Answered by Shaykh Faraz Rabbani
I have heard some brothers criticise your use of the Majallat al Ahkam al Adaliyyah as a valid source for fiqh or principles of fiqh (e.g. the post re. choosing lesser of two evils) stating that it was formulated during the latter periods of the Ottoman Khilafah when it was close to collapse and cannot be relied upon. Could you please tell us a little bit more about the Ottoman Courts Manual?
Walaikum assalam wa rahmatullah,
1. There is a danger in criticizing without proper knowledge of what is being criticized. The principles mentioned at the Majalla are generally agreed-upon. Most of them may be found in works like Ibn Nujaym’s al-Ashbah wa’l Nadha’ir and Khadimi’s Majami` al-Haqa’iq, and are quoted across the madhhab in its major references. As for the principle of choosing the lesser of two evils, this is taken directly from Ibn Nujaym’s work (1.286-287), and also in Imam Suyuti’s work with the same title ( al-Ashbah wa’l Nadha’ir 87-88, `Ilmiyya ed.)
Ibn Nujaym said in the section on the Fifth Legal Principle around which Islamic law revolves, namely Harm is lifted,’
“From this principle, a fourth principle is derived:
If one of two evils must be borne, then the greater evil is warded off by bearing the lesser evil.’
Zayla`i said [in his commentary on Nasafi’s Kanz al-Daqa’iq, Tabyin al-Haqa’iq, a leading reference in the school] in the chapter on the conditions of prayer, The legal principle regarding this category of issues is that someone who is affected by two evils that are of the same degree may choose either. If they differ, the lesser must be chosen, because undertaking the unlawful is not permitted except in dire necessity, and there is no necessity in choosing the greater harm.'” [Ibn Nujaym, al-Ashbah wa’l Nadha’ir, the Fourth Principle, 1.286-287]
2. As for the Majalla, it has been recognized as an essential reference in the fiqh of commerce by leading scholars across the Muslim world since it was authored. We find scholars quoting it and recommending it both in the Indian Sub-continent and in the Arab lands. [ See below]
Faraz Rabbani, Student of Sacred Law
Amman, Jordan