person who can not have any water without a great deal of difficulties or expenses. In such case he is not required to find water for Wuzu. He has emphatically relied on this law in many instances in the books on Fiqh and the principles of jurisprudence.
From the point of view of this scholar the meaning of this law amounts to an imperative prohibition. According to him any act that involves losses is prohibited and people must not involve themselves in such acts. As evidence to prove this he points out a great deal of expressions from the Holy Quran and the Sunnah which are very similar to what the law of ‘no losses’ states. Of such expressions is this, " . . . after commencing the acts of Hajj, he is not allowed to have carnal relations or to lie or to swear by the Name of God. . . . (2:197)
Moses said, "Go away! Throughout your life you will not be able to let anyone touch you. This will be your punishment in this life. The time for your final punishment is inevitable. You will never be able to avoid it. Look at your god, which you have been worshipping. We will burn it in the fire and scatter its ashes into the sea." (20:97)
From the Sunnah he quotes the following Ahadith:
"Obedience to some one that would lead to disobey the Creator is
prohibited". ‘That cheating Muslims is prohibited.’
He maintained that the law of "no losses" falls under the governmental commandments. It is on this basis that the Holy Prophet served as the administrator of the government and commander of the Muslim nation. He sanctioned such laws to abolish corruption not that they were the Divine and shar’i laws. The following are of the evidence to establish this fact.
4. The Theories of Some of the Contemporary Fuqaha’
Some of the contemporary scholars have come up with a new theory about the law of "no losses". They maintain that this law is related to the relations among the people and not to the rules of Shari’a and the Divine duties. With a view to the fact that in the society some times losses are found, the objective of this law is to inform people of the unacceptability of the activities that cause losses.
The apparent meaning of this law indicates the negation of losses. It should be considered a metaphorical expression of discrediting all the activities that cause losses. Thus, the goal is to teach people that causing losses according to Shari’a is prohibited and any thing that would cause losses or sufferings to others such as neighbors is unlawful. That the transactions that cause losses to one party are invalid. This theory, although in some respects, in regards to the results, is the same as some of the above-mentioned ones, however, in the matters of the acts of worship such as Wuzu and fasting, it is different from them. According to those theories on the basis of the existence of hardships and losses such acts of worships could be negated but on the basis of this new theory this can not be done on the basis of the law of ‘no losses’. An act that would cause losses may be negated by this theory because the meaning of losses according to this theory is the losses that are caused by the people not the losses because of Shari’a.
Coercion and Compulsion
The title and caption of coercion is one of the titles and captions that appears in various sections of the Fiqh with various kinds of effects and consequences and in most cases the rules of this law receives priority over the primary laws. According to the dictionary it means compelling and coercing some one to do some thing.
The Evidence Proving the Authority of this Law.
The Fuqaha’ in order to prove the authority of this law have mentioned some verses of the Holy Quran and some Ahadith as proof.
This does not apply to people like ‘ammar-e Yasir. It applies to those who with open heart became unbelievers. It is they who are subject to the anger of God.
The kinds of Coercion and Compulsion
There are two kinds of coercion and compulsion:
The Difference between the Compulsion and Urgency
Compulsion is used when some one else would force one to do some thing or not to do some thing. In this case there are three elements, compulsion, compelling and compelled.
Urgency, however, is often used in the cases wherein some one without the involvement of others is compelled to do or not to do some thing.
The Rules for Compulsion
The rules for compulsion and coercion are scattered in various sections of the law without any proper categorization and order and to show a certain order for it is not an easy task. Because of this reason for one case of compulsion different kinds of Fatwa and legal opinion may come into existence. All that could be stated in such case is that the ruling for an incomplete compulsion in terms of effects is different from those for the complete compulsion and coercion. In some cases both kinds of compulsion may have the same kind of rule. Along with the rule for an act under compulsion its primary rule should also be taken into consideration. This will help to find out if such rules could be removed due to compulsion or not and if so it then should be considered whether it is so due to complete compulsion or even incomplete compulsion would require such rule.
For example one may consider the case of the contracts for certain transactions in which for the invalidity of a contract incomplete compulsion is sufficient because of Ahadith and the Holy Quran consent of parties for the validity of a contract is one condition. "Believers, do not exchange your property in wrongful ways unless it is in trade by mutual agreement. Do not kill one another. God is all-merciful to you (4:29)." Holy Quran.
Since the consent of parties is a condition for the validity of the contract even incomplete compulsion would invalidate it. Also from the Shari’a one may have an understanding that in the case of the unlawfulness of murder and injuries to Muslims . . . due to the seriousness of such cases an incomplete compulsion would not justify it to follow the rules for compulsion. In such case the rules for ‘important’ and ‘more important’ matters come to play their role.
Urgency or Exigency (’iztirar)
’iztirar literally and linguistically means to become compelled to do some thing. Also it means dire need for some thing. To become compelled in doing some thing or to have a dire need for some thing may be considered as a cause and reason as when one urgently needs to sale his house due to a need. The first meaning is in consideration of the meaning of exigency and the second meaning is in consideration of the cause of the emergence of the exigency. The great exegete (Tabari) in the interpretation of verse 173 chapter two writes: "’iztirar, is a condition from which man can not escape like hunger that is not avoidable.
The Evidence Proving the Authority of the Law of Exigency
All the Fuqaha’ agree on the issue that the secondary title like exigency may become the cause for the inapplicability of some of the primary laws. Certain verses of the Holy Quran and certainAhadith are cited as evidence in this matter.
Cases to which this Law may Apply
The Fuqaha’ have applied this law to the cases wherein there is an order or prohibition fromShari’a. Only when there is an obligation or prohibition then this law is applied. In the cases of desirable, detestable or permissible matters there is no need for the application of this law because acting against such cases is permissible any way.
Although the evidence supporting the authority of this law such as the verses (in 1 and 2) above are indicative of certain prohibited matters only, however, the indications in the Sunnah in this issue is rather of a general expression. They include all that is a must to do or to avoid. Some of the Fuqaha’ have considered this quite beneficial in the cases wherein dangers to lives are involved.
Imam Khomieni has said this in this issue, "All the unlawful matters become lawful in exigencies either because for saving lives, the body from decease or other such dangerous conditions wherein not acting in an unlawful manner would cause such a degree of hunger that normally is not bearable."
The Exceptional Cases.
Although it may appear that all unlawful matters due to an exigency become lawful, however, as mentioned in the discourse on negation of ‘hardships’, this law is not applicable to those cases that the Shari’a treats them in a special way. In those cases to which the indications of the verses of the Holy Quran and the Sunnah point out that even in exigencies one must not act in such an unlawful way, the Fuqaha’ in such cases benefit from and apply the law of ‘important’ and ‘more important’. One example is taking the life of another human being due to an exigency. From the Shari’a point of view, without any doubt, to save one’s own life or the lives of ones children one can not endanger the lives of other human beings.
Of some of the rules of the law of exigency, which by itself may be treated, as a very important subsection in Fiqh is this: "Acting against the primary law due to an exigency is permissible until it is over and not more." The Fuqha’ have considered this rule as rule whose authority is self-evident and as a rule of reason. In other words, the law of exigency has two conditions: One is the quantity, e.g. in the case of hunger one is allowed to use inedible substances as much as it spares one’s life and not more. The other condition is time. This rule is applicable only until the exigency exists. As soon as it is over the primary law will apply.
The application of this law in social issues and the issues that relate to the government also is subject to the two above-mentioned conditions. For example if the Islamic government due to an exigency would assign definite prices for certain commodities, firstly, it should be only to the limit of getting over with a dire need. Such a step would only be necessary in the case of the goods, which are being sold with excessive prices. Secondly, as soon as the conditions would turn to normal controlled prices should be abolished because the primary law in Shari’a is for an open market and free competition in trade.
About the permissibility of inedible substances for food in an exigency, Shaykh Tusi has said this, "If one would fear for his life, he may consume inedible substances for food only to spare his life but not a bellyful amount."
With a view to this law Ibn Najib also has said, "A person in dire need must not eat from an inedible substance more than what would spare ones’ life."
An Introductory Condition
(Some thing leading to an obligatory or prohibited act)
The issue of being a lead or an introduction to some thing is one of the secondary titles that has produced a great deal of lengthy discourses in the works on Fiqh and the principles of jurisprudence. An act that in relation to the primary laws falls under either one of the three of the universal categories such as being desirable, detestable and permissible may, for certain reasons, become an introductory act. And as such it may become an obligation or a prohibition when it becomes a lead and an introductory factor towards the completion of another act that is a must to do or otherwise. Therefore, a change in the status comes into existence in the form of an obligatory or prohibited act that was only a desirable, a detestable or permissible before. This comes into existence as an introductory or a leading relationship with some thing. An introductory or being a lead means to be as such that completion of an obligatory or a prohibited one etc. would depend on it and without it such obligation etc. would not come into existence. Because of such relationship the lead or the introduction also under a secondary title becomes either obligatory or prohibited.
The Evidence Proving the Authority of this Law.
Most of the Fuqaha’ have considered such evidence to come from reason only. They do not accept the fact that Shari'a has given it an obligatory or prohibited status. Muhaqqiq-e Na’ini has said, "If completion of some act would depend on some thing else the later also becomes obligatory because of the decision of reason. It is so because of the fact that the existence of such relation, both from the point of views of reason and common sense, the lead and introduction also become obligatory. All the Muslim scholars agree on this issue."
Some of the Fuqaha’ instead of considering some thing as a lead and an introduction to a prohibited act have called it (sadd-e zara’i’) which is one of the established principles and it literally may mean removing the ladder. Imam Malik and Ahmad Ibn Hanbal have considered this to be one of the principles in the fundamentals of religion. Ibn Qayyim has said that Sadd-e zara’i’ is one fourth of religion.
He has pointed out to about one hundred verses and Hadith as being the evidence for its authority. Abu Hanifah and Shafi’i also have applied this principle in some cases. From the point of view of these scholars any thing that would serve as lead to and introduction for a prohibited act and the spread of evil must be stopped from taking place so that evil would not spread in the society and among the people.
On the other hand any thing that would become the lead to and an introduction for an obligatory act is obligatory. They have called it Fath-e Zara’i’ (opening the way). However, the term zara’i’ is used more often for the first case, (i.e. the acts that would lead to evil).
The following verses of Quran and Hadith are pointed out to be evidence of the authority of this view.
In this verse it is prohibited to use the word ‘ra’ina’ because the unbelievers would use this word in a slandering manner.
3. From Hadith, those Ahadith that prohibit hoarding of goods are considered to be sadd-e zara’i’ (to remove the ladder to evil).
4. The Ahadith of the Holy Prophet prohibiting to accept gratuity from an indebted person is considered as ‘sadd-e zara’i’’ so that people would not become involved in accepting usury.
The Effects of this Law on Social Issues
The existence of this law in Fiqh has a great deal of favorable effects. Many of the obligations and prohibitions of social nature related to the society and the government are based on this law.
It is a fact that the prosperity of an orderly social life depends on the existence of people educated and skillful in different social enterprises such as industries, education, the army, medicine and agriculture. The Fuqha’ have also issued the Fatwa, that if there is not enough people with such skills it is an obligation on the whole society in the form of a social obligation to acquire such skills and know-how. They must do so until enough people are educated for such tasks, even though, regardless of the social nature of these obligations, they by themselves are not obligatory.
Many of the commandments that come from the Islamic government are based on this law. The instructions and the commandment of the Holy Prophet to manage and maintain the social order all may have been based on this law.