Consideration of consequences in implementing shari`ah laws

Abstract

It is contended that the laws of the Shariah are intended to secure benefit for and repel harm from humanity. In certain cases with unusual features, even though the general wording of a relevant text apparently applies to them on the basis of purely linguistic considerations, a particular law may not achieve the objectives for which it was legislated. In such circumstances a mujtahid needs to consider the probable consequences of applying a given rule before delivery of any judgment that that rule is the Shariah law for that situation. The validity of this proposition needs to be investigated and, if it is found to be endorsed by the Shariah in general, the methodology for its application has to be precisely identified in order to prevent its haphazard application or its manipulation by parties with hidden agendas. The research was conducted by reading classical Arabic texts in usul al-fiqh as well as contemporary Arabic and English texts in the field and, in addition, English works on the relevant methodologies of the social sciences. The research reached the following conclusions: The laws of the Shariah have a rational basis, i.e., to secure human benefit and repel harm. This theme is indisputably established through inductive reading of the Qur’an and Sunnah. Inductive reading of the Qur’an and Sunnah further reveals that provision is made in the texts for exceptions to general rules when their application leads to consequences different from those intended by their legislation. Recognition of this principle is amply evident in the ijtihad of the sahabah. Prohibiting what is normally lawful cannot be justified unless the act in question leads to unlawful consequences in a majority of cases. Pressing needs (darurat) can override any text, but intermediate needs (hajat) can only override secondary prohibitions that have been legislated to protect primary prohibitions or weak general texts. Social sciences can be of some use in assessing the consequences of acts and policies, but their conclusions regarding the future are usually too speculative to justify overriding established Shariah laws. Their conclusions are more reliable for assessing existing conditions.