Umar's Famine and the Limits of the Principle

The example jurists reach for most often when explaining al masalih al mursala predates the doctrine's formal name by centuries. During a severe famine in the Hijaz in the eighteenth year after the Hijra, remembered afterward as the Year of Ashes, the caliph Umar ibn al Khattab suspended the fixed punishment for theft, ruling that a hand should not be cut off for stealing during a year of general famine, on the reasoning that widespread need removed the clear culpability the punishment presumes. Later jurists read this not as Umar overriding the shari'a but as an early instance of exactly the principle al masalih al mursala would later formalize, that applying a fixed rule requires the specific circumstances the rule assumes, and public necessity can show that those circumstances are absent. Mohammad Hashim Kamali's account of the doctrine notes that its critics, prominently the Zahiris, read cases like this one very differently, as proof that once a ruling is justified by an unstated interest rather than a specific text, there is no principled limit stopping a jurist from setting aside any inconvenient rule in the name of the public good, the same objection that had already been raised against istihsan.