The Evolution of Fiqh(1.4.3 The Realization of Public Welfare)

Because the laws of Islaam were primarily enacted for the

general good of all mankind, the Prophet (s.w.) was a universal

prophet sent to all people till the end of time .

Allaah stated that in

the Qur’aan in no uncertain terms:

“We have not sent you but as a universal

messenger to mankind, giving them glad tidings

and warning them (against sin), but most people

do not realize it.”Soorah an-Nissaa (4): 29.

  “Say, ‘Oh mankind, I an the messenger of Allaah

to all of you.’”Soorah al-A’raaf (7): 158.

Naskh (Abrogation)

The existence of abrogation within Islamic legislation is

among the manifestations of human welfare considerations in

Islamic legislation. God may prescribe a law suitable to people at the

time of its enactment, or it may serve a particular limited purpose.

However, its suitability may later disappear or its unique purpose

may have been achieved.
In such circumstances, the need for the law

ceases to exist and its validity becomes cancelled. The following are

only a few of many such examples which may be found recorded in

both the Qur’aan and the Sunnah.al-Madhkal, p.89-90.

Bequest (Waseeyah):

 In pre-Islamic Arab culture, his children

inherited the property of the decease, and parents would only inherit

if a bequest were made.Sahih Al-Bukhari

Thus, in the early stages of Islaam, Allaah

made the writing of a bequest for parents and relatives compulsory,

in order to teach the new community of Muslims the importance of

family rights with regard to their wealth.

“It is prescribed that when death approaches any

of you, if he leaves behind any goods. That he

make a bequest to parents and next of kin,

according to what is reasonable. This is due from

the pious.”Soorah al-Baqarah (2)”

However, after the community willingly accepted this law and 
theybegan to strictly put it into practice, Allaah replaced it by 
revealing in the Qur’aan a clearly defined system of inheritance laws. 
And the Prophet (s.w.) further confirmed the abrogation of the 
old laws by stating, “Surely Allaah has given everyone with a 
right (to inheritance) his right, so there should be no bequest 
for inheritors.” Reported by Abu Umaamah and
 collected by abu Daawood (Sunan abu

Dawud (English Trans.), vol.2, p. 808, no. 2864).

Mourning Period:

The widow’s mourning period was originally a

full year, and it was compulsory for her husband to leave in 
his will provision for maintenance and housing during that
 whole  period the Qur’aan states:

“If any of you die and leave widows behind, a

bequest of a year’s maintenance and residence

should be made for their widows. But it they

leave the residence, there is no blame on you for

what they do with themselves, provided it is

reasonable. And Allaah is exalted in power,

wise.”Soorah al-Baqarah (2): 240

Then the waiting period was reduced to four months and
  ten days.“If any of you die and leave widows behind, they

shall wait concerning themselves four months

and ten days. When they have fulfilled their term,

there is no blame on you if they dispose of

themselves in a just and reasonable manner. And

Allaah is well acquainted with all that you do.”
Soorah al-Baqarah (2): 234.

And the bequest was cancelled by the verses
 on inheritance which stipulated a specific portion for widows:
 one quarter of all the inheritance if she did not have any children, 
and one eight if she had children.

 

Fornication:

 Originally, the punishment for the crime of fornication

and adultery, as well as other sex crimes like homosexuality, 
was the confinement and punishment of offenders in their homes  
until they became repentant and sought to reform themselves.

“If any of your women are guilty of sex crimes,

take the evidence of four witness from amongst

you against them. And if they testify, confine

them to houses until death claim them, or Allaah

ordain for them another way. If two men among

you are guilty of sex crimes, punish them both;

but if they repent and make amends, leave them

alone. For Allaah is Oft-returning, Most

Merciful.”Soorah an-Nisaa (4): 15&16.

This law was later abrogated in the Qur’aan by the setting
 of a particular exemplary punishment.

“Flog the woman and man guilty of fornication

one hundred lashes. And, if you believe in Allaah

and the Last Day, do not let compassion move

you in their case for it is a matter decided by

Allaah. And let a group of the believers witness

the punishment.”Soorah an-Noor (24): 2.

Furthermore, the Prophet (s.w.) applied the punishment 
of stoning todeath for those who committed 
adultery Sahih Muslim and set the death penalty for homosexuals 
without specifying the method. Sunan Abu Dawud

A review of the abrogated verses indicates that the early law

may be replaced by a more severe law, as in the case of the law for

fornication which changed from confinement and punishment to

lashes or stoning to death; or it may be replaced by a less severe law

as in the case of the mourning period for widows; or it may be

replaced by a similar but more suitable law. At any rate, in all cases,

the abrogated law was suitable for the time and circumstances under

which it was revealed. When the situation changed, a new law was

enacted in order to realize Allaah’s intent in the earlier legislation.

Were it not for the situation of the Muslim community earlier, the

abrogating law would have been enacted from the beginning.
For Example, in the case of the widow who was at first required to wait

in her deceased husband’s house in mourning for the period of one

year during which she could not get married, it was the custom of the

Arabs to confine widows and prevent them from marriage for

indefinite periods, lasting from a year to the remainder of their lives.

And, during the period of confinement, they were obliged to wear

their worst clothes.Al-Bukhari

 If the waiting period were reduced to four

months and ten days along with the permission for them to leave

their houses if they wished, the early Muslims would have had great

difficulty in accepting it. Consequently, a year of mourning was set

along with the cancellation of the confinement and the obligation of

maintenance. Shortly after they had accepted the change and

adjusted to it, the new law was revealed reducing the period of

mourning.

Thus, abrogation contained in it consideration for human

conditions and their welfare during the era of the prophet hood which

ended with the death of the Prophet (s.w.), for there can be no

abrogation after his time.al-Madkhal, pp. 90-3.

Legislative consideration of human welfare after the era of

prophet hood can be found in the fact that Islamic laws were enacted

for reasons, many of which were clearly mentioned.

The following verses of portions of verses from the Qur’aan

are among the many cases where the purposes for the enactment of

laws were explained:

“Oh you who believe, fasting has been prescribed

for you as it was prescribed for those before you

in order that you may be conscious of God.”Soorah al-Baqarah (2): 183.

“Take some charity from their wealth to purify

them and make them grow (spiritually)…” Soorah a t-Tawbah (9): 103

“Satan’s plan is to incite enmity and hatred

between you, with intoxicants and gambling, and

prevent you from the remembrance of Allaah and

from prayer. Will you not then give it up?”Soorah al-Maa’idah (5): 94

The Prophet (s.w.) often made mention of the rationale

behind his legal pronouncements. For example, in the case of the

abrogation of the prohibition of visiting graveyards, he was reported

to have said, “I had forbidden you from visiting the graveyards,

however, permission has been given to me to visit the grave of my

mother. So, visit them, for they do remind one of the next life.” Reported by Abu Hurayrah and Buraydah and collected by Muslim

The explanation of the reasons for laws indicates that the

presence of absence of laws depends on the existence or nonexistence

of their causes. If the benefit for which the law was enacted

continuous, then the law is continuous; but if it has changed due to a

change in circumstances, the law must also change; otherwise there

would not be any benefit in its continued existence. On the basis of

this principle, ‘Umar ibn al-Khattaab cancelled the distribution of the

portion of Zakaah assigned for the encouragement of non-Muslims to

accept Islaam which the Prophet (s.w.) used to give out. As he

explained, the need for their encouragement existed during the time

when Islaam was on the rise and in need of support, however, in his

time the Islamic state was already firmly established.

Legislative consideration of human needs can also be found

in the methodology of legislation. In the case of laws wherein human

benefit will not change with time or conditions, Allaah has spelled

out the details very clearly. 
For example, in the case of religious

rites, family laws of marriage, divorce and inheritance, laws against

crimes whose harm will not change with the passage of time, like

murder, fornication and adultery, theft, and slander. As for things

whose benefit or harm may vary from place to place, Allaah has

legislated general laws of universal benefit, which may be

implemented by those in authority according to human needs.

Examples of this category can be found in the laws concerning

business transactions and the structuring of the society. For example,

Allaah said,

“Oh you who believe, obey Allaah and obey the

Messenger, and those in authority among you.” Soorah an-Nisaa (4): 59.

The Prophet (s.w.) himself was reported to have said, “If a

maimed Abyssinian slave is appointed over you and he conducts

your affairs according to the Book of Allaah, you should listen to

him and obey (his orders).”Sahih MUSlim
 

Legislative consideration can also be found in the giving of

precedence to the general welfare over individual benefit, and to the

prevention of a greater harm over a similar one.al-Madhkal, pp. 93-5.

 A good example of

such a principle can be found in Islaam’s confirmation of the almost

universal practice of plural marriage (polygyny). Islaam limited the

maximum number of wives to four and outlined the responsibilities

of those involved. Although sharing a husband may be painful to

most women, the need for plural marriage in most societies

evidenced by the corruption which results from its official

prohibition demand its legislation. Therefore, for the general welfare

of both men and women, Islaam recognized limited polygyny

thereby giving precedence to the good of society over that of the

individual woman.

 Ref:plural Marriage in Islaam, (Riyadh: International 
Islamic Publishing House, 2nd ed., 1987), pp. 1-9,