Chapter 9: The Prohibition [al-Harām] & The Permissible [al-Mubāh]
The following is a translation from the Usul Al-Fiqh masterpiece of the Arabic book “The Islamic Personality Volume 3” by Sheikh Taqiuddin an-Nabhani. Please refer to the original Arabic for accurate meanings.
The Prohibition [al-Harām]
The prohibition is that which textual evidence indicates upon as being the address of the legislator with a decisive request to abstain from an action. The one who performs it is legally blameworthy, and it is synonymous with al-mahdhūr.
The Permissible [al-Mubāh]
The permissible is that which textual evidence indicates upon as being the address of the legislator with a choice given in it between performance and abstention, without one being preferred over the other. The permissibility [ibāhah] is from the legal rulings, because it is ascertained from the legislator’s address, and cannot otherwise be established. The ibāhah is not the removal of harm from the commission of an action or its omission. If this were the case then its legislation would be established before the advent of the revelation, whilst there is no revelation prior to its coming. Rather the ibāhah is that which the address of the legislator came with of choice between performance and abstention. It is established from the revelation and after its advent; hence it is from the ahkām shari’ah.
The legal rulings in which permissibility has been established must each be based on the revelation. These rulings are not that about which the revelation is silent, such that it neither prohibits nor allows them. As for what was narrated by al-Tirmidhi from Salman al-Farisi (ra) that he said, “The Messenger of Allah (saw) was questioned about ghee, cheese and fur, so he said, ‘The halāl is that which Allah has made halāl in his Book, and the harām is that which Allah has made harāmin his Book, and on that which He remained silent, it is from that which He has conceded [‘afa ‘anhu]’”, this does not indicate that that which the Qur’an is silent on is mubāh. This is because there are things prohibited and permitted in the Hadith, and it is authenticated from the Prophet (saw) that he said, “Indeed I have been given the Qur’an and its like with it” (Ahmad). Hence the meaning in the above Hadith is that which the revelation remained silent on.
Yet the revelation remaining silent about something does not mean that it is permissible because his (saw) saying in the hadith, “The halāl is that which Allah has made halāl” includes everything that is not prohibited, so it includes the wājib, the mandūb, the mubāh, and the makrūh, since it is true of all of these that they are permissible in the sense that they are not prohibited. Therefore ‘that which He remained silent on’ does not mean that it is mubāh.
As for his (saw) saying, “on that which He remained silent, it is from that which He has conceded”, and his (saw) saying in another hadith, “and that which He remained silent on, then it is a concession” (Bayhaqi), and his saying in another hadith, “and He has remained silent about things as a concession to you, not out of forgetfulness, so do not ask about them” (Bayhaqi), the meaning of His silence on things is His making them halāl, such that His making them halāl is considered a concession from Allah, and a mercy to the people. This is by the evidence of the saying of the Messenger (saw) narrated in the hadith of Sa’d ibn Abi Waqqas, “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,” (Muslim), referring to the one who asks about a thing about the prohibition of which the revelation is silent.
Thus silence in this ahādith is silence from prohibition, not silence from clarifying the hukm shar’i. The later interpretation is not tenable since Allah has not remained silent from clarifying the hukm shar’i. To the contrary He has clarified it in all things, as He (swt) says,
“And we sent down to you the book explaining all things” (al-Nahl: 89); thus the mubāh is not that which the revelation is silent on, rather it is that which the revelation expounds as being mubāh. Further, the rulings of permissibility all come with their specific evidence. Thus the permissibility of hunting is clear in His (swt) saying,
«وَإِذَا حَلَلْتُمْ فَاصْطَادُوا»
“And when you remove the ihram then go forth and hunt” (al-Ma’idah: 2); and the permissibility of spreading out after salat al-jumu’a is clear in His (swt) saying,
«فَإِذَا قُضِيَتِ الصَّلَاةُ فَانْتَشِرُوا»
“Then when the prayer is completed, disperse…” (al-Jumu’a: 10); and the permissibility of trade is clear in His (swt) saying,
«وَأَحَلَّ اللَّهُ الْبَيْعَ»
“And Allah has permitted trade” (al-Baqarah: 275); and the permissibility of leasing [ijārah], agency [wakālah], mortgaging [rahan] and the like are all clear in their evidences. Therefore ibāhah is a legal ruling the establishment of which requires legal evidence.