Is the suspension of the hadd punishment for theft by 'Umar ibn al-Khattab during the Year of the Drought considered a matter of independent public interest (maslaha mursalah), and is the consideration of such interests exclusive to the ruler?

Al-Halabi : The issue of our master 'Umar (may Allah be pleased with him) or other Muslim caliphs not applying a hadd punishment or a ruling from the Shari'ah rulings—does this not align with the definition of the principles of jurisprudence scholars regarding independent public interest (maslaha mursalah), which they restrict to the ruler? This is from one perspective. From another perspective, among the objectives of the Islamic Shari'ah are control, order, and the prevention of conflict and contradiction. If we open the door for any person, even if he is a mujtahid, to apply whatever he wants, this may lead to conflict: one affirms what another denies, and one denies what another affirms. Therefore, restricting the issue of independent public interest to the ruler, who possesses the conditions of ijtihad, as is well known, is what controls the situation. Perhaps this resolves the problem raised by our brother Abu...

The Shaykh : You have done well, may Allah reward you. In fact, among the deviations that have affected these people is that they do not adhere to precise scientific detail, in addition to the fact that the ruler has the authority to suspend a text, to make obligatory what was originally permissible, and so on. But who is this ruler? We are talking about our rulers, whereas the scholars mean by "the ruler" the one who implements what Allah has revealed. The ruler is either a learned mujtahid, or at least he has a council of scholars who do not take any action, whether movement or stillness, without consulting the council, as is reported regarding the Ottomans, who had a Mufti, the Shaykh al-Islam, or the like. Regardless of whether they were scholars or mujtahids, the important thing is that they had a council that did nothing without a fatwa. These are the people who now give us fatwas and encourage our rulers to consider lawful what Allah has forbidden. They exploit correct principles but apply them in the wrong place. They tell you, "What is the ruler's or the sultan's right to suspend, to do, to..." and so on. So they have granted every person, even if he is a memorizer of the Book of al-Salah, the authority to apply Shari'ah rulings based on the fact that he sees it that way. This is an exploitation of the texts of the Shari'ah and the statements of the scholars. But my discussion just now, regarding what you mentioned from Mustafa al-Zarqa or others, is that they do not take the principle that we established with its condition, but rather they launch into other directions. One of them reminded me, as my brother Ali mentioned, that this issue does not mean that everyone has their own opinion. And among the wonders of things is Mustafa al-Zarqa himself and his like, because their thinking and their capacity for opinion and ijtihad are narrow compared to what they hear from people like the Salafis. They say, "We are not going to do ijtihad now; there must be a conference composed of Muslim scholars who adopt opinions on disputed issues." Glory be to Allah! These issues related to individuals—what conference do they need? As for issues related to the entire state, they grant the ruler the authority to see and do what he sees or what he wants. The least that can be said about this is laxity, if not something else.