The job of alienating the Muslims from the restriction with the hukm shar’i takes different styles. One of the most evil styles is what some people claim that the opinions of the Mujtahid Imams, like ash-Shafi’i, Ja’far as-Sadiq or Abu Hanifah are not hukm shar’i but rather opinions (ra’i) to them, and it is not necessary to abide by them. They claim that the hukm shar’i is only the Qur’an and the hadeeth. Based on that, the ahkam shar’iyyah are confined to what came explicitly in the text, and can be understood from it by nothing more than reading. Accordingly, many new problems, and various incident cases, which did not come in shar’i text, are left without hukm shar’i. So, everybody deals with them according to his own opinion, and his mind controls them, thus giving the solution he sees and the hukm that agrees with his desires. This is, indeed, a manifest sin, a lie against the Islamic sharee’ah, suspension of Ijtihad and turning the people away from the ahkam of Islam. This is because the Kitab and Sunnah are the two source of the Islamic sharee’ah. They came as broadlines and general imports. Their texts came as legislative expressions that indicate on reality and incidents, so they are understood in a legislative way. This adoption is made of their mantooq, which is the meaning indicated by the expression, their mafhoom, which is the meaning indicated by the meaning of the expression, and their iqtidaa,which is the meaning indicated by the mantooq and mafhoom. These expressions have linguistic meanings and legislative meanings. These sharee’ah texts have other tests from the Kitab and Sunnah which specify them (takhsees) in case they are ‘aamm (general); and they restrict them (taqyeed) in case they are mutlaq (not restricted). These are also concatenations (qaraa’in) which determine their required meaning and the hukm they require, such as the indication of the order as being for obligation (wujoob), preference (nadb) or allowance (ibahah); and the indication of the forbiddance as being for prohibition (tahreem) or dislike (karahah). The texts can also be specific over an incident or general in everything; beside other matters that the texts of the Qur’an and the hadeeth contain. Therefore, they are understood in a legislative way and not in a literal (zaahiri) way or a logical way. That is why difference could happen in understanding the same text, and accordingly two different or opposite opinions could be understood of it. This is in the aspect of the indication of the expression. Moreover, there is also difference over the proof of the hadeeth, in term of its authenticity; thus leading also to difference over accepting or rejecting the hukm deduced from it. It results from all of that the difference in the opinions, whether a particular meaning is the hukm shar’i or it is the opposite or the other meaning. All of these opinions are indicated by the shar’i text, so they are all hukm shar’i, regardless of whether they are variant, different or opposite. This is the hukm shar’i is (the Legislator’s speech pertaining to men’s actions). The Legislator’s speech brought by the wahy (revelation) needs to be understood by the one who is addressed with it so as to be a hukm shar’i with his regard. This is because the text needs to be understood so as to act upon it. The Legislator’s speech becomes hukm shar’i when it is understood from the indication of the text after the text was proved to be Qur’an or hadeeth. Before the text has been proven and its indication has been understood, it would not be considered a hukm shar’i. Therefore, what made the text a legislator’s speech is its understanding. Accordingly, the opinion of the Mujtahid is a hukm shar’i as long as he depends in it on the Kitab and Sunnah, or to any of the adillah sharee’ah (divine evidences) indicated by the Kitab and Sunnah.
Therefore, the opinion of the previous mujtahideen of the authors of the madhahib (schools of thought) and others are ahkam shar’iyyah. The opinions of the mujtahideen today are also ahkam shar’iyyah, as long as they deduced them through a proper way, depending in them on the adillah sharee’ah. The Prophet (saw) agreed to consider the understanding of the text as hukm shar’i, and he agreed on the difference in that. This is because after the departure of the confederates in the battle of the trench (ghazwat ul-khandaq), he (saw) ordered somebody to make adhan (announcement) in the people.
“Whoever is hearing and obeying let him not pray the ‘asr (afternoon prayer) except in Bani Quraizah.”
Some of the people understood refraining from the ‘asr prayer in Madinah, so they did not pray till they reached Bani Quraizah. Some others understood the aim of that is the hurry, so they prayed the ‘asr and marched to Bani Quraizah after performing the ‘asr prayer. They submitted that to the Rasool (saw), so he agreed on both understandings and acknowledged them. The Sahabah (ra) used to differ in understanding the Qur’an and the hadeeth, and they have, in that, different views. Everyone of their opinion is a hukm shar’i, and they unanimously agreed that the opinion understood by any Mujtahid from the text is a hukm shar’i.
Thereupon, the Sunnah and ijmaa’ us-Sahabah indicate that the opinion deduced by any Mujtahid is considered hukm shar’i which must be restricted to by the one who deduces it, everyone who accepts this understanding or everyone who imitates him in that
The origin, in regards to the actions, is the restriction to the ahkam of Shar’, and not Ibahah (allowance) or tahreem.
The mubah is what the textual evidence (daleel sami’) indicated of the Legislator’s speech of (giving the) choice, regarding it, between action or abstention without (another) alternative; or it is what the person is given, regarding it, the choice between legally doing it or abstaining from it.
Ibahah is from the ahkam shar’iyyah, so the mubah is a hukm shar’i. The hukm shar’i needs an evidence (daleel) to indicate it. Unless there is an evidence to indicate it, it would not be a hukm shar’i. Thus, knowing that the hukm of Allah in the action is mubah needs a daleel shar’i (legal evidence). The absence of the daleel shar’i (legal evidence) does not indicate the action is mubah. This is because the absence of the daleel does not indicate the presence of the Ibahah hukm (rule of allowance), and nor the presence of any hukm. It rather indicates of the absence of a hukm to it, and the necessity of seeking for the evidence in order to know the hukm of Allah (swt) on it, so as to decide his position from it. This is because the cognizance of the hukm of the shar’i on the action is obligatory upon every accountable person, in order to decide his position towards the action; whether he undertakes it or abstains from it. Ibahah is the Legislator’s speech in giving choice between doing or abstaining. So, unless the Legislator’s speech is known, then the hukm shar’i will not be known; and unless these is a legislator’s speech in giving ibahah, then the hukm of ibahah will not exist. This is because there is not hukm for the actions of discerning people before the advent of shar’i. Thus the hukm, in terms of the action being mubah, mandoob, fard, makrooh or haram depends on the presence of textual evidence over these ahkam. Without the presence of textual evidence, it is not possible to give the action any of the ahkam. So, we cannot judge of the hukm of ibahah (allowance) or hurmah (prohibition), or others of the five ahkam, unless there is a textual evidence to indicate that. This does not mean to abstain from seeking the hukm of Allah (swt) about the action, and thus suspending the ahkam of Shar’ or abstaining from discharging the life’s responsibilities, under the pretext of not knowing the rule of Allah (swt) about them. All of that is not allowed by Shar’. It rather means the action of man needs to know the hukm of Allah (swt) about it, and this necessitates the search for the adillah sharee’ah (legal evidences) and applying them on that action, so that the hukm of Allah (swt) about the action, is known to be whether it is mubah, haram, fard, makrooh or mandoob. This is because the criterion of actions, in the view of Muslims, is the orders and forbiddings of Allah. Allah (swt) obliged every Muslim to examine every action he approaches it, so as to know the hukm of Allah (swt) about it, before he undertakes it, or whether it is haram, wajib, makrooh, mandoob or mubah. Every action, there is one of the mentioned five rules that pertains to it. So it must be wajib, haram, mandoob, makrooh or mubah. Every action the Muslim undertakes, he must know the hukm of Allah (swt) regarding it before he acts upon it; this is because Allah will question him about it. Allah (swt) says:
“Then, by your Lord, We shall question every one of what they used to do.” [TMQ Al-Hijr: 92-93]
And He (swt) says:
“And you (Mohammad) are not occupied with any matter, and not recite a lecture from this (scripture) and you (mankind) perform no act, but We are witness of you when you are engaged therein.” [TMQ Yunus: 61]
The meaning of that Allah (swt) informs His servants that He is witness of their actions is that He accounts them and questions them about them. The Rasool (saw) has explained the necessity of that action be in accordance of the rules of Islam.
He (saw) said: “Whoever did an action that is not according to our matter (deen), it is rejected.”
The Sahabah (ra) continued to ask the Rasool ul-Allah (saw) about their actions, so as to know the hukm of Allah about them before they undertook them. Ibn al-Mubarak narrated from ‘Uthman bin Maz’oon came to the Prophet (saw) and said, “Do you permit me to be castrated?” The Prophet (saw) said: “No one of us (is allowed to) castrate or be castrated; and the castration of my ummah is fasting (siyam).” He said, “O Rasool ul-Allah, do you allow me to make travel (siyahah) in the land?” He said: “The siyahah (travel) of my Ummah is the Jihad fee sabeeli Allah.” He said, “O Rasool ul-Allah, do you allow monasticism?” He said: “ Monasticism of my Ummah is the sitting in the mosques waiting the prayer.” This is explicit that the Sahabah did not engage in any action except after they asked about it, before undertaking it, so as to know the hukm of Allah (swt) about it. Had the origin of actions been the ibahah (allowance), then they would have done it and did not ask about it; and so if Allah (swt) prohibited it they abstained from it, otherwise they would continue on doing it; and they would have not been in need to ask.
As for the silence of the Legislator about some actions, where the hukm of Allah (swt) about them was not shown, though people used to do them; this does not mean that the lack of giving an opinion by the Legislator, whether in word or action is an evidence of allowing the actions which there is not any explicit text about them, whether in word or action. The silence rather means that the actions undertaken before the Rasool (saw), or he knew the people used to do them within the boundary of his authority, is an evidence on allowing these actions only, and not allowing actions absolutely. This is because the silence of Rasool ul-Allah (saw) about the actions, i.e. his acceptance of them, is an evidence of the ibahah (allowance) of these actions. This is because the silence about the action is considered of its ibahah if that was with his (saw) knowledge, such that it was done before him, or he knew of it. While his (saw) silence about the action, without his knowledge of it, or about the action that took place outside his domain of authority, even if he knew of it, is not called silence that is considered of the adillah sharee’ah (legal evidences).
The silence that is considered as a daleel of ibahah is the silence of the Rasool (saw) and not, the silence of the Qur’an. This is because Qur’an is the word of Allah (swt); and Allah knows what was of actions and what is going of them and what will be. The non-demonstration of the rule of an action by Qur’an is not considered that it was silent about it. Rather the silence about an action that is considered as a daleel is the silence of the Rasool (saw) about it with his knowledge of it. In other words, the action is done before him, or it is done within the domain of his authority with his knowledge and he remained silent about it.
Some of the Sahabah have considered the ‘azl (discharge of semen outside women’s private parts) as allowed because of the silence of the Prophet (saw) about it. So they said, “While Rasool ul-Allah (saw) was amongst us.” This is because saying (while the Qur’an was revealed) is an indication of the presence of the Rasool (saw) among them. Some Mujtahids also used, as evidence for allowing eating the lizard meat, the silence of the Prophet about its eating. It was narrated that, “The lizard was eaten at the table (ie before him) of the Prophet and he did not eat from it.” So his (saw) silence about the Sahabah while they were eating the lizard at his table (ie before him) is an evidence of allowing eating it. Thus, the silence of the Legislator about the action with its knowledge of it is an evidence of its ibahah (allowance). However, the Legislator’s non-demonstration of the hukm of an action is not an evidence of its ibahah. There is a quite difference between the silence and absence of demonstration regarding the indication.
It appears from all of this that the actions of men, in origin, have a hukm shar’i, which is required to be sought from the adillah sharee’ah (legal evidences) before undertaking the action. Judgement on the action of being mubah, fard, mandoob, haram or makrooh depends on the knowledge of the textual evidence upon this hukm, from the Kitab, Sunnah, ijmaa’ or qiyas.