The text of both the Qur'an and Sunnah address many topics such as, stories of previous Ummahs, the Day of Judgment, and others. However, the text which specifically addresses our actions of what to do or what not to do is referred to as Hukm Sharii.
The term Hukm Sharii, in Arabic, means the address of the Legislator related to our actions. Islam addresses all of our actions, whether they are permitted or not. Accordingly, all of our actions have to be guided by the Hukm Sharii.Many Muslims are too quick to conclude that something is either Haram (prohibited) or Fard (compulsory) after a quick reading of an Ayah or a Hadith. Not all commands in the legislative sources are Fard or Haram. the rules which are used to differentiate the types of Hukm Sharii are again related to Usul al Fiqh.There are 5 different categories of Hukm Shariah.They are
1.Fard or Wajib(obligatory)
There are many misconceptions regarding permitted matters(Mubah).Here are some
1- It had become implanted in people's minds nowadays, that it is permitted to adopt any matter which did not contradict Islam and which was not prohibited by a Shari'ah text. They used as evidence the fact that the Messenger of Allah had found contracts dating back to the days of Jahiliyyah (ignorance) existing among people and he had approved them, and that which he did not approve of, he prohibited. Hence, that which he approved was permitted and that which he prohibited was unlawful. Likewise, it was permitted to adopt any thought, or rule, or law that did not contradict Islam and that had not been prohibited.
2- The Mubah (permitted) is that which carries no rebuke. Hence the absence of the rebuke is a permission. So taking a matter whose prohibition has not been mentioned would be Mubah. Furthermore, the Shari'ah kept silent about it and did not outline its rule, and whatever Shari'ah kept silent about is Mubah. It has been reported that the Messenger of Allah said: ''Truly Allah has commanded some obligations, hence do not neglect them; and He prohibited certain matters, hence do not violate them; and He determined certain limits, hence do not transgress them and He condoned certain matters out of mercy, not forgetfulness, hence do not search for them.'' In another narration, he said: ''And that which He kept silent about is a condonation(permission).'' Therefore, anything that Shari'ah kept silent about is Mubah. The adoption of rules and laws which have not been mentioned by the Shari'ah and which the Shari'ah did not mention by any prohibition is part of the Mubah. This is since there is no rebuke about them, and since no prohibition was mentioned, and since it was not mentioned by the Shari'ah and because the Shari'ah kept silent about it.
3- Some claim that democracy is from Islam, for it is based on shura' (consultation), justice and equality. It was also based on giving the authority to the Ummah, and this is what Islam is concerned with. Islam equates between rich and poor, rights and duties and between a minister and a shepherd and makes their affairs amongst them based on shura' and makes enjoining Ma'aruf and forbidding Munkar one of the most important principles. Shura' in Islam has been organised in modern times by what the Europeans refer to as parliament. Enjoining Ma'aruf and forbidding Munkar has been formulated in the modern civilisation through the freedom of press to criticise and the freedom of individuals and groups to write and voice their opinions frankly. They approve what they see and they disapprove what they see and they speak as they wish. Hence no person is beyond reproach, nor is the government, or the Wali. What straightens them, deters them and forces them to keep to the straight and narrow is the awareness of public opinion and its freedom of criticism. This is what is referred to in the Qur'an as ''joining together in the mutual teaching of Truth.'' In this way it was deduced that democracy is from Islam and the Qur'an mentioned it and the Messenger commanded it.
The errors in these thoughts
This is where the flaws and the deviation occurred, because the thoughts concerning these three matters were a fundamental error in their understanding of Islam. This is attributable to several aspects:
1- There is a difference between the thoughts related to Aqeedah matters namely the doctrines and Shari'ah rules, and the thoughts related to sciences, techniques, industries and the like. It is permitted to adopt the thoughts related to sciences, techniques and the like, provided these do not contradict Islam. As for the thoughts related to Aqeedah matters and Shari'ah rules, it would be forbidden to adopt any of them, except those brought to us by the Messenger of Allah whether it was from the Book of Allah (swt), or the Sunnah, or from what the Book and the Sunnah have guided to. Evidence about this is reflected in what Muslim reported that the Messenger of Allah said: ''I am but human like you. Hence, if I ordered you something related to your Deen's affairs, do take it, and if I ordered you something related to your worldly affairs, then I am only human.'' Evidence is also reflected in the Hadith about the pollination of palm trees, where he was reported to have said: ''You are better acquainted with your worldly affairs.'' Therefore that which is not part of the Shari'ah, namely the Aqeedah matters and the rules, can be taken as long as it does not contradict Islam. However, that which is part of the Shari'ah, namely Aqeedah matters and rules, can only be taken from what the Messenger of Allah brought and nothing else. The democratic rules and laws are rules taken to solve man's problems, hence they form part of the legislation. Thus it would be wrong to adopt them, unless they have been brought by the Messenger of Allah . It would be wrong to adopt them unless they were Shari'ah rules and nothing else.
2- The Messenger of Allah has explicitly forbidden us from taking anything other than what he brought. Muslim reported on the authority of Aisha (ra) that the Messenger of Allah said: ''He who introduces in our order something that is alien to it, must be rejected.'' In another narration, he was reported to have said: ''He who performs an action alien to our order, must be rejected.'' Bukhari also reported on the authority of Abu Hurayrah (ra) that the Messenger of Allah said: ''The Hour shall not come until my Ummah follows the ways of the nations before her, hand span to hand span and arm length to arm length.'' Upon this they asked: ''Is it the Persians and the Romans?'' He replied: ''Who else among people but them?'' Bukhari also reported on the authority of Abu Said Al-Khudri (ra) that the Messenger of Allah said: ''You shall follow the ways of those before you hand span to hand span and arm length to arm length, and even if they entered a lizard's hole you will follow them.'' I said: ''O Messenger of Allah! You mean the Jews and the Christians?'' He replied: ''Who else?'' These texts clearly forbid us from taking anything from others. The first Hadith, with its two narrations, is clear about the prohibition and about the censure of taking, for it says: ''It should be rejected.'' The other two Ahadith contain the meaning of prohibition. This prohibition is applicable to the taking of the rules of the constitution and the laws from other than Islam, because it is introducing something alien to our order, even taking from other than our order. It is an emulation of those who are like the Persians and the Romans, namely the British and the French, who are from the Romans, hence, it is forbidden to take these rules and laws.
3 - The Messenger of Allah , even in his capacity as a Messenger, never used to answer when asked about a rule which had not been explained by the revelation. He used to wait until Allah (swt) had revealed such a rule. Bukhari reported on the authority of ibn Mas'ud (ra) that ''the Messenger of Allah was asked about the spirit and he remained silent until the verse was revealed.'' Bukhari also reported on the authority of Jabir ibn Abdullah (ra) who said: ''I was taken ill once and the Messenger of Allah and Abu Bakr came to visit me. He came to me while I was unconscious, so he performed Wulu and then poured that water over me, so I regained consciousness and then said: O Messenger of Allah! How do I judge in my assets? What do I do with my assets? He said nothing to me until the verse of inheritance was revealed.'' This indicates that it is forbidden to take from other than what is revelation. If the Messenger of Allah refrained from giving an opinion until the revelation came to him, this proves that nothing is to be taken apart from what the Revelation has indicated.
4- Allah (swt) has commanded us to take what the Messenger of Allah has ordered and to abstain from taking what he has prohibited. Allah (swt) also commanded us to refer in judgement to the Messenger of Allah , namely to what the Messenger of Allah has brought. Allah (swt) says:
''And take whatever the Messenger has brought to you and refrain from whatever he has forbidden you.''[Al Hashr, 7]
This means that we should not take anything that the Messenger of Allah has not brought to us. As for the opposite understanding of ''....whatever he has forbidden you..'' this is inapplicable and nullified by the generality of the Shari'ah texts which prohibit the taking of anything other than from the Islamic Shari'ah, such as Allah (swt) saying:
''No by your God, they shall not become true believers until they make you judges in all disputes amongst them.'' [Al Nisa'a, 65]
And also in His saying (swt)
''They wish to refer in judgement to Taghut (evil) whilst they have been commanded to reject it.'' [Al-Nisa'a, 60]
Also such as the saying of the Messenger of Allah : ''Any action alien to our order must be rejected.'' This should be the case with every opposite understanding. If a Shari'ah text were to indicate other than what we deduce from it, then this understanding should be nullified and should not be applicable, such as Allah (swt) saying:
''And do not force your maids to commit fornication if they wished to remain chaste.'' [Al Nur, 33]
the opposite understanding of which is that if they did not wish to remain chaste, it would be permitted to force them. However, this understanding is nullified by the generality of the text which forbids fornication, which is Allah (swt) saying:
''and do not approach fornication.'' [Al Isra, 32]
Therefore, the meaning of the verse would be to abide by what the Messenger of Allah has ordered and to abstain from what he has forbidden. Hence, we must not only make lawful what Allah (swt) has made lawful, and we must forbid what Allah (swt) has forbidden. That which the Messenger of Allah has not brought to us, we do not take it and that which he has not forbidden we do not forbid. However, the non prohibition does not mean the permissibility of taking, for it is forbidden to take from other than Shari'ah, it rather means the non prohibition of that which Allah has not forbidden. This is the meaning of the verse.
If this verse were linked to Allah (swt) saying:
''Let those who violate his command beware of being struck by Fitna or by a severe punishment'' [Al Nur, 63]
if it were known that the phrase ''whatever'' in His saying ''Whatever he has brought to you'' and ''Whatever he has forbidden you'' were a term of generality, the obligation of taking what he has brought would clearly be manifested, and that the prohibition of taking from other than what he had brought would be a sin that carries a severe penalty.
Allah (swt) also says:
''No by your God, they shall not become true believers until they make you judge in matters that are of dispute amongst them.'' [Al Nisa'a, 65]
Hence, He(Allah swt) denied Iman from those who refer in their judgement to other than the Messenger of Allah in their actions, which indicates conclusively that reference in judgement should be restricted only to what the Messenger of Allah has brought.
Besides, Allah (swt) has rebuked those who wished to refer in judgement to other than what the Messenger of Allah has brought. He (swt) says:
''Did you not see those who pretend to have believed in what has been revealed to you and what has been revealed before you; they wish to refer in judgement to Taghut(evil) whilst they have been ordered to reject it; and Shaytan wishes to lead far astray'' [Al Nisa'a, 60]
This indicates that referring the judgement to other than what the Messenger of Allah has brought would be a deviation and a reference in judgement to Taghut(falsehood).
5- The Shari'ah rule is the address of the Legislator related to the actions of the servants, and the Muslims are commanded to refer in their actions to the address of the Legislator and to conduct their affairs in accordance with this address. So, even if they adopted something that does not contradict the address of the legislator in any of their actions or in any of their conducts, they would have in this case taken other than the Shari'ah rule, for they would not have taken the original Shari'ah rule, but rather that which does not contradict it, hence their adoption would not be an adoption of the Shari'ah rule. Besides, if one were to take that which conforms with the Shari'ah rule, but from other than the Book and the Sunnah, this adoption would be forbidden for it is not the taking of the Shari'ah rule, but rather an adoption of other than the Shari'ah rule that happens to agree with the Shari'ah rule. In this case it would not be a reference to what the Messenger of Allah has brought, but a reference to other than what he has brought, despite its agreement with it. This is so because the Muslim is commanded to adopt the Shari'ah rule and nothing else. For instance, marriage according to the Shari'ah is subject to a Shari'ah based offer and acceptance, with the wordings of Inkah (marrying off) and Tazwij (acceptance in marriage) and in the presence of two Muslim witnesses. If a Muslim man and woman went to a church, and a priest undertook the marriage contract on the basis of Christianity using the words of Inkah and Tazwij in the presence of two Muslim witnesses, would they be considered to be married according to the Shari'ah rule or according to other than that? In other words, would they have referred to what the Messenger of Allah has brought, or to what the distorted and abrogated Christianity has brought? Also, for instance, if a Christian died and his family were to divide his inheritance among themselves according to the rules of Islam, because Islam is fair, just or beneficial, and if they were to take a limitation of succession document from the Shari'ah court, would they have referred to the Shari'ah rule, or would they have merely taken the system because it was fair, just or beneficial? They would have undoubtedly taken other than the Shari'ah rule, because the taking of the Shari'ah rule should be taken because the Messenger of Allah has brought it, as it is part of the commands and the prohibitions of Allah (swt). Only then would its taking be considered a taking of the Shari'ah rule. However, the taking of the rule because the rule is just and fair, or because it is beneficial, is not considered taking the Shari'ah rule. The verse states ''Until they make you judge'' and it states ''And take whatever the Messenger has brought to you'',
Thus a rule should be taken on the basis of the fact that it has been brought by the Messenger of Allah . Accordingly anything that is taken on other than this basis, it would not be considered a Shari'ah rule regardless of whether this agreed with the Shari'ah rule or contradicted it and even if the same Shari'ah rule were taken as it is, but not taken because the Messenger of Allah has brought it, but rather because it is beneficial and just.
6- The Messenger of Allah's approval of the Kufr contracts is exclusive to him , in his quality as the Messenger of Allah, as his approval is legislation, just like his sayings and his actions. This quality is not conferred upon any other person but him . Therefore, whatever the Messenger of Allah performed, said, or approved is considered as legislation and it is based on the revelation. No one apart from the Messenger of Allah has the right to legislate. Hence, the contracts which the Messenger of Allah has approved have become Shari'ah rules, even if they had been contracts of the times of Jahiliyyah (ignorance). This is because their approval by the Messenger of Allah serves as evidence that they are Shari'ah rules, even if these were acts of worship. Hence, they would have been deduced from the approval of the Messenger of Allah and would have been taken on that basis, not because they had been contracts of Jahiliyyah which happened not to contradict Islam. The Sahaba (ra) used to refer to the silence of the Messenger of Allah over a rule as evidence about the rule being a Shari'ah rule. In addition, the fact that there are many incidents in which the silence of the Messenger of Allah served as evidence that they were part of the Shari'ah rules.
7- The Mubah is not that which carries no (haraj) rebuke, for the absence of rebuke from the performing or the refraining does not indicate a Shari'ah permission, nor does the lifting of rebuke necessitate the granting of choice. The prohibition of something does not mean the commanding of its opposite. Also, the commanding of something does not mean the prohibition of its opposite. The lifting of rebuke could be coupled with the obligation, as is the case in Allah's (swt) saying:
''And he who makes Hajj to the House or Umrah, there is no rebuke in making Tawaf''
[Al Baqarah, 158]
Hence, the Tawaf during Hajj and Umrah is an obligation and not Mubah. Also, the lifting of rebuke could be a Rukhsah (exception), as is the case in Allah's (swt) saying:
''Hence, there is no rebuke if you were to shorten your prayers'' [Al Nisa'a, 101]
Here, the lifting of rebuke does not mean the permissibility. Therefore, the Mubah is not that which there is no rebuke in it, rather the mubah is that which the heard evidence from the address of the Legislator has indicated the granting of choice between performing or abstaining without any other alternative. Hence, the Ibaha (permissibility) is that which the Shari'ah has granted the choice between taking and abstaining, either by directly mentioning the granting of the choice in the text itself such as Allah's (swt) saying:
''Your wives are a tilth for you, so go to your tilth, when or how you will'' [ Al Baqarah, 223]
or such as Allah's (swt) saying :
''And eat both of you freely with pleasure and delight, of things therein as wherever you will''
[ Al Baqarah, 35]
or by deducing the understanding from the text such as Allah's (swt) saying:
''But when you finish the Ihram'' [ Al Maidah, 2]
or His (swt) saying
''and when the Salat is over you may disperse'' [ Al-Jum'ah, 10]
or His (swt) saying
''Do eat from the good things We have provided for you'' [ Al Baqarah, 57]
Besides, the Ibaha is part of the Shari'ah rules, and the Shari'ah rule is the address of the Legislator related to the actions of the servants, so it requires a Shari'ah evidence from the heard evidences to indicate that the thing is Mubah in order for it to be Mubah. Hence, the absence of a Shari'ah rule about something to indicate that it is Wajib, or Mandub, or Haram or Makruh, does not indicate that it is Mubah, for it still requires a Shari'ah rule to indicate its Ibaha.
As for the things and actions which existed before the arrival of Shari'ah, such as contracts and transactions among others, their Ibaha was not a continuation of what they had been before the arrival of the Shari'ah, it is rather derived from a Shari'ah text that indicated it. Trade was mentioned by a Shari'ah text, that is Allah (swt) saying:
''And Allah made trade lawful and made usury unlawful'' [ Al Baqarah, 275]
Hiring was performed by the Messenger of Allah , for it has been reported that he hired a man from Bani Al-Dayl as a guide to show him the way. Hence, the Ibaha (permissibility) of trade and that of hire has come from a Shari'ah text, and not from its continuation from the days of Jahiliyyah. As well as being a saying from the Qur'an, or a saying from the Messenger of Allah , the Shari'ah text could also be an action, that is the action of the Messenger of Allah , and it could also be a silence, that is the silence of the Messenger of Allah . Thus whatever continued in terms of actions, things, contracts and transactions from the days of Jahiliyyah to the days of Islam, and which the Muslims continued to pursue, they would have pursued it because a Shari'ah evidence had come to indicate its Ibaha, either by a saying from the Qur'an or the Messenger of Allah , or by an action of the Messenger or by his silence , but not just by a continuation of what had existed in the days of Jahiliyyah.That which has not been established as a Shari'ah evidence, such as a saying, or an action or a silence, and had existed in the days of Jahiliyyah, should not continue and should not be taken, even if no prohibition were mentioned. A Shari'ah evidence should rather be sought for it. Hence the Ibaha of that which had existed before the arrival of Shari'ah and continued after its arrival, has been established by a Shari'ah rule related to it.
It would be wrong to say that because the Shari'ah has kept silent over it, its Ibaha has continued, and that which the Shari'ah has kept silent over and has not explained, its rule must be Mubah. This is because the Shari'ah has not kept silent over it but demonstrated its rule by an evidence related to it, and the silence of the Messenger of Allah is not considered a silence of Shari'ah, but rather a statement from Shari'ah, for the silence of the Messenger of Allah is just like his saying and his action and just like the Qur'an, i.e. a statement of a Shari'ah rule.
No Muslim has the right to say that the Legislator (swt) has kept silent over something and has not stated its rule after reading Allah's (swt) saying:
''This day I have perfected your Deen for you, completed My Favour upon you, and have chosen for you Islam as your Deen'' [ Al Ma'ida, 3]
Also His saying (swt):
''And We have revealed the Book to you explaining everything'' [ Al Nahl 16: 89]
Hence, no Muslim has the right to claim that there are situations devoid of a Shari'ah rule, meaning that the Shari'ah has completely disregarded such a situation and has not established an evidence for it. That is that the evidence did not come from either the Book or the Sunnah, or they have not given an indication through a legitimate Illah (Shari'ah reason), that which the text has mentioned either explicitly, or by way of indication, or deduction or by way of analogy, to draw the attention through this evidence or this indication to the rule related to a host of situations, whether it is Wajib (compulsory), Mandub (recommended), Haram (forbidden), Makruh (despised) or Mubah (permitted). No Muslim should hold this view, for he would be slandering the Shari'ah by claiming that it is imperfect and he would be legitimising the reference in judgements to other than the Shari'ah, thus contradicting Allah's (swt) saying:
''No by your God, they shall not become true believers until they make you judge in matters that are of dispute amongst them'' [Al Nisaa 4:65]
If the Shari'ah did not come with the rule and the Muslim adopted a rule that the Shari'ah had not come with, he would have referred in judgement to other than the Shari'ah, and this is forbidden. As he would be claiming that the Shari'ah has not come with the rules for all situations. So claiming a permission to refer to other than Shari under the pretext that Shari'ah has not come with these rules, would be a false claim. Therefore, it is inconceivable to state that whatever the Shari'ah has kept silent over is Mubah, for this would be an Ibaha to refer to other than Shari'ah, in addition to the fact that it would be a slander against the Shari'ah by claiming that it has kept silent over certain rules and has not established them. Besides, this would be in contradiction to reality, as Shari'ah has in fact not kept silent over anything at all.
As for the Messenger of Allah's (saw) saying: ''Truly Allah has decreed certain obligations, hence do not neglect them'' , this denotes the prohibition of asking about that which has not been mentioned textually by Shari'ah. It is similar to his saying (saw) : Truly the gravest sinners amongst the Muslims would be those who ask about something that has not been forbidden upon them, then it became forbidden because of their asking.There are many ahadith to that effect. It has been reported that the Messenger of Allah (saw) said : Spare me the things I have not mentioned to you, for those before you perished because of their constant asking and their arguing with their prophets; so refrain from that which I forbid you and perform to your utmost ability that which I order you''. It has also been reported that he (saw) once recited Allah's (swt) saying: ''And Allah commanded people to perform Hajj''. Upon this a man asked :''O Messenger of Allah! Is it every year?''. He (saw) did not reply. So the man asked again :O Messenger of Allah! Is it every year?''. Again he (saw) did not reply. So the man asked him a third time :O Messenger of Allah! Is it every year? Upon this the Messenger of Allah (saw) said :''By He Who owns my soul, if I said it, it will become obligatory, and if it did become obligatory you would not be able to perform it, and if you did not perform it you would be sinful. So spare me that which I have not ordered you''. Hence, the meaning of the Messenger of Allah (saw) saying : ''and He has permitted other things'', and in the narration of : ''and that which He kept silent over is a permission'', is that He (swt) has lightened your obligation, so do not ask lest you overburden yourselves. For instance, the duty of Hajj has been decreed in general terms, and someone asked whether it should be performed every year. Allah (swt) has reduced this obligation and made it once in a lifetime in order to lighten your load and out of mercy upon the people, so He (swt) has condoned and kept silent over this obligation being every year. Thus one does not look into these things and does not ask about them. Evidence about the fact that this was the meaning is the saying of Allah's Messenger (saw): ''Hence, do not look into them'' after he (saw) had said : ''And He has condoned certain things'' So, the point at issue is prohibiting Muslims from asking about things whose prohibition has not been revealed. The point at issue is not that He (swt) has not stated some of the Shari rules, for the context of the Hadith reveals the mercy of Allah (swt) upon them and His condoning. As for the other narration : ''And that which He kept silent over is a permission'', it also indicates that the issue is related to the prohibition of searching and asking about that which He (swt) has lightened for you and has not forbidden for you. Thus when something is not prohibited it is a permission from Allah (swt), in other words, that which He (swt) kept silent about its prohibition denotes a permission from Allah (swt), thus do not ask about it. This is reflected in Allah's (swt) saying:
''O you who have believed do not ask about matters which, if made plain to you, may cause you trouble''
Then He (swt) said:
''Allah has permitted them.'' i.e. those matters. [ Al Maida 5:101]