The Daleel may include an ‘illah for the Hukm, or the ‘illah may be taken from one or more other evidences. Although the Hukm is derived from the daleel, nevertheless the sense of the ‘illah in it is observed, without adhering to the mode mentioned in the text that came to treat the problem at that time. An example is that the saying of Allah (swt),

“Prepare for them all you can of (armed) force and of horses tethered, that thereby you strike fear in the heart of the enemy of Allah and your enemy.” [TMQ Al-Anfal: 60]

The Hukm concerns the preparation of force. The issue addressed at the time is preparing the force (via the tethering of horses), and the meaning of the ‘illah from this Hukm is; to strike fear in the enemy. Therefore, when we derive today the rule of preparation of force from this daleel, we also observe the meaning of the ‘illah from the Hukm, and accordingly we prepare whatever is needed to alarm the enemy; without restricting ourselves to the mode mentioned in the text (i.e. tethering the horses), in treating the problem at hand at the time.

Therefore this approach should be followed in every daleel from which a Hukm is derived, since the purpose is to fulfil the meaning of ‘illah intended from the Hukm. Accordingly, the Islamic Sharee’ah requires that the rules related to the societal relations (mu’amalat) be based upon their ‘illah and that we observe the legislative aspect in the texts and not the form that they came in when deriving the rules from these texts.

Just as the text of the Qur’an and Sunnah are an evidence for the Hukm Shar’ai, the Ijma’a (consensus) of the Sahabah (companions) and the Qiyas (analogical deduction) are also considered as an evidence for the Hukm Shar’ai. Accordingly, the general evidences (adillah ijmaaliyyah) for the shar’ai rules are; the Qur’an, the Sunnah, Ijma’a as- Sahaba and Qiyas. As for the opinion of a Sahabi related to matters of his Ijtihad, it is not a daleel, because the Sahabi is like any Mujtahid, and is subject to error. In addition, the Sahabah differed over some issues, holding differing opinions to one another. So if the opinion of the Sahabi was taken as a daleel, then the proofs would be different and contradictory. Consequently, the opinion of the Sahabi is not considered a shar’ai daleel, but rather it is allowed to be followed like the other acknowledged opinions and schools of thought (madhaahib). The rules that are agreed upon by the Sahabah are not a madhhab for them, but rather they are Ijma’a.

As for the Shar’a of the earlier nations (Shar’a min qablina), it is neither considered a Shar’a for us, nor is it considered to be a source of legislation. Although the Islamic ‘aqeedah mandates for us to believe in all the prophets and messengers, and in the Books revealed to them. The meaning of the belief in them is belief in their prophethood and their messages and in the Books revealed to them, and does not mean to follow them. After the prophethood of Muhammad (saw) all peoples are ordered to give up their Deen and to embrace Islam, since no Deen other than Islam is accepted. Allah (swt) said,

“Lo! The Deen with Allah is Islam.” [TMQ Al-i-Imran:19]

Allah (swt) also says,

“And whosoever seeks a Deen other than Islam it will not be accepted from him.” [TMQ Al-i- Imran:85]

This ayah is explicit (SareeH) in meaning. From this ayah the following principle was derived,

“Shar’a of the people before us is not a Shar’a for us.” Another evidence for this principle is the fact that the SaHaabah had a consensus (Ijmaa’) that the Shari’ah of Muhammad (saw) abrogates all the previous Shari’ah (divine laws). Also Allah (swt) says,

“And unto you have We revealed the Book with the truth, confirming whatever Book was before it and controlling over it.” [TMQ Al-Maida:48]

i.e. to have control and supremacy over it. The supremacy of the Qur’an over the previous Books means the abrogation of the previous Sharee’ahs i.e. the Qur’an confirms and abrogates the previous Sharee’ahs. It was narrated that when the Messenger (saw) saw ‘Umar Ibn Al-Khattab reading from a leaf of the Torah, he (saw) got angry and said,

“Didn’t I bring it pure and clean, and By Allah, had my brother Musa been present now he would have no choice but to follow me.”

Many of the rituals of Hajj such as Tawaf around the Ka’abah, touching and kissing the black stone and running between Safa and Marwah were practised at the time of jahiliyyah. However when we perform them as ‘ibadat, we don’t practise them considering them as rituals of a previous Shari’ah. Rather we perform them as part of the Islamic Shari’ah, since Islam brought them as new AHkam Sharai’ah, and not as part of a previous Shari’ah. Similarly, we do not at all perform nor abide by what previous Deens prescribed, rather we only follow what Islam brought us. The Christians and the Jews are addressed with the Islamic Shari’ah and ordered to leave theirs, because Islam abrogated it. If this is the obligation on the followers of the Jewish Shari’ah and they are Jews and the Christians, then how can a Muslim be ordered to take the previous Sharee’ahs as his Sharee’ah? With regards to the saying of Allah (swt),

“We revealed to you as we revealed to Noah.” [TMQ An-Nisaa:163]

What is meant by this is that He (swt) revealed to Muhammad (saw) the same way as He revealed to the other prophets. And,

“He has ordained for you that Deen which He commanded unto Noah.” [Tmq Ash-Shura:13]

This means that He ordained the origin of tawHeed, which He ordained for Noah. In the Ayah,

“Then we revealed to you to follow the faith (mellah) of Ibrahim.” [TMQ An-Nahl:123]

This means to follow the origin of tawHid, because ‘mellah’ means the origin of tawHeed. The understanding of all these verses and the like is that the Messenger (saw) is not an innovator among the messengers (of Allah), rather he was sent (as a messenger) like them and that the origin of tawHeed is the Deen common to all prophets and messengers. Every messenger had been sent with a specific Deen; Allah (swt) says,

“For each we have appointed a Sharee’ah and an open way.” [TMQ Al-Maidah:48]

Accordingly the Shar’a of previous nations is neither a Shar’a for us and nor is it considered one of the legislative sources from which the rules are derived.

Deriving AHkam is performed by mujtahids, because knowing the Hukm of Allah on a specific issue cannot be reached except by Ijtihad. There must be Ijtihad. The scholars of usool have stated that Ijtihad is a fard kifayah (collective obligation) on Muslims and that no generation should be without a mujtahid. If all Muslims agree to leave Ijtihad they would be sinful, this is because the only way of finding out the divine rules is by Ijtihad. If any generation was without a mujtahid who is able to derive AHkam, this would result in the abandoning of Shari’ah and lead to the elimination of the shar’ai rules, a matter which is expressly forbidden. Nevertheless, Ijtihad has conditions which have been elaborated by the scholars of usool. It requires broad knowledge, a correct understanding of the texts and a satisfactory knowledge of Arabic linguistics and it needs knowledge of the Shar’ai matters and an understanding of their evidences (adillah).

Extracting AHkam without careful study and without careful examination is not called Istinbat (deriving rules). Likewise, the mere presence of a benefit in a certain Hukm followed by misconstruing the texts and misinterpreting them to derive that rule is not called Ijtihad, it is rather an insult to the Deen of Allah (swt), and whoever commits that deserves the punishment of Allah (swt).

It is true that the door of Ijtihad is open but it is open for the scholars (ulema) not for the ignorant. mujtahids are of three types; mujtahid mutlaq and mujtahid madhab, these two have specific prerequisites. As for the third type it is the mujtahid who performs Ijtihad on one issue (mujtahid masa’alah). Such a mujtahid should be capable of understanding the text and to pursue the issue, its daleel and the daleel of other mujtahids concerning the issue. This type of Ijtihad is necessary for every Muslim who needs to know the AHkam of Allah, since Shar’a has originally ordained that Muslims derive by themselves the Hukm from the evidence, i.e. to be a mujtahid in the issues of the Deen necessary to them.

However, after recording the madhabs of the mujtahids and the principles of Ijtihad and the AHkam were derived, the notion of Ijtihad became weak amongst individuals and the number of mujtahids decreased. Taqleed became prevalent amongst the Muslims and Ijtihad amongst them became unusual until the concept of taqleed prevailed to such an extent that some people started to call for closing the door of Ijtihad and to speak of taqleed as obligatory. Accordingly the overwhelming majority of Muslims, if not all of them, became muqallideen (followers).

The muqallid is of two types; muttabi’a (follower) and ‘aammi (layman). The difference between the muttabi’a and the ‘aammi is that the muttabi’a takes the rule derived by a mujtahid after they are convinced of the daleel which the mujtahid depended upon, and they do not follow it unless they are aware of the daleel. The ‘aammi is the one who follows the mujtahid in the shar’ai rule without looking for the daleel. The muttabi’a has a better level than the ‘aammi and most of the earlier generations were the muttabi’a, for they were greatly concerned with learning the daleel. When the age of decline came and it became difficult for the people to follow the mujtahids, they began to follow the scholars and mujtahids in the rules concerning them without seeking the daleel. What encouraged this situation was the silence and consent of the ulema that a person could be ‘ammi even if he was an educated person. The ulema were silent about this because taqleed is permissible, whether the muqallid is a muttabi’a or ‘ammi. However, the Muslim should originally be able to take the AHkam from its daleel, although they are allowed to imitate thus they are allowed to be muttabi’a, i.e. they know the rule and knows its daleel and becomes convinced of it. This makes the Muslim qualified for Ijtihad, even in a single issue, a matter which is necessary for us in our current age. However, issuing a fatwa is not considered Ijtihad in an issue, because it does not belong to the category of Ijtihad. It is of the worst type of writings in fiqh. This is because after the age of the mujtahids, their students and the students of their students followed and these turned to elaborating on the opinions of the madhab, laying down its foundations and consolidating its opinions. That age was considered to be the golden age of fiqh in which the master references of fiqh books in the various madhabs were written. These books are considered the backbone of the issues of fiqh. This era continued until the seventh century C.E., after which the decline of fiqh followed. In these ages commenting and footnotes began, most lacking originality, Istinbat (deduction of rules) and Ijtihad even on just a single issue. Then came an age in which the decline was deeper, where the ulema followed the way of listing the issues and the rules without making reference to their different aspects and details. They called these issues fatawa. It is incorrect to make these fatawa as a reference in fiqh and it is incorrect to take them as a reference for the AHkam Sharee’ah as well, because they do not follow the method of Ijtihad in deriving the rules.

It is not permitted to refer to reference works written along the lines of the codification of western law books as a reference for Sharee’ah rules. This is because these books are a form of imitation of Western laws and such codification reduces the fiqh and is dominated by taking fiqh issues without any daleel or with a weak daleel. It is also dominated by the notion of adapting to the age and twisted interpretations to comply with the Western viewpoint in solving the problems. This is in addition to the lack of the legislative aspect and the absence of Ijtihad in these books. So they are not suitable for application or as a reference. Their existence was a disaster for fiqh and legislation because it was an attempt at imitation that weakened the people’s perception of Islamic fiqh. This is in spite of the vast amount of Islamic fiqh and it being the richest jurisprudence of all nations. This fiqh is indispensable for the judges and rulers, but codifying it in a form which imitates the canonical format has reduced and disgraced it and made the judges, when they confined themselves to the knowledge of these canons, ignorant in fiqh. In addition, these books lack the appropriate legal wording, because they are a host of jurisprudence texts of some jurists that have been introduced under numerical listing. No attempt has been made to generate general principles that could then themselves be taken as the subject of the articles under which different issues would fall. Instead the issues themselves were arranged as separate articles and this is incompatible with the canonical format. Even when some of the articles came in the form of principles they were not stated in a comprehensive manner. Rather they were no more than definitions from the fiqh books and almost all articles followed this style. Consequently, it is not permissible to take those canons as a reference, because of their erroneous style, superficial information, and remoteness from the recognised Sharee’ah rules which are based on the detailed evidences (adillah tafSeeliyyah).

In order to put together a constitution and cannons that can be comprehended and followed by the judges and rulers, the following method in legislation should be followed:

1. Human problems have to be studied, so a general constitution is written addressing them in the form of general comprehensive principles or comprehensive Shar’ai rules. These principles and rules have to be derived from Islamic fiqh, on condition that they are either taken from one of the mujtahids, mentioning their daleel and being convinced of them or from the Qur’an, the Sunnah, Ijma’a as-Sahaba or Qiyas, but only through a correct Ijtihad, even if it is Ijtihad on a single issue. In the introduction for each article, the madhab from which it is taken together with its daleel, or the daleel from which it was deduced, must be mentioned. Neither the influence of the bad situation of the Muslims nor the situation of the other nations or the non-Islamic systems should be taken into consideration when putting down such a constitution.

2. AHkam Shara’iah should be put down as draft canons for the penal code (‘uqubaat), rights (Huqooq) and testimonial proofs (bayyinaat). This should be according to the aforementioned criteria, be compatible with the constitution, with reference to the madhab and the daleel on the condition that its legal composition is with general principles so to serve as a reference for the judges and the rulers.

3. The Shar’ai texts, the Islamic fiqh and usool-ul-fiqh should be the reference point when interpreting the constitution and the laws by the judges and rulers, in order to facilitate the means of deep understanding. The judge is not permitted to issue verdicts contradictory to what the state has adopted because,

“The decree of the Imam is to be executed overtly and covertly.” In cases where the State has not adopted rules, the judge will issue the verdict based on the Hukm Shar’ai he views as applicable to the case, whether this opinion is of one from the mujtahids or an opinion derived by his own Ijtihad.

4. When deriving the rules and adopting them, it is necessary to understand the reality (of the issue and comprehend it) and to understand what is necessary to treat the reality from the Shar’ai evidence; in other words to understand the rule of Allah (swt) on this issue and then to apply the rule on the reality. That is, to arrive at the Hukm Shar’ai by understanding and fully comprehending the reality of the issue.