Chapter 12: Table Of Priorities
Before discussing this principle, we need first to clarify two issues:
-
The difference between this principle - tazahum - and the preceding one – ta’arud. Tazahum refers to circumstances in which two rulings are binding, but in which one of them cannot be complied with. For example, when drowning people cannot be rescued without the use of a boat that the prospective rescuer does not own. In that circumstance, two rulings apply: (1) to save life and, (2) not to touch that which does not belong to one. Despite both rulings being right and binding, a potential rescuer patently cannot comply with both. This quandary is resolved when the ruling that has greater importance in the circumstances is given precedence over the other. In Islamic Jurisprudence, the field referred to as 'Priorities' covers precisely such matters.
Ta’arud, on the other hand, concerns two conflicting texts that cannot possibly both be true. When reconciliation is not possible, the faqih must select the text that is most likely to be true and reject the text that lacks validity.
-
Five 'core' values are considered to have the greatest importance in the eye of the Law Maker. These are life, property, family, human intellect and public order (including religion/state). But what happens when a person is caught between two of these, as was the case in the previous example?
Allah tells us in the Qur'an that:
“…the slaying of a human being, unjustly or to spread discord in the land, is equivalent to the destruction of all of humanity, while the saving of one human life is akin to saving all of humanity” (Surah Ma’idah, 5:32).
Thus, nothing may be compared with the most essential aspect (life). However, justice requires the establishment of a secure society in which property, ownership and family life can be protected, and every citizen made aware of his/her limits and entitlement to privacy.
Greater Importance
Intellectual reasoning indicates that, when caught between two evils, it is rational to choose the lesser evil. Similarly, when faced with two choices, it is rational to prefer the one that is of greater importance. Criteria by which to assess importance:
-
Injunctions that specify compliance within a limited time' frame - wajib mudayyaq - have preference over injunctions that have flexible time' frames - wajib muwassa’. For example, those who go to the mosque to pray and see the floor soiled by najasah have a duty to: (a) remove it and cleanse the floor of all impurity and (b) offer their prayer. As the time frame for the prayer is flexible - wajib muwassa’ - but the time frame for the removal of impurities is limited - wajib mudayyaq - they must cleanse the najasah prior to offering their prayer.
-
Injunctions that cannot be substituted have preference over those that may be. For example, stranded travellers with a limited' supply of water may keep it to drink and not for ablution - wudu' - because there is no substitute for drinking water, while tayamum is the substitute for wudu'.
-
Injunctions based upon ‘rational ability’ have precedence over injunctions based upon ‘religious ability’. For example, a person with £2,000, sufficient to cover the cost of pilgrimage - Hajj - needs to repay a loan of £2,000. As there is a ‘rational ability’ (to repay the loan, this has precedence over the ‘religious ability’ to perform pilgrimage. In addition, Hajj is not a requirement for those who cannot afford it.
-
When a mujtahid concludes that a specific injunction is of utmost concern to the Law Maker, he considers it to have greater importance than other obligations. Thus, the main pillar of Islam, prayer, is of the greatest importance and is not to be compared with anything other than 'faith'.
Equity - Istihsan
While the above four criteria for tazahum are known to Imamiyah jurists, some Sunni schools apply istihsan as an alternative methodology to achieve similar ends. Equity is a western legal concept grounded in the idea of fairness and conscience, and derives legitimacy from belief in natural rights or justice beyond positive law. (Osborn defines equity as fairness or natural justice. A fresh body of rules by the side of the original law, founded on distinct principles, and claiming to supersede the law in virtue of a superior sanctity inherent in those principles.)1
According to Muhammad Hashim Kamali, istihsan is an important branch of ijtihad, and has played a prominent role in the adaptation of Islamic law to the changing needs of society. To him, istihsan literally means to approve, or to deem something preferable. It derives from hasuna, which means being good or beautiful. In its juristic sense, istihsan is a method of exercising personal opinion in order to avoid any rigidity and unfairness that might result from the literal enforcements of the existing law.2