Thursday, August 06, 2009

Chapter 3: There is No Hukm Prior to the Coming of the Shar’ (continued… )

The following is the draft english translation from the Usul Al-Fiqh masterpiece of the Arabic book الشخصية الاسلاميَة الجزء الثالث (The Islamic Personality Volume 3 ) by Sheikh Taqiuddin an-Nabhani. Please refer to the original Arabic for accurate meanings.

Chapter 3 continued…
There is No Hukm Prior to the Coming of the Shar’

One issue remains: does the Islamic Shari’ah encompass the rulings of all matters that have passed, all the present problems, as well as all those matters that may occur in the future? The answer to this is that there is no event which occurs, issue which arises, or incident which takes place but that it has a hukm. The Islamic Shari’ah has encompassed all the actions of man entirely. Nothing occurred in the past, nor is there anything in the present or possible thing occurring in the future except that all these have a hukm in the Shari’ah. Allah the Exalted says:
«وَنَزَّلْنَا عَلَيْكَ الْكِتَابَ تِبْيَاناً لِّكُلِّ شَيْء»

“And we sent down to you the book explaining all things” (al-Nahl: 89); and,

«الْيَوْمَ أَكْمَلْتُ لَكُمْ دِينَكُمْ وَأَتْمَمْتُ عَلَيْكُمْ نِعْمَتِي»

“Today I have perfected for you your deen and completed upon you my favour” (al-Ma’idah: 3); thus the Shari’ah did not ignore anything from the actions of the servants whatever it be: it either gives it an evidence by a text of the Qur’an and Hadith or places an indication [amarah] in the Qur’an and Hadith drawing the attention of the mukallaf to the reason for its legislation [al-ba’ith ‘ala al-tashri’], so that it may be applied upon all that which contains this indication or cause. It is not legally [shar’an] possible that there be an action of the servant which does not have an evidence or indication which indicates upon its hukm due the generality of His saying,

«تِبْيَاناً لِّكُلِّ شَيْء»

“explaining all things” (al-Nahl: 89); and due to the explicit text that Allah has perfected and completed this deen. Thus if it is claimed that there are some realities which do not have a shar’i hukm, with the meaning that there are some actions from amongst the actions of the servants which the Shari’ah has completely ignored in that it has not given them an evidence or placed an indication drawing the attention of the mukallaf to the intent therein; if this is thought it means that there is a thing which the Book has not explained, and that this deen has not been perfected and completed by Allah the Exalted, because their exists an action whose hukm is not mentioned, so this deen is deficient. This contradicts the text of the Qur’an, thus it is an invalid claim.

Even if there are solitary ahadith, whose narration from the Messenger (saw) is authenticated, which carry this meaning, namely, that there exists some actions of the servants for which the Shari’ah has not given a hukm; the meaning [dirayah] of such ahadith is discarded because of its contradiction to a text of the Qur’an which is definitive [qat’i] in transmission [thubūt] and meaning [dalalah], because the two above-mentioned āyāt are definitive in transmission and meaning, so any solitary report which contradicts them, its meaning is discarded. Therefore is it not permissible, from any perspective, for a Muslim after understanding these two definitive āyāt to say that there exists even one reality from the actions of man that the shar’ has not clarified for it a hukm.

As for what was narrated by Ibn Majah and Tirmidhi from Salman al-Farisi that he said, “The Messenger of Allah (saw) was questioned about ghee, cheese and the wild ass, so he said, ‘The halāl is that which Allah has made halāl in his Book, and the harām is that which Allah has made harām in his Book, and on that which He remained silent, it has been conceded to you [‘afa lakum]’”, and what was related by al-Bazzar from Abu Darda’ from the Prophet (saw) that he said, “What Allah has made halāl in his Book is halāl, and what he has made harām is harām, and what he has remained silent about is a concession, so accept from Allah His concession for verily Allah does not forget anything – and he recited – ‘And your Lord is not forgetful’ (Maryam: 64)” and what was related by al-Baihaqi from the chain of Tha’labah from the Prophet (saw) that he said, “Allah has obligated the obligations so do not neglect them, and He has set the limits [hudūd] so do not transgress them, and He has remained silent about things as a mercy to you, not out of forgetfulness, so do not ask about them”; then from one perspective these ahādith are solitary reports so they cannot contradict the definitive text.

From another perspective, these ahādith do not indicate upon there being things which the Shari’ah has not expounded; they only indicate upon there being things which Allah has not prohibited out of mercy for you and has remained silent about their prohibition. Thus the subject of these ahādīth is not silence on the legislation of rulings for these things; rather it is silence on their prohibition. The meaning of ‘silence on (their) prohibition’ is not the legislating of permissibility [ibaha] for everything which is not expounded; rather this silence is the silence of the legislator with regards to prohibition and His silence on prohibition is (the legislation of) permissibility [halal], included in the scope of which is the obligatory [wajib], the recommended [mandub], the permissible [mubah], and the reprehensible [makruh], and this applies only to that about which he is silent, not to everything which has not been expounded.The meaning of the ahadith of concession [afwu] is similar to His saying,

«عَفَا اللّهُ عَنكَ»

“Allah pardon you (O Muhammad)...” (al-Tawbah: 43)

by the indication of the text of the hadīth and by the indication of the context of the ahādīth, namely, the prohibition of questioning about that which is not prohibited and then becomes so (because of the questioning). From Ibn ‘Abbas (ra) that he said, “That which is not mentioned in the Qur’an is of that which Allah has pardoned”, narrated by al-Shatibi in al-Muwāfaqāt. Ibn Shaybah narrated in his Musannaf that Ibrahim ibn Sa’d asked Ibn ‘Abbas, “What is taken from the wealth of the Ahl al-Dhimmah?” He replied, “The excess (al-afwu)”. Al-Tabari narrates in his tafsir from Ubayd ibn Umayr, “Allah the exalted has permitted and prohibited (things and actions), so whatever He has permitted take it as permitted, and whatever he has prohibited refrain from it, and He has left from that some things which He has not permitted or prohibited (expressly); that is a concession (afwu) from Allah which He has conceded.”The Prophet (saw) disliked excessive questioning regarding that about which no hukm had been revealed, on the basis of the original concession [al-bara’ah al-asliyya] since it returns to this meaning. Its meaning is that the related actions are conceded. And he (saw) said, “The worst of the Muslims amongst the Muslims is the one who asks about a thing which is not prohibited on them and consequently becomes prohibited upon them due to his questioning,” related by Muslim; and he said, “Leave me with what I have left you. Verily those before you perished only on account of their excessive questioning and their disagreements with their prophets; what I have prohibited you from stay away from it, and what I have ordered you, do as much of it as you are able,” narrated by Ahmad.

Further, Muslim and Ahmad related from Abu Hurayra that he said, “The Messenger of Allah (saw) addressed us saying, ‘O people, Allah has obligated the pilgrimage on you, so make the pilgrimage’, so a man asked ‘Every year O Messenger of Allah?’ He (the Messenger) remained silent until the man asked three times, so the Messenger of Allah (saw) replied, “If I said yes, it would be obligated, and you would not be able (to fulfill it)’ then he said, ‘Leave me with what I have left you.’ So all of this indicates that the intent of his saying, “and He was silent on things” is that He did not prohibit them, and it is similar to his saying, in another hadith, “leave me with what I have left you”. This (meaning) is supported by another narration of this same hadith, “and He conceded you things”, that is, he left them and did not prohibit them.

Therefore the meaning of his saying, “and He was silent on things” or his saying, “and that about which He was silent, is conceded” is not that the hukm of some actions of the servants has not been expounded, rather their meaning is that (some) things have not been prohibited as a mercy to you; and that which is not prohibited of specific things comes under the hukm of silence, so it is not prohibited; its hukm is that it is halal. Thus the matter is connected to the silence of the Legislator about the prohibition of things. It is not connected to the absence of the expounding the rulings of things.This is from the perspective of the meaning of the hadith. As for the perspective of the position of the hadith as far as the hukm of the Shari’ah is concerned then the actions of the legally responsible (mukallafeen) with respect to their being legally responsible are either collectively under the address of legal responsibility (khitab al-takleef) – namely the command (iqtida’) or the option (takhyīr) – or is not under this. If it is then there must be a hukm for it in the Shari’ah, as it comes under the address of legal responsibility.

If it is not, this necessitates that some of the legally responsible are outside the hukm of the address of legal responsibility, even if at one time or under one situation, and this is invalid from its basis, because if we assume him to be legally responsible then he cannot be outside the address of legal responsibility, and if we assume him to not be legally responsible then this assumption is invalid in and of itself. This is because the legal responsibility is general because of the generality of the address of legal responsibility, so it includes all situations and times. Therefore it cannot be that the meaning of his (saw) saying, “and He was silent about some things” be that He did not expound their ruling, because this meaning implies the existence of an individual who in a given state or time is not legally responsible. Hence the meaning can only be that He remained silent about the prohibition of some things.Thus the hadith does not indicate upon there being any action of man not expounded by the Shari’ah, so using it as evidence for this point is incorrect.

Consequently the legal maxim, “The original rule [asl] for the actions of man is being bound by the hukm of Allah” is confirmed. So it is not permissible for a Muslim to perform an action except after knowing the hukm of Allah about that action, from the address of the Legislator. Permissibility [ibaha] is a hukm from the ahkam of the Shari’ah, necessarily requiring an evidence. The absence of exposition by the revelation is not an evidence for permissibility; rather it is an indication (suggesting) the deficiency of the Shari’ah. The evidence for the permissibility of a thing is that the Legislator legislate (the ruling of) an option in it.This is with regards to actions. As for the things, which are related to the actions, the ‘asl with regards to them is permissibility so long as no text of prohibition is present. Therefore the original rule of a thing is permissibility; it is not prohibited except if there is a shar’i evidence for its prohibition. This is because the shar’i texts have declared all the things to be permissible, and these texts have come as general, covering all things; the Exalted says,

«أَلَمْ تَرَ أَنَّ اللَّهَ سَخَّرَ لَكُم مَّا فِي الْأَرْضِ»

“Do you not see that Allah has made subservient to you whatsoever is in the earth” (al-Hajj: 65); the meaning of subservience [taskhīr] by Allah for man of all that is on the Earth is the permissibility of all that is on it. He says, the Exalted,

«يَا أَيُّهَا النَّاسُ كُلُواْ مِمَّا فِي الأَرْضِ حَلاَلاً طَيِّباً»

“O people! Eat of what is on earth, lawful and good” (al-Baqarah: 168); and He says,

«يَا بَنِي آدَمَ خُذُواْ زِينَتَكُمْ عِندَ كُلِّ مَسْجِدٍ وكُلُواْ وَاشْرَبُواْ»

“O children of Adam, attend to your embellishments at every time of prayer, and eat and drink..” (al-A’rāf: 31); and He says,

«هُوَ الَّذِي جَعَلَ لَكُمُ الْأَرْضَ ذَلُولاً فَامْشُوا فِي مَنَاكِبِهَا وَكُلُوا مِن رِّزْقِهِ»

“He it is Who made the earth smooth for you, therefore go about in the spacious sides thereof, and eat of His sustenance” (al-Mulk: 15).

Thus have all the ayāt which permit the things come in the general form, their generality indicating the permissibility of all things. Hence if a thing is prohibited there must exist a text specifying this generality, indicating that this thing is an exception to the permissibility of all things. From here, the ‘asl of things is permissibility. Accordingly we find in the revelation, when things are prohibited, specific texts about these things specifically as an exception to the general texts; so the Exalted says:

«حُرِّمَتْ عَلَيْكُمُ الْمَيْتَةُ وَالْدَّمُ وَلَحْمُ الْخِنْزِيرِ»

“Forbidden to you is that which dies of itself, and blood, and flesh of swine..” (al-Ma’idah: 3);

and he (peace be upon him) said, “Khamr is forbidden in and of itself”, mentioned in al-Mabsūt from Ibn ‘Abbas; thus that which the revelation prohibits is an exception from the general texts and is contrary to the ‘asl, which is permissibility.It should not be said that the thing is inseparable from the action of the servant, so its hukm comes from the hukm of the action, and it takes the hukm of the action. This should not be said because the things, notwithstanding that they are necessarily connected to the actions and that their evidence comes from the exposition of the hukm of the action, are different from the actions. The evidence of the action of the servant, when connected to a thing clarifies with respect to the thing two rulings alone, either permissibility or prohibition. It is not said about the hukm of a thing that it is obligatory or recommended.

Thus the ruling of the things is confined to permissibility or prohibition, and in this respect the thing is different to the action of the servant, so it does not just take the hukm of the action, even if its hukm comes in the clarification of the hukm of the action.From another perspective the generality of the evidence of permissibility and the specification of the specific thing in the evidence of prohibition makes the permissibility general for all things and prohibition specific to alone those expressly prohibited. This too makes the hukm of the thing different, with respect to the original rule and the hukm with which it is described, to the hukm of the action. The original rule of things is permissibility as long as there is no evidence of prohibition, and the original rule for actions is being bound by the legal hukm. Further, things are not described except by permissibility or prohibition, contrary to the actions, with respect to which the address of the legislator is of two types: takleef and wad’. The former is of five types: the obligatory, the recommended, the prohibited, the reprehensible and the permissible. The latter is also of five types: the cause, the condition, the preventative factor, the valid, invalid and void, and the original rule and concession. The sum (of the above discussion) is that it is not permitted, after the advent of our Master Muhammad (saw) to all of mankind, to say that there is an action or thing which has no hukm. Nor is there any hukm of a thing or action without an evidence from the revelation, because a hukm is the address of the Legislator. Nor it is permissible to say that all that which the revelation has not expounded a hukm for is permissible, because the permissible is a legal hukm itself, as it is the address of the Legislator of conferring choice related to the actions of servants. The claim that there are things whose hukm has not been clarified by the Legislator means that there are things which the Qur’an has not clarified and that the Shari’ah is deficient. This is incorrect as it contradicts the definitive text, in transmission and meaning, of the Qur’an.

Thus there is no action possible of being done by man, nor a thing connected to the action of man except that it has a hukm in the Shari’ah, and there is no hukm except after the presence of an evidence from the address of the Legislator indicating upon this specific hukm, because there is no hukm before the coming of the revelation. Thus there is no hukm before the coming of the Messenger, and there is no hukm after his coming except with an evidence from the revelation he came with indicating upon that hukm.

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