Fixed and Variable Aspects of Islamic Legislation

Legislation Between Subjective and Objective Unity of Criteria

Being conversant with the meaning of 'criteria' (milak), it is beneficial to point out that a lot of issues have a combined criterion although religious law is represented only by some of these issues under a specific topic and a given title. In this case, is it possible to consider the criterion as basis for expanding the area covered by this law, by encompassing other situations of the same criterion but unspecified by the lawmaker, or not?

Studies by jurists and legal experts have answered this question in the affirmative. They consider unity of criteria as an acceptable basis for similar application of the law just as they regard a joint cause `illah', that is mentioned in the text, a foundation for including other conditions sharing the same cause.

A clear example of this can be seen in the letter of Imam Ali (a.s.) to Malik al-Ashtar where he declared that the criteria for forbidding the hoarding of foodstuffs is the need for it, or that hoarding will cause distress or harm to people's lives. The Imam elucidated on the reason for prohibiting such practice, saying: "Behold - along with this - that most of them are very narrow minded and awfully avaricious. They hoard goods for profit and fix high prices for goods. This is a source of harm to the people and a blot on the officers in charge. Stop (people) hoarding because the Holy Prophet (s.a.w.) has prohibited it."

Based on the principle of the unity of criteria, the jurist declared that the hoarding of items, whose hoarding will result need or harm or distress, unlawful, although the narrations `hadith' on the prohibition of hoarding mentioned foodstuffs only. Since the criterion for prohibition was that the people stood in need of the foodstuffs or would be inflicted with harm as a result of hoarding, and also, since need, distress or harm is regarded as the criterion for that legislation, so, whenever it is present in respect to goods, benefits and services, prohibition comes up for discussion.

Instances of Changes In Rules As A Result of Changes In Criteria

While studying the laws, whose essence revolve round the issue of criteria, we encounter legislative terms established by the Glorious Lawmaker in consistence with the principles of knowledge, justice and wisdom. These terms explain the areas of change and permanence of a law dependent on the change or permanence of the criterion. They are:

1- Concession `rukhsah and Incantation `azimah'. 2- Initial and Secondary rules `ahkam al-Awwaliy was Thanawiy'. 3- Giving priority to the `more issue command' in case of a clash between two issues.

To define and specify, those areas are under the:

1- Competence of the state. 2- Competence of the obligatee himself.

The glorious Legislator, through His knowledge, justice and wisdom knows that the relationship between the law, the obligatee and the appurtenance would be affected by contingencies and new developments, and based on those contingencies the interests or benefits would change. This, in turn, causes a variation in the law in the light of those contingencies and developments.

We shall introduce the more prominent areas in which one law changes into another after the change in the benefit, which constitutes its backbone and necessitates enactment.

**1- Concession and Incantation: ** The book Mukhtar Sihah al-Lugha reports: "To resolve `azama' on something is to intend to bring about the act and resolve on the same."

"Concession `rukhsah' of an affair is the opposite of insistence on it." These are the definitions of rukhsah and azimah (emphatic formulation) in their literal sense. As for their technical meanings as rendered by the scholars of jurisprudence; Amadi said: "Azimah literally means tender and this meaning is taken from the strong obligation or promise taken by the heart on a matter… but in the field of divine law, azimah means what is binding on a bondsman as a result of the obligation imposed by Allah, the Most High, such as worship, khums and the like."

He defined rukhsah as: "The rules enacted for the situations of an excuse although the reason for prohibition exists." Azimah is also defined as: "General rules enacted by Allah in their capacity as original laws, such that they do not specifically accept a particular condition or a particular obligatee."

Rukhsah is also defined as: "What is enacted of the laws, as an alliviation for the obligatee, in special cases which necessitate this alliviation." The terms rukhsah and azimah have been mentioned by the Noble Messenger (s.a.w.) in what pertains to legislation, like his (s.a.w.) saying: "Allah likes this concession `rukhsah' to be availed of just as He dislikes that (people) should commit sin."

He also declared: "Allah likes that (people) should avail themselves of His concessions just as He likes that His determined rules `aza'im' be abided by." A study and analysis of the principles of classifying laws into 'determined' and 'concession' reveals that Islamic law has treated the subject of fixed and variable laws.

The rules, in Islamic law that denote responsibility are:

a. Obligation b. Prohibition

They are the two rules of obligations, called azimah.

The Permissible `Mubah': It comprises the 'absolute' permissible, the desirable and the disliked.

There is a concession `tarkhis' i.e., permission for leaving out a responsibility and the obligation or prohibition is dropped, like the exemption of the old who find it difficult to fast and permission to drink alcohol when a person who drinks it compelled by circumstances, or under duress as long as the excuse last.

This shows that Islamic law has taken into consideration the conditions of a person or group and the contingencies that necessitate a change in rules affecting individuals or groups, so long as the casual factors remain. This means that the conditions under which a law is applied, and its influence on the applier, play a role in the constancy, or otherwise of the law.

Thus, the change will be relative in nature and limited by the causes of the changing. It is not an absolute change which is, in reality, an abrogation (replacing one law with another in toto), rather it is a process by which acting on a law is suspended while a changeover to another is effected till the causes of this suspension expire.

This is a result of the fact that the criteria is subject to the benefits or harms existing in the essential nature of the act, like taking alcohol and fasting. Drinking alcohol is an essentially harmful practice and its harmful relationship with the human body and mind can never change. For this reason its prohibition can never change, either. However, a concession is granted to one under duress to drink alcohol so as to arrest a more dangerous situation. Such a situation could be excessive thirst that could lead to death, in which case, one is allowed to partake in only that amount of alcohol necessary to deliver him from imminent death.

Allah, the Most High, states:

"And whoever is forced to it without the desire (for it) nor to transgress (the limits) then it is no sin on him." Holy Qur'an (Baqara 2: 173)

2- Initial and Secondary Laws:

Among the topics on legislation which are related with the criteria and the changing of rules is the question of initial and secondary rules. This topic represents a wide area of addressing the issue of change on the subject of general living conditions, politically, economically, and individually, concerning worship, …etc. The classification of real laws `ahkam al-Waqi'iyya', into initial and secondary rules, is a direct consequence of putting into consideration the criteria of laws and what may affect their appurtenances, subjects, and conditions, which in turn, guarantee the regulation of the laws and specify man's duty, vis-à-vis contingencies and new developments. A change in the situation calls for a change in the law.

To make the discussion more perspicuous, let us define the initial and the secondary rules. Allamah Sayyid Muhammad Taqi al-Hakim defined the initial real law `hukm al-waqi'iy al-awwaliy' as: "The rule assigned to a thing initially with regards to its original nature, i.e., without considering any contingency that might affect it, like most of the real and conventional, and likewise, those that denote responsibility."

And he defined secondary real law as: "What is assigned as a rule, taking into consideration certain conditions that might surface and necessitate a change in the initial law. For instance, drinking water in its initial law is only permissible `mubah', but where it acts as a means of saving life, it becomes obligatory; and likewise, trades which serve to regulate our living are regarded as general obligations `wajib al-Kifa'', but, where only a particular individual or group can pursue those trades, they turn into individual obligation `wajib al-Aini' on the said individual or group."

After these two definitions, he commented on replacing an initial law with a secondary one saying: "The realities of many of the initial laws change as a result of secondary effects. An obligation may change into a prohibition, a prohibition into permissible into desirable and so forth. This reality shows the flexibility of Islamic laws and how they conform to different situations."

The study and analysis of this legislative principle - the principle of changing the law from a particular verdict to another - taking into view the contingencies that change the criteria (benefit and harm), reveals the capability of Islamic legislation, to take care of a situation and its new developments, thereby specifying the meaning of the fixed and the variable laws in Islam. A practical example, whereby a change in criteria leads to a change in the verdict from permissibility to obligatory...is this:

Islamic legislation holds the sale of goods and currencies permissible in an initial rule, and regards it obligatory where it is required to ward off an economic ill, and thirdly, considers it prohibited in case it causes harm to the economy of the nation. To make it more concrete, the exporting of gold, currencies and merchandise is a permissible act, although Islamic law will declare it unlawful when it turns detrimental to the economy and financial position of the community.

Thus, Islam laid down the legislative principle based on which an initial rule changes into a secondary rule. The alteration of the permissible to the obligatory and, then, to the prohibited, and vice versa, based on contingencies affecting the situation, is a proof of the existence of the fixed and variable laws in the Islamic legislation. When these new conditions are removed, the initial rule reverts and its violation is not allowed, because the benefit or interest now lies in acting on the initial rule. An example of this is foreign investments, as they are permissible in the initial rule, while they would be prohibited where they result in political and economic subjugation by a foreign power.

3- Rivalry and the Giving of Priority to the More Important Over the Important:

Rivalry `tazahum' is a technical term which means: "The mutual contradiction of two laws as a result of the practical inability of an obligatee to discharge his obligation with respect to both of them."

This, in reality, is the clash existing between two obligations, or an obligation and a prohibited action, with regard to time, place or the ability of the obligatee, in such a way that he could not be able to discharge both duties, together, in that particular period of time, place or by the power at his disposal. Therefore, he has no recourse but to act according to either one of the two laws. This kind of clash, in the view of legislative concepts, turns into a conflict between laws, and the obligatee's duty is to give priority to the more important criteria of the two laws. Shahid Sadr elucidates more on the way of resolving the clashes between the laws, saying:

"The way of resolving the clashes between laws is to give priority to the one with the more important criterion, over the other." Among the example of the hukm of a clash between two rules, is the clash between performing prayer and that of rescuing a drowning man or the wounded, whom it is feared might bleed to death unless immediate help is rendered. In this case, rescuing the drowning or wounded is given priority over prayer. And also like the clash between performing Hajj and Jihad, where the most important among the two is given priority over the other. In most cases, Jihad is preferred over pilgrimage, because of the necessity of defending and protecting the faith, interests and the nation.

These instances show that the principles of resolving a contradiction discards one of the duties i.e., it discards the obligation or prohibition in respect to the less important rule, as long as the obligatee is busy with the more important one.

Another area in which laws are subjected to the phenomenon of change is that of equality between the level of benefit and that of harm in a given activity, whether it is political, economic or otherwise. This fact is formulated into a jurisprudential principle which states: "To ward off harm is more important than deriving benefit." This legislative principle refers to situations in which the law changes due to a change in the criterion.

When a practice, the exercising of which is initially permissible or obligatory, is affected by new conditions under which a benefit and a harm are simultaneously caused by exercising it, it comes under the principle of 'warding off harm is more important than deriving benefit'. In this case, permissibility or obligation depends on whether the action will bring about detriment.

Similarly, it becomes obligatory to refrain from a practice which is initially obligatory, where a harm equivalent to the benefit occurs, if it is done. For instance, there could be a benefit in severing political ties with a country which treats the Islamic nation badly, by engaging in propaganda attacks, but, on the other hand, cutting ties with that country is militarily detrimental to the said Islamic country. In this case the benefit and harm is weighed, thus, the principle of 'warding off harm is more important than deriving benefit' is applied.

Fundamentals of Legislation and Implementation Laws

"He it is Who fashiones you in the wombs (of your mothers) as He likes, There is no God but He, the All-Mighty, the All-Wise. He it is Who has sent down to you (O Our Apostle Muhammad) the Book of it there are (some) verses decisive these are the Basis of the Book, and others are ambiguous; But those in whose hearts there is perversity, they are after that which is ambiguous therein seeking to mislead and seeking to interpret (to suit their selfiish motives) while none knows its (hidden) interpretation except Allah and those firmly rooted in knowledge, say they: We believe in it, all is from our Lord but none mindes save those endowed with (wisdom)." Holy Qur'an (Al-e-Imran 3: 6-7)

These two verses discuss about creation and legislation, calling our attention to the fact that the Creator of man Who knows the nature of his bodily, psychological and ideological constitution, is the One Who decreed the laws that regulate his life. He is completely conversant with man, his conditions and various aspects of his life, with respect to creation and legislation. The Almighty, by His omniscience, justice and wisdom, decreed that legislation be based on a set of general fundamentals of thought, known in the Qur'an as the 'Mother of the Book' `Ummul Kitab' i.e., a set of fixed principles on which the entire thought and legislation is built. Therefore, the Qur'an differentiates between the fundamental principles, which serve as the bedrock of legislation and are fixed and unchangeable,

on the one hand, and the legal details for executing those principles, on the other. The substance for those general principles forms the fundamental subject matter, the spirit and purpose of the detailed laws. Some western researchers such as Montesque referred to those fundamental principles as the spirit of the law while some Islamic researchers called them 'purposes of Islamic law `maqasid al-Shari`a.'

One of the classifications of objective legislation and studies by the jurists divides legislation into fundamental law, i.e., the constitution and general law. This classification, to a large extent, approaches the principle explained by the Qur'an in the above mentioned text. It points to the permanent which does not change, and the laws that can be affected by change. Another example is the Lord's address to Adam (a.s.), as the representative of the human species, which conveys the charter of rights to livelihood. This charter represents the permanent, fundamental idea of legislating man's livelihood. Allah said:

"For you it is ordained that you shall not be hungry in it, nor (shall you be) naked, and that you shall not be thirsty in it, nor shall you feel the heat of the sun." Holy Qur'an (Taha 20: 118-119)

The Almighty Allah spells out that the provision of food, clothing and shelter is a natural right of man, and that that principle is permanent; never accepting any change. For the execution of this principle, various laws, concepts and ethical values have been enacted. These include the laws on the religious taxes of zakat and khums, prohibition of amassing wealth, hoarding and manipulation of prices. In addition, the government is bestowed with the competence to issue the necessary procedures for executing that noble principle practicably for the benefit of mankind. Within the area of competence enjoyed by the Islamic government is the process of charging extra taxes, interference in economic activities, such as banning the practice of hoarding, and the controling of prices, wages, insurance, etc.

While looking into the studies and analysis of the criteria of law, we have seen how variation and change occur through the agents of relaxation of laws, secondary laws, clash of laws, etc. From these facts, we realize that there exist fundamental enactments that are permanent and other legislations for the execution of those fundamental principles. Some laws, in the latter group, are susceptible to change under certain standards and conditions already described.

Among the fixed legislative principles is what is carried by the holy verses on the rights of women:

"And of His signs is that He created for you from yourselves, mates that you may dwell (inclined) unto them, and caused between you love and compassion." Holy Qur'an (Rum 30: 21)

"but deal kindly with them (women)." Holy Qur'an (Nisaa' 4: 19)

"Let him with abundance spend of him abund-ance." Holy Qur'an (Talaq 65: 7)

"And for the women shall be similar rights (over men) in fairness." Holy Qur'an (Baqara 2: 228)

For the purpose of executing those fixed principles, Islam enacted laws that serve as legal formulations of those principles. Some of these imple-mentation laws are subject to modification and that occurs when their prerequisites and criteria change as a result of external contingencies and conditions.

From these Qur'anic texts we can deduce that there are fundamentals and pivotal principles on which laws and concepts are based. These pivotal issues are called Ummul Kitab. They are the pivot and revolving around them are the rules and enactments, either permanent or variable, that play the part of executing the substance and the purpose the fundamental principles. As such, we find that the Prophetic sunna (tradition) consists of three kinds of enactments in the area of practical execution. They are:

1- Governmental Legislations (these emanated from the Prophet (s.a.w.) in his capacity as the ruler) 2- Initial Rules 3- Secondary Rules

The State and the Vacant Zone of Legislation

In Islam, the Islamic state represents the highest power in the community. It is a political power charged with the application of Islamic law, on the platform of the society as a whole. Because of this, it has been granted enough legal authority and competence to enable the government to undertake the practical application of Islam and leading the ummah in accordance with its principles. This competency can be divided into:

1- Application of Islamic law and system in different areas. 2- Competence in enforcing the law. The Islamic state has the power to compel individuals to abide by the laws and system of Islam, including the application of force, in a legal way, for the execution of Islamic legal will.

3- Legislative Competence: Surely, the Legislator of Islamic laws and enactment is Allah, the Most High, and the Book of Allah, `the Noble Qur'an', and the pure Prophetic tradition are the custodians of the law and legislation. However, the Islamic state is bestowed with a level of competence that must be employed in the light of the Book and the sunna. We shall mention the salient features of that competence, here:

a. Islamic legislation has granted the Islamic state the authority to apply the more important law, in case of clash, between obligatory duties, and in a case of equivalence of good and harm as they affect the social set up, where the state specifies either obligation or prohibition. Competence in this case, rest on the ability to determine the subject and choosing the more important over the less important.

b. The Islamic state has been granted the competence to specify responsibility and enforce it in respect with a general obligation, which can only be discharged by a particular individual or group. This general obligation, therefore, changes to a personal one to be discharged by the said individual or group. Such cases include medical treatment, defence, administrat-ive duties and other works of a general nature.

c. Suspending an initial rule and changing over to a secondary one when social conditions necessitate it. d. Filling up the vacant legislative zone: Shahid Sadr has discussed about the vacant zone, and competence of the Islamic State, in a clear and adequate manner. For a better understanding of the vacant zone a concise introduction is not out of place.

Analysis of the legislative areas, in Islam, make it clear that there are questions, subjects and situations, whose rules have been explained and specified by the shari'a in a definite way, while other areas are left unspecified, thereby leaving the duty of determining the appropriate laws and rules, for those regions, on the shoulder of the state `waliy-ul-amr', who will fill that gap by specifying the laws after considering the existing conditions. This is the reason why Shahid Sadr chose the name vacant zone `mantiqat al-Faragh', for this area of Islamic legislation. The scholars of other Islamic schools of jurisprudence discuss the matter under the title Masalih al-Mursalah.

Despite some disparities in analysis, interference and articulation, the fundamental, common idea in this discussion is this; that there exist areas in which the law is not specified. Thus, law making is left in the hands of the legal ruler who exercises his judgement according to existing interests and benefits, although this judgement is subject to change and substitution in accordance with the coming conditions and situations. This legislative topic comes under the fixed and the variable aspects of Islamic jurisprudence.

Shahid Sadr based his reasoning on the indisputable theological fact that the Messenger of Allah (s.a.w.) possessed, in addition to his social personality, a prophetic personality, in view of the fact that he received revelation from Allah, the Most High, and conveyed the divine message. The Prophet (s.a.w.) had a third personality, which is that of the ruler, since he exercised authority over the Muslims. The laws, rules and position taken by the Messenger of Allah (s.a.w.) have been studied on this basis. We can classify what emanated from him into two parts:

1- What comes from him in his capacity as the Prophet and a conveyer of Allah's message. Such laws are permanent, no change or substitution affects them, except as a result of contingencies like necessities, harm, clash, etc. This comes to an end with the termination of the contingency.

2- What comes from him (s.a.w.), in his capacity as the ruler and guardian of the Muslims, by judging and protecting their common interests within the conditions that existed during his time, such as government administration and issues bordering on the economic life of the people. These practices of the Noble Prophet (s.a.w.) were not of a fixed nature, rather they were subject to change and substitution. This is so because the Prophet (s.a.w.) received this competency as any ruler would. His duty was to select rules and practices appropriate for establishing what was beneficial in areas not specified by divine legislation. This competency naturally shifts to the one who succeeds the Prophet (s.a.w.) in administrating state affairs, with the condition that he must be suitable for this great responsibility in the view of Islamic laws.

Shahid Sadr discusses the subject of the 'vacant zone' when he evaluates the Islamic school of economics, saying:

"…the Islamic school of economics is comprised of two parts: One of them is completed by Islam in a finalized manner, accepting no change or substitution. The second represents the 'vacant zone' in this school, the filling of which rests on the state or the guardian (of the Muslims) who will fill it according to the requirements of the overall purpose of the Islamic economics in every age….". He continues on the 'vacant zone' saying:

"…the Great Prophet (s.a.w.) has filled that vacuum with what the purpose of the shari'a required, in the area of economic activity, in the light of the conditions under which the Islamic society was existing. When he undertook that work, he did not do it in his capacity as a Prophet, conveying the divine law which is fixed for all times and places, in which case his act of filling that vacuum would have represented permanent legislative articulations. Rather, he filled the gap with his judgements as a guardian ruler charged by the shari'a with the responsibility of supplying the missing laws to fill the gap considering the circumst-ances."

Then, he wrote in another place concerning the legislative 'vacant zone' and the substitutes in independent judgement, the competency of the government and the state in filling up that vacuum, and choosing a substitutional independent judgement, and like- wise its relationship with the fixed and variable, as follows:

"Islamic law is the source of legislation in the sense that it acts as the source from which the constitution is derived and in its light the laws in the Islamic Republic are enacted, and this is in the following ways:

First: The Islamic laws that are known to be permanent by way of absolute juristic clarity are regarded, to the extent to which they touch on the social life, as a fixed part of the constitution, whether they are clearly asserted in the constitutional document or not.

Secondly: Any position of the Shari`a that carries more than one interpretation is regarded as falling into the region of numerous substitutes of a constitutionally legal exercising of independent judgement. The choice of a particular substitute is referred to the legislative authority that the community exercises according to the general good.

Thirdly: In the case of the absence of a decisive position of the Shari`a in prohibiting or declaring an obligation, the legislative authority, representing the Ummah, has the right to enact the laws it regards to be in the interest of the nation, with the condition that they do not contradict the constitution. The area to which these laws belong to is called 'vacant zone'.

This zone covers all the conditions in which the Shari`a gives the obligatee the choice to assert his position. Here, the legislative authority reserves the right to impose on him a specific stand, in conformity to what it judges to be of public interest, with the condition that this act does not contradict the constitution." "These laws consist of two types of elements. One of them is the permanent element and they are the laws stipulated in the Book and the Sunna, of what is related to economic life. The other type is the set of flexible elements. They are those elements that are derived - according to the nature of a given stage and condition - from general Islamic indicators which fall within the circle of permanent elements. Therefore, some permanent elements serve as general indicators and form the basis for specifying the flexible or unstable elements required by the nature of a given stage."

The study and analysis of the concept of the vacant zone in the view of Shahid Sadr leads to the fact that this legal principle subscribes to these points:

1- There are definite enforceable laws enjoying absolute juristic clarity to the effect of prohibition or obligation, and there are other areas where Islam did not specify any enforceable laws, rather the obligatee is given the right to choose.

2- The Islamic State (the leader of the Ummah) is the one bestowed with authority to enact the laws for filling those vacant areas, according to the situation at hand. These laws are subject to change according to the existing social conditions.

3- The basis for defining the nature of such laws is the public interests.

These three elements constitute the pillars of this theory. On analysis of the theory of public good `masalih mursalah' or the theory of istislah (deem useful), we find that, based on the view of some scholars who subscribe to it, there is much conformity with the theory of the vacant zone.

Allamah Sayyid Muhammad Taqi Hakim, in elucidating the meaning of masalih mursalah, reports from the authorities on this theory, saying:

Al-Taukhi defined it by saying: "It is the cause that leads to the purpose of the legislator, in worship or custom". What he meant here by worship is: "What the Lawmaker meant to be His right", and by custom he means "what the Lawmaker intends for the benefit of the bondsmen and the regulation of their livelihood and conditions."

After this presentation, he summarizes their views in defining al-Irsal in the following words:

"They have differed in defining al-Irsal. What some of them appear to be saying is that its meaning is non-depending on the legal text and that the intellect is left alone in discovering it. Others assert that al-Irsal is the non-depending on a specific text and that it comes under general texts of the Shari`a. Based on the disparity in defining irsal, the definition of masalih mursalah also varies.

Ibn Burhan defines this term as "what is not affiliated to a general or specific principle." Ustaz Dawalibi is of the view that masalih mursalah falls in the category of laws covered by a general principle. While talking about istislah, he said: "Istislah, in its actual sense, refers to a type of rule based on opinion which is based on the people's interest, and this occurs in every issue whose rule is not defined in the Shari`a, and there is no similar case in the Shari`a so that analogy could be exercised. Rather, a certain rule is extracted based on general principles of the Shari`a which states that any matter without a benefit is of no use, as far as Shari`a is concerned. And an instance of such principle is the saying of Allah, the Most High: Holy Qur'an "Verily, Allah enjoines justice and benevolence (to others)." (Nahil 16: 90), or the saying of the Holy Prophet (s.a.w.): "No one shall harm or be harmed."

Thus, it is clear to us that a legal theory is discussed under two different titles- by two different groups of scholars - and they are 'mantaqat al-Faragh and 'Masalih al-Mursalah', and arrive at similar conclusions. The conclusion is that there is an area in which the Legislator did not specify a clear rule and the affair is left to the living generation to judge the benefits thereof.

This topic is among the most important topics of the fixed and variable aspects of the Islamic legislation, which remain flexible and open, to cover the results of development and change in human life.

Among the instances of open and flexible rules, is the field of terms and contracts which covers a wide area in the life of mankind. Islam has given the people the chance to conclude deals and contracts and use different terms in their daily transactions, based on the civil realities, with the condition that those terms do not contradict fixed Islamic principles.

Among such instances is that Islamic legislation provides that divorce is in the hand of the husband and also he can appoint a proxy to divorce the wife on his behalf. Thus, the jurist infer from these provisions that a man can appoint his wife as a proxy so as to divorce herself. As she can also make it a condition in the marriage contract that he should give her the right of divorce in accordance with the terms and situations established in the contract. From this, we can understand, briefly, the meaning of fixed and variable aspects of the Islamic legislation and Islam's ability in grasping the needs of life, such as, human fundamental needs, like food, clothing, shelter, medication, security….etc., and the variable needs; such as, means and methods of executing the permanent needs or new developments and situations that accompany man's life.

Praise be to Allah, the Lord of the Worlds.

Endnotes

  1. Gorge Serton; History of Science, First Book , printed in Cairo in 1975, p. 21. . Refer to his book called "Islam as Substitute" Beirut, printed in 1993, p. 7.
  2. Refer to Haqqul Yaqin fi Ma'arifat Usul al-Deen by Sayyid Abdullah Shubbar, vol.1 p. 94.
  3. Dr. Anwar Sultan; al-Mubadi al-Qanuniyya al-Ammah, p. 67.
  4. Ibid. p. 68.
  5. Ibid.
  6. Ibid. p. 110.
  7. Ibid. p. 37.
  8. Ibid.
  9. Dr. Anwar Sultan - Mubadi al-Qanuniyya al-A?ma, p. 40. 11 Dr. Ramzi Taha al-Sha'ir, Nazariyatul al-A?ma lil Qanun al-Dostoriyya, p. 35.
  10. Dr. Anwar Sultan - Mubadi al-Qanuniyya al-A?ma, p. 42.
  11. Ibid. p. 43.
  12. Ibid p. 45.
  13. Ibid p. 46
  14. Dr. Ramzi Taha al-Sha'ir, Nazariyatul al-A?ma lil Qanun al-Dostoriyya, p. 63.
  15. Ibid. p. 17.
  16. Kulaini, Usul al-Kafi, vol. 1 p. 59.
  17. Sayyid Mahmud Hashemi , Taaardhul Adillat al-Shar'iyya, page 30, second edition.
  18. Shahid Muhammad Sadr, Durus fi Ilmil Usul/ part 1 p. 82.
  19. Ibid, part 3, p. 213.
  20. Musnad Ahmad, volume 5, p. 227.
  21. Ali Husain Shahrudi, al-Dirasat.
  22. Ya'akubi, Tarikh al- Ya'akubi, vol. 2, p. 111.
  23. Ibid. p. 110.
  24. Ibid. p. 94.
  25. Ibid. p. 100.
  26. Ibid. p. 91.
  27. Dr. Anwar Sultan, Mabadi al-Qanuniyya al-Amma / p. 16. . The Shi`a, their Orgin and Features, Hashim Musawi, p. 344.
  28. Saduq, Man la Yahdhuruhul Faqih, vol. 3, page 176, chapter on Riba.
  29. Al-Mufradat Fi Gharibil Qur'an - Juhd, p.101.
  30. Muhaqqiq Hilli, Maarij al-Usul, p. 179. 34 . Shahid Muhammad Baqir Sadr, Durus fi Ilmil Usul, part three, p.

35 . Hur al-Amili, Wasa'il al-Shi'a, vol. 18, chapter 12, Hadith number 6. 36. Shahid Sadr, Durus fi Ilmil Usul al-Fiqh, vol. 3 p. 9. 37. Durus fi Ilmil Usul, Halaqat al-Thaniyya , p. 13. 38. Al-Usul al-Amma lil fiqhil Maqarin, p. 55-56. 39. Durus fi Ilmil Usul, Halaqat al-Thaniyya, p. 13-14. . Al-Harrani, Tuhful Uqul an A?li al-Rasul (s.a.w.), p. 140. 41. Muhammad Muhyiddin Abdulhamid and Muhammad Abdullateef Sabki. 42 Ibid. 43 . Al-Ahkam fi Usul al-Ahkam, vol. 1, p. 176. 44. Ibid. p. 177. 45 Allamah Muhammad Taqi al-Hakim, al-Usul al-Amma lil Fiqhil Maqarin , p.72. 46. Ibid. 47 . Musnad Ahmad bn Hambal, vol. 2, p. 108. 48. Nihayah, Ibn Athir, vol. 3, p. 93. 49. Usul al-Amma lil Fiqhil Maqarin, p. 72. 50. Ibid. 51. Ibid. 52 . Mahmud Hashimi, Ta'arud al-adilla al-Shar'iyya, p. 27. 53. Durus fi Ilmil Usul, Halaqat al-Thalitha, vol. 1, p. 320. 54. Shahid Sadr, Iqtisaduna (our Economy), vol. 1 p. 400. 55. Al-Islamu ya qudul hayat, p. 10-11. 56. Ibid, p. 39. 57. Risalat al-Tawakhi, reporting from Sayyid Muhammad Taqi Hakim, Usul al-Amma lil Fiqhil Maqarin, p. 381. . Quoted from al-Sayyid Muhammad Taqi al-Hakim, Al-Usul al-Aammah lil Fiqih al-Muqaran, p. 382